Karnataka High Court
Sri. R. Vasudevamurthy vs The State Of Karnataka on 31 March, 2021
Author: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31st DAY OF MARCH, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION No.20/2020
BETWEEN:
1. SRI R. VASUDEVAMURTHY,
S/O LATE RATTEHALLI RAMAPPA,
AGED ABOUT 90 YEARS,
EX-PRESIDENT,
GOVERNING COUNCIL OF
MAHAJANA EDUCATION SOCIETY (REGD),
JAYALAKSHMIPURAM,
MYSURU-570012.
2. SRI T. MURALIDHAR BHAGAVAT,
S/O RAGHAVENDRA BHAGAVAT,
AGED ABOUT 69 YEARS,
PRESIDENT,
MAHAJANA EDUCATION SOCIETY (REGD),
R/A.NO.17, 4TH MAIN ROAD,
JAYALAKSHMIPURAM,
MYSURU-570012.
3. DR. MRS. VIJAYALAKSHMI MURALIDHAR,
W/O SRI T. MURALIDHAR BHAGAVAT,
AGED ABOUT 66 YEARS,
HON.SECRETARY,
GOVERNING COUNCIL OF MAHAJANA
EDUCATION SOCIETY (REGD),
JAYALAKSHMIPURAM,
MYSURU-570012.
4. PROF. P. SAROJAMMA,
D/O LATE N.MAHADEVAPPA,
AGED ABOUT 70 YEARS,
2
ADMINISTRATIVE OFFICER,
MAHAJANA EDUCATION SOCIETY (REGD),
JAYALAKSHMIPURAM,
MYSURU-570012.
5. SRI R. V. NAIK,
S/O LATE VENKATAIAH THIMMANNA NAIK,
AGED ABOUT 70 YEARS,
GOVERNING COUNCIL OF MAHAJANA
EDUCATION SOCIETY (REGD),
JAYALAKSHMIPURAM,
MYSURU-570012.
6. SRI ASHOK KUMAR,
S/O LATE VENKATESH DAS,
AGED ABOUT 63 YEARS,
GOVERNING COUNCIL OF MAHAJANA
EDUCATION SOCIETY (REGD),
JAYALAKSHMIPURAM,
MYSURU-570012. ... PETITIONERS
(BY SRI S.P. KULKARNI ADVOCATE FOR
SRI SRIKANTH PATIL. K, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPT.BY STATION HOUSE OFFICER,
METAGALLI PS, MYSURU,
NOW REPT. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, BENGALURU.
2. DR. K.S. NAGAPATHI,
S/O LATE SRIPATHI HEGDE,
AGED ABOUT 71 YEARS,
R/AT No.208, 2ND MAIN,
JAYALAKSHMIPURAM,
MYSURU-570012. ... RESPONDENTS
(BY SRI SANDESH J. CHOUTA, SENIOR COUNSEL FOR
SRI ISMAIL.M. MUSHA, ADVOCATE FOR R2;
SRI MAHESH SHETTY, HCGP FOR R-1)
3
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE COMPLAINT DATED
19.12.2019 (ANNEXURE-A) AND FIR DATED 19.12.2019
(ANNEXURE-A1) IN CR.NO.122/2019 ON THE FILE OF VII
ADDITIONAL CIVIL JUDGE (JR.DN.) AND J.M.F.C., MYSURU
REGISTERED BY THE 1ST RESPONDENT POLICE FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 378 AND 380 OF IPC.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 12.03.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C, praying
this Court to quash the complaint dated 19.12.2019 (Annexure-
A) and FIR dated 19.12.2019 (Annexure-A1) in Crime
No.122/2019 on the file of the VII Additional Civil Judge (Jr.Dn.)
and JMFC, Mysuru, for the offences punishable under Sections
378 and 380 of IPC and grant such other relief as deems fit in
the circumstances of the case.
2. The factual matrix of the case is that the
complainant/respondent No.2 has filed a complaint on
12.12.2019 making the allegation in the complaint that he was
working in the petitioners' institution from 2009 to 2015 and he
was having the documents pertaining to the Tourism
Department. From the beginning of 2015, differences were
arisen between him and the petitioners institution. Hence, he
gave resignation on 05.01.2015. The respondent No.2 was
requested to continue till the completion of the academic year
and he agreed for the same and in the month of May he gave
the resignation and the Management did not accept the same.
That on 19.05.2015 and 20.05.2015, he was on leave to receive
the Doctorate in Literature for his book "Karnataka A Delight For
Tourist" which he had written and Belagavi Rani Chennamma
University gave the Doctorate and while going to receive the said
Doctorate, he locked his room. In his absence that on
20.05.2015, these petitioners removed the lock and entered the
room and stole the documents, letter heads, receipts, bills and
vouchers without his consent. The petitioners institution with
malafide intention and on personal vengeance removed the
documents and now they made an allegation against the
complainant that he has misappropriated the amount.
3. It is also alleged in the complaint that though other
staff witnessed the said incident, they are not coming forward to
give statement. The police investigated the matter against the
case registered against him and filed the charge-sheet. During
the course of investigation in the case registered against
respondent No.2/complainant, it is categorically admitted that
they have removed the documents and also not drawn any
mahazar and prima facie it discloses that they have committed
the offence. Hence, requested to take action against the
petitioners. Based on the complaint, the police have registered
the case against the petitioners for the offences punishable
under Sections 378 and 380 of IPC. Hence, the petitioners have
approached this Court by filing this petition for seeking order of
quashing.
4. The learned counsel for the petitioners in his
arguments referring the brief synopsis which he has prepared,
contended that respondent No.2 was appointed in 2005 and the
institution introduced Tourism Department and respondent No.2
was made as Head of the said Department including collection of
fees, admissions etc. A number of complaints were lodged in the
year 2014 by the students/parents to the society against
respondent No.2 about his misappropriation, misdeeds about
admissions, etc. and ultimately an internal auditor was
appointed. Respondent No.2 gave resignation on 05.01.2015
admitting guilt that he could not maintain proper accounts of the
Department, but went on litigating against the
management/petitioners. The respondent No.2 filed defamation
case against the petitioners and the society also lodged
complaint against him on 01.11.2015 and in the local newspaper
'Star of Mysore', the same was appeared and hence respondent
No.2 filed a private complaint against the petitioners for the
offences punishable under Sections 409 and 500 of IPC and the
same was quashed by this Court. It is also the contention of
the petitioners that civil suit in O.S.No.17/2016 filed by the
petitioners against respondent No.2 is pending, claiming
misappropriated amount of Rs.3 Crores and odd. The
respondent No.2 also filed written statement in the suit, but not
stated anything about the present offence of theft and civil suit
for recovery is pending.
5. The learned counsel for the petitioners would
vehemently contend that Crime No.65/2015 has been
investigated and the police have filed the charge-sheet. Now
respondent No.2 has lodged a theft case in 2019 though the
alleged incident was taken place according to the complainant in
the year 2015 and there is a delay in lodging the complaint.
This complaint is nothing but off shoot of the civil suit and
criminal case registered against him. In support of his
contentions, the learned counsel would vehemently contend that
in the written statement filed by respondent No.2, he has not
stated even one word about this offence of theft of documents
and so also defamation case was also quashed and nothing is
whispered about the present offence of theft of 2015. The
complaint lodged by respondent No.2 is clear that he was not in
station at the time of alleged offence and only he is relying upon
hearsay complaint and also stated that he had thought of not
lodging the complaint as he was aged about 68 years and only
with dishonest intention, the present complaint is filed. The FIR
is lodged by the police mechanically without application of mind
and there was a delay in lodging the complaint. It is also
contended that in the earlier proceedings either filed by
respondent No.2 against the petitioners or filed by the
petitioners against respondent No.2, has not said even one word
about the said alleged theft. As per Bye-law No.13.6 of the
Mahajana Education Society, the Secretary shall be the
custodian of all records such as cheque books, pass books,
receipt books, day books, cash register and other relevant and
confidential documents. Therefore, respondent No.2 being an
employee of the institution cannot lodge a complaint by saying
that the documents are stolen from his legal custody.
6. The learned counsel for the petitioners in support of
his contentions, relied upon the judgment of the Apex Court in
the case of STATE OF HARYANA AND OTHERS v. CH.
BHAJAN LAL AND OTHERS reported in AIR 1992 SC 604(1)
and brought to the notice of this Court Sections 154(1) and
157(1) of Cr.P.C. He also brought to the notice of this Court
seven guidelines for entertaining the petition in High Court
exercising the powers under Section 482 of Cr.P.C. Particularly
he relied upon the first, fifth and seventh guidelines of the said
judgment.
7. The learned counsel also relied upon the judgment of
the Apex Court in the case of DALIP KAUR AND OTHERS v.
JAGNAR SINGH AND ANOTHER reported in (2009) 14 SCC
696, wherein it is held that where allegations contained in FIR,
even if given face value and taken to be correct, do not disclose
commission of the alleged offence and disclose only a civil
dispute, FIR is liable to be quashed.
8. The learned counsel also relied upon the judgment of
the Apex Court in the case of KISHAN SINGH (DEAD)
THROUGH LRS. v. GURPAL SINGH AND OTHERS reported in
(2010) 3 SCC (Cri) 1091 and brought to the notice of this
Court paragraph No.25 of the judgment. It is also held with
regard to exercising of power under Section 482 of Cr.P.C.
regarding large delay in lodging the complaint and malafide
proceedings launched to wreak vengeance, proceedings has to
be quashed.
9. The learned counsel also relied upon the judgment of
this Court in the case of MRS. INDIRA POOVAIAH AND
ANOTHER v. THE STATE OF KARNATAKA AND ANOTHER
reported in 2018 (2) Kar.L.R. 864 and brought to the notice of
this Court paragraph No.11. In the said judgment, it is
discussed with regard to scope of Section 482 of Cr.P.C.
Inherent powers of the High Court for quashing of complaint.
Frustrated litigant who has failed in civil Court attempts to
invoke criminal jurisdiction with malafide intention or with a
motive of wreaking vengeance on the present accused - Civil
litigations pending or disposed of - amounts to abuse of process
of Court.
10. The learned counsel also relied upon the judgment of
this Court in the case of V. NAGABHUSHAN AND OTHERS v.
M/S. N.K. CONSTRUCTIONS, BENGALURU AND ANOTHER
reported in 2019 (1) KCCR 543 and brought to the notice of
this Court paragraph Nos.3, 4 and 9. It is also observed that
when the civil suits are pending between the rival parties,
proceedings has to be quashed.
11. The learned counsel also relied upon the judgment of
the Apex Court in the case of SARDAR ALI KHAN v. STATE OF
UTTAR PRADESH THROUGH PRINCIPAL SECRETARY HOME
DEPARTMENT AND ANOTHER reported in AIR 2020 SC 626
and brought to the notice of this Court paragraph No.9, wherein
the Apex Court discussed with regard to the pendency of the civil
suit and complaint filed alleging forgery and impersonation
regarding validity of sale deed and when the same is pending
before the civil suit for cancellation of sale deed having regard to
serious factual disputes which are of civil nature, continuation of
criminal proceedings during pendency of civil suit is nothing but
an abuse of process of law.
12. The learned counsel also relied upon the judgment of
the Apex Court in the case of AHMAD ALI QURAISHI AND
ANOTHER v. STATE OF UTTAR PRADESH AND ANOTHER
reported in AIR 2020 SC 788 and brought to the notice of this
Court paragraph Nos.20 to 24. The Apex Court also discussed
with regard to where civil disputes are pending regarding
property between the parties and criminal proceedings
maliciously instituted with ulterior motives - permitting which
would be abuse of process of Court and held that proceedings
are liable to be quashed.
13. Per contra, the learned counsel for respondent No.2
would vehemently contend that subsequent to stealing of the
original documents breaking open the lock of the room in which
it was kept and in the custody of respondent No.2, from the day
one the complainant is agitating the same and in the complaint,
specific reasons are stated for delay in lodging the complaint. It
is also contended that the theft of documents were taken place
within the vicinity of the petitioners institution and no official
came forward to help respondent No.2 and respondent No.2
reiterated the same subsequent to the incident and the very
contention that the same has not to been attributed in any
subsequent proceedings cannot be accepted. It is also the
contention of the learned counsel that the same has to be
emerged during the course of investigation in connection with
the case registered against respondent No.2 by the institution
and in each and every stage he has pointed out the theft of the
documents which were in his custody and now the final report is
filed and case has been registered against him for
misappropriation and civil suit is also filed claiming the amount
of Rs.3 Crores and odd against respondent No.2 herein.
14. The learned counsel in support of his arguments
brought to the notice of this Court the statement of objections
filed by him and in detail controverted the allegations made in
the petition. The learned counsel also brought to the notice of
this Court that in the bail application dated 06.11.2015 he has
stated in paragraph No.14 that on 20.05.2015, the President and
the Secretary went to the Department premises situated at
Metagalli and took custody of all the papers, documents, record
books and sealed the chamber of the petitioner. The learned
counsel brought to the notice of this Court that the complaint
dated 28.12.2016 was given to the Commissioner of Police,
Mysore City, Mysore, wherein categorical allegations are made
that with the sole intention to frame respondent No.2 in the said
case, Mr. Bhagawat's wife and father-in-law broke upon the
chamber on 20.05.2015 when he was on leave and took away all
the receipts, vouchers, record books etc. kept in his office. Now
they have charged him for not maintaining the records of the
expenses.
15. The learned counsel also brought to the notice of this
Court when he was summoned and enquired in connection with
Crime No.65/2015, he reiterated the same in his statement
before the police on 25.01.2017. The learned counsel brought to
the notice of this Court that he gave the explanation to the
Investigating Officer, City Crime Branch, reiterating the same
and also brought to the notice of this Court Annexure-R9
wherein he gave response to the Inspector of Police. He has
reiterated that when he was on leave on 19.5.2015 and
20.05.2015, the petitioners have barged into his room and
removed the vouchers, bills and other documents.
16. The learned counsel also brought to the notice of this
Court Annexure-R10 which was given to the City Crime Branch.
In the reply dated 21.05.2018, the incident has been culled out
and explained the same. The learned counsel also brought to the
notice of this Court the questionnaire to the Secretary of the
petitioners institution which was recorded in connection with
Crime No.65/2015, wherein the Secretary categorically admitted
that the Management has taken possession of all the records and
documents and also categorically admitted that there was no
concurrence of respondent No.2 in taking the documents. In the
enquiry also categorically stated that they have not conducted
any mahazar for having taken the documents and in the
questionnaire, categorically admitted that some records were
taken for verification. Hence, it is clear that they have barged
into the room of respondent No.2 and took away all the relevant
documents and subsequently registered the criminal case and
also filed the civil suit for recovery of amount of Rs.3 Crores and
odd.
17. The learned counsel for respondent No.2 in support
of his arguments relied upon the judgment of the Apex Court in
the case of PYARE LAL BHARGAVA v. THE STATE OF
RAJASTHAN reported in AIR 1963 SC 1094 and brought to
the notice of this Court paragraph No.8 of the judgment, wherein
it is observed that the facts found were that the appellant got
the file between December 15 and 16, 1948, to his house, made
it available to Ram Kumar Ram and on December 16, 1948
returned it to the office. On these facts it is contended that the
prosecution has not made out that the appellant dishonestly took
any movable property within the meaning of Section 378 of the
IPC. The Apex Court also discussed with regard to A, a
superintendent in Government office taking a certain file from
office to his house and making the same available to B and then
returning the same after replacing certain papers by other
papers, to office. A held was not in legal possession of the file.
To commit theft one need not take movable property
permanently out of the possession of another with the intention
not to return it to him. A unlawfully stole the file from the
department, and for a short time he deprived the Head of the
Department of the possession of the said file. A temporary
period of deprivation or dispossession of the property of another
causes loss to the other person. A person acts dishonestly if he
temporarily dispossesses another of his property. A's case
therefore fell within four corners of Section 378 of IPC.
18. The learned counsel also relied upon the judgment of
the Apex Court in the case of PRITI SARAF AND ANOTHER v.
STATE OF NCT OF DELHI AND ANOTHER reported in 2021
SCC online SC 206, wherein the Apex Court set aside the order
passed by the High Court in quashing the criminal proceedings
and restored the complaint making an observation that the High
Court has failed to consider the charge-sheet and other materials
available on record and the very observation of the High Court
that it was a simple case of termination because of breach of
terms of contract giving rise to a purely civil dispute or initiation
of the arbitral proceedings would not attract the provisions under
Sections 406, 420, 34 of IPC may not hold good at this stage for
the reason what is being suggested by the learned counsel for
respondent No.2 can be his defence during the course of trial but
was not open to be examined by the High Court to take a judicial
notice and for quashing of the criminal proceedings in exercise of
its inherent powers under Section 482 of Cr.P.C.
19. Having heard the learned counsel for the petitioners
and learned counsel for respondent No.2 and also considering
the principles laid down in the judgments referred supra, this
Court has to examine whether it is a fit case to exercise the
powers under Section 482 of Cr.P.C. to quash the FIR. On
perusal of the complaint, an allegation is made that in the
absence of the complainant, the petitioners herein have broke
open the lock and barged into the room, which was provided to
the complainant by the institution of the petitioners and stole the
documents, letter heads, receipts, bills and vouchers without his
consent. No doubt, there is a delay in lodging the complaint.
The incident was taken place according to the complainant on
20.05.2015 and the complaint is lodged in 2019. The learned
counsel for the petitioners brought to the notice of this Court
that there is no any averment in the written statement that in
the civil suit filed against respondent No.2 with regard to this
incident and nowhere stated with regard to the incident is
concerned. The said contention cannot be accepted for the
reason that the learned counsel for respondent No.2 brought to
the notice of this Court in detail, which has been referred supra
that respondent No.2 brought to the notice of the Investigating
Officer, who has investigated the matter that the case is
registered against respondent No.2 herein. The Court also
cannot expect the same in the written statement with regard to
civil suit filed against him. It is the specific case of respondent
No.2 that by removing the documents, vouchers etc., the
petitioners filed the criminal case and also civil suit for recovery
of more than Rs.3 Crores.
20. It is also brought to the notice of this Court that
when investigation was conducted by the police in respect of the
case registered against respondent No.2 herein, the Secretary of
the Institution categorically admitted in terms of Annexure-R11
when a question was put has the Management taken possession
of all the records and documents of the MTDI, the answer was
given that some records which was available for verification was
taken in possession and no concurrence was given by
respondent No.2. It is further admitted that the official mahazar
was not conducted and some records were taken for verification,
Hence, it is clear that the incident was taken place and specific
allegation that the documents were stolen, prima facie discloses
in Annexure-R11. The specific allegations were made in the
complaint that the petitioners barged into the room in which the
complainant had kept the documents which were in his custody
and stole the documents.
21. Having taken note of the complaint averments and
also the relevant materials available before the Court as pointed
by the learned counsel for respondent No.2 and also the records
discloses that even after the registration of the case against
respondent No.2 in the bail application and also in reply to the
Investigating Officer specifically contended with regard to
incident is concerned. It is also the case of the complainant that
the documents which were in his custody were removed and
thereafter cases are instituted against him, both criminal case as
well as civil case. Under the circumstances, the very contention
of the learned counsel for the petitioners that there cannot be
any criminal prosecution against the petitioners cannot be
accepted and the materials found before the Court prima facie
discloses with regard to the incident was taken place, that too in
the absence of respondent No.2. The very contention of the
petitioners that the complainant came to know about the
incident through other officials and the same is a hearsay
complaint, cannot be decided at this juncture and the
Investigating Officer has to probe the matter and unearth the
crime. The High Court should not venture to prevent the
Investigating Officer in conducting the investigation. May be
there is a delay in lodging the complaint, but the fact is that the
documents which were in custody of respondent No.2 were taken
away. The Apex Court in the judgment in the case of Pyare Lal
Bhargave (supra) has held that even if the documents are
removed for temporary purpose, it amounts to invoking the
ingredients of Section 378 of IPC. Under the circumstances, I do
not find any merit in the petition to quash the FIR. It requires
further investigation.
22. In view of the discussions made above, I pass the
following:
ORDER
The petition is rejected.
Sd/-
JUDGE
MD
