IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.1649 OF 2014 BETWEEN:
1. SMT. S. PRABHA W/O L. SURESH AGED ABOUT 58 YRS NO.20/1, MARUTHI NILAYA KRISHNA ROAD, BASAVANAGUDI BANGALORE-560 004 2. MR. L. SURESH S/O LAKSHMIKANTH SHETTY AGED ABOUT 59 YRS NO.20/1, MARUTHI NILAYA KRISHNA ROAD, BASAVANAGUDI BANGALORE-560 004 ... PETITIONERS (BY SHRI. S.N. SHAMANTH, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY UPPARPET POLICE STATION, BANGALORE-560 009 2. N.M. RATHNAKAR S/O LATE MANJAPPAGOWDA AGED ABOUT 54 YRS NO.38, I MAIN ROAD, 11TH CROSS S.R. NAGAR, BANGALORE-560 027 ... RESPONDENTS (BY SHRI. NASRULLA KHAN, HCGP FOR R1;
SHRI. B.S.GURUSWAMY, ADVOCATE FOR R2-ABSENT) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE CHARGE SHEET DATED:21.8.13 FILED BY THE RESPONDENT POLICE IN C.C.NO.19586/13 PENDING ON THE FILE IX ADDL.C.M.M., BANGALORE, AS PER ANNEXURE-A.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER One Rathnakar and Siddappa entered into a partnership and started a Bar and Restaurant in the name and style ‘SUNCITI’ on January 10, 2013. Rathnakar(complainant-second respondent) filed PCR No.428/2013 against Siddappa and S.Prabha (accused No.2) before the 9th Additional CMM, Bangalore, alleging commission of certain offences. It is averred in the complaint that complainant had paid a sum of Rs.7,30,000/- through a demand draft bearing No.733369 drawn on Syndicate Bank in the name of second accused-Prabha, who is said to be the owner of the building in which the business was started. It is averred that complainant invested a further sum of Rs.8,00,000/-. In October 2012, the complainant demanded a sum of Rs.15,30,000/- from the first accused. It is alleged that first accused promised the complainant that he would repay the entire sum on or before January 5, 2013. On January 5, 2013, when the complainant demanded the money, first accused along with 6 to 7 unknown persons abused him in vulgar language and gave life threat. With these averments, he filed the instant private complaint with a specific prayer to refer the matter to the Assistant Commissioner of Police, Upparpet Police Station, Bengaluru. The learned Magistrate has referred the matter under Section 156(3) of Cr.P.C. for investigation. Police after investigation, have filed charge sheet against three accused for offences punishable under Sections 107, 504, 506, 420, 120(B) r/w Section 34 of IPC. Accused Nos.2 and 3 have challenged the charge sheet and criminal proceedings initiated against them in this petition.
2. Having heard this matter for some time and coming to a prima facie view that police had interfered in the civil cases, this Court directed the Investigating Officer to be present before the Court.
3. In response, Shri G.P.Ramesh, Sub-Inspector of Police, presently working in Bharathinagar Police Station, who at the material point of time was working in Upparpet Police Station, is present before the Court. On instructions from the police officer, learned HCGP seeks to justify the charge sheet. To a query as to what investigation has been done with regard to the offences mentioned in the charge sheet, no satisfactory answer is forthcoming nor any investigation papers are made available for perusal of this Court.
4. Shri.Guruswamy, learned advocate for respondent No.2 submitted that complainant-Rathnakar and first accused were friends. The complainant had paid a sum of Rs.8.00 lakhs to the owner of the premises (petitioner No.1). When Rathnakar called upon Siddappa to return Rs.8.00 lakhs paid to Smt.S.Prabha, Siddappa asked Rathnakar to directly contact Smt.Prabha. When contacted Smt.Prabha, she conveyed that the amount was paid to Siddappa. This led to mis-understanding between the parties and Rathnakar was forced to file a private complaint to recover his money.
5. In substance, the complaint has been filed seeking recovery of money allegedly paid or invested by the complainant with accused No.1.
6. Accused No.2 is the landlady. She had entered into an agreement to lease the premises in favour of accused No.1. It is not understandable as to how the landlady has been implicated in the complaint in a money recovery matter between the complainant and accused No.1 who are partners of a bar and restaurant. The averments in the complaint with regard to payment made to the land lady read as follows:
“9. The complainant further submits that, on 6.4.2009 the Accused no.1 taken the Advance Money paid Rs.7,30,000/- (Rupees Seven Lakhs Thirty Thousand only) in D.D.No.733369 Syndicate bank, CAO, Bangalore in favour of Accused no.2 (Smt.S.Prabha Building Owner) to pay as building advance and to start the business. The copy Advance D.D.No.733369 document is produced and Marked as Annexure-F.”
7. A careful reading of the complaint reveals that complainant and first accused had agreed with regard to certain terms of payment. Accordingly, complainant waited till January 2013. The relevant pleadings in the complaint reads as follows:
“18. The complainant further submits that, on 08/10/2012 when the complainant become very serious and asked the accused no.1 to Refund the amount Rs.15,30,000/- (Rupees Fifteen Lakhs Thirty thousand only) other wise he is going give the police compliant for misusing my goodness and also my money and also played criminal breach of trust and purposely and intentionally cheated by taking my amount.
19. The complainant further submits that, the said accused no.1 told and promised the complainant that he is going to pay the complainant’s entire amount Rs.15,30,000/- (Rupees Fifteen Lakhs Thirty thousand only) on 05/01/2013 at kanishaka hotel Bangalore.
20. The complainant further submits that, on 05/01/2013 when the complainant was very unhappy waiting with good intention hat accused no.1 is going settle his amount Rs.15,30,000/- (Rupees Fifteen Lakhs Thirty thousand only) at the time the complainant saw the accused no.1 coming near along with 6 to 7 unknown person. “ 8. It is clear from the above averments that complainant was waiting with good intention to receive the sum of Rs.15,30,000/-. When the said sum was not paid to him, he came up with the instant complaint. The prayer is also intelligently drafted in the complaint and it reads as follows:
“PRAYER WHEREFORE, it is respectfully prays that this Hon’ble court may be pleased to refer this mater to Assistant Commissioner of Police, Upparpet police station, Sub-Division, Bangalore-560 002. Under section 156 (3) of Cr.P.C for the further investigation and necessary disciplinary action against the above said accused no.1 & 2 by filing the F.I.R for the offence committed Under Section 107, 120(B), 420, 447, 504, 506 IPC, and accused no.2 given the ABATE to the accused no.1 to kill the complainant in the next coming Sunday on 13/01/2013 with the support of the Rowdies and Goondas, The cause of jurisdiction comes under Upperpet police station, and here humbly request before this Hon’ble court to refer this matter to consent ACP Upperpet police station I.O. and direct the police to protects the complainant from this harassment and see that matter should be handled with care and settle smoothly without any violation from the accused no.1 & 2 in future and do the need full in this regard, in the interest of justice.”
9. Admittedly, the premises in question is situated on Residency road which is clear from following pleading in the complaint:
“The complainant further submits that, The complainant and Accused no.1 after becoming a close friends then the accused no.1 requested the Finance help and support from complainant to start the own Business Like “Bar and Restaurant” at No.56/25, 4th Floor, enter point Building, Residence Road, Bangalore-560025.”
10. This Court can take a judicial note of the fact that Residency road does not fall within the jurisdiction of the Upparpet Police Station and the same is admitted by the Sub-Inspector of Police who is present before the Court and also by the learned HCGP. The PSI submits that premises in question falls within the jurisdiction of Bangalore Central Division. When the facts stood thus, it is rather unfortunate that the learned Magistrate without application of mind, has referred the matter under Section 156(3) of Cr.P.C. for investigation.
11. As a cherry on the cake, police without investigation have filed the charge sheet for the offences recorded hereinabove.
12. This Court in several cases has expressed its anguish when police officers have interfered in civil disputes. In a similar case, learned SPP made available a circular issued by the Director General of Police to all the police stations not to interfere in civil matters. This is yet another case in which police have abused their power.
13. In the circumstances, this petition merits consideration and it is accordingly allowed. The proceedings in C.C.No.19586/2013 pending on the file of IX Addl. Chief Metropolitan Magistrate, Bangalore, are quashed insofar as petitioners are concerned.
14. It is time that disciplinary action has to be taken against erring police officers. In the circumstances, it is ordered that a copy of this order be forwarded by the Registrar General to the Commissioner of Police for taking necessary remedial action including disciplinary action against erring police officials.
15. A copy of this order shall also be sent to the Judicial Academy to circulate among the concerned Magistrates with a direction that unless prima facie case is made out, learned Magistrates shall restrain themselves from making any reference under Section 156(3) of Cr.P.C. It is trite that a reference under Section 156(3) of Cr.P.C. will result in registration of an FIR which will entail the accused to join investigation. Therefore, reference under Section 156(3) will have to be made after carefully perusing the complaint and documents, if any, annexed to it, by a reasoned order which will disclose application of mind by the learned Magistrate.
Petition allowed. No costs.
Sd/- JUDGE Yn.