Karnataka High Court

Sri. Babu Venkatesh vs State Of Karnataka on 22 January, 2021

Author: H.P.Sandesh

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 22ND DAY OF JANUARY, 2021

                          BEFORE

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

        CRIMINAL PETITION No.6737 OF 2020

Between:

1.    Sri. Babu Venkatesh,
      Son of B.G.Venkatappa,
      Aged about 44 years,
      Residing at
      No.1600, 40th Cross,
      4th 'T' Block, Jayanagar
      Bengaluru-560041.

2.    Smt. Sunandamma V.,
      Wife of Venkatappa B.G.,
      Aged about 57 years,
      Residing at
      No.1600, 40th Cross,
      4th 'T' Block, Jayanagar
      Bengaluru-560041.

3.    Sri. Venkatappa B.G.,
      Son of Giriappa,
      Aged about 64 years,
      Residing at
      No.1600, 40th Cross,
      4th 'T' Block, Jayanagar
      Bengaluru-560041.
                                            ... Petitioners

(By Sri. Tomy Sebastian, Sr. Advocate for
    Sri. Reny Sebastian, Advocate of
    M/s. Tomy Sebastian Associates)
                                  2



And:

1.     State of Karnataka
       By Station House Officer
       Jayanagar Police Station,
       Jayanagar, Bengaluru.

2.     Sri. N.Ranganath
       Son of Mr.Narayanaswamy
       Aged 46 years
       Residing at
       No.100/5 Ramagondanahalli,
       Bengaluru-560066.

3.     Smt. Komala
       Wife of N.Ranganathan,
       Aged 44 years,
       Residing at
       No.100/5 Ramagondanahalli,
       Bengaluru - 560066.
                                                   ... Respondents

(By Smt. Namitha Mahesh, HCGP for R1,
    Sri. Shanmukhappa, Advocate of
    Kesvy & Co., for R2 & R3)

     This Criminal Petition is filed under Section 482 of
CR.P.C. praying to quash the FIR in Cr.No.256/2019 in
Jayanagar Police Station, registered for the offence
punishable under Sections 420, 465, 468, 471 and 120B of
IPC pursuant to the order of reference, passed by the
Hon'ble II Additional Chief Metropolitan Magistrate, at
Bengaluru dated 06.12.2019 in PCR No.12443/2019.

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

                              ORDER

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

praying this court to quash the FIR registered in

Cr.No.256/2019 in PCR No.12443/2019 for the offences

punishable under Sections 420, 465, 468, 471, 120-B of

IPC.

2. The factual matrix of the case is that the

respondent no.2 had filed a private complaint on

18.09.2019 making the allegation that these petitioners

have indulged in cheating and fabricating of the documents

in respect of a agreement of sale dated 15.03.2016 of flat

bearing Nos.109, 320, 307 and 007 carved out of land

bearing Sy.No.10/2 situated at Khayamgutta

Ramagondahalli, Narayanapura, K.R.Puram Hobli which

belongs to respondent no.2 and 3. The other allegation is

also that signature of the complainant is forged. The

cheques which have been collected while running the chits

are also misused. Based on this complaint, the learned

Magistrate vide order dated 6.12.2019 passed an order as

follows:

"The complainant has filed the present private complaint under Section 200 of Cr.P.C., against the accused nos.1 to 3 for the alleged offences punishable under Section 420, 465, 468, 464 and 120-B of IPC. In the complaint,

the complainant has made serious allegations against the accused persons. Therefore, it appears this court that, it is just and proper to refer the matter to the jurisdiction police for investigate and submit report. Accordingly, the matter is referred to PSI of Jayanagar Police Station under Section 156(3) of Cr.P.C., for investigation and submit report by 26.02.2020.

3. Hence the present petition is filed before this court.

The learned counsel for the petitioners in his argument has

vehemently contended that civil suit is filed and the same

is pending. The counsel also submits that the allegation

against the petitioners in the complaint invoking the offence

under Section 420, 464, 465, 468 of IPC is not attracting

the ingredients of the offence are missing. The learned

counsel also in support of his argument has relied upon the

judgment of the Apex Court in 2015 (6) SCC 287 -

Priyanka Srivatsava Vs. State of U.P. and others. The

learned counsel referring the judgment would contend that

there is no compliance of Section 154(1) & (3) of Cr.P.C.

and referring the matter under Section 156(3) amounts to

abuse of process. The learned counsel also in the grounds

of the petition would contend that the learned Magistrate

while referring the matter under Section 156(3) Cr.P.C. for

investigation has passed the order mechanically without

application of judicious mind and the same requires

interference of this court.

4. Per Contra, the learned counsel for the

respondents would submit that in the complaint it is

specifically stated in para 3, 5 to 7 with regard to the

transaction entered into between the parties and specific

averment has been made with regard to the dishonest

intention of the accused persons in cheating and creation of

documents and fabricating the documents have committed

an offence of forgery punishable under Section 464, 465

and 468 of IPC, for the purpose of cheating liable for

prosecution under Section 420 of IPC and for making a

false statement before the Sub-Registrar in the sale deed to

invoke Section 464. Hence the learned Magistrate has

applied his mind while referring the matter under Section

156(3) of Cr.P.C. with a view that it is a fit case to refer the

matter for investigation.

5. Having heard the learned counsel for the

petitioners and also the learned counsel for the

respondents, the relief sought in the petition is quashing of

the FIR registered for the offences under Sections 420, 465,

468, 471 and 120-B of IPC. While quashing the FIR, the

court has to look into the averments made in the complaint

in paras 3 and 6 wherein the complainant has narrated with

regard to the property involved in the transaction. In para

6 also a mention with regard to the value of the property

and issuance of the cheque is also made. The complainant

has also categorically mentioned in para 7 that accused

persons have cheated the complainant and as such they are

liable for criminal action. The accused persons are liable for

punishment for committing forgery and also liable for

prosecution under Section 464 of IPC for making a false

statement before the Sub-Registrar. This court has to look

into the issue while exercising the power under Section 482

of Cr.P.C. The learned Magistrate in his order dated

6.12.2019 has referred the complaint averments

particularly as against accused no.1 to 3. It is observed in

the order that the complainant in the complaint has made

serious allegations against the accused persons and formed

a opinion that it is just and proper to refer the matter to

jurisdictional police for investigation and submit the report.

Having perused the order, the learned magistrate has

applied his judicious mind while referring under Section

156(3) of Cr.P.C. The Apex Court in the judgment of

Maksud Saiyed case, reported in (2008) 5 SCC 668 also has

categorically held that while referring the matter under

Section 156(3) of Cr.P.C., the learned Judge has to apply

his mind judiciously as to whether it is a fit case to refer the

case under Section 156(3). If the learned Magistrate has

applied his mind while referring the matter under Section

156(3) of Cr.P.c, the court cannot find fault with the same.

6. The other contention of the petitioners' counsel is

that the principles laid down in the judgment of Priyanka

Srivastsava's case is not followed. The complainant in the

complaint specifically mentioned that when the police did

not show any inclination to register the case, he filed the

complaint before the Magistrate. As per the principles laid

down in the judgment of Srivastava's case, the court has to

look into the facts and circumstances of the case. In the

said case it is observed that the protection was given to the

accused under Section 32 of the SARFAESI Act. In the said

case the complainant has filed a complaint against the bank

officials when the bank officials have invoked the recourse

to recover the money against the complainant and hence it

amounts to abuse of process.

7. The Apex Court in Dineshbhai Chandubhai Patel

Vs. State of Gujarat and others and other connected

matters - (2018) 3 SCC 104 has summarized the

principles while exercising the power under Section 482 of

Cr.P.C. for quashing the FIR. The Apex Court in this

judgment also has held that in order to examine as to

whether the factual contents of FIR disclose any prima facie

cognizable offences or not, High Court cannot act like an

Investigating Agency and nor can exercise powers like an

Appellate Court. Question is required to be examined,

keeping in view, contents of FIR and prima facie material, if

any, requiring no proof - at such stage, High Court cannot

appreciate evidence nor draw its own inferences from

contents of FIR and material relied on - it is more so, when

the material relied on is disputed - in such situation it

becomes the job of investigating authority at such stage, to

probe and then of the court to examine questions once the

charge sheet is filed along with such materials as to how far

and to what extent reliance can be placed on such material

- once the court finds that FIR does disclose prima facie

commission of any cognizable offence, it should stay its

hand and allow investigating machinery to step into initiate

the probe to unearth crime in accordance with the

procedure prescribed in Cr.P.C.

8. The Apex Court has also in the judgment in HDFC

Securities Ltd., and others Vs. State of Maharashtra

and another - AIR 2017 SCC 61 in a case of referring the

matter under Section 156(3) has held that Complaint filed

for offences of criminal breach of trust, cheating and

forgery against appellants - Alleging execution of

unauthorized trades in account of complainant without her

consent - Stage of cognizance would arise only after

investigation report is filed before the Magistrate - Order

directing investigation not causing an injury of irreparable

nature - Cannot be quashed at Premature stage.

9. The Apex Court at para 24 has held, which reads

as follows:

"24. It appears to us that the appellants approached the High Court even before the stage of issuance of process. In particular, the appellants challenged the order dated 04.01.2011 passed by the learned Magistrate under Section 156(3) of Cr.P.C. The learned counsel appearing on behalf of the appellants after summarizing their arguments in the matter have emphasized also in the context of the fundamental rights of the appellants under the Constitution, that the order impugned has caused grave inequities to the appellants. In the circumstances, it was submitted that the order is illegal and is an abuse of the process of law. However, it appears to us that this order under Section 156(3) of Cr.P.C. requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation. We must keep in our mind that the stage of cognizance would arise only after the investigation report is filed before the Magistrate. Therefore, in our opinion, at this stage the High Court has correctly assessed the facts and the law in this situation and held

that filing of the petitions under Article 227 of the Constitution of India or under Section 482 of Cr.P.C., at this stage are nothing but premature. Further, in our opinion, the High Court correctly came to the conclusion that the inherent powers of the Court under Section 482 of Cr.P.C. should be sparingly used. In these circumstances, we do not find that there is any flaw in the impugned order or any illegality has been committed by the High Court in dismissing the petitions filed by the appellants before the High Court. Accordingly, we affirm the order so passed by the High Court dismissing the writ petitions. The appeal is dismissed."

10. The Apex court in this judgment has also

categorically held that according to Section 482 of Cr.P.C.

at the stage of referring the matter under Section 156(3) of

Cr.P.C., cannot be ignored and it amounts to premature if

interfered, Section 482 of Cr.P.C. should be sparingly used.

11. In the case on hand the serious allegation of

cheating and forgery are alleged in the complaint and also

the complaint averments in Para 3, 5 and 7 with regard to

role of the petitioners herein are set out. When such being

the case, the contention of the petitioners cannot be

accepted at this stage only matter is referred for

investigation. Each facts of the case has to be looked into.