Sri Dr S Siddaiah vs The State Of Karnataka
2022 Latest Caselaw 3893 Kant

                           1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 8TH DAY OF MARCH, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

            CRIMINAL PETITION NO.6343 OF 2021

BETWEEN

SRI DR S SIDDAIAH
S/O LATE SIDDAGANGAIAH
AGED ABOUT 58 YEARS
R/A SNEHA SANGAMA TRUST
MUNISWAMY GOWDA LAYOUR
KEMPAPURA, HEBBAL
BENGALURU - 560 024.                       ... PETITIONER

(BY SRI SANDESH J CHOUTA, SENIOR COUNSEL
 FOR SRI RAJASHEKAR S., ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      REP BY ITS PUBLIC PROSECUTOR
      SARASWATHIPURAM POLICE STATION
      KRISHNARAJA SUB DIVISION
      MYSURU CITY
      MYSURU - 570 001.

2.    SRI SOMASHEKARAPPA G B
      S/O LATE BASAPPA
      AGED ABOUT 63 YEARS
      ADVOCATE
      PRESENTLY R/AT OBAVVA NAGATHIHALLI
      CHITRAD DURGA TALUK AND DISTRICT - 577 541.
                                       ... RESPONDENTS
(BY V.S. HEGDE, SPP II FOR R1
 SRI. C.V. NAGESH, SENIOR COUNSEL FOR
 SRI. SANDEEP PATIL, ADVOCATE FOR R2)
                                       2


      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH
THE COMPLAINT AND FIR REGISTERED IN CR.NO.96/2021
DATED 10.08.2021 REGISTERED BY RESPONDENT NO.1 FOR
THE ALLEGED OFFENCE PUNISHABLE UNDER SECTION 406 OF
IPC WHICH IS PENDING ON THE LEARNED IV ADDITIONAL
CIVIL JUDGE (SR.DN) AND JMFC, MYSURU.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.02.2022 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                              ORDER

This petition is filed by the petitioner-accused under

Section 482 of Cr.P.C. for quashing FIR in crime

NO.96/2021 registered by Saraswathipuram Police Station

Mysuru, for the offence punishable under Section 406 of

IPC.

2. Heard the arguments of learned Senior Counsel

Sri Sandesh J. Chouta for the petitioner and Sri C.V.

Nagesh, learned Senior Counsel for respondent No.2 and

the learned SPP-II for the respondent No.1 State.

3. The case of prosecution is that one

Somashekarappa G.B., a Legal Committee Member of Sri

Taralabalu Jagadguru Bruhanmath, Sirigere, (hereinafter

referred to as 'Taralabalu Mutt') filed a complaint to the

Saraswathipuram police on 10.08.2021 alleging that the

petitioner Dr. S. Siddaiah was the Secretary of Sri

Taralabalu Jagadguru Education Institution, Sirigere and

used to perform duties as Principal Secretary. The

petitioner also used to look after the financial,

administrative and other works of Taralabalu Mutt and he

was the responsible Secretary of the Taralabalu Mutt. It is

further alleged that the petitioner said to have purchased a

land bearing Sy. No.130/2 measuring 1 acre 2 guntas for

Rs.4,10,000/- by a sale deed registered before the

Sub-Registrar. The amount of Rs.2,05,000/- and another

Rs.2,05,000/- has been debited from the account of

Taralabalu Mutt and he has issued a cheque to the vendor

on 03.04.2010. While registering the document, instead of

registering the sale deed in the name of Taralabalu Mutt

represented by the Secretary, he got registered in his

name and he has misused the authority and got the sale

deed registered in his name even though the sale

consideration was paid by Taralabalu Mutt. Subsequently,

the petitioner said to have removed from the post of

Secretary. Later, the petitioner tried to change his name

in the katha as well as electricity and water bills. Hence,

the complainant has prayed for taking action against the

petitioner for misappropriation of property of the

Taralabalu Mutt. The police after receipt of complaint,

registered the case, which is under challenge before this

Court.

4. The learned Senior Counsel appearing for the

petitioner has contended that the property was purchased

in the name of the petitioner in the year 2010 by paying

Rs.4,10,000/- and the said amount has been treated as

loan given to the petitioner by Taralabalu Mutt and later, it

was recovered which is revealed from the books of

accounts maintained by Taralabalu Mutt and subsequently,

the petitioner purchased some more property, which is

adjacent to the said property in the capacity of Secretary,

and it was registered in the name of Taralabalu Mutt.

Taralabalu Mutt has also filed a suit against the petitioner

and temporary injunction has been granted against the

petitioner and subsequently, the injunction was vacated.

The petitioner has also filed a suit against Taralabalu Mutt,

which is pending. The matter is purely of civil in nature.

The petitioner is next to going to be elected as pontiff and

in order to avoid the petitioner to become pontiff of the

Taralabalu Mutt, a false case has been filed against him

with an ulterior motive and there is no ingredients of

offence made out against the petitioner for investigating

the matter. Hence, prayed for quashing the same.

Learned Senior counsel for petitioner has relied upon the

following judgments of the Hon'ble Supreme Court

(i) INDIAN OIL CORPORATION Vs. NEPC INDIA LIMITED AND OTHERS reported in 2006(6) SCC 736,

(ii) PARAMJEET BATRA Vs. STATE OF UTTARAKHAND AND OTHERS reported in 2013 (11) SCC 673,

(iii) MEDMEME, LLC AND OTHERS Vs. IHORSE BPO SOLUTIONS PRIVATE LIMITED reported in 2018(13) SCC 374,

(iv) ANAND KUMAR MOHATTA AND ANOTHER Vs. STATE (NCT OF DELHI), DEPARTMENT OF HOME AND ANOTHER reported in 2019(11) SCC 706,

(v) SATISHCHANDRA RATANLAL SHAH Vs. STATE OF GUJARAT AND ANOTHER reported in 2019(9) SCC 148,

(vi) PROF. R.K. VIJAYASARATHY AND ANOTHER Vs. SUDHA SEETHARAMAN AND ANOTHER reported in 2019(16) SCC 739,

(vii) MITESH KUMAR J. SHA Vs. STATE OF KARNATAKA AND OTHERS reported in 2021 SCC Online 976.

5. Per contra, learned Senior Counsel Sri C.V.

Nagesh for respondent No.2 has contended that the

amount has been deducted from the account of the

Taralabalu Mutt and the sale consideration was directly

paid to the vendor by two different cheques for

Rs.2,05,000/- each and the cheques were signed by

petitioner as the Secretary of the Taralabalu Mutt. If at

all, Rs.4,10,000/- was assumed to be a loan amount, it

cannot be directly payable to the vendor. It has to be paid

in the personal name of the petitioner and thereafter, he

should pay the same to the vendor which itself clearly goes

to show that he has misused the fund of the Taralabalu

Mutt for having purchased the property in his individual

name instead of purchasing the same in the name of

Taralabalu Mutt as the Secretary of Taralabalu Mutt. The

learned Senior Counsel contended that from the beginning,

the petitioner has purchased the property in his name by

using the money belonged to Taralabalu Mutt and the

subsequent document reveals that the petitioner has

purchased the property in the name of Taralabalu Mutt and

after his removal from the post of Secretary, he tried to

change his name in the electricity and water bills even

though the said bills reflected the name of Taralabalu Mutt

prior to the complaint. Therefore, the matter requires

investigation. There was criminal intention from the

beginning for misusing the authority of Taralabalu Mutt by

the petitioner. Hence, prayed for dismissing the petition.

Learned Senior Counsel has relied upon the following

judgments of the Hon'ble Supreme Court

(i) VEENA MITTAL VS. STATE OF UTTAR PRADESH AND OTHERS in criminal appeal No.122/2022 decided on 24.01.2022,

(ii) NEEHARIKA INFRASTRUCTURE PVT. LTD. VS. STATE OF MAHARASTRA AND OTHERS reported in 2021 SCC online SC 315,

(iii) SKODA AUTO VOLKSWAGEN (INDIA) PRIVATE LIMITED VS. STATE OF UTTAR PRADESH AND OTHERS reported in (2021) 5 SCC 795.

6. The learned SPP-II Sri V.S. Hegde appearing for

respondent State has also supported the arguments of Sri

C.V. Nagesh, learned Senior Counsel and contended that

the matter is still at the preliminary stage and requires

detailed investigation. The sale deed reflected the name

of the petitioner even though the cheques were belonged

to Taralabalu Mutt and purchasing the property in his

name and after dispute arises, the petitioner trying to

change his own name, or all are indicating prima facie

material to attract the ingredients of Section 406/408 of

IPC. Hence, prays for dismissal of the petition. Learned

SPP-II has also relied upon some of the judgments of

STATE OF ODISHA VS. PRATIMA MOHANTY reported in

2021 SCC online SC 1222.

7. Before going to the case of the petitioner, it is

worth to mention some of the principles laid down by the

Hon'ble Supreme Court in respect of quashing the FIR. In

the case of Veena Mittal (supra), the Hon'ble Supreme

Court has held "it is well settled that at the stage when the

High Court considers a petition for quashing criminal

proceedings under Section 482 of the Cr.P.C., the

allegation in the FIR must be read as they stand and it is

only if on the face of the allegations that no offence, as

alleged, has been made out, that the Court may be

justified in exercising its jurisdiction to quash".

The Hon'ble Supreme Court has also relied upon the

judgment in case of Neeharika Infrastructure Pvt. Ltd.

(supra) and at paragraph 80 of the jdugment, the Hon'ble

Supreme Court has held as under:

80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two

specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non- interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no

substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not

the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the

investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be

adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.

The Hon'ble Supreme Court in another judgment in

case of Skoda Auto Volkswagen (India) Private Limited

(supra), at paragraphs 41 and 42, has held as under:

41. As cautioned by this Court in State of Haryana v. Bhajan Lal, the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint.

42. In S.M. Datta v. State of Gujarat, this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta, this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the

jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere.

In another judgment relied upon by the learned SPP-

II, in the case of Pratima Mohanty Etc. (supra), the

Hon'ble Supreme Court, at paragraph 16, has held as

under:

16. It is trite that the power of quashing should

be exercised sparingly and with circumspection and

in rare cases. As per settled proposition of law

while examining an FIR/complaint quashing of

which is sought, the court cannot embark upon any

enquiry as to the reliability or genuineness of

allegations made in the FIR/complaint. Quashing of

a complaint/FIR should be an exception rather than

any ordinary rule. Normally the criminal

proceedings should not be quashed in exercise of

powers under Section 482 Cr.P.C. when after a

thorough investigation the charge-sheet has been

filed. At the stage of discharge and/or considering

the application under Section 482 Cr.P.C. the

courts are not required to go into the merits of the

allegations and/or evidence in detail as if conducing

the mini-trial. As held by this Court the powers

under Section 482 Cr.P.C. is very wide, but

conferment of wide power requires the court to be

more cautious. It casts an onerous and more

diligent duty on the Court.

8. The Hon'ble Supreme Court in the case of Indian

Oil Corporation (supra) has laid down certain principles in

respect of the provisions of Sections 403 and 405 of IPC.

In Medmeme case (supra), the Hon'ble Supreme Court

has quashed the criminal proceedings. In Anand Kumar

mohatta's case (supra), the Hon'ble Supreme Court has

quashed the charge sheet for the offence punishable under

Section 406 of IPC. In another case in Satishchandra

Ratanlal Shah (supra), the Hon'ble Supreme Court has

quashed FIR for the offences punishable under Sections

406 and 415 of IPC. In Prof. R.K. Vijayasarathy's case

(supra), the Hon'ble Supreme Court has quashed the

criminal proceedings in respect of the property dispute. In

Mitesh Kumar J Sha's case (supra), the Hon'ble Supreme

Court has quashed the FIR and charge sheet.

9. Having heard the arguments of learned Senior

counsels and also the learned SPP-II for respondent State

and on going through the judgments of the Hon'ble

Supreme Court relied upon by learned counsel for both the

parties and on going through the principles laid down by

the Hon'ble Supreme Court in respect of guidelines for

quashing the FIR and the criminal proceedings and also on

perusal of the records, it reveals that the petitioner Dr.

Siddaiah was appointed as Secretary of the Taralabalu

Mutt in the year 2004. It is not in dispute that he was

removed from the post of Secretary on 29.3.2021. The

petitioner also filed a suit against Taralabalu Mutt and

Taralabalu Mutt also filed a suit against the petitioner and

no temporary injunction was granted in both the suits. Of

course, the temporary injunction granted against the

petitioner has been vacated on the technical ground that

the suit filed by the plaintiff was not an authorized person

in accordance with law. However the suit is still pending.

It is also not in dispute that one Vishwanath, the present

Secretary of the Taralabalu Mutt has filed a complaint

against the petitioner before R.T Nagar police in Crime

No.161/2021 for the offence punishable under Section 7 of

Religious Institutions (Prevention of Misuse) Act, 1988,

which is also under challenge before this Court in Crl P.

No.6395/2021.

10. It is also not in dispute that the petitioner had

purchased the property in Sy. No.130/1A2B measuring

33/4 guntas. The recitals in the sale deed reveals that two

cheques were given to the vendors Kalyanamma and

Girijakumari for Rs.2,05,000/- each by cheque Nos.608344

and 608345 respectively drawn on Syndicate Bank,

Bannimantapa Branch, Mysuru and both cheques were

dated 03.04.2010 signed by the petitioner as the Secretary

of Taralabalu Mutt. The amounts were debited from the

accounts of Taralabalu Mutt. The cheques were belonged

to Taralabalu Mutt. The contention of the petitioner is that

he has borrowed loan from Taralabalu Mutt and paid the

amount of Rs.4,10,000/- to the vendors and purchased the

property in his name. The petitioner says that it was the

loan amount which was recovered by Taralabalu Mutt from

him. Per contra, the respondent's contention is that the

amount is paid directly to the vendors by a cheque which

belongs to the Taralabalu Mutt signed by the petitioner as

the Secretary of the Taralabalu and the electricity and

water bills were previously issued in the name of the

Taralabalu Mutt. Subsequently, the petitioner tried to

change into his name only after the dispute arisen between

himself and the Taralabalu Mutt and after his removal as

Secretary from Taralabalu Mutt. Such being the case, the

matter requires thorough investigation to verify as to

whether the petitioner has issued the cheque belongs to

Taralabalu Mutt as a Secretary of the Taralabalu Mutt

towards the sale consideration or whether the petitioner

has misused the power as Secretary and purchased the

property in his name or he has borrowed loan from the

Taralabalu Mutt and paid the sale consideration for

purchasing the property in his own name. The petitioner

was said to be Honorary Secretary and he was not having

any income and working as Secretary without salary and

he was said to have come to Taralabalu Mutt at the age of

13 years. Such being the case, how the petitioner has

repaid the loan amount to Taralabalu Mutt and whether the

loan was sanctioned by Peetadhipathi of the Taralabalu

Mutt to him or any resolution was passed for granting any

loan and permitting him to purchase property in his name

out of the fund belongs to Taralabalu Mutt and once if he

purchased the property in his name, why the electricity

and water bills were issued in the name of Taralabalu Mutt

and who has paid the water and electricity bills either by

the Taralabalu Mutt or by the petitioner himself, are all

necessary to be investigated by the police to find out the

truth. This Court cannot investigate the case by stepping

into the shoes of the investigation officer at this stage.

11. It is also seen from the records that the dispute

arises between the Taralabalu Mutt and the previous

Secretary, the petitioner herein, in respect of the property

and also next pontiff. The learned Senior Counsel for the

respondent submits that Taralabalu Mutt came to know

about the misappropriation of the amount and the property

by the petitioner only when he tried to change his name in

the records.

12. Learned counsel for the petitioner has also

produced some documents especially the income tax

returns wherein assets of the Mutt were declared and it is

stated that Taralabalu Mutt is holding only one site at

Mysore but not another site which stands in petitioner's

name. The auditor also submitted a report which reveals

that Taralabalu Mutt owns only one property. But the

learned counsel for the respondent has submitted that the

income tax declaration has been signed by the petitioner.

The petitioner has purposely not declared the disputed site

in the name of Taralabalu Mutt. The learned counsel has

also contended that Taralabalu Mutt has constructed hostel

by spending Rupees Nine Crores and also spending money

towards maintenance, paying electricity and water

charges. If the land is purchased by the petitioner, the

question of constructing the building by Taralabalu Mutt by

spending crores of rupees does not arise. The assetss and

liability statement is also signed by the petitioner as

Secretary. Therefore, in my opinion, as the petitioner

himself has signed in form No.10 declaring the assets etc.,

he has willfully suppressed the fact of purchasing the site

in his name instead of Taralabalu Mutt's name. If the

property belongs to the petitioner, then the construction

done by Taralabalu Mutt by spending Rupees Nine crores

on the property of the petitioner does not arise.

Therefore, it is necessary for the investigation officer to

investigate into the matter in detail to know as to whether

the respondent has constructed the building/hostel in the

land stands in the name of the petitioner or the petitioner

himself has purchased the same out of his income or not,

when he is not having any income of his own sources.

Such being the case, I am of the view that the

matter requires detailed investigation by the police and it

cannot be said that the matter is civil in nature.

Therefore, the contention of the learned Senior Counsel for

the petitioner cannot be acceptable that false complaint

has been filed against the petitioner in order to quash the

FIR and by looking to the facts and circumstances of the

present case, it is too early stage to quash the FIR.

Hence, the criminal petition is dismissed.

Pending I.A.s are disposed off.

Sd/-

JUDGE CS