D J Prashantha vs Roopa
2021 Latest Caselaw 598 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF JANUARY, 2021

                          BEFORE

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

              CRIMINAL PETITION No.3947/2020
BETWEEN:

1.     D.J. PRASHANTHA
       S/O. D.E. JANARDHAN
       AGED ABOUT 31 YEARS

2.     SMT. SUMITHRA
       W/O. D.E. JANARDHAN
       AGED ABOUT 64 YEARS

3.     D.E JANARDHAN
       S/O LATE ERAIAH
       AGED ABOUT 68 YEARS

       ALL ARE R/AT DADAHALLI VILLAGE
       MALLIPATNA HOBLI
       ARAKALGUD TALUK
       HASSAN DISTRICT - 573 201           ... PETITIONERS

              (BY SRI. SRINIVAS V., ADVOCATE)
AND:

ROOPA
D/O. ERAIAH
AGED ABOUT 26 YEARS
R/AT. DADADAHALLI VILLAGE
MALLIPATNA HOBLI
ARAKALAGUDU TALUK - 573 102                ... RESPONDENT

               (BY SRI. M.L. ALVA, ADVOCATE)
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      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO ALLOW THIS PETITION AND SET ASIDE
THE ORDER AT ANNEXURE-B DATED 06.06.2019 IN PCR
NO.200/2019 PASSED BY THE LEARNED CIVIL JUDGE AND JMFC
AT ARAKALAGUDU, AND FIR AT ANNEXURE - C REGISTERED BY
PSI, ARAKALAGUDU IN CR.NO.140/2019 DATED 20.06.2019.

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

                            ORDER

Heard learned counsel for the petitioners.

2. Though the respondent engaged her Counsel, there

is no representation on behalf of her.

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

praying this Court to set aside the order dated 06.06.2019

passed in PCR No.200/2019 by the Civil Judge & JMFC., at

Arakalagudu at Annexure 'B' and FIR in Crime No.0140/2019

dated 20.6.2019 at Annexure 'C'.

4. The factual matrix of the case is that the

complainant has filed a private complaint before the learned

Magistrate. In paragraph Nos.3 and 4 of the complaint, the

allegation was made that these petitioners no way connected to

her family and indulged in creation of documents and got

transferred the property in favour of accused No.3, who is an

educated person and retired bank employee. Thereafter, created

the gift deed, furnishing the false information and obtained the

Khatha in favour of accused No.2 and executed the gift deed in

favour of the first accused. The learned Magistrate having

perused the complaint averments and also the documents,

formed an opinion that there are prima facie case against the

accused and the complainant has made out a ground for

referring the matter for investigation vide order dated

06.06.2019. Hence, the present petition is filed.

5. The learned counsel for the petitioners vehemently

contends that in support of the complaint, no affidavit is filed

and the Magistrate did not apply his mind while referring the

matter under Section 156(3) of Cr.P.C. The learned counsel in

support of his contentions relied upon the judgment of the Apex

Court in the case of PRIYANKA SRIVASTAVA AND ANOTHER

v. STATE OF UTTAR PRADESH AND OTHERS reported in

(2015) 5 SCC 287. Referring paragraph Nos.24, 30, 32 and 27

of the judgment, the learned counsel would submit that non-

filing of the affidavit or otherwise it amounts to abuse of process

and the Apex Court held that in order to prevent abuse of

process, affidavit has to be filed.

6. The other contention of the petitioners' Counsel is

that the complaint is hopelessly barred by limitation and the

Magistrate ought not to have referred the matter for police

investigation. The third contention is that the matter is civil in

nature and ought not to have registered the case and there is no

cheating and complaint averments do not constitute the

ingredients of the offences invoked against the petitioners.

Hence, it is liable to be quashed.

7. Having heard the submissions of the learned counsel

for the petitioners and also on perusal of the records, the

learned Magistrate referred the matter under Section 156(3) of

Cr.P.C, having found the contents of the complaint makes out a

prima facie case. The factual matrix of the case in hand and also

the Judgment of the Apex Court in PRIYANKA SRIVASTAVA's

case (supra), are distinct. A case was registered against the

Bank officials, who have taken the recourse against the

complainant in accordance with law. Hence, the Apex Court

comes to the conclusion that there is an abuse of process. In

the case on hand, a specific allegation is made against these

petitioners that they indulged in creation of documents even

though they are not connected to the family of the complainant.

8. The Apex Court in the case of HDFC SECURITIES

LTD. AND OTHERS v. STATE OF MAHARASHTRA AND

ANOTHER reported in AIR 2017 SC 61, held that, directing the

Investigating Officer, does not amount to causing an injury of

irreparable nature and the said order cannot be quashed at a

premature stage. The Apex Court in paragraph No.24 of the

judgment held that while passing an 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. It is further observed

that the stage of cognizance would arise only after the

investigation report is filed before the Magistrate. Hence, power

under Section 482 of Cr.P.C. cannot be exercised and should be

sparingly used. After discussing the Judgments of the Apex Court

in the case of MAKSUD SAIYED v. STATE OF GUJARATH AND

OTHERS reported in (2008) 5 SCC 668 and also in the case of

ANIL KUMAR AND OTHERS v. M.K. AIYAPPA AND

ANOTHER reported in (2014) 1 SCC (CRI) 35, and after

considering the Judgments formed an opinion that while invoking

Section 156(3) of Cr.P.C, the Court has to invoke Section 482 of

Cr.P.C, sparingly, if it does not affect the right of the accused

while ordering 156(3) of Cr.P.C, it should not be used in a casual

manner. The Court has to look into the contents of the

complaint, if any specific allegation is made in the complaint

then invoke Section 156(3) of Cr.P.C. In the case on hand, the

learned Magistrate while passing the order dated 06.06.2019,

applied his judicial mind and on perusal of the complaint after

hearing the complainant's Counsel, a specific order has been

passed that the available records and pleading have disclosed

the prima facie case against the accused and made out a ground

to refer the matter under Section 156(3) of Cr.P.C. When the

Magistrate has applied his mind and considered the contents of

the complaint and also the documents which have been placed

along with the complaint, this Court does not find any error

committed by the Magistrate while referring the matter under

Section 156(3) of Cr.P.C, to the investigating Officer. Hence, I

do not find any merit in the petition.

9. The other contention of the learned counsel

appearing for the petitioners is that the complaint is hopelessly

barred by limitation and it involves question of law and facts and

the same has to be considered during the course of the trial not

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

Cr.P.C.

10. The third contention of the learned counsel

appearing for the petitioners is that there is a civil dispute

between the parties and the suit is also filed. The said contention

also cannot be accepted. While referring the matter under

Section 156(3) of Cr.P.C, the Court has to look into the contents

of the complaint and the specific allegation is made invoking the

offence in the complaint and the same has to be investigated. It

is settled law that Section 482 of Cr.P.C, has to be exercised

sparingly and not mechanically. Hence, I do not find any error in

referring the matter.

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

following:-

ORDER

The petition is dismissed.

Sd/-

JUDGE

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