IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2705/2016 c/w CRIMINAL PETITION NO.1473/2016 IN CRL.P.NO.2705/2016 BETWEEN:
SMT. SUMATHI GIRIDHAR AGED ABOUT 40 YEARS WIFE OF MR. V. GIRIDHAR RESIDING AT FLAT NO.C-1305 BRIGADE MILLENNIUM, J.P.NAGAR 7TH PHASE BANGALORE – 560 078.
... PETITIONER (BY SRI VIKHAR AHMED B., ADVOCATE) AND:
SHRI RAMAKOTEWARA RAO DARA AGED ABOUT 45 YEARS S/O SHRI PURUSHOTTAM DARA RESIDING AT FLAT NO.G-12, CASSIA BLOCK, BRIGADE MILLENIUM, J.P.NAGAR 7TH PHASE BANGALORE – 560 078.
(BY SRI R.R. DESAI, ADVOCATE) ... RESPONDENT THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.1996/2016 FROM THE FILE OF COURT OF THE LEARNED XLIV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALORE VIDE ANNEXURE-A AND ETC.
IN CRL.P.NO.1473/2016 BETWEEN:
SMT. SHOBHA RAGHAVAN AGED ABOUT 42 YEARS WIFE OF MR. RAGHAVAN RESIDING AT FLAT NO.105 CASSIA BLOCK, BRIGADE MILLENIUM J.P.NAGAR 7TH PHASE BANGALORE – 560 078.
(BY SRI VIKHAR AHMED B., ADVOCATE) AND:
SHRI RAMAKOTEWARA RAO DARA AGED ABOUT 45 YEARS S/O SHRI PURUSHOTTAM DARA RESIDING AT FLAT NO.G-12, CASSIA BLOCK, BRIGADE MILLENIUM, J.P.NAGAR 7TH PHASE BANGALORE – 560 078.
(BY SRI R.R. DESAI, ADVOCATE) ********* ... PETITIONER ... RESPONDENT THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.1601/2016 PENDING IN THE COURT OF THE LEARNED XLIV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALORE AND ETC.
THESE PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Common questions of law and fact are involved in both these petitions.
2. Learned counsel appearing for the parties are heard and the matter is disposed of by this common order.
3. Respondent herein submitted two private complaints before the V Additional Chief Metropolitan Magistrate at Bengaluru in PCR No.389/2016 and PCR No.15747/2014. In both the complaints, identical allegations were made to the effect that petitioners (hereinafter referred to as respective accused) sent misleading text messages on 06.04.2014 on e-mail and thereby committed the offences punishable under Sections 120(A) & (B), 153-A, 211, 319, 321, 323, 499, 500, 501, 504, 506 read with Section 34 of IPC and Section 66-A of Information and Technology Act, 2000. On taking cognizance of the alleged offences, learned Magistrate recorded the sworn statement of the respondent/complainant and by orders dated 18.01.2016 and 16.01.2016, issued summons to the petitioners herein to face trial for the above offences.
4. Learned counsel for petitioners contends that the averments made in the complaints and the contents of the sworn statement do not disclose commission of any of the above offences by the petitioners. Learned Magistrate has mechanically passed the impugned orders without applying its mind to the facts of the case. There are no averments whatsoever in the entire complaint and in the sworn statement constituting the offences under Sections 153-A, 211, 319, 321, 323, 500, 501, 504 and 506 of IPC. Learned Magistrate also failed to note that in view of the bar contained under Section 196 of the Code of Criminal Procedure, learned Magistrate could not have taken cognizance of the alleged offences under Section 153-A of IPC based on the private complaints lodged by the complainant without prior sanction. Further he pointed out that even though Section 66-A of the Information and Technology Act is struck off from the statute with effect from 24.03.2015, learned Magistrate has even taken cognizance of the said offence which indicates total non-application of mind and for all these reasons, the impugned orders as well as the proceedings initiated against the petitioners are liable to be quashed.
5. Refuting the submissions, learned counsel for respondent, referring to the averments made in the private complaints as well as in the sworn statement would submit that the said averments prima facie make out the ingredients of the above offences and hence, there is no reason to quash the proceedings.
6. I have considered the submissions and have perused the records.
7. From a reading of the private complaints, it could be gathered that some unpleasant incident appears to have taken place on account of the children playing in the common area of the Apartment complex, wherein the complainant and the petitioners were residing. In this background, there were exchange of e-mails between the petitioners and the respondent. One of such e-mail which has triggered the dispute reads as under:
“Dear all, The issue of children playing in cassia premises has been a long pending issue and a controversial issue for a long time.
While the association had come up with solutions to this problem in SGM, AGM, etc….., those solutions are practically not feasible to be implemented.
There are residents who abuse the children very badly and in real foul language..
The ground floor residents Mr.ram and Latha have shown resistance to children playing in the common area and every day we are observing that they confiscate the cricket balls from children and refuse to give it they also use foul language on the kids. This behavior is totally unacceptable.
No one has a right to prevent children from playing in common area and if it has to be done, I think we need to reform our bye-laws. As responsible citizens, if we are kind enough to use the west entrance and the cassia ramp entrance for entry and exit, the problem of ball hitting people, etc……can be solved.
Let us not deprive the kids of the joy of playing for selfish motives of a few people.
Regards Sumathi.”
8. The said e-mail was duly replied by the respondent. But a reading of the sworn statement recorded by the learned Magistrate, in my opinion, does not make out the ingredients of any of the offences alleged against the petitioners. The said sworn statement is cryptic and it reads as under:
“SWORN STATEMENT I am the complainant. I know the accused Shoba Raghavan. I am residing at plot No.G-12, Brigade Millenium, 7th phase, J.P. Nagar, Bangalore from 2005 along with my wife and 2 daughters. I am a graduate of MCA from Osmania University, Hyderabad. I am presently working as Sr. Executive position i.e. delivery Manager in Manthan Software service at Bangalore. My present annual income is 30.5 lakhs.
Accused is residing in plot No.1305, of Cassia Block, Ground floor at Millenium 7th phase, J.P. Nagar, Bangalore from more than 5 years. My plot is at ground floor at Brigade Millenium. There were 900 plots in the said complex. No illwillness between me and the accused. I am oppsing the children who played game like cricket, volley ball, foot gall etc. in front of my house in the ground floor.
On 7.4.2014 I found misleading electronic text message on the internal E- communication social channel against me and my wife. The said text message is false. On the I am not stated to the children that I will kill you play here. The accused pu threat to me that you buy another property near skyu and more. The said 60 next messages are published to the entire community including my friends, colleagues. Therefore I have been mentally harassed and that my reputation has been decreased in the eye of friends, colleagues etc. the said message are published by the accused. Therefore I request to take suitable action against the accused. I have produced the copies of the text messages.”
9. As could be seen from the above statement, the respondent/complainant has not averred any specific instances giving rise to any criminal offence much less the offences under Section 153-A or Sections 211, 319, 321, 323, 500, 501, 504 and 506 of IPC. The complainant has not referred to any offending statements alleged to have been exchanged between the petitioners and the respondent, which had maligned his name and reputation. Learned Magistrate has taken cognizance of these offences and has even gone to the extent of stating that he has perused the complaint, sworn statement and the documents produced by the complainant, which according to the learned Magistrate has made out a prima facie case against the petitioners.
10. But reading of the sworn statement and the proceedings conducted by the learned Magistrate disclose that no documents were referred or marked during the sworn statement of the complainant. Under the said circumstances, there was absolutely no occasion for the learned Magistrate to refer to the said documents. The impugned order is silent as to what were the documents referred to by the learned Magistrate. In the absence of any such material, learned Magistrate has committed serious error in taking cognizance of the alleged offences and issuing summons to the petitioners.
11. In this context, it may be pertinent to note that the sworn statement recorded in PCR No.15747/2014 is the replica of the sworn statement in PCR No.389/2016, which again indicates that the learned Magistrate has blindly passed the order without considering and applying its mind to the facts of the case.
12. At this juncture, learned counsel for the respondent would submit that for the fault of the Court, the parties cannot be penalized and the respondent/complainant having approached the Court with a genuine grievance, his entire complaint cannot be thrown out for the lapses committed by the Court. I would have accepted the submission made by learned counsel for the respondent, had there been any material to substantiate the accusation made against the petitioners. In view of the above submissions, I have carefully gone through the sworn statement of the complainant and I do not find anything therein which is sufficient to make out the ingredients of any of the above offences. Except a bald statement that on 06.04.2014, misleading electronic text message on the internal E-communication was made against the complainant and his wife, complainant has not stated as to how the said misleading electronic text message has maligned his reputation. These statements, even if accepted on their face value, do not make out the ingredients of any criminal offence entailing the prosecution of the petitioners. The dispute between the parties appear to be trivial and domestic in nature. As a result, the petitions deserve to be allowed.
Accordingly, petitions are allowed. The proceedings in C.C.Nos.1996/2016 and 1601/2016 pending on the file of the learned XLIV Additional Chief Metropolitan Magistrate, Bengaluru, are quashed.
Sd/- JUDGE ca