IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1188 OF 2015 BETWEEN:
1. NOORUL MUBIN SHINGERI S/O ABOOBKAR SHINGERI AGED ABOUT 47 YEARS, R/O FLAT NO.403, PRESIDIUM APARTMENT, K E B ROAD ATTAVARA MANGALORE-575001 2. SMT SAYEED FIRDOUSE W/O NOORUL MUBIN SHINGERI AGED ABOUT 41 YEARS, R/O FLAT NO.403, PRESIDIUM APARTMENT K E B ROAD, ATTAVARA MANGALORE-575001 (BY SRI: R B DESHPANDE, ADVOCATE) AND IBRAHIM S/O KODI MOHAMMED AGED ABOUT 64 YEARS, OCC BUSINESSMAN, R/O TIP TOP MANSON, ... PETITIONERS JANNATH NAGAR, 1ST CROSS, SAGARA-577401 ... RESPONDENT (BY SMT: GAYATHRI BHAT.H., ADVOCATE FOR SRI: P P HEGDE, ADVOCATE) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.714/2014 PENDING ON THE FILE OF PRL.CIVIL JUDGE AND JMFC COURT, SAGAR, SHIMOGGA DISTRICT.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners have sought to quash the proceedings initiated against them in C.C.No.714/2014.
2. The facts leading to the prosecution of the petitioners are as follows:-
The daughter-in-law of the complainant issued a legal notice to the petitioners. The petitioners issued a reply thereto through their counsel. Said reply notice contained a statement to the effect that “Ibrahim, who is learnt to be the master mind and criminal brain to extract a sizable amount from my clients by taking undue advantage of the situation that my clients have failed to recollect the said agreement of sale from my clients’. Hence, the complainant initiated proceedings against the petitioners under Section 200 Cr.P.C. seeking prosecution of the petitioners for the offence punishable under section 500 Indian Penal Code.
3. Learned counsel for the petitioners has raised two fold contentions. Firstly, the allegations made in the private complaint, even if accepted in its entirety, do not make out the ingredients of Section 500 Indian Penal Code. Secondly, the learned Magistrate has recorded the sworn statement of the complainant and his witnesses without taking cognizance of the offence contrary to Section 200 Cr.P.C.
4. The order sheet in C.C. No.174/2014 does not reveal that the learned Magistrate has taken cognisance of the alleged offence before proceeding to record the sworn statement. In view of Section 200 Cr.P.C., the learned Magistrate could not have proceeded to record the statement of the complainant without taking cognizance of the offence. As a result, the impugned proceedings cannot be sustained.
Consequently, the petition is allowed. The impugned order dated 09.12.2014 directing summons to the petitioners is quashed. The matter is remitted to the learned Magistrate to consider the complaint afresh from the stage of receiving the complaint and thereafter proceed in accordance with law.
Sd/- JUDGE *mn/-