Karnataka High Court

Sri Bhaskar Kamath vs The State Of Karnataka on 20 January, 2021

Author: H.P.Sandesh

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 20TH DAY OF JANUARY, 2021

                            BEFORE

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

            CRIMINAL PETITION NO.5515 OF 2019
BETWEEN:

1.    Sri.Bhaskar Kamath S/o Devaraya Kamath
      Aged about 63 years,
      Residing at, Old Road near
      Krishna Gas Godown
      Kinnimulki Road,
      Badagabetta Bailoor,
      Udupi district - 576 101.

2.    Sri.Rajesh Hegde
      General Manager,
      Industrial Co-operative Society,
      Kinnimulki Udupi,
      S/o Umesh hedge,
      Aged about 49 years,
      Bairanje Post, via Parkala,
      Badagabetta, Udupi Taluk,
      Udupi district 576 104.

3.    Sri. Arun Kumar Shetty,
      S/o Kalappa Shetty,
      Aged about 57years,
      Residing at, Haradi Village,
      Salikeri Post, Bramhavara
      Udupi district 576 213.

4.    Sri. Umesh Pai
      S/o Padmanabha Pai
      Aged about 49 years
      Residing at, Panchami House,
      Dendoorkatte, Manipuru Post
      Udupi Taluk,
      Udupi District - 576 102.
                                        2



5.     Sri.Manjunath Shet S/o. U. Nagesh Shet
       Aged about 39 years
       Residing at Manjunatha Nilaya
       L.L.R.Marga, Kunjibettu Post
       Udupi district - 576 102.
                                                  ... Petitioners
(By Sri. Jagadeesh B.N., Advocate)

AND:

1.     The State of Karnataka
       Rep. by State Public Prosecutor
       High Court of Karnataka
       Bengaluru - 560 001.

2.     Manjunath Kharvi
       S/o Narayana
       Aged 47 years
       BHM Road, Kundapura Tq
       Udupi 576 201.
                                                  ... Respondents
(By Sri.K.S. Abhijith, HCGP for R-1;
    Sri. K. Shrihari, Advocate for R-2)

                               -----

       This Criminal Petition is filed under Section 482 of Cr.P.C.
praying to set aside the and quash the proceedings in
Cr.No.75/2019 for the offences punishable under Sections
3(1)(p), 3(2)(vi) of SC/ST (POA) Act, registered by Udupi Town
Police, against the petitioners at the instance of Respondent
No.2.

      This Criminal Petition coming on for Admission, this day,
the court made the following through video conference :

                           ORDER

Heard the learned counsel for the petitioners and also

counsel appearing for the State and learned counsel for

respondent No.2.

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

praying this Court to set aside the proceedings initiated in

Crime No.75/2019 for the offences punishable under

Section 3(1)(p), 3(2)(vi) of SC/ST (POA) Act, 1989 (for short, 'the

Act').

3. The factual matrix of the case is, that respondent

No.2 who is the complainant was working as in-charge

Manager in Nittur Branch and allegation against him is

that he advanced various gold loans to Raghavendra Shait

and Sanath Kumar by taking the pledge of duplicate golds,

thereby caused loss to the society.

4. That on 15.07.2019, respondent No.2 filed the

criminal complaint against the bank official invoking the

provision of SC and SC (Prevention of Atrocities) Act, 1989

on the ground that he belongs to a particular community

and hence, these petitioners in order to trouble him, false

allegations are made against him as stated above to

prevent him not to get the benefits and promotions by

initiating false proceedings against him. Based on the

complaint, the police have registered case against these

petitioners in Crime No.75/2019 invoking offences under

Section 3(1)(p), 3(2)(vi) of SC and ST (POA) Act, 1989.

5. The society appointed inquiry officer to conduct

departmental inquiry and dismissed the complainant from

the post based on the inquiry report on 30.06.2019 and the

same has been questioned before the Deputy Registrar of

Co-operative Societies and the case is still pending before

it. The Deputy Registrar of Co-operative Societies has

dismissed the interim relief sought in the said application

and the same is challenged by way of Revision Petition

bearing No.79/2017 before the Karnataka Appellate

Tribunal. The Karnataka Appellate Tribunal by its order

dated 25.02.2018 allowed the application and set aside the

order of the Deputy Registrar and directed to consider the

application fresh.

6. Learned counsel for the petitioners would submit that

respondent No.2 was dismissed from service after

conducting departmental enquiry and the same has been

challenged and the Appeal is pending before the Deputy

Registrar, the matter has not been attained finality.

Whether initiation of proceedings against respondent No.2

is malicious or false has not been adjudicated and cannot

be termed as vexatious proceedings against respondent

No.2. Learned counsel in support of his contention, has

relied upon the judgment in the case of STATE OF HARYANA

VS BHAJAN LAL - AIR 1992 SC 604, contending that (b) where

the allegations in the FIR and other material, if any,

accompanying FIR do not disclose a cognizable offence

justifying an investigation by police officers under Section

156(1) of the Code except under an order of a Magistrate

within the purview of Section 155(2) of the Code, (c) where

the uncontroverted allegations made in the FIR or

'complaint and the evidence collected in support of the

same do not disclose the commission of any offence and

make out a case against the accused, (d) where the

allegations in the FIR do not constitute a cognizable offence

but constitute only a non-cognizable offence, no

investigation is permitted by a police officer without an

order of a Magistrate as contemplated under Section 155(2)

of the Code, (e) where the allegations made in the FIR or

complaint are so 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 accused; (g) where a criminal proceeding is

manifestly attended with mala fide and/or where the

proceeding is maliciously instituted with an ulterior motive

for wreaking vengeance on the accused and with a view to

spite him due to private and personal grudge. Learned

Counsel for the petitioners also brought to the notice of the

Court the penal provisions invoked against the petitioners

under Sections 3(1)(p) and 3(2)(vi) of the Act and contends

that the averments made in the complaint do not

constitute the ingredients of the said offences, and

therefore, the continuation of proceedings against these

petitioners would amount to abuse of the process of the

court which leads to miscarriage of justice.

7. Per contra, learned Counsel for respondent no.2

would vehemently contend that in the complaint available

at Page No.16, specific allegations have been made that the

petitioners only with a view to prevent respondent no.2

from getting all the benefits and that he belongs to lower

cadre and their intention is to prevent all statutory benefits

to which he is entitled. The allegations made against

respondent no.2 in the departmental inquiry is false and

the entire amount has been repaid and no loss has been

caused.

8. Learned HCGP appearing for the State would submit

that the complaint averments disclose the very contention

of respondent no.2 that he was prevented from getting the

benefit and no loss has been caused to society.

9. Having heard the learned Counsel for the petitioners

and the respondents and having perused the complaint

averments, it is specifically alleged that since the

complainant belonged to a particular community, he was

treated in a different manner in the department with a

conspiracy not to get the promotion in the department. It is

also alleged that from 23.01.2015 to 15.06.2015 he had

advanced loan on the fake gold and the same was repaid.

Inspite of the same, holding a departmental enquiry

against him appointing their own inquiry officer, the

complainant was dismissed from service and had not given

any subsistence allowance.

10. Having perused the complaint averments, it is clear

that the departmental inquiry is initiated against

respondent no.2. After conducting the departmental

inquiry, he was dismissed from service and the same has

been questioned before the Deputy Registrar of Co-

operative Societies and the matter is pending adjudication

and the same has not been attained finality. Such being

the case, the very contention that a false case has been

registered against him and the departmental inquiry has

been initiated against the complainant at the instance of

these petitioners cannot be a ground to proceed against

these petitioners invoking the provisions of Sections 3(1)(p)

and 3(2)(vi) of the Act. This Court would like to extract the

provisions of Sections 3(1)(p) and 3(2)(vi) of the Special

Enactment, which reads as under:

"3. Punishments for offences of atrocities.-

(1) Whoever, not being a member of a Scheduled Caste or a Schedule Tribe,-

(a) xxxx

(b) xxxx xxxx

(p) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe;

(q) xxxx

(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

(i) xxxx

(ii) xxxx

xxxx

(vi) knowingly or having reason to believe that an offence has been committed under this Chapter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence;"

11. Having perused the penal provisions of Sections

3(1)(p) and 3(2)(vi) of the Act and also taking note of the

contents of the complaint, it could be seen that the

ingredients of the said penal provisions are not made out to

continue the criminal proceedings against these

petitioners. The averments of the complaint that the

complainant belongs to a particular community and that

his future prospects were curbed by these petitioners,

would not constitute the ingredients of the penal provisions

when the matter is pending adjudication before the Deputy

Registrar of Co-operative Societies with regard to the

correctness of the disciplinary enquiry conducted and the

dismissal of the complainant from service has to reach its

finality. The said matter is pending before the Deputy

Registrar of Co-operative Societies and the same has not

been attained finality. Hence, the very initiation of the

proceedings against these petitioners is an abuse of the

process of the court. The continuation of proceedings

against the petitioners without any substantive piece of

material amounts to an abuse of the process of the court

which leads to miscarriage of justice. Hence, I am of the

view that it is a fit case to exercise the powers under

Section 482 of Cr.PC when the complaint averments do not

constitute the ingredients of penal provisions alleged

against the petitioners.