Raghuram L Naik vs State Of Karnataka
2022 Latest Caselaw 7233 Kant

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     IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

         DATED THIS THE 10TH DAY OF MAY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

          CRIMINAL PETITION No.101418 OF 2021

BETWEEN:

1.     SRI RAGHURAM L NAIK
       S/O SRI LESHAPPA NAIK
       AGE 47 YEARS,
       OCC.: PROFESSOR,
       BASAVESHWARA ENGINEERING
       COLLEGE, BAGALKOT
       HOUSE NO. C-143,
       OPPOSITE TO DEVIBAI ITI
       COLLEGE, SHIGEKERE RC,
       SHIGEKERE, BAGALKOT - 587 102.

     2. SRI S.G. SARAGANACHARI,
        S/O SRI GURULINGAYYA,
        AGED ABOUT 46 YEARS,
        OCC.: PROFESSOR (CAS)
        BASAVESHWARA ENGINEERING
        COLLEGE, BAGALKOT
        R/A HOUSE NO. C-6,
        ENGINEERING COLLEGE
        STAFF QUARTERS, VIDYAGIRI
        BAGALKOT - 587 102.

     3. SRI RAMACHANDRA HERKAL
        S/O NARAYAN,
        AGED ABOUT 61 YEARS,
        RTD. PRINCIPAL OF
        BASAVESHWARA ENGINEERING
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     COLLEGE, BAGALKOT,
     R/A E-70, SECTOR NO. 54,
     NAVANAGAR,
     BAGALKOT - 587 103.
                                         ... PETITIONERS
(BY SRI RAVI B NAIK, SR.COUNSEL FOR
    SRI SRINAND A.PACHHAPURE, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       BY NAVANAGAR POLICE STATION,
       BAGALKOT
       REP. BY HIGH COURT PUBLIC
       PROSECUTOR,
       DHARWAD.

2.     SRI SADASHIV KEMBHAVI
       S/O SRI SIDDRAM
       AGED ABOUT 46 YEARS,
       R/A NO. 49, 6TH CROSS,
       VIDYAGIRI, BAGALKOT - 587 103.
                                        ... RESPONDENTS

(BY SRI RAMESH CHIGARI, HCGP FOR R1;
    SRI UMAPATHI S., SMT. SUDHA KATWA AND
    SMT. RAJASHREE, ADVOCATES FOR R2)


      THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO QUASH THE COMPLAINT
DATED 11/01/2020, FILED BY THE 2ND RESPONDENT
BEFORE THE 1ST RESPONDENT NAVANAGAR POLICE,
BAGALKOT AND FIR IN CRIME NO.78/2020 REGISTERED
FOR OFFENCES PUNISHABLE UNDER SECTIONS 420, 468,
465, 471, 120B R/W SEC.34 OF THE INDIAN PENAL CODE,
PENDING ON THE FILE OF PRL. CIVIL JUDGE (SR.DN) AND
CJM COURT, BAGALKOT.
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     THIS CRIMINAL PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 21.02.2022, COMING
ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE
THE FOLLOWING :-
                          ORDER

The petitioners are before this Court calling in

question proceedings in Crime No.78 of 2020 pending

before the Principal Civil Judge (Senior Division) and

Chief Judicial Magistrate, Bagalkot for offences

punishable under Sections 420, 465, 468, 471 and

120B read with 34 of the IPC.

2. Heard the learned senior counsel Sri Ravi

B.Naik appearing for the petitioners, Sri Ramesh

Chigari, learned High Court Government Pleader for

respondent No.1 and Sri S. Umapathi, learned counsel

for respondent No.2.

3. Brief facts leading to the filing of the present

petition, as borne out from the pleadings, are as

follows:-

2nd respondent is the complainant. Petitioners 1

and 2 and the 2nd respondent were all teachers in the

Department of Electrical and Electronics Engineering,

Mechanical Engineering and Civil Engineering

respectively, in Basaveshwara Engineering College,

Bagalkot (hereinafter referred to as 'the College' for

short). Petitioner No.3 was the Principal of the College.

During the service of the 2nd respondent, the College

had instituted departmental inquiry against him owing

to certain misconduct. As a result of departmental

inquiry, the Inquiry Officer held the 2nd respondent

guilty of the allegations levelled against him and held

the charges as proved.

4. The Disciplinary Authority, on 5.05.2015,

accepting the report of the Inquiry Officer dismissed the

2nd respondent from service. It appears that the 2nd

respondent called the said order of dismissal before the

Education Appellate Tribunal ('Tribunal' for short) and

the Tribunal sets aside the order of dismissal by its

order dated 19.06.2019 with a direction to reinstate the

2nd respondent into service along with consequential

benefits and 50% backwages. This order of the Tribunal

was called in question before this Court in Writ Petition

Nos.112521-112522 of 2019 by the 3rd petitioner who

was the Principal of the College. An interim prayer of

stay of the order of the Tribunal that was sought came

to be rejected by this Court, which drove the 3rd

petitioner and the management of the College to file a

writ appeal in Writ Appeal Nos.100519-100520 of 2019.

This also came to be dismissed by a Division Bench of

this Court on 19-09-2019. It appears that a futile

attempt was made by the 3rd petitioner to challenge the

aforesaid orders before the Apex Court.

5. It is the case of the 3rd petitioner that due to 2nd

respondent generating so many litigations against him,

a complaint against the 2nd respondent in Crime No.74

of 2019 for offences punishable under Sections 420,

465, 472, 471 and 468 of the IPC was registered. The

moment the said crime was registered, the 2nd

respondent registered Crime No.4 of 2020 before the

Vidhana Soudha Police Station at Bangalore for offences

punishable under Sections 420, 465, 468, 471, 120B

read with Section 34 of the IPC against all the

petitioners. The petitioners immediately called in

question the said crime registered, in Criminal Petition

No.3005 of 2020 before this Court. This Court disposed

of the petition by directing the jurisdictional police to

investigate the offence and disposed of the criminal

petition. Then the allegation became Crime No.78 of

2020. It is this crime that is called in question in the

subject petition by the petitioners.

6. The learned senior counsel appearing for the

petitioners would submit that the complainant a

disgruntled employee who had been dismissed from

service on account of misconduct wants to settle scores

by registering criminal case against all the petitioners.

Offence of Section 420 of the IPC or forgery against

petitioners 1 and 2 or even the Principal of the College,

petitioner No.3, cannot be made, as ingredients of such

offences would not get satisfied and would submit that

such cases registered for wreaking vengeance or settling

personal scores should be nipped in the bud.

7. On the other hand, the learned counsel

appearing for the 2nd respondent who has filed detailed

objections would submit that petitioners 1 and 2 have

played fraud in getting promotion under the Career

Advancement Scheme to the post of Professor

notwithstanding the fact that they did not undergo

Faculty Training Programme which is the mandatory

requirement for getting the promotion under the Career

Advancement Scheme to the post of Professor. He would

contend that communications are sent by the respective

colleges that there was no admission of petitioners 1

and 2 in those colleges and the State Government which

had granted the benefit of additional increments has

also withdrawn the said increments on the ground that

what was granted to petitioners 1 and 2 was contrary to

law. He would, therefore, submit that it is a matter for

trial, in which the petitioners have to come out clean.

8. The learned High Court Government Pleader

would also toe the lines of the learned counsel

appearing for the 2nd respondent and would submit that

it is for the petitioners to come out clean in the trial.

9. I have given my anxious consideration to the

submissions made by the respective learned counsel

and perused the material on record.

10. The afore-narrated facts are not in dispute.

The 2nd respondent, a former employee of the College,

on his dismissal was agitating his rights under the

relevant provisions of law and had become successful

before the Tribunal in terms of an order of

reinstatement with 50% of backwages. The 3rd

petitioner/Principal of the College along with the

management unsuccessfully taken up the matter before

the Apex Court insofar as it pertained to grant of

interim order of stay of the order of the Tribunal after

which, the 3rd petitioner registered a complaint against

the 2nd respondent alleging forgery and cheating against

him for an incident that had happened in the year 2009.

11. The complaint was registered in the year 2019

as Crime No.74 of 2019. Pursuant to registration of the

said crime, the 2nd respondent also registered a crime

against all the petitioners. Petitioners 1 and 2 were

employees working along with the present complainant

in the College. They had secured promotion after the

exit of the 2nd respondent from the College on account of

his dismissal from service which came about in the year

2008-09. Long after grant of Career Advancement

Scheme promotions to petitioners 1 and 2, the 2nd

respondent appears to have secured information with

regard to petitioners 1 and 2 in not attending any

Faculty Development Programme which was a pre-

requisite for grant of promotion under the Career

Advancement Scheme of the UGC. Based upon this

information, the Government appears to have

withdrawn the benefit that was granted to petitioners 1

and 2. With this allegation the 2nd respondent registers

a crime as a counter-blast to the crime registered

against him in Crime No.4 of 2020 before the Vidhana

Soudha Police Station. This was transferred to the

jurisdictional police pursuant to an order passed by this

Court in Criminal Petition No.3005 of 2020. Then it

becomes Crime No.78 of 2020.

12. The allegation in the crime is offence

punishable under Section 420 of the IPC. The offence

punishable under Section 420 of the IPC requires

ingredients under Section 415 of the IPC to be proved.

Inducement with a dishonest intention from the

beginning, of a particular transaction by the accused

over the victim, is imperative in terms of the ingredients.

The complainant is the 2nd respondent and the

complaint against petitioners 1 and 2 is that they have

fraudulently taken promotions under the Career

Advancement Scheme.

13. Petitioners 1 and 2 cannot be held guilty of

any inducement upon the 2nd respondent by petitioners

1 and 2 or even petitioner No.3. Unless the ingredients

of Section 415 of the IPC are met with in the complaint,

allegation under Section 420 of the IPC would become

unsustainable, so does it become in the case at hand,

as the complainant cannot contend that he was induced

with a dishonest intention for any purpose. Therefore,

Section 420 of the IPC cannot be alleged against the

petitioners in the facts of the case.

14. The other allegations are under Sections 465,

468 and 471 of the IPC all of which deal with forgery.

Sections 465, 468 and 471 of the IPC read as follows:

"465. Punishment for forgery.--Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

468. Forgery for purpose of cheating.-- Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

471. Using as genuine a forged document or electronic record.--Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."

Section 465 deals with punishment for forgery; Section

468 deals with forgery for the purpose of cheating and

Section 471 deals with using as genuine a forged

document. Forgery is defined under Section 463 of the

IPC. Whoever would make a false document with intent

to cause damage to the public or to any person or to

support any claim or title or coerce any person to enter

into a contract with intent to commit fraud or that fraud

may be committed, commits forgery. Therefore, the

intention of petitioners 1 and 2 should have been to

cause damage to the 2nd respondent by producing the

alleged document with regard to Career Advancement

Scheme.

15. It is to be noticed that by the time petitioners

1 and 2 secured promotion, the 2nd respondent was not

in service; he was dismissed on account of misconduct

and it is not the management that is crying foul for an

allegation against petitioners 1 and 2 for forging or

producing a forged document, but it is the 2nd

respondent who is wanting to settle his scores with

petitioners 1 and 2 and even with the 3rd petitioner, the

Principal of the College. Therefore, the offence of forgery

also cannot be made by the 2nd respondent against the

petitioners.

16. The petitioners are alleged to have produced

certain documents and secured promotion which later

comes to light in terms of what is narrated by the

respective institutions. What is alleged is that the

petitioners did not participate in the Faculty

Development Programme. It was for the management to

look into these things, as the management had granted

promotions to the petitioners. Those were granted in the

year 2008-09. The complaint is registered by the 2nd

respondent in the year 2019, ten years after all those

incidents had happened and the timing of registration of

the complaint by the 2nd respondent is what enures to

the benefit of the petitioners in the case at hand, as the

3rd petitioner registers a crime against the 2nd

respondent/complainant in Crime No.74 of 2019.

Immediately thereafter, Crime No.4 of 2020 is registered

by the 2nd respondent against the petitioners herein.

17. Several service related allegations are made in

the statement of objections. Therefore, it would always

be open to the 2nd respondent/complainant to raise any

dispute with regard to the service conditions before the

competent and appropriate judicial fora. Using or

setting the criminal law in motion by giving a pure

service dispute a colour of crime is impermissible in

law, apart from the present proceedings being a

counter-blast or a proceeding initiated to wreak

vengeance against the petitioners. The same could also

be said with regard to Crime No.74 of 2019, but the said

issue is not before this Court.

18. It would be apposite to refer to the judgments

of the Apex Court in the case of SURESH KUMAR

GOYAL v. STATE OF UTTAR PRADESH1wherein the

Apex Court holds as follows:

"12. While dealing with the jurisdiction under Section 482 CrPC to quash the proceedings at the stage of issuance of process, or at the stage of committal, or at the stage of framing of charges, that is to say before the commencement of actual trial, in the light of material placed on record by the accused, this Court in Rajiv Thapar v. Madan Lal Kapoor [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330: (2013) 3 SCC (Cri) 158] laid down as under: (SCC pp. 347-48, paras 28-30)

"28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused.

Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of

(2019) 14 SCC 318

judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.

29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far- reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence.

Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It

should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:

30.1. 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?

30.2. 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?

30.3. Step three : whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?

30.4. 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?

30.5. 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 CrPC. 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."

13. In the present case the shares in question, right since the date of acquisition have always been in the custody of Appellant 1. The material on record is absolutely clear that the acquisition was from the funds of Appellant 1. The complainant has merely alleged that the funds came from his bank account but beyond such allegations no material has been placed on record at any stage. The stand taken by the appellants in their application under Section 245(2) CrPC is quite clear that the shares can be sold in the market and the proceeds can be divided between Appellant 2 and Respondent 2. If Respondent 2 is insisting on having complete

ownership in respect of the shares concerned, the matter must first be established before a competent forum. We have considered the material on record through the steps indicated in Rajiv Thapar v. Madan Lal Kapoor [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330 : (2013) 3 SCC (Cri) 158] and are convinced that the instant case calls for interference under Section 482 CrPC. Further, from the facts that Appellant 1 had disowned Respondent 2 and had filed civil proceedings seeking appropriate orders against them, we are also convinced that the present criminal complaint is nothing but an attempt to wreak vengeance against the father, brother and the brother-in-law of the complainant. The instant criminal complaint is an abuse of the process of court and is required to be quashed.

14. We, therefore, allow this appeal, set aside the orders [Suresh Kumar Goyal v. State of U.P., 2018 SCC OnLine All 3692] passed by the courts below and allow the application for discharge under Section 245(2) CrPC in Complaint No. 3804 of 2009 on the file of Third Additional Chief Judicial Magistrate, Ghaziabad."

(Emphasis supplied)

The Apex Court, in the aforesaid case, clearly holds that

if a proceeding is instituted to wreak vengeance or with

malafide intention, the Court under Section 482 of the

Cr.P.C. should terminate the same.

A little earlier to the aforesaid judgment, the Apex

Court in the case of VINEET KUMAR v. STATE OF

UTTAR PRADESH2 holds as follows:

"41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426]. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , which is to the following effect : (SCC p. 379, para 102)

"102. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

(2017) 13 SCC 369

Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426], but did not advert to the relevant facts of the present case, materials on which final report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings."

In the light of the facts obtaining in the case at hand

and the judgments rendered by the Apex Court (supra),

permitting further proceeding to continue for the

purpose for which it is initiated would become an abuse

of the process of law. It is purely a service dispute

wanting it to be given a colour of crime.

19. For the aforesaid reasons, I pass the following:

ORDER

(i) The Criminal Petition is allowed and the proceedings in Crime No.78 of 2020 registered before Navanagar Police Station, Bagalkot and pending before the Principal

Civil Judge (Senior Division) & Chief Judicial Magistrate, Bagalkot stand quashed.

        (ii)    The quashment of proceedings, will not
                however,   come   in the       way of   the     2nd
                respondent        initiating         appropriate
                proceedings    against   the     petitioners,    if
                aggrieved and if available in law.

(iii) The observations made in the course of this order or order by itself will not influence or bind any proceedings either pending or to be initiated by the 2nd respondent against the petitioners.

Sd/-

JUDGE

bkp CT:MJ