IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2017 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO.3382/2017 BETWEEN SRI. VIJAY KUMAR @ VIJAY, AGED ABOUT 24 YEARS, S/O. LATE VASAVARAJ, R/AT. NO.149, 1ST MAIN, 8TH CROSS, KALYAN NAGAR, MUDALAPALYA, BENGALURU-560 040.
... PETITIONER (By SRI. PRABHUGOUD B. TUMBIGI, ADV.,) AND:
1. THE STATE OF KARNATAKA, BY JAGAJEEVANRAM POLICE STATION, BENGALURU, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560 001.
2. SMT. GEETHA HARISH, AGED ABOUT 39 YEARS, W/O. HARISH APPAREDDY, R/AT. NO.243/2, WEST OF CHORD ROAD, SHIVANAGAR, BENGALURU-560 003.
... RESPONDENTS (By SRI. S. RACHAIAH, HCGP FOR R.1) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 09.03.2016 PASSED BY THE LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN CRL.R.P.NO.456/2015 AND SET ASIDE THE ORDER DATED 20.06.2013 PASSED BY THE III A.C.M.M., BENGALURU IN C.C.NO.28524/2009 ON I.A. FILED U/S 239 OF THE CODE OF CRIMINAL PROCEDURE BY THE PETITIONER HEREIN AND CONSEQUENTLY ALLOW THE DISCHARGE APPLICATION FILED U/S 239 OF CODE OF CRIMINAL PROCEDURE BY THE PETITIONER BEFORE THE COURT TRIAL COURT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard the learned counsel for the petitioner and learned High Court Government Pleader for the State. Perused the records.
2. The petitioner has approached this Court seeking quashing of the order passed by the III Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.28524/2009 and also the order passed by the LVI Additional City Civil and Sessions Judge, Bengaluru in Crl.R.P.No.456/2015, wherein both the Courts have refused to discharge the accused under Section 239 of Cr.P.C. for the offences punishable under Sections 379, 419, 420, 468 and 471 of IPC r/w Section 34 of IPC.
3. The brief factual aspects of the case are that accused Nos.1 to 3 have committed the above said offences and it is specifically investigated by the I.O. that accused No.1 was working as a driver of the car of a lady by name Smt. Geetha Harish and he was in need of money. In collusion with accused Nos.2 and 3, he managed to steal the blank signed cheque leaves of said Smt. Geetha Harish, which was kept in her car. On various dates got those cheques presented before the bank and withdrawn various amounts from her S.B. Account. In this context, on 14.09.2007 when accused Nos.2 and 3 i.e., petitioner and accused No.2 were presented cheque for withdrawal of an amount of Rs.1,92,000/-, the Manager of the bank suspected the said two persons and informed the police and the police immediately took accused Nos.2 and 3 to their custody and brought to the police station. Thereafter, they investigated the matter and found all the accused persons co-jointly joined hands for the purpose of committing the above said offences. Accordingly, charge-sheet came to be lodged.
4. Accused No.3 (petitioner herein) made an application under Section 239 of Cr.P.C. on the grounds that except showing the presence of accused No.3 along with accused No.2, there is no other material to connect him to the offences alleged in this particular case and further there is no relationship between the accused Nos.1 to 3 has been established in the charge-sheet papers. Therefore, accused No.3 (petitioner herein) is entitled for discharge. The Trial Court giving opportunity to the other side has considered the materials on record and on facts found that, on 14.09.2007 accused Nos.2 and 3 were arrested red- handed in the bank when they were attempting to withdraw the amount by presenting cheque of CW1. The Trial Court has also relied upon the voluntary statement of the accused and statements of the witnesses with reference to the identity of the accused and as well as their presence in the bank and also with reference to the commission of the offence. The Trial Court on the basis of the materials available on record, particularly considering the statement of the Bank Manager and others has specifically came to the conclusion that there are certain materials which create serious doubt with regard to the complicity of accused No.3 in the crime alleged against him.
5. Likewise, the Revision Court has also reappreciated the materials on record and considered the statement of the witnesses, particularly CWs.1 and 2 and also the bank officials who have suspected the conduct of accused Nos.2 and 3 and came to the conclusion that there are certain materials which are sufficient to proceed against the accused No.3. Accordingly, both the Courts recorded finding that the accused No.3 is not entitled for discharge.
6. When both the Courts have laid their hands on the factual aspects of the matter, the High Court while exercising powers under Section 482 of Cr.P.C. normally should not interfere with the factual aspects considered by the Trial Court and the Revisional Court. Even otherwise, as could be seen from the materials on record, on the date of the incident particularly both the accused persons were present and according to the bank officials, both of them have presented the said cheque for Rs.192,000/-. Even materials also show that on the prevision occasions also, accused No.3 has accompanied accused No.2 to the bank for the purpose of withdrawal of the amount. The bank officials have also stated that this person was also there with accused No.2 and both of them were about to withdraw the amount. Therefore, on suspicion he informed the police. Though the voluntary statements of the accused persons are not admissible at this stage, but during the course of evidence, if it is established that statement of the co-accused has been corroborated with the material on record, the Court has to consider whether such material are reliable and can be relied upon by the Court.
7. At the time of framing of the charges, the Court has to look into the material on record not meticulously going to the statement of the accused. If the court is of the opinion that there is doubt arise with regard to the complicity of the accused, that doubt itself is sufficient to frame charges.
8. The Apex Court in its decision reported in 2012 (9) SCC 460 between Amit Kapoor vs. Ramesh Chander has categorically held that even the materials available on record are sufficient to frame the charges and if there is doubt with regard to the complicity of the accused, it should be tested during the course of the full-fledged trial. The court should not look into merits and demerits of the case at the time of considering the application for discharge.
9. Looking to the above said facts and circumstances, when both the Courts on facts came to the conclusion that there is doubt with regard to the complicity of the accused, then that should be tested during the course of full-fledged trial. It is also observed in the above said decision that though there are no limits with regard to the power of the Court under Section 482 of Cr.P.C., but the more power, more due care and caution has to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, when the charges are framed in terms of Section 228 of Cr.P.C. should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. I do not find that this case falls under the rarest of rare cases in order to exercise power under Section 482 of Cr.P.C., particularly on facts two Courts have rendered their opinion with regard to the complicity of the accused. Hence, I do not find any strong reasons to interfere with the orders. Hence, the petition deserves to be dismissed.
10. However, it is contended by the learned counsel that accused No.3 is a college going student and the trial may kindly be expedite. There is no unreasonable prayer sought for in this regard. Therefore, I direct the Trial Court to expedite the trial as early as possible preferably within a span of one year from the date of receipt of copy of this order.
The petition is dismissed accordingly.
In view of dismissal of the petition, I.A.No.1/2017 does not survive for consideration and the same stands dismissed.
PMR Sd/- JUDGE