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. 3125 OF 2016 BETWEEN:
1. Smt. Sunandamma, W/o K.B. Ningegowda, Aged about 60 years, R/at Radhakrishna Road, Opp. Court, Channarayapatna – 573 116.
2. Sri. K.B. Ningegowda, S/o. Late Basavegowda, Aged about 66 years, Retired Police Head Constable, State Intelligence Police, R/at Radhakrishna Road, Opp. Court, Channarayapatna – 573 116.
3. Sri. G. Devaraju, Major, S/o. Dasegowda, Work Inspector, Hemavathi Office, Channarayapatna Town, Channarayapatna – 573 116. …Petitioners (By Sri. Venkatesh R. Bhagat, Advocate) AND:
Sri. K.B. Chaluvegowda, S/o. Basavegowda, 58 Years, R/o Vidyanagar, Hassan City – 573 201.
Presently:
Beluru Town Main Road, Keshava Krupa, Coffee Board Extension Division, Beluru. ...Respondent (By Sri. Veeranna G. Tigadi, Advocate) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the order dated 01.07.2015 vide Annexure-A in PCR No.471/2004 new C.C.No.2995/2014 on the file of II Additional Civil Judge (Junior Division) and JMFC, Hassan and further proceedings thereto against these petitioners are concerned.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Petitioners have sought to quash PCR No.471/2004 and CC.No.2995/2014 pending on the file of the II Addl. Civil Judge (Jr.Dn.) & JMFC, Hassan.
2. Heard learned counsel for the petitioners and learned counsel for respondent.
3. The respondent herein filed a private complaint against the petitioners seeking action for the offences punishable under Sections 415, 420, 406 r/w 34 of IPC. The learned Magistrate referred the said complaint for investigation under Section 156(3) of Cr.P.C. Upon investigation, the Investigating Officer submitted a ‘B’ report. The learned Magistrate rejected the said ‘B’ report and recorded the sworn statement of the complainant and one of his witness and by order dated 01.07.2015 took cognizance of the offences and issued summons to the petitioners.
4. The learned counsel for the petitioners has raised two fold contentions. Firstly, he submits that the procedure followed by the learned Magistrate is opposed to Section 200 of Cr.P.C. As per the said provision, without taking cognizance of the offences, the learned Magistrate could not have proceeded to record the sworn statement and therefore, solely on this ground, the impugned proceedings are liable to be quashed. Secondly, he contends that the complaint in question is a counter blast to the case filed by petitioner No.3 for dishonor of the cheque issued by the complainant. The sworn statement of the complainant and witnesses even if accepted on their face value do not make out any element of fraud or cheating by the petitioners so as to attract the offences under Sections 415, 420 , 406 r/w 34 of IPC. Under the said circumstances, the impugned order directing summons to the petitioners is wholly illegal and an abuse of process of Court and is liable to be quashed at the hands of this Court.
5. Refuting the submissions, learned counsel for the respondent submits that right from the inception, the respondent/complainant has taken up a specific plea that the cheque in question was issued only as a security to the loan availed by the wife of the complainant. The loan borrowed by the wife of the complainant was fully repaid and when the cheque was sought to be returned, petitioner Nos.1 and 2 insisted for interest and in this regard mediation was conducted. Inspite of that, petitioner Nos.1 and 2/ accused Nos.1 and 2 with an intent to cheat and defraud the complainant/respondent handed over the said cheque to petitioner No.2/accused No.3 and petitioner No.3/accused No.3 instituted a false proceedings based on the above cheque; this defence has been accepted even by the trial Court and the complainant has been acquitted of the alleged offence. Therefore, there is prima-facie material to proceed against the petitioners for the alleged offence and hence there is no reason to quash the order passed by the learned Magistrate.
6. Considered the submissions and perused the records.
7. Insofar as the first contention that the learned Magistrate has proceeded to record the sworn statement of the complainant without taking cognizance of the offence is concerned, a perusal of the order sheet in PCR No.471/2004 discloses that on receiving the complaint, the learned Magistrate had infact taken cognizance of the alleged offences. But, the subsequent action taken by the learned Magistrate has been quashed by this Court, by order dated 25.04.2014 in Crl.P.No.2539/2010 whereby the order dated 05.10.2009 passed in PCR No.471/2004 was set aside and the learned Magistrate was directed to record the sworn statement of the complainant and witnesses afresh and take cognizance of the offences. In view of the said order, the learned Magistrate appears to have proceeded to record the sworn statement. As learned Magistrate had taken cognizance of the offences at the initial stage itself, there is no illegality whatsoever in the procedure followed by the learned Magistrate as contended. As a result, the first contention urged by the learned counsel for the petitioners’ is rejected.
8. The next contention urged by the learned counsel for the petitioners’ is that the complaint filed by the respondent herein is not in accordance with Section 200 of Cr.P.C., also cannot be accepted. The argument of the learned counsel is that the protest petition should be in the form of a complaint and should contain all the facts as averred in the complaint. I am unable to accept the said submission. The protest petition is filed to the ‘B’ report submitted by the Investigating Officer, wherein the complainant is required to make out the grounds opposing the said ‘B’ report. In the instant case, considering the objections raised by the complainant, the learned Magistrate has set aside the ‘B’ report submitted by the Investigating Officer. Petitioners have not challenged or questioned the said order. The procedure to be followed by the learned Magistrate while considering the ‘B’ summary report has been discussed in ‘KAMALAPATI TRIVEDI v. STATE OF WEST BENGAL’ reported in [1980] SCC [2] 91 which is followed by this Court in ‘DR. RAVI KUMAR v. MRS.
K.M.C. VASANTHA AND ANOTHER’ reported in ILR 2018 KAR 1725, wherein the procedure to be followed in the matter of accepting or rejecting the ‘B’ report has been laid down. It is now well settled that only after rejecting the ‘B’ summary report, the learned Magistrate has to proceed to record the sworn statement of the complainant. The Magistrate has literally followed the guidelines laid down in the above decision. Hence, even this contention is liable to be rejected.
9. Coming to the merits of the case, a perusal of the impugned order reveals that the learned Magistrate has taken into consideration the sworn statement of the complainant and the witnesses examined by and on his behalf and has formed an opinion that the said material discloses that the loan borrowed by the wife of the complainant was repaid and inspite of it petitioner Nos.1 and 2/accused Nos.1 and 2 retained the cheque and when the interest demanded by was then refused by the wife of the complainant, with intention to cheat the complainant handed over the said cheque to petitioner No.3/accused No.3. In this regard, the learned Magistrate has held as under:
“On the face of it is seen that complainant and his wife handed over the blank cheque to the accused No.1 and 2. Further, it is submit that they have paid the hand loan amount to accused No.1 and 2. Further, it is alleged that accused No.1 and 2 asked interest on the said amount. On the intervention of panchayathidar this complainant agreed to pay the interest amount of Rs.8,000/- within two months to the accused No.1 and 2. Meanwhile accused No.3 issued a legal notice regarding the said cheque and filed a complaint against this complainant before JMFC Court. It shows that there is a material against accused persons to proceed against them.”
This finding, in my view, falsifies the contention of the learned counsel for the petitioners that the material on record does not prima-facie make out the ingredients of the offences alleged against the petitioners. Hence, I do not find any reason to interfere with the impugned order.
Consequently, the petition is dismissed. The trial Court shall not be influenced by any observations made in this order while considering the prayer, if any, made by the petitioners seeking their discharge.
Sd/- JUDGE SV