Sri Anuj Dalmia vs State Of Karnataka
2022 Latest Caselaw 2610 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 17 T H DAY OF FEBRUARY, 2022
                                                            R
                         BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

       CRIMINAL PETITION NO.6492 OF 2021

BETWEEN:

1.    Sri Anuj Dalmia,
      S/o Om Prakash Dalmia,
      Aged about 48 years,
      R/at No.A1, 31,
      Western Manner Ap artments,
      2 n d Cross Atmananda Colony,
      Sultanp alya, Bengaluru-560032.

      Indicated in charge sheet as:
      Sales Head , First Futuristic Lotus Palace,
      R/at No.21, 4 t h Floor,
      1 s t Main Gang anagar,
      Beng aluru-560032.

2.    Mrs. Beena Sajit,
      W/o Sajith Kannan,
      Aged about 48 years,
      R/at No.85, Neljoy 8 t h Cross,
      Kanaka Nag ara,
      Near Little Angels School,
      R.T.Nag ar, Bengaluru-560032.

      Indicated in charge sheet as:
      Sales Manag er,
      First Futuristic Lotus Palace,
      R/at No.21, 4 t h Floor,
      1 s t Main Gang anagar,
      Beng aluru-560032.
                                             ...Petitioners
(By Sri Amar Correa , Advocate)
                                   :: 2 ::


AND:

1.    State of Karnataka
      By Belland ur Police Station,
      Beng aluru-560103.
      Rep. by its State Public Prosecutor,
      Hig h Court of Karnataka
      Beng aluru-560001.

2.    Sri Manoj Kansal,
      S/o Not Known,
      Aged about 36 years,
      R/at No.A/504, Durg a Coral,
      APTS, Kadub isa, Nahalli,
      Beng aluru-560103.
                                                            ...Respondents

(By Sri Rohit B.J., HCGP for R1;
R2 - Served)


      This Criminal Petition is filed under Section 482
of   Cr.P.C.      p raying   to    set      aside    the     order    dated
07.06.2019 in C.C.No.15793/2019 passed by the VI
Addl.C.M.M., Bengaluru (now transferred and pending
on the file of XLI Addl.C.M.M., Beng aluru), thereby
taking cognizance ag ainst these petitioners who are
arrayed      as    accused     No.3      and    4     for    the     offence
punishab le under Sections 420, 504, 506 read with 34
of IPC and directing to reg ister criminal case, vide
Annexure-A.


      This     Criminal      Petition       having     been        heard   &
reserved on 19.01.2022 through video conferencing ,
coming    on      for   pronouncement          this    d ay    the     court
pronounced the following:
                                   :: 3 ::


                                 ORDER

This is a petition filed under section 482

Cr.P.C. by accused nos.3 and 4 (referred to as

'petitioners') in C.C.No.15793/2019 on the file of

XLI Addl. C.M.M., Bengaluru. The facts in brief are

as follows:

2. Based on a report given by the second

respondent and two others viz., Atul Agarwal and

Nikil Agarwal, the first respondent police

registered an FIR in Cr.No.226/2017. They alleged

that petitioner no.2 showed them three flats

bearing nos.B-210, A-111 and B-101 at their

project 'Lotus Palace', Kasavanahalli, Sarjapur

Road, Bengaluru. They were told that the work

was almost complete and the project was in the

stage of receiving OC from the City Corporation,

Bengaluru and therefore they entered into an

agreement with the builder for buying the flats,

and one of the conditions of the agreement was :: 4 ::

that the entire work should be completed and the

possession of the flats should be handed over to

them within three months. They alleged that the

builder concealed from them the pendency of a

land dispute at the time of entering into

agreement. They also learnt that the builder had

mortgaged one of the flats, A-111, to a private

party and had not redeemed the mortgage. They

made payment of 95% of the consideration on the

assurance that the possession of the flats would

be handed over to them. Though this was the

promise, the work was not completed and even

after lapse of one year since the date of booking,

the construction remained at the same stage and

thus they were cheated. FIR was registered for the

offences under sections 406 and 420 IPC.

Investigation led to filing of charge sheet for the

offences under sections 420, 504 and 506 read

with section 34 IPC. In the charge sheet, it is

stated that accused no.1 i.e., the builder, received :: 5 ::

different amounts of Rs.64,35,000/- from Manoj

Kansal, the second respondent; Rs.64,13,000/-

from Atul Agarwal and Rs.76,38,000/- from Nikil

Agarwal. When these persons contacted accused

no.1 to 4 for getting the sale deeds, they were

scolded in vulgar language and threatened with

dire consequences. Petitioners are before this

court seeking to set aside the order dated

7.6.2019 taking cognizance of the offences against

them and quashing of the FIR as also the

proceedings in C.C.No.15793/2019.

3. I have heard Sri. Amar Correa, learned

counsel for the petitioners and Sri. Rohit B.J.,

learned Government Pleader for respondent no.1.

4. The argument of Sri. Amar Correa was

that the learned Magistrate should not have taken

cognizance of the offences against the petitioners

as they were the sales representatives of the

company which was involved in construction of the :: 6 ::

apartments. They did not receive any money in

connection with the transaction between accused

no.1 and CW.1 to 3.

4.1. The charge sheet itself shows that the

petitioners had nothing to do with the transaction.

Even otherwise the transaction between the first

accused and CW.1 to 3 was civil in nature and that

they should have filed a suit for specific

performance. The petitioners have reliably learnt

that sale deeds were executed in favour of CW.1 to

3 on 16.4.2019. In this view prosecuting the

petitioners would amount to abusing the process

of court.

4.2. Sri. Amar Correa further argued that the

learned Magistrate ought not to have taken

cognizance against the petitioners. Merely for the

reason that the petitioners did not challenge the

order of taking cognizance, it does not mean that

they are precluded from applying for quashing of :: 7 ::

the charge sheet. If the evidence collected by the

investigator is seen, it can very well be said that

there are no grounds for framing charges against

the petitioners. The inherent power of the High

Court under section 482 Cr.P.C. is so wide in the

sense whenever the trial court can discharge the

accused, the same powers can be exercised by the

High Court under section 482 Cr.P.C. if it is found

that there are no materials to proceed against the

petitioners. In support of his argument he has

placed reliance on umpteen case law which will be

referred to later.

5. Sri. B.J.Rohit argued that section 482

Cr.P.C. is not a substitute for sections 227, 239

and 245 of Cr.P.C. The grounds taken in the

petition are so clear that the petitioners refer to

the charge sheet to make out a case for quashing

the proceedings against them. They want the

charge sheet to be assessed, but it is a well :: 8 ::

established principle that the High Court cannot

sift the charge sheet materials to find out whether

sufficient grounds exist for framing charge or not.

This domain lies within the jurisdiction of the trial

court. Hence this petition under section 482

Cr.P.C. is not maintainable.

6. From the points of arguments, the actual

question that arises for discussion is with regard

to the scope of section 482 Cr.P.C vis-à-vis the

provisions of discharge found in sections 227, 239

and 245 of Cr.P.C. Before answering this

question, the decisions that the learned advocates

have relied upon may be referred to.

7. The first decision that Sri Amar Correa has

relied upon is in the case of Ashok Chaturvedi

and Others vs Shitul H Chanchani and Another

[(1998) 7 SCC 698]. In this decision what is

held by the Supreme Court is that although the

accused has the right to plead that there is no :: 9 ::

material for framing charges, he is not debarred

from invoking the inherent jurisdiction of the court

at the earliest point of time when the Magistrate

takes cognizance of the offence. In para 5, it is

held as below : -

"5. But the question that yet remains for consideration is whether the allegations made in the petition of complaint together with statements made by the complaint and the witness before the Magistrate taken on their face value, do make the offence for which the Magistrate has taken cognizance of? The learned counsel for the respondent in this connection had urged that the accused had a right to put this argument at the time of framing of charges, and therefore, this Court should not interfere with the order of Magistrate taking cognizance, at this stage. This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient :: 10 ::

material for such framing of charges as provided in Section 245 of the Criminal Procedure Code he is debarred from approaching the court even at an earliest point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of court, and therefore, there cannot be any dispute that in such case power under Section 482 of the Code can be exercised......."

8. Harish Dahiya @ Harish and Another vs

State of Punjab and Others [(2019) 18 SCC :: 11 ::

69] states that the grounds for quashing a

criminal proceeding and the reasons for allowing

or disallowing an application for discharge

preferred by the accused are completely different

and that the grounds falling for consideration in

the two jurisdictions are completely different.

9. In the case of Amit Kapoor vs Ramesh

Chander and Another [(2012) 9 SCC 460] the

discussion is about the scope of section 482 Cr.P.C

vis-à-vis section 397 Cr.P.C., though in detail the

scope of section 482 is elucidated, there is no

discussion as to scope of discharge vis-à-vis scope

of section 482 Cr.P.C and therefore this judgment

is of little help to the case on hand.

10. Sara Mathew vs Institute of

Cardiovascular Diseases and Others [(2014) 2

SCC 62] actually discusses the question as to

when the limitation period prescribed under

section 468 Cr.P.C commences for taking :: 12 ::

cognizance, and incidentally there is a discussion

on the meaning of the expression 'taking

cognizance'. This decision might have been cited

by Sri Amar Correa probably to garner support for

his argument that even there is a ground for

quashing the order of taking cognizance by the

Magistrate. I do not think it necessary to refer to

this judgment in detail as the meaning of the

expression 'taking cognizance' is now well settled

and it is nothing but becoming aware of an

offence.

11. Vishwa Kumar Sharma vs State of

Rajasthan And Another [2006 SCC Online Raj

266], is a judgment of High Court of Rajasthan.

In this judgment the meaning of the expressions

'taking cognizance' and 'framing of charge' is

discussed. In para 16, it is held,

"16. Thus, there are differences between "taking of cognizance and "framing of charge". Of course, both the :: 13 ::

acts require the application of judicious mind. However, the former is done without hearing both the parties. Cognizance is taken without the accused being heard. The latter is done after hearing both the parties. In the former, the Judge examines the evidence to see if an offence has been committed. In the latter, the Judge examines the Commission of the alleged crime by the accused. In the former, mere 'suspicion about the commission of an offence' is enough for taking of the cognizance. In the latter, "grave suspicion about the commission of the crime by the accused" should exist before a charge can be framed. In the former, the Judge is not supposed to sift through the evidence. In the latter, a limited sifting of the evidence is permissible. Therefore, when the phrase "prima facie evidence" is used, it is used for two different sets of examinations at two different stages of the criminal process. One has to realize that the trial progresses through different stages.

:: 14 ::

Hence, appreciation of evidence has to be of different quality. While at the stage of cognizance it is mere 'suspicion', at the stage of framing of charge it is 'grave suspicion,' and at the end of trial, it is 'a critical analysis and a meticulous examination of the entire evidence produced by the prosecution and the accused'. Therefore, the appreciation of evidence at the stage of framing of charges is at micro level; at the end of the trial it is at macro level. Hence, the mental level of appreciation changes at every stage of the criminal process: from a cursory appreciation to a critical one."

12. The judgment of the Supreme Court in

Bhushan Kumar and Another vs State (NCT of

Delhi) and Another [(2012) 5 SCC 424] is not

helpful to the petitioner because what is held

therein is that it is not necessary for the court to

give reasons to issue process to the accused under

section 204 Cr.P.C.

:: 15 ::

13. The next decision Sri Amar Correa has

cited is, Pepsi Foods Limited and Another vs

Special Judicial Magistrate and Others

[(1998) 5 SCC 749]. In this judgment, it is held

that though the Magistrate can discharge the

accused at any stage of the trial, it does not mean

that the accused cannot approach the High Court

under section 482 Cr.P.C or Article 227 of the

Constitution to have the proceeding quashed.

14. In Umesh Kumar vs State of Andhra

Pradesh and Another [(2013) 10 SCC 591], the

discussion on the relative scope of section 482

Cr.P.C and discharge is found in para 20 which is

extracted as below : -

"20. The scope of Section 482 Cr.P.C. is well defined and inherent powers could be exercised by the High Court to give effect to an order under the Cr.P.C.; to prevent abuse of the process of court; and to otherwise secure the ends of justice. This extraordinary power is to be :: 16 ::

exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the court cannot look into materials, the acceptability of which is essentially a matter for trial. Any document filed alongwith the petition labelled as evidence without being tested and proved, cannot be examined. Law does not prohibit entertaining the petition under Section 482 Cr.P.C. for quashing the charge sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the court concerned. The High Court cannot reject the application merely on the ground that the accused can argue legal and factual issues at the time of the framing of the charge. However, the inherent power of the court should not be exercised to stifle the :: 17 ::

legitimate prosecution but can be exercised to save the accused to undergo the agony of a criminal trial."

15. In State of Orissa vs Debendra Nath

Padhi [(2005) 1 SCC 568], the question that

basically fell for consideration is whether an

accused can produce documents for seeking

discharge. It is held by the Supreme Court that

production of any document for seeking discharge

is not permitted, whereas when jurisdiction under

section 482 Cr.P.C is invoked, document of a

sterling quality may be produced and that the High

Court can act upon it.

16. In Rajiv Thapar and Others vs Madan

Lal Kapoor [(2013) 3 SCC 330] the following

four steps were evolved for invoking the power

vested in the High Court under section 482 Cr.P.C.

"30. Based on the factors canvassed in the foregoing paragraphs, :: 18 ::

we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant;

:: 19 ::

and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."

17. The two other judgments of the Supreme

Court referred to by Sri Amara Correa are State of

Karnataka vs L Muniswamy and Others :: 20 ::

[(1977) 2 SCC 699] and State of Haryana and

Others vs Bhajanlal and Others [1992 Supp

(1) SCC 335]. These two judgments are very

often cited. Muniswamy deals with scope of

section 482 Cr.P.C and in Bhajanlal, the Hon'ble

Supreme Court has laid down guidelines for

exercising jurisdiction under section 482 Cr.P.C.

Another judgment of the Supreme Court in the

case of Prof. R.K.Vijayasarathy vs Sudha

Seetharam and Another [(2019) 16 SCC 739]

also discusses the scope of section 482 Cr.P.C. for

quashing criminal proceedings.

18. Sri B.J.Rohit has mainly relied jupon the

judgment of the Supreme Court in the case of

Kaptan Singh vs State of U.P. [(2021) 9 SCC

35] where it is held,

"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 Cr.P.C. has quashed the :: 21 ::

criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 Cr.P.C. quashed the criminal proceedings, by the time the Investigating Officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 Cr.P.C. was :: 22 ::

at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in the case of Dineshbhai Chandubhai Patel (Supra) in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can exercise :: 23 ::

the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court canno t appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material."

(emphasis supplied)

19. Conspectus of the decisions in Ashok

Chaturvedi, Pepsi Foods Limited, Umesh

Kumar, Rajiv Thapar and Kaptan Singh is this:

the power that the High Court can exercise under

section 482 has got a wider amplitude; as the :: 24 ::

language of the section indicates, the inherent

power of High Court is meant for passing any

order as may be necessary to give into effect any

order that may be passed under Code of Criminal

Procedure, or to prevent abuse of process of court

or to pass any order to secure the ends of justice.

While there is no bar or prohibition for

entertaining the petition under section 482 Cr.P.C

for quashing the charge sheet even before charges

are framed, it is not permissible for the High Court

to appreciate or evaluate the materials.

20. Commonly, the accused takes recourse to

challenging the order of taking cognizance of

offence/offences and issuing process against him if

he thinks that it has resulted in abuse of process

of court. This is one stage of invoking jurisdiction

under section 482 Cr.P.C. It is now well

established that if the contents of complaint or

FIR, taken on their face value, do not constitute :: 25 ::

any offence, such a complaint or FIR can be

quashed as taking action pursuant to it amounts to

abuse of process of court. But interference at the

threshold to quash the complaint or the FIR must

not be hastened, and it should be with great

circumspection because wherever there is scope

for inquiry or investigation, it should not be

throttled. Quashing of charge sheet stands on a

different footing. Here lies the acumen to

decipher whether the jurisdiction of the High Court

is invoked unnecessarily, in the sense that the

accused, instead of making an application for

discharge has approached the High Court.

Depending on the nature of trial, the Code of

Criminal Procedure provides for discharging an

accused under sections 227 or 239 or 245 Cr.P.C,

and it is with a definite purpose. It is clearly

observed by the Supreme Court in Harish Dahiya

(supra) that the grounds for quashing a criminal

proceeding and the reasons for allowing or :: 26 ::

disallowing an application for discharge are

completely different. So where lies the fine

distinction? If the High Court starts quashing

charge sheets wherever the trial court can

exercise its jurisdiction to discharge an accused,

the sections in Cr.P.C providing for discharge

become redundant. Thus seen the distinction

between section 482 and the sections providing for

discharge may be delineated or outlined as below :

(i) The contents of complaint made under

section 200 Cr.P.C or FIR do not

disclose commission of offence, or

there is bar for prosecution, yet the

court takes cognizance and proceeds

further, then the accused can seek

quashing of the complaint or FIR at

the threshold, and in case the accused

does not choose to approach the High

Court, even at a later stage, after :: 27 ::

filing of the charge sheet, if an

accused approaches under section 482,

High Court can quash the proceedings,

without evaluating the charge sheet.

(ii) If the initiation of prosecution either

by filing complaint or registration of

FIR is not bad in law, the court will

have to proceed further. In case of

complaint, two courses are permitted,

one to order for investigation under

section 156(3) Cr.P.C and the other

being to take cognizance based on

sworn testimonies in case a complaint

is made by any person other than a

public servant. If cognizance of

offence is taken based on complaint

made by an individual or a public

servant, the next step, after

summoning the accused is to frame

charge, for which a procedure is :: 28 ::

contemplated under section 244 Cr.P.C

for recording evidence for the limited

purpose of framing charge. In case

charge sheet is filed by the police

pursuant to investigation undertaken

under section 156(3) Cr.P.C or after

completion of investigation in relation

to an FIR registered by the police, the

accused would be summoned to the

court in case the Magistrate or the

court finds materials for taking

cognizance and then he proceeds to

frame charge. It is at this stage

section 227 or 239 is available for the

accused to plead for his discharge.

Instead of applying for discharge

under section 227 or 239 or 245, if the

accused approaches the High Court

under section 482 and seeks

indulgence to refer to charge sheet :: 29 ::

materials for quashing the

proceedings, it may be stated that the

High Court cannot exercise inherent

power for quashing the charge sheet

as at this stage, evaluating the

materials for the purpose of framing

charge lies within the domain of the

trial court. Of course the trial court at

this stage is not expected to hold a

mini trial, all that is required is to

arrive at a prima facie conclusion that

materials are sufficient for framing the

charge. Therefore wherever there is

scope for application of mind by the

trial court, the High Court cannot

interfere. At the cost of repetition it

may be stated that in Kaptan Singh

(supra) the Supreme Court has very

clearly held that after evidence is

collected and charge sheet is filed, the :: 30 ::

matter stands on a different footing

and the court is required to consider

the material/evidence collected during

investigation. Even at this stage also

as observed by the Hon'ble Supreme

Court and held by this court in catena

of decisions, the High Court is not

required to go into the merits of the

allegations and/or enter into the

merits of the case as if the High Court

is exercising the appellate jurisdiction

or conducting the trial. Therefore if

the accused invites the attention of

the High Court to the charge sheet and

seeks quashing of the proceedings, the

High Court must restrain from

exercising its jurisdiction under section

482 Cr.P.C.

(iii) It is not as though High Court cannot

quash the charge sheet, it is permitted :: 31 ::

in a situation where the charge sheet

is filed although investigation was

wholly unwarranted. That means at

the inception itself, initiation of

prosecution is bad in law and in such a

case charge sheet is filed and it is

pointed out that the very act of

undertaking investigation was not

permitted, the High Court can

interfere. It is made clear that in a

case of this nature the High Court does

not assess the materials collected

during investigation. The charge sheet

can also be quashed if its contents

clearly disclose a civil dispute.

21. Now in this case the petitioners refer to

charge sheet materials to seek quashing of the

proceedings. Their main contention is that they

were just employees in the company of the first

accused and that they had nothing to do with the :: 32 ::

execution of the sale deed in favour of the second

respondent. May be to this extent their contention

appears to be well founded. But there is further

allegation that when the second respondent and

two other purchasers met all the accused, they

were all threatened to life by all the accused

including the petitioners. The witnesses Atul

Agarwal and Nikil Agarwal have given statements

to this effect. Therefore it is for the trial court to

decide whether based on the evidence collected by

the investigator, it can frame appropriate charges

against the petitioners for the offences that are

applicable as against them. In this view, it may

be stated that the petitioners cannot invoke

jurisdiction of this court under section 482 Cr.P.C

for quashing the proceedings. Therefore this

petition is devoid of merits and it is dismissed.

Sd/-

JUDGE ckl