Shri.A.Anup S/O T.V. ... vs The Station House Officer And Anr
2021 Latest Caselaw 5883 Kant

                           1




        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

   DATED THIS THE 10TH DAY OF DECEMBER 2021

                         BEFORE

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

       CRIMINAL PETITION No.201045/2019


BETWEEN:

SHRI A. ANUP
S/O T.V. ARAVINDAKSHAN
AGED ABOUT 40 YEARS
RESIDING AT K.1203
PURVE VENEZIA
YALAHANKA NEW TOWN
BANGALORE-560009
                                     ... PETITIONER

(BY SRI UDAY HOLLA, SENIOR COUNSEL A/W
 SRI VISHWAKRMARAJ NAYAK, ADVOCATE)


AND:

  1. THE STATION HOUSE OFFICER
     STATION BAZAR POLICE STATION
     KALABURAGI-585102
     REPRESENTED BY ADDL. STATE
     PUBLIC PROSECUTOR
     HIGH COURT OF KARNATAKA
     KALABURAGI BENCH

  2. SHRI UDAYSHANKAR SHETTY
     S/O SHRI SUBASHCHANDRA SHETTY
     CARRYING ON BUSINESS
     AT PLOT NO.3
     S.NO.1/1B, BRAHMAPUR VILLAGE
                                  2




       KALABURAGI-585102
                                               ... RESPONDENTS

(BY SRI GURURAJ V. HASILKAR, HCGP FOR R1;
 SRI MAHANTESH H. DESAI, ADVOCATE FOR R2)


       THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE, PRAYING TO SET ASIDE THE
ORDER DATED 07.09.2018 PASSED IN C.C.NO.1139/2013 BY
THE PRINCIPAL CIVIL JUDGE AND JMFC AT KALABURAGI FOUND
AT    ANNEXURE-A   AND     SET       ASIDE   THE   ORDER    DATED
08.07.2019 PASSED IN CRL.RP.NO.186/2018 BY I- ADDITIONAL
DISTRICT AND SESSIONS JUDGE AT KALABURAGI FOUND AT
ANNEXURE-D. CONSEQUENTLY DISCHARGE THE PETITIONER IN
C.C.NO.1139/2013 PENDING BEFORE THE PRINCIPAL CIVIL
JUDGE AND JMFC AT KALABURAGI.


       THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR     ORDERS     ON    24.11.2021,         COMING    ON     FOR
PRONOUNCEMENT,      THIS    DAY,       THE   COURT    MADE    THE
FOLLOWING:


                           ORDER

This petition is filed under Section 482 of Cr.P.C.,

praying this Court to set aside the order dated 07.09.2018

passed in C.C.No.1139/2013 by the Principal Civil Judge

and JMFC, Kalaburagi, which is marked at Annexure-A and

also to set aside the order dated 08.07.2019 passed in

Criminal Revision Petition No.186/2018 by I-Additional

District and Sessions Judge, Kalaburagi, which is marked

as Annexure-D and consequently, discharge the petitioner

in C.C.No.1139/2013 and grant such other relief as

deemed fit in the facts and circumstances of the case.

2. Factual matrix of the case is that based on the

information of the informant the police have registered the

case against the petitioner and other two accused persons

for the offences punishable under Sections 419, 420, 468,

471 and 109 of IPC. It is the case of the prosecution that

accused Nos.1 to 3 in furtherance of common intention

affixed photo of accused No.1 and obtained exemption of

entertainment tax by impersonating the first informant.

The police have investigated the matter and filed

chargesheet before the trial Court. The Trial Court after

considering the material on record i.e., chargesheet and its

enclosures took cognizance for the offences alleged against

the petitioner and other accused persons. Hence, the

petitioner had approached this Court in Criminal Petition

No.200623/2017 praying this Court to quash the

proceedings in C.C.No.1139/2013 and this Court vide its

order dated 12.06.2017 dismissed the petition and

observed that the learned Magistrate has to consider the

contentions regarding discharge, all the contentions can be

appreciated by the said Court and gave liberty to the

accused/petitioner to file appropriate application before the

Trial Court. This Court also made it clear that the

observations made in the said order shall not come in the

way of the Trial Court while disposing the application filed

under Section 239 of Cr.P.C. After dismissal of the said

criminal petition, the petitioner herein filed an application

before the Trial Court under Section 239 of Cr.P.C. The

trial Judge, after considering the said application and on

hearing both side, has observed that the function of the

Court under Section 239 of Cr.P.C., is not to marshal the

evidence and judge the truth, veracity and effect of such

evidence which the prosecution proposes to adduce and

what weight to be attached to the probable defence of the

accused. If there is strong suspicion which leads the Court

to think that there is a ground for presuming that the

accused persons have committed the offences, then the

Court can pass order under Section 240 of Cr.P.C., by

framing charges against the accused persons. Having

perused the report filed under Section 173 of Cr.P.C., the

Court found that there is prima facie case made out for the

alleged offences against the accused and the contention of

the accused that there are no grounds to proceed against

him was not accepted. The trial Court has observed that

the police have examined eighteen witnesses and collected

various evidence relating to the transaction made by

accused No.1 relating to the impersonation of first

informant and dismissed the application. The said order

has been challenged before I-Additional District and

Sessions Judge, Kalaburagi, in Criminal Revision Petition

No186/2018. The revisional Court having heard the

respective counsels and perusing the grounds urged in the

revision petition and also relying upon the scope of Section

239 of Cr.P.C., has observed that the material discloses

the petitioner is the Vice President of M/s. Fun Multiplex

Private Limited and allegation in the chargesheet is that

they have cheated and impersonated the complainant. The

allegation against the petitioner is that he has affixed

photo on the application filed by the complainant for

seeking rebate of the entertainment tax to the concerned

Entertainment Tax Officer and thereby he got benefit from

the concerned authority. It is also alleged that the

petitioner has allegedly created documents by forging the

signature. Considering the allegations made in the

complaint and the dispute raised by the revision petitioner,

comes to the conclusion that the Trial Court has not

committed any error in dismissing the discharge

application and it is a case for the trial and not for

discharge. The revisional Court also comes to the

conclusion that from the materials available on record the

prosecution has made out prima facie case against the

petitioner herein for the offences of cheating and

impersonation and dismissed the revision petition. Hence,

the present petition is filed invoking Section 482 of Cr.P.C.

3. The grounds urged in the petition is that both

the Courts have failed to consider the fact that the

complainant was unsuccessful before the appropriate

authority under Karnataka Entertainment Tax Act, 1958

(for short 'the Act') seeking exemption on the ground that

owner of the building is only entitled for exemption and not

the person running the theater by holding licence. It is

contended that the respondents cannot be allowed to re-

agitate the very same issue before the criminal Court.

When an order has been passed by the concerned

appropriate authority under the Act, the issue of

exemption has attained finality between the parties. Both

the Courts could have allowed the discharge application

stating that the charges levelled against the petitioner

have become groundless. Both the Courts below have

failed to consider the fact that the petitioner having made

application for and on behalf of Fun Multiplex Private

Limited and having paid the same, there is no forgery and

Section 468 of IPC is not attracted and also no grounds are

made out to invoke Section 420 of IPC. Both the Courts

have failed to take note of the order passed by the

appellate authority under Annexure-F wherein the appeal

filed by the first informant was dismissed on merits. The

learned counsel for the petitioner also would vehemently

contend that when the appeal was dismissed by the

concerned appropriate authority, there cannot be any

criminal prosecution against the petitioner herein.

The learned counsel in support of his arguments

relied upon the judgment of the Patna High Court in the

case of Hari Prasad Sawa and others vs. The State of

Bihar and another reported in 1990 SCC Online Pat

98. The learned counsel referring to this judgment

vehemently contended that factual aspects of the case

dealt with by the Patna High Court is also similar to the

facts of the case on hand. When the dispute regarding the

payment of tax is ultimately decided by the concerned

authorities and once the Tribunal or competent authority

comes to a finding that there is no committal of offence,

then the same has to be accepted in criminal Court and

criminal prosecution cannot be proceeded if the accused

had succeeded either in appeal or before the Tribunal or

before the Special Authority. An assessee who was found

to have contravened certain conditions of the Income Tax

Act or in not filing return within time and the appellate

Court comes to the conclusion that he had not committed

any offence, that assessee cannot be prosecuted for

criminal liability in view of that finding. The learned

counsel referring to this judgment and the principles laid

down in the said judgment would vehemently contend that

this case is aptly applicable to the case on hand and

contends that once the appeal filed by the first informant

was dismissed vide Annexure-F, the Trial Court ought not

to have entertained the criminal prosecution against the

petitioner and hence, prays this Court to allow this petition

and to quash the proceedings initiated against the

petitioner by invoking Section 482 of Cr.P.C.

4. Per contra, the learned counsel for respondent

No.2 would submit that lease holder cannot be treated as

owner under Section 2(k) of the Act. It is clear that

Proprietor in relation to any entertainment other than an

entertainment referred to in sub-clause (iii) of clause (e)

includes any person responsible for the management

thereof and in relation to any entertainment referred to in

sub-clause (iii) of clause (e) includes any person

conducting, organising, sponsoring or patronizing any such

entertainment. The learned counsel referring to this

Section 2(k) of the Act, submits that the same defines

meaning of Proprietor, who would be proprietor and not

applicable to the lease holder. The learned counsel would

vehemently contend that here it is not the question of

exemption being granted, but it is the question of

committing criminal offences of impersonation, cheating

and fabrication of documents and the same has to be tried

by the trial Court. The Trial Court cannot conduct mini trial

at the time of invoking Section 239 of Cr.P.C. Once the

strong suspicion is made out against the petitioner herein,

the Court can proceed against the accused and also

material available on record has to be looked into and not

the defence. Hence, the trial Court has applied its judicious

mind and rightly rejected the application filed under

Section 239 of Cr.P.C., and the same has been rightly

confirmed by the revisional Court. Hence, no grounds are

made out to set aside the orders passed by both the

Courts and discharge the accused/petitioner herein.

The learned counsel in support of his arguments has

relied upon the judgment of the Hon'ble Apex Court in the

case of State of Rajasthan vs. Fatehkaran Mehdu

passed in Criminal Appeal Nos.216/2017 and

217/2017 decided on 03.02.2017. The learned counsel

referring to this judgment brought to the notice of this

Court paragraph-26 wherein the Hon'ble Apex Court has

discussed that the scope of interference and exercise of

jurisdiction under Section 397 of Cr.P.C., has been time

and again explained by the Court. Further, observed that

scope of interference under Section 397 of Cr.P.C., at a

stage, when charge had been framed, is also well settled.

At the stage of framing of a charge, the Court is concerned

not with the proof of allegation rather it has to focus on

the material and form an opinion whether there is strong

suspicion that the accused has committed offence, which if

put to trial, could prove his guilt. The framing of charge is

not a stage, at which stage final test of guilt is to be

applied. Thus, to hold that at the stage of framing the

charge, the Court should form an opinion that the accused

is certainly guilty of committing an offence, is to hold

something which is neither permissible nor is in

consonance with the scheme of Code of Criminal

Procedure. The learned counsel referring to this judgment

and relying on paragraph-26 has vehemently contended

that the Hon'ble Apex Court observed in paragraph-29 also

that quashing of a charge is an exception to the Rule of

continuous prosecution. Where the offence is even broadly

satisfied, the Court should be more inclined to permit

continuation of prosecution rather than its quashing at that

initial stage. The Court is not expected to marshal the

records with a view to decide admissibility and reliability of

the documents or records but is an opinion formed prima

facie. The learned counsel referring to this judgment

contended that when both the Courts have come to the

conclusion that it is not a case for discharge exercising

power under Section 239 of Cr.P.C. This Court cannot find

fault with the orders of both the Courts, as contended by

the petitioner herein. The learned counsel vehemently

contended that the issue is not with regard to claiming

exemption of entertainment tax, but the question involved

in the matter is manipulation of documents, impersonation

and cheating and the same has to be tried.

5. Having heard the learned counsel appearing

for the petitioner and the learned counsel appearing for

respondent No.2 and also considering the factual aspects

of the case and the principles laid down in the judgments

referred to supra by the respective counsel, the points that

would arise for consideration of this Court are,

i. Whether both the Courts have committed an error in dismissing the application filed under Section 239 of Cr.P.C.?

ii. Whether it requires interference of this Court by exercising power under Section 482 of Cr.P.C.,?

Point Nos.1 and 2:

6. Having heard the learned counsel appearing

for the respective parties, it is not in dispute that the

petitioner and the accused persons have taken premises

belonging to the first informant for exhibiting films. It is

also not in dispute that the lease was created in favour of

the petitioner and other two accused persons. The Court

while exercising power under Section 239 of Cr.P.C., has

to look into the contents of the complaint as well as

allegations made in the charge sheet. The charge sheet is

filed for the offences punishable under Sections 419, 420,

468, 471, 109 r/w Section 34 of IPC. The present

petitioner is accused No.1. This Court first would like to

refer to column No.17 of the charge sheet wherein it is

mentioned that Fun Multiplex Private Limited belongs to

the first informant and the same was given on lease and

the first informant is entitled to claim benefit under Section

7A(4) of the Act for exemption and the first informant is

entitled for the said amount. It is alleged that with a

common intention, the petitioner and other accused

persons in order to get the said benefit and to cheat the

first informant who has been arrayed as CW.1 manipulated

the document filed by CW.1 which is in Form No.3 and

accused No.1 i.e., petitioner herein affixed his photograph

on the said form and created documents as original and

used the same and obtained exemption of

Rs.1,25,00,000/- for the period from 04.10.2006 to

14.10.2011. It is also an undisputed fact that the

petitioner earlier had approached this Court in Criminal

Petition No.200623/2017 and this Court has rejected the

petition and given liberty to the petitioner herein to file

appropriate application before the trial Court. Accordingly,

an application was filed before the trial Court and the same

came to be rejected. While rejecting the said application

also, the trial Court has observed that while invoking

Section 239 of Cr.P.C., it is not the duty of the Court to

marshal the evidence and judge the truth and the Court

has to take note of veracity and effect of such evidence

which the prosecution proposes to produce and what

weight to be attached to the probable defence of the

accused. It has also observed that if there is strong

suspicion which leads the Court to think that there is a

ground for presuming that the accused person committed

the offences, then the Court should not exercise power

under Section 239 of Cr.P.C. The scope and ambit of

Section 239 of Cr.P.C., has been discussed by the trial

Court. The trial Court has also taken note of the final

report filed under Section 173 of Cr.P.C., and observed

that it can be seen that prima facie case is made out

against the petitioner for the alleged offences and comes

to the conclusion that there is no ground to consider that

the charge against the petitioner is groundless. Having

perused the charge sheet and its enclosures, the trial

Court comes to the conclusion that prima facie case is

made out against the petitioner. It is settled law that while

considering the application under Section 239 of Cr.P.C.,

the Court should not venture to conduct mini trial and

evaluate the material collected by the Investigating Officer

as to whether it ends in conviction or leads to acquittal,

but the Court can only see whether any prima facie case is

made out to proceed against the accused/petitioner. No

doubt, the learned counsel for the petitioner has relied

upon the judgment of Patna High Court wherein Patna

High Court while dealing with the case with regard to tax

exemption dealt with and exercised power under Section

482 of Cr.P.C. The principle laid down in the judgment of

the Patna High Court is not applicable to the case on hand

since an allegation of cheating, impersonation and

fabrication of documents is alleged in the chargesheet.

        7.    No   doubt,       the    first   informant   who      had

challenged    granting     of    exemption       in   favour   of   the

petitioner herein was unsuccessful as contended by the

learned counsel for the petitioner and his appeal came to

be dismissed. But the factual aspect of the case is

different. As I have already pointed out, as per column

No.17 of the charge sheet, specific charges leveled against

the petitioner is that he manipulated the document of

Form No.3 filed by the first informant, the petitioner has

affixed his photograph on the said document, manipulated

the document and claimed benefit and charges of

impersonation and fabrication of document is alleged

against the petitioner. When such specific allegation of

impersonation and fabrication of document has been

alleged in the charge sheet, it is a matter of trial and the

Court cannot invoke Section 239 of Cr.P.C., I have already

pointed out that the trial Court while dismissing the

application made observation that it is the case of the

prosecution that accused Nos.1 to 3 in furtherance of

common intention affixed photo of accused No.1/petitioner

herein and obtained exemption of entertainment tax by

impersonating the first informant i.e., CW.1. The police

have investigated the matter and filed charge sheet. The

revisional Court also while considering the order of the trial

Court, dealt with in detail and particularly, in paragraph-12

it has observed that it is reflected in the complaint that the

petitioner has pasted the photo on the application filed by

the complainant for seeking rebate of the entertainment

tax to the concerned Entertainment Tax Officer and

thereby, he got benefit from the concerned authority. It is

also observed that the petitioner has also allegedly created

document by forging the signature. The Court cannot

decide the issue as to whether he rightly availed the

benefit of tax exemption or not and the same is outside

the jurisdiction of the Court. The specific charge against

the petitioner is impersonation and creation of documents

and the same has to be adjudicated by the criminal Court.

The only dispute is, whether the petitioner has indulged in

creation of document and impersonated the first informant

by pasting his photograph on the application-Form No.3

given by the first informant. Hence, I do not find any error

committed by the trial Court in dismissing the application.

8. In the judgment referred to supra by the

learned counsel for respondent No.2, the Hon'ble Apex

Court discussed with regard to the revisional powers,

scope and interference under Section 397 of Cr.P.C.,

wherein it has observed that the Court is not concerned

with the proof of the allegation rather it has to focus on

the material and form an opinion whether there is strong

suspicion that accused has committed an offence, which if

put to trial, could prove his guilt. As I have already

pointed out, it is also settled law that the Court cannot

evaluate the evidence available on record while

considering the application filed under Section 239 of

Cr.P.C. The Court can exercise power under Section 239 of

Cr.P.C., only if it finds that continuing of proceedings

against the accused is groundless. Hence, I do not find any

error committed by the trial Court as well as revisional

Court in dismissing the application filed under Section 239

of Cr.P.C. The petitioner has not made out any ground to

invoke Section 482 of Cr.P.C., to quash the proceedings

initiated against the petitioner.

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

the following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

NB*