Karnataka High Court

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

Author: H.P.Sandesh

                                 1



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.6729 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. Melanie Sebastian, Advocate)
                                  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 for R2 & R3)

     This Criminal Petition is filed under Section 482 of
CR.P.C. praying to quash the FIR in Cr.No.257/2019 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.12441/2019.

      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.257/2019 in PCR No.12441/2019 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 nos.2 and 3 have 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

property bearing No.1/5 situated at Tavarekere village,

Begur Hobli which belongs to respondent no.2 and 3. The

other allegation is that the signatures obtained on the blank

papers while having money transactions and chit

transaction one misused and fabricated. The signatures are

also forged. 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 on account of

not honouring the cheque which is given in favour of

respondent no.2 and 3. 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 4 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 4 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 6 and

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 4 to 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. The learned Judge