IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.228/2019 C/W CRIMINAL PETITION NOs.524/2019, 571/2019, 572/2019 AND 573/2019 IN CRL.P. NO.228/2019:
BETWEEN:
1. SRI. AVINASH PRABHU S/O PETOR PRABHU AGED ABOUT 45 YEARS R/AT F-3, HULKUL RASIDENCY 81, LAVELLE ROAD RICHMOND CIRCLE BENGALORE – 560 001.
2. SMT. KAREN ANN PAIS PRABHU W/O AVINASH PRABHU AGED ABOUT 43 YEARS R/AT F-3, HULKUL RASIDENCY 81, LAVELLE ROAD RICHMOND CIRCLE BENGALURU – 560 001.
... PETITIONERS (BY SRI. ASHOK HARANAHALLI., SR. COUNSEL A/W SRI. YESHU MISHRA., ADVOCATE) AND:
1. STATE OF KARNATAKA BY HENNUR POLICE STATION BY ITS S.P.P., HIGH COURT OF KARNATAKA BENGALURU – 560 001.
2. SRI. CHRISTOPHER REGAL S/O LOURDARAJ AGED ABOUT 39 YEARS NO.34, 2ND G. CROSS RAMAIAH LAYOUT KAMMANAHALLI BENGALURU – 560 084.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE CRIME REGISTERED BY THE HENNUR POLICE IN CRIME NO.1/2019 AGAINST THE PETITIONERS FOR THE OFFENCES P/U/S 406, 420, 34 OF IPC, BASED ON THE WRITTEN INFORMATION DATED:02.01.2019, PENDING ON THE FILE OF THE 4TH ACMM COURT, NRUPATUNGA ROAD, BANGALORE CITY.
IN CRL.P. NO.524/2019: BETWEEN:
1. SRI. AVINASH PRABHU S/O PETOR PRABHU AGED ABOUT 45 YEARS R/AT F-3, HULKUL RESIDENCY 81, LAVELLE ROAD RICHMOND CIRCLE BENGALURU – 560 001.
2. SRI. DHIRAJ PRABHU S/O PETOR PRABHU R/AT F-3, HULKUL RESIDENCY 81, LAVELLE ROAD RICHMOND CIRCLE BENGALURU – 560 001.
... PETITIONERS (BY SRI. ASHOK HARANAHALLI., SR. COUNSEL A/W SRI. YESHU MISHRA., ADVOCATE ) AND:
1. STATE OF KARNATAKA BY YELAHANKA POLICE STATION CENTRAL CRIME BRANCH BANGALORE.
2. SRI. H.R. THIMMAPPA GOWDA S/O H. RAMAYYA GOWDA AGED ABOUT 66 YEARS NO.1004, B-BLOCK, VERASHIYAS VANIVILAS APARTMENTS DODDABALLAPUR MAIN ROAD PUTTENAHALLI, YELAHANKA BENGALURU – 560 064.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE CRIME REGISTERED BY THE YELAHANKA POLICE IN CR.NO.1/2019 AGAINST THE PETITIONERS FOR THE OFFENCES P/U/S 406, 417 AND 420 OF IPC BASED ON THE WRITTEN INFORMATION DATED:05.01.2019, PENDING ON THE FILE OF IV ADDL.C.M.M., BENGALURU.
IN CRL.P. NO.571/2019:
BETWEEN:
1. SRI. DHIRAJ PRABHU S/O PETOR PRABHU AGE ABOUT 43 YEARS R/AT F-3, HULKUL RASIDENCY 81, LAVELLE ROAD RICHMOND CIRCLE BENGALURU – 560 001.
2. SRI. AVINASH PRABHU S/O PETOR PRABHU AGE ABOUT 45 YEARS NO.F-3, HULKUL RASIDENCY 81, LAVELLE ROAD RICHMOND CIRCLE BENGALURU – 560 001 PRESENTLY IN J.C.
... PETITIONERS (BY SRI. ASHOK HARANAHALLI., SR. COUNSEL A/W SRI. YESHU MISHRA., ADVOCATE) AND:
1. STATE OF KARNATAKA BY THALAGATPURA POLICE STATION REPRESENTED BY SPP HIGH COURT BUILDING BANGALORE – 560 001.
2. SRI. KAPIL HISARIYA S/O DWARAKA PRASAD HISARIYA AGED ABOUT 54 YEARS R/AT NO.K-322, 3RD FLOOR USHA APARTMENT, 4TH BLOCK JAYANAGARA BENGALURU – 560 011.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE FIR REGISTERED BY THE KOTHANUR POLICE IN CRIME NO.5/2019 AGAINST THE PETITIONERS FOR THE OFFENCE P/U/S 420 AND 34 OF IPC BASED ON THE WRITTEN INFORMATION DATED:07.01.2019, PENDING ON THE FILE OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, BANGALORE CITY.
IN CRL.P. NO.572/2019:
BETWEEN:
1. SRI. AVINASH PRABHU S/O PETOR PRABHU AGED ABOUT 45 YEARS R/AT F-3, HULKUL RESIDENCY 81, LAVELLE ROAD RICHMOND CIRCLE BENGALURU – 560 001 PRESENTLY IN J.C.
2. SRI. DHIRAJ PRABHU S/O PETOR PRABHU AGED ABPIT 43 YEARS R/AT F-3, HULKUL RESIDENCY 81, LAVELLE ROAD RICHMOND CIRCLE BENGALURU – 560 001.
... PETITIONERS (BY SRI. ASHOK HARANAHALLI., SR. COUNSEL A/W SRI. YESHU MISHRA., ADVOCATE ) AND:
1. STATE OF KARNATAKA BY KOTHANUR POLICE STATION REPRESENTED BY S.P.P. HIGH COUR BUILDING BENGALORE – 560 001.
2. SRI. VINOD KUMAR D S/O LATE RAMAKANTH D AGED ABOUT 42 YEARS NO.918, 9TH CROSS J.P. NAGAR, 2ND STAGE BENGLAURU – 560 078.
(BY SRI. S. RACHAIAH., HCGP) ... RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE FIR REGISTERED BY THE KOTHANUR POLICE IN CRIME NO.5/2019 AGAINST THE PETITIONERS FOR THE OFFENCE P/U/S 420 OF IPC BASED ON THE WRITTEN INFORMATION DATED:11.01.2019, PENDING ON THE FILE OF THE 11TH A.C.M.M., BANGALORE CITY.
IN CRL.P. NO.573/2019: BETWEEN:
SRI. AVINASH PRABHU S/O PETOR PRABHU AGED ABOUT 45 YEARS R/AT F-3, HULKUL RESIDENCY 81, LAVELLE ROAD RICHMOND CIRCLE BENGALORE - 560 001.
... PETITIONER (BY SRI. ASHOK HARANAHALLI., SR. COUNSEL A/W SRI. YESHU MISHRA., ADVOCATE) AND:
1. STATE OF KARNATAKA BY KOTHANUR POLICE STATION REPRESENTED BY S.P.P.
HIGH COURT BUILDING BENGALURU - 560 001.
2. SMT. MAMATHA CHAKRAVARTHY W/O ABHIJITH CHAKRAVARTHY AGED ABOUT 38 YEARS NO.361, 3RD A MAIN, 2ND BLOCK 1ST MAIN, HBR LAYOUT BENGALURU - 560 043.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP) THIS CRIMINAL PETITON IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE FIR REGISTERED BY THE KOTHANUR POLICE IN CRIME NO.4/2019 AGAINST THE PETITIONERS FOR THE OFFENCE P/U/S 420 OF IPC BASED ON THE WRITTEN INFORMATION DATED:08.01.2019, PENDING ON THE FILE OF THE 11TH A.C.M.M., BANGALORE CITY.
THESE PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R In all these petitions the point that arises for consideration is:
“Whether multiple FIRs filed against petitioner is liable to be quashed on the ground that same is impermissible in law?”
FACTUAL BACKGROUND:
2. Complaints have been received by the different police stations situated within Bengaluru City against petitioner alleging thereunder that they were informed about apartment constructed by “Starline Retreat” and was available for sale and as such they have paid money in advance to purchase flat/s and despite assurance and promise to the complainants that construction of apartment/s would be complete and handed over, it was not done though substantial consideration amount had been received by them. It is further alleged that neither project was completed by constructing the flats nor the amount/s paid by the complainants by way of advance had been refunded when demanded. On the basis of said complaints lodged by various prospective purchasers, as noticed hereinabove, different police stations in whose jurisdiction the complainants were residing had registered the same as noted hereunder:
3. I have heard the arguments of Sri. Ashok Haranahalli, learned Senior Counsel appearing for petitioner and Sri.S.Rachaiah, learned HCGP appearing for respondent-State. Perused the records.
4. It is the contention of Sri.Ashok Haranahalli, learned Senior Counsel appearing for petitioner that allegation made in the complaints would clearly suggest that dispute is purely of civil nature and as such, complainants cannot be permitted to foist a criminal liability on the petitioner for alleged non fulfillment of contractual obligations and complainants ought to approach jurisdictional Civil Court for redressal of their grievances, if any. He would elaborate his submission by contending that for the same alleged offences multiple FIRs have been registered against petitioners only with an intention to detain the accused namely, petitioner in custody and to coerce and pressurize him to come to the terms with the respective complainants.
5. He has further contended that in Crl.P.No.228/2019 though no allegation of whatsoever is found in the complaint against second petitioner, she has been arraigned as accused only because she is the wife of first accused. Hence, by relying upon following judgments he prays for allowing the petition and quash the proceedings pending against petitioners:
(i) (2013) 6 SCC 348: AMITBHAI ANILCHANDRA SHAH vs. CBI & ANOTHER (ii) 2018 CRL.LJ 4396 (MADRAS): A JOHN VINCENT vs. GOVERNMENT OF TAMIL NADU AND OTHERS 6. Per contra, Sri. S.Rachaiah, learned HCGP appearing for respondent-State would support the case of the prosecution and he would contend that if complainants are separate individual persons residing at different places, they cannot be prevented from lodging different complaints and in such circumstances, when jurisdictional police have received different complaints, are required to register the same and proceed against the accused and successive complaints cannot be treated as a statement for being included or added to first of the FIR registered. Hence, he prays for rejection of the petition.
7. Having heard the learned Advocates appearing for parties and on perusal of records, it would disclose that petitioner herein is the Managing Director of the company known and called as “Starline Retreat” and has entered into joint development agreement with various persons across Bengaluru City for the purposes of putting up construction namely, to build residential flats and as such, proclaiming that said flats would be complete and handed over to the prospective purchasers, has invited prospective purchasers to purchase said flats and in furtherance of it has received advances from them assuring and promising of constructing a residential flat and handing over the same to them. As such, prospective purchasers having entered into distinct agreement with the petitioner have paid huge advances and prima facie it would indicate that in all petitioner has received nearly to the tune of Rs.55 Crores and in respect of five (5) different projects, which is now the subject matter of present petitions. None of the projects, which were supposed to be completed way back in the year 2011 to 2015, have been completed till date. In that background, several persons, who had paid the advances not being assured of any residential flat, have sought for refund of money and at that point of time petitioner has refused to repay them or handover a constructed flat, which has led to lodging of complaints by different persons and as such, different police stations have registered FIRs against petitioner as noted hereinabove in the tabular column.
8. Hon’ble Apex Court has held that a second FIR in respect of a same offence or different offences committed in the course of same transaction, is not only impermissible but would also violate Article 21 of the Constitution of India. In the matter of T.T.ANTONY vs. STATE OF KERALA reported in (2001) 6 SCC 181 Hon’ble Apex Court has held that registration of second Fir is violative of Article 21 of the Constitution of India. In conclusion Hon’ble Apex Court has held:
“19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC.
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC.
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution.”
9. If several persons conspire to commit offences and made overt-acts in pursuance of a conspiracy and these acts are committed in the course of same transaction, then it would be construed as one act. If there is one single conspiracy though spread over different period, yet, it would construe one single conspiracy or in other words, it is only one object of the conspiracy.
10. Hon’ble Apex Court in T.T.ANTONY’s case referred to herein supra has taken a view that there is a bar to register a second FIR by reading provisions of code of criminal procedure. It is also held that whenever second or subsequent information relating to same cognizable offence or same occurrence or same incident giving raise to one or more cognizable offences, would be a bar for registration of second FIR. Thus, it would emerge Hon’ble Apex Court has emphasized on the commonality and sameness and the truth and substance of gravaman of charges.
11. In the matter of NARINDERJIT SINGH SAHNI AND ANR. V. UNION OF INDIA AND ORS. reported in (2002) 2 SCC 210 thrust of the arguments of accused therein was that petitioner was the Managing Director/Employee/Director of a group of companies and one of the company had accepted deposits from large number of persons, who failed to repay the same despite requests and demands made and in some cases cheques issued for repayment had been returned unpaid and consequently criminal cases came to be registered against the petitioner as the principal accused in 8 cases for the offences punishable under Sections 420, 406, 409 and 120B of IPC registered under various police stations and more than 19 FIRs were pending in this connection in different States. That apart, 182 complaints under Section 138 of Negotiable Instruments Act, 1881, were also pending against the Managing Director.
12. In this background, Hon’ble Apex Court while examining the expression “personal liberty” occurring under Article 21 of the Constitution of India has held in NARINDERJIT SINGH’s case refer to supra that said expression is of the widest possible amplitude and cannot in any way whatsoever be, curbed or restricted without offending the constitutional mandate. It was further held that writ petitioners claim that issue of a single offence is to be not accepted since each individual deposit agreement shall have to be treated as a separate and individual transaction. It came to be:
“60. As regards the issue of a single offence, we are afraid that the fact situation of the matters under consideration would not permit to lend any credence to such a submission. Each individual deposit agreement shall have to be treated as a separate and individual transaction brought about by the allurement of the financial companies, since the parties are different, the amount of deposit is different as also the period for which the deposit was effected. It has all the characteristics of independent transactions and we do not see any compelling reason to hold it otherwise. The plea as raised also cannot have our concurrence.”
13. Hon’ble Apex Court in Crl.A.No.1599/2010 disposed of on 26.08.2010 between BAHUBHAI vs. STATE OF GUJARAT has held that Court has to examine as to whether both the FIRs relate to same incident in respect of same occurrence or in regard to the incidents, which has two or more parts of the same transaction. If the answer is in the affirmative, second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of different incident/crime, second FIR is maintainable.
14. Thus, it boils down to the fact that concept of sameness has to be given a restricted meaning namely, it does not prohibit filing of second FIR relating to same or connected cognizable offence. What is prohibited is, any further complaint by the same complainant and others, against same accused, subsequent to registration of code for an investigation in that regard would have already commenced and allowing the registration of further complaint would amount to improvement of original complaint.
15. The Division Bench of Andhra Pradesh High Court in the case of JAKIR HUSSAIN KOSANGI AND OTHERS vs. STATE OF ANDHRA PRADESH has held to the following effect:
“61. It appears that the contentions, same as those raised before us by the petitioners, found favour with a learned Judge of the Madras High Court in Viswapriya (India) Ltd. v. Government of Tamilnadu (2015 3 MLJ (Crl) 385). In that case two companies against which criminal complaints were registered for offences under the IPC as well as under the provisions of the Tamil Nadu Protection of Interests of Depositors (in Financial Establishments) Act, 1997 filed Writ Petitions challenging the registration of complaints as without jurisdiction. The challenge was on several grounds namely (1) that the Deputy Superintendent of Police of the Economic Offences Wing of the police had no power to investigate offences under the special enactment; (2) that the police have no power to investigate offences relating to incorporated companies; and (3) that it is only the Competent Authority under the special enactment who will be entitled to investigate into such offences. But all these contentions were negatived by the learned judge of the Madras High Court. The last contention was that there cannot be multiple FIRs. This contention was raised on the strength of the decision of the Supreme Court in T.T. Antony. This contention was accepted by the learned Judge of the Madras High Court and a direction was issued to the police not to register any fresh FIRs but to treat all further complaints as statements under Section 161 of the code.
62. Interestingly, the complaints against both the companies in the case before the Madras High Court was also that both these companies collected deposits from the public and failed to repay them and that several depositors filed complaints all over the country.”
16. It is to be noticed that no Court can issue a mandamus directing the Station House Officer of the police stations within the jurisdiction of this Court not to register any FIR, inasmuch as, it would tantamount to putting a fetter or restriction on the investigating authority and right of the victim being taken away. It is in this background, complaint in question has to be examined to ascertain as to whether there is commonality or subsequent complaints are the off shoot of earlier complaint involving same incident. If the answer is in the affirmative necessarily FIR’s in question will have to be quashed and if the answer is in negative, contention of Sri Ashok Haranahali, learned Senior Counsel appearing for petitioners will have to fall to ground. It is clear from the complaint averments that several projects have been taken up by the petitioner across the Bengaluru City. Prospective purchasers or probable buyers of the flats/buildings have been assured and promised that they would be provided with a house or a flat which would be built by the first accused. By such promise, petitioner has induced different persons to deposit the money in the company or firm whose managing partner has entered into an agreement which is an independent, distinct and separate contract by itself. The complainants who are at present residing across the city of the Bengaluru have lodged different or independent complaints and there may be instances where a person residing elsewhere other than Bangalore, were called and lured them to deposit and have also deposited. They cannot be laid that they have no right to file a complaint in the place where they are residing and such right cannot be scuttled or taken away by this Court by directing the jurisdictional police not to register such complaint/s filed/lodged by a person for the reason an FIR has already been registered.
17. The contention of learned senior counsel appearing for petitioners that in the transactions relating to the constructions of flat as aforestated, there is commonality and thereby multiple FIR cannot be filed against petitioners, though looks to be an attractive argument at first blush, it cannot be so, in as much as, contracts which have been entered into by the petitioners with the prospective purchasers of the flat are all separate, distinct and independent contracts and for more clarity on their proposition, following illustration would be apt and complete answer.
If two persons i.e., ‘X’ and ‘Y’ enter into an agreement with ‘Mr. A’ for purchasing a Flat and one of them i.e., either ‘X’ or ‘Y’ were to lodge a complaint against Mr. ‘A’ for cheating namely, for having not built the flat/house nor repaid the money, the second purchaser of the same contract were to file a second complaint, same is not required to register as there is commonality in the transaction and it is not a divisible contract.
19. However, if it is a separate and distinct transaction, there could be no commonality and each would be distinct transaction or contract giving raise to distinct cause of action and as such, separate complaint can be filed. Such situation would definitely lead to different complaints and resulting in multiple FIR’s being registered and as such, they cannot be quashed. In that view of the matter, contention raised by learned senior counsel appearing for petitioners cannot be accepted insofar as first accused is concerned.
20. Second petitioner in Crl.P.Nos.228/2019, 572/2018 and 573/2018 is the wife of first petitioner, who is arraigned as accused No.1 in all the cases. Except alleging that she was present in the office when complainant visited the office of first accused, there is no specific allegation as she being the partner or director or having participated in any act which has led to complainant lodging the complaint against her. As such, this Court is of the considered view that proceedings against second petitioner cannot be continued or investigating authority cannot be allowed to use pressure tactics against her under the guise of investigation and to that extent only, proceedings initiated against second petitioner i.e., accused No.2 will have to be quashed.
21. In the light of aforestated discussion, I proceed to pass the following:
ORDER i) Crl.P.No.228/2019 is allowed in part and proceedings initiated by Hennur Police Station in Crime No.1/2019 against petitioner No.2 i.e., accused No.2 for the offence punishable under Sections 406, 420 r/w 34 of IPC is quashed and it is made clear that the proceedings initiated by Hennur Police Station in Crime No.01/2019 against first petitioner shall be proceeded with.
ii) Crl.P.Nos.524/2019, 571/2019, 572/2019 and 573/2019 are hereby dismissed.
SD/- JUDGE DR/HJ