Mr. Samraj Sundeep Kumar vs The State Of Karnataka
2021 Latest Caselaw 1887 Kant

                             1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 15TH DAY OF APRIL, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION NO.5442/2020
                           C/W
              CRIMINAL PETITION NO.6594/2020

IN CRIMINAL PETITION NO.5442/2020:

BETWEEN:

1.   MR. SAMRAJ SUNDEEP KUMAR,
     S/O SAMRAJ,
     AGED ABOUT 32 YEARS,
     R/AT NO.09, PADMANABHAN STREET,
     T -NAGAR, CHENNAI,
     TAMIL NADU-600094,

2.   MR. RANGANATHAN,
     S/O PERUMAL,
     AGED ABOUT 49 YEARS,
     R/AT SUBHAH CHANDRA BOSE NAGAR,
     2ND STREET, BENGA KANCHEEPURAM,
     TAMIL NADU-600073.

3.   MR. PREMA KUMAR,
     S/O ANTONI RAJ S,
     AGED ABOUT 33 YEARS,
     R/AT NO.M 44/2, MK COLONY,
     NEYELI, CUDDALRE DISTRICT,
     TAMIL NADU-607001.

4.   MR. ANNADURAI SRINIVASAN,
     S/O P. ANNADURAI,
     AGED ABOUT 63 YEARS,
     R/AT 50/29, MANDABAM ROAD,
                               2

       KILPAUK CHENNAI,
       TAMIL NADU-600010                   ... PETITIONERS

       (BY SRI GAUTHAM S. BHARADWAJ, ADVOCATE FOR
              SRI SUYOG HERELE E., ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA,
       BY HALASUR POLICE STATION,
       REP BY SPP.,
       HIGH COURT OF KARNATAKA BUILDING,
       BENGALURU-560001.

2.     MS. RUCHIRA RAINA,
       W/O UPENDRA RAINA,
       AGED ABOUT 56 YEARS,
       R/AT FLAT B, FIRST FLOOR,
       REGENCY CHATEAU APARTMENTS,
       NO.29/1, KASTURBA CROSS ROAD,
       BENGALURU-560001.                   ... RESPONDENTS

             (BY SRI SHOWRI H.R., HCGP FOR R-1;
       SRI SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR
          SRI C. MURALIDHARA, ADVOCATE FOR R-2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
FIR AND COMPLAINT IN CR.NO.31/2020 (ARISING OUT OF PCR
NO.15375/2019 ON THE FILE OF IV ACMM, BENGALURU),
REGISTERED BY RESPONDENT POLICE FOR THE ALLEGED
OFFENCES PUNISHABLE UNDER SECTIONS 403, 406, 409, 420
AND 380 OF IPC (PRODUCED AT DOCUMENT NOS.1, 2 AND 3).

IN CRIMINAL PETITION NO.6594/2020:

BETWEEN:

1.     MR. RAJA S,
       S/O SAMBANDAN,
       AGED ABOUT 61 YEARS.
                               3

2.     MS. MARY A,
       W/O RAJA S,
       AGED ABOUT 53 YEARS.

       PETITIONER NOS.1 AND 2 ARE
       R/AT NO.33, 6TH CROSS, VIGNANA NAGAR,
       MUNIREDDY LAYOUT, AKASH NAGAR,
       BENGALURU-560048.

3.     MR. MATHEW,
       S/O CRUEZ SINGAROYAN,
       AGED ABOUT 77 YEARS,
       R/AT NO.8/1, DRDO COMPLEX,
       BENGALURU-560093.                    ... PETITIONERS

       (BY SRI GAUTHAM S. BHARADWAJ, ADVOCATE FOR
              SRI SUYOG HERELE E., ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA,
       BY HALASUR POLICE STATION,
       REP BY SPP.,
       HIGH COURT OF KARNATAKA BUILDING,
       BENGALURU-560001.

2.     MS. RUCHIRA RAINA,
       W/O UPENDRA RAINA,
       AGED ABOUT 56 YEARS,
       R/AT FLAT B, FIRST FLOOR,
       REGENCY CHATEAU APARTMENTS,
       NO.29/1, KASTURBA CROSS ROAD,
       BENGALURU-560001.                   ... RESPONDENTS

             (BY SRI SHOWRI H.R., HCGP FOR R-1;
       SRI SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR
          SRI C. MURALIDHARA, ADVOCATE FOR R-2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
FIR AND COMPLAINT IN CR.NO.31/2020 (ARISING OUT OF PCR
NO.15375/2019 ON THE FILE OF IV ACMM, BENGALURU),
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REGISTERED BY RESPONDENT POLICE FOR THE ALLEGED
OFFENCES PUNISHABLE UNDER SECTIONS 403, 406, 409, 420
AND 380 OF IPC (PRODUCED AT DOCUMENT NOS.1, 2 AND 3).

     THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

These two petitions are filed by accused Nos.4 to 10 under

Section 482 of Cr.P.C. praying this Court to quash the entire

proceedings in FIR and complaint in Crime No.31/2020 arising

out of PCR No.15375/2019 on the file of IV ACMM, Bengaluru

registered by the respondent police for the alleged offences

punishable under Sections 403, 406, 409, 420 and 380 of IPC

and grant such other reliefs as deemed fit in the circumstances

of the case.

2. The factual matrix of the case is that respondent

No.2 had filed a private complaint before the Trial Court which is

numbered as PCR No.15375/2019 making the allegations against

the petitioners herein that the complainant is the Director of

Impecca Essential Spaces Pvt. Ltd. and accused No.1 who

belongs to Australia came in contact through her friend. The

accused No.1 stated that he is having the Company by name Life

Spaces Australasia Pvt. Ltd. and also having a Company in India

called as 7Q Industries Pvt. Ltd. at Chennai. He stated that his

son-in-law Mathew Anthony Royan and Samraj Sundeep Kumar

are the Directors of the Company and the other accused persons

are taking care of the day to day affairs of 7Q Industries Pvt.

Ltd. He also stated that in between two companies i.e., Life

Space Australasia Pvt. Ltd. and 7Q Industries Pvt. Ltd. they are

doing the transaction and both are in the ownership of accused

No.1. He stated that his mother is suffering from cancer and as

a result, the Company is moving slowly and requested the

complainant to invest the amount to the tune of

Rs.2,28,81,373/- in the Company called 7Q Industries Pvt. Ltd.

Thereafter, the amount was transferred to his account. In all, an

amount of Rs.5,46,84,098/- is paid from the account of the

complainant. Accused No.1 also requested the complainant to

visit Australia stating that he will bear the expenses and when

the complainant visited Australia, Prepaid Multi Currency Card

was stolen and an amount of Rs.1,71,058/- was withdrawn. In

the balance sheet of 7Q Industries Pvt. Ltd., the accused had

shown the amount which was payable to the complainant as

share application, money pending, allotment. In order to cheat

the complainant, the accused No.1 induced and committed fraud

in getting the amount of Rs.5 Crores from the complainant and

hence prayed the Court to take the cognizance against the

petitioners herein or to refer the matter under Section 156(3) of

Cr.P.C.

3. Having received the complaint, the learned

Magistrate, heard the counsel and passed the order dated

21.12.2019 and made an observation that the complaint is

supported with affidavit in compliance of the judgment of the

Apex Court in the case of PRIYANKA SRIVASTAVA AND

ANOTHER v. STATE OF UTTAR PRADESH AND OTHERS

reported in AIR 2015 SC 1758. On perusal of the complaint

averments cognizable and non-cognizable offences are disclosed.

Hence, formed an opinion that it is just and proper to refer the

matter to investigate into the allegations made against the

accused and referred the matter under Section 156(3) of Cr.P.C.

for investigation.

4. The petitioners have challenged the same by filing

these two petitions and vehemently contended that the

ingredients of the offences alleged are not made out and

absolutely there is no material on record to implicate the

petitioners herein. The allegations made in the first information

report or the complaint, even if they are taken at their face value

and accepted in their entirety, do not prima facie constitute any

offences or make out a case against the petitioners/accused. It

is also contended that the complaint has been filed with an

ulterior motive in order to tarnish the image and reputation of

the petitioners. The learned counsel would contend that the

complaint averments are absurd and inherently improbable on

the basis of which no prudent person can ever reach a just

conclusion that there is sufficient ground for proceeding against

the petitioners/accused. The learned Magistrate without

application of mind and without assigning any reasons has

mechanically referred the matter for investigation under Section

156(3) of Cr.P.C. The learned counsel would vehemently

contend that even going through the entire complaint, no

specific allegations are made against these petitioners and only

allegation is against accused No.1 and also there is no

compliance of Section 154(1) and 154(3) of Cr.P.C. Hence, it

requires interference of this Court.

5. Per contra, the learned Senior Counsel for

respondent No.2 would contend that the learned Magistrate after

having received the complaint and also taking note of the

contents of the affidavit, formed an opinion that it is a fit case to

refer the matter under Section 156(3) of Cr.P.C. The learned

Magistrate has applied his judicious mind and thereafter only

referred the matter for investigation. The learned counsel would

contend that specific allegations are made in paragraph Nos.3, 4,

6 and 9 to 11 of the complaint against the accused persons and

the very contention of the petitioners that there is no specific

allegations in the complaint cannot be accepted. The learned

counsel would contend that in paragraph No.14 of the complaint

there is a reference with regard to the contents of the mail

referring to 7Q invoice is false, prevaricated and without any

legal or factual basis and an afterthought with the sole intention

of avoiding repayment of money to her. The learned counsel

also brought to the notice of the Court paragraph Nos.17, 18 and

23 of the complaint. Hence, the learned counsel would contend

that Section 154(1) and 154(3) of Cr.P.C. are complied and

apart from that affidavit is also filed.

6. In reply to the arguments of the learned counsel for

respondent No.2, the learned counsel for the petitioners would

contend that when he had applied for the certified copy of the

order sheet, the same was not found in the records. The very

filing of the affidavit in compliance with the judgment of the

Apex Court in the case of Priyanka Srivastava (supra) cannot

be accepted.

7. The learned counsel for respondent No.2 has

produced the certified copy of the order sheet, order as well as

the affidavit dated 10.12.2019. Hence, the learned counsel

would contend that Section 154(1) and 154(3) of Cr.P.C. are

complied and the Trial Court has referred the matter under

Section 156(3) of Cr.P.C. for investigation.

8. Having heard the learned counsel for the petitioners

and the learned counsel for respondent No.2, in the present

petition the reliefs are sought on behalf of accused Nos.4 to 10

praying this Court to quash the PCR and consequent upon FIR

registered against them. The main contention of the learned

counsel for the petitioners is that there is no specific averment

against the petitioners in the complaint. The learned Magistrate

has not applied his judicious mind while referring the matter

under Section 156(3) of Cr.P.C. It has to be noted that once the

complaint is filed, it is open to the learned Magistrate either to

take the cognizance or to pass any pre-cognizance order. In the

case on hand, the Trial Court has not taken any cognizance.

Instead of passed a pre-cognizance order i.e., referring the

matter under Section 156(3) of Cr.P.C. for investigation. Having

perused the order passed by the Trial Court, the Trial Court has

referred in the order that affidavit is filed in compliance with the

judgment in the case of Priyanka Srivastava (supra). On

perusal of the order, a reference was made that on perusal of

the complaint averments, cognizable and non-cognizable

offences are disclosed. Hence, formed an opinion that it is just

and proper to refer the matter to investigate into the allegations

made against the accused. When the complaint is filed and

sought an order to refer the matter under Section 156(3) of

Cr.P.C., the learned Magistrate has to apply his judicious mind.

Looking into the contents of the complaint and the documents,

the Court formed an opinion that the complaint discloses

committing of cognizable and non-cognizable offences and

referred the matter under Section 156(3) of Cr.P.C. for

investigation. This Court cannot find fault with the order of the

Trial Court. The only question to be considered by this Court is

whether the learned Magistrate has applied his judicious mind or

not. On perusal of the order, the learned Magistrate formed an

opinion that it is a fit case to refer the matter under Section

156(3) of Cr.P.C. and also found that the complaint discloses

cognizable and non-cognizable offences. Hence, I do not find

any force in the contention of the learned counsel for the

petitioners that the learned Magistrate has not applied the mind

and passed the mechanical order. On perusal of the order, it

cannot be said that mechanical order has been passed.

9. The other contention of the learned counsel for the

petitioners that there are no averments in the complaint with

regard to the accused persons cannot be accepted. Having

perused the entire complaint, in paragraph Nos.3, 4, 6, 9 to 11

and 14 of the complaint, specific averments are made against

the petitioners herein and particularly paragraph No.17 and 18

discloses the allegations made against the other accused persons

also. When such being the case and when the matter is referred

under Section 156(3) of Cr.P.C., the Investigating Officer has to

probe the matter and unearth the crime. It is also important to

note that the order passed by the Trial Court does not affect the

rights of the petitioners herein as held by the Apex Court in the

case of HDFC SECURITIES LTD. AND OTHERS v. STATE OF

MAHARASHTRA AND ANOTHER reported in AIR 2017 SC 61

wherein in paragraph No.24 of the judgment, the Apex Court has

held that passing of an order invoking Section 156(3) of Cr.P.C.

does not affect the rights of the accused persons and that it is

only an order referring the matter under Section 156(3) of

Cr.P.C. and if the Court invoking Section 482 of Cr.P.C. quashes

the same, it amounts to premature. Hence, I do not find any

force in the contention of the learned counsel for the petitioners

that the learned Magistrate has not applied his judicious mind. I

do not find any merit in the petition to quash the private

complaint and also the investigation ordered by the Trial Court.

10. In view of the discussions made above, I pass the

following:

ORDER

(i) The petitions are rejected.

(ii) However, liberty is given to the petitioners to approach this Court after filing of the final report, if need arises.

In view of rejection of the main petitions, I.As., if any, do

not survive for consideration and the same stands disposed of.

Sd/-

JUDGE

MD