M/S. Asian Fab Tec Limited vs Sri. Santhosh Kumar
2022 Latest Caselaw 12532 Kant

                            1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF OCTOBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

            CRIMINAL PETITION NO.4205 OF 2022
BETWEEN

1.    M/S. ASIAN FAB TEC LIMITED
      HAVING ITS REGISTERED OFFICE AT
      NO.15, II STAGE,
      PEENYA INDUSTRIAL AREA,
      BANGALORE-560 058,

      REPRESENTED BY
      ITS MANAGING DIRECTOR,
      SRI. PUTTASWAMY GOWDA,
      HONNE GOWDA KANNAGHATTA.

2.   SRI. PUTTASWAMY GOWDA
     HONNE GOWDA KANNAGHATTA,
     AGED ABOUT 69 YEARS,
     DIRECTOR OF M/S. ASIAN FAB TEC LIMITED,
     NO.15, II STAGE,
     PEENYA INDUSTRIAL AREA,
     BANGALORE-560 058.
                                       ... PETITIONERS
(BY SRI M PARTHA, ADVOCATE)

AND

SRI. SANTHOSH KUMAR
S/O. DEVENDRAPPA HUDED,
AGED ABOUT 36 YEARS,
R/AT SECTOR NO. 30,
11B, NAVNAGAR,
BAGALKOT-587 103.                         ... RESPONDENT

(BY SRI SANTHOSH KUMAR, PARTY-IN-PERSON)
                             2


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH
THE ENTIRE PROCEEDINGS IN PCR NO.6757/2018, WHICH IS
NOW NUMBERED AS C.C.NO.26365/2019 FOR THE OFFENCE
P/U/S 120B,403,406,415,420 OF IPC AND THE SAME IS
PENDING BEFORE THE LEARNED IV A.C.M.M AT BENGALURU
AND ALL FURTHER PROCEEDINGS.


     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 10.10.2022 THIS DAY, THE COURT
MADE THE FOLLOWING:


                         ORDER

This criminal petition is filed by the petitioner

accused Nos.1 and 2 under Section 482 of Cr.P.C. for

quashing the criminal proceedings in C.C. No.26365/2019

pending on the file of IV Additional Chief Metropolitan

Magistrate, Bengaluru registered based upon the PCR

6757/2018 for the offences punishable under Section

120B, 403, 406, 415, 420 of IPC.

2. Heard the arguments of learned counsel for the

petitioners and the respondent-party in person.

3. The case of the respondent before the trial Court

is that he is said to be a sub-contractor worked under

accused No.1-company. Accused No.2 is the Director of

accused No.1. Accused No.1 obtained tender from the

Government of Karnataka and respondent-complainant

said to be executed the work and received payment from

the accused for Rs.18,37,138/- where the accused said to

be deducted 1% towards tax deducted at source. The

complainant is also said to be executed the work for

Rs.23,30,371/- and the accused deducted 1% TDS for

Rs.23,303/-. But, in fact, the petitioners-accused have

deposited Rs.41,000/- and odd amount to the income tax

authorities and they claimed refund of Rs.18,371/- which

is said to be excess in addition to Rs.23,303/-. The

complainant's case is that though the accused deducted

Rs.41,000/- as TDS through his account, the accused have

paid only Rs.23,30,371/- based upon the TDS deducted for

Rs.23,303/- and the accused have not paid the remaining

amount of Rs.18,37,138/-even though they deducted

Rs.18,371/- by showing in the income tax deductions.

Thereby, the accused persons said to be misappropriated

the amount with fraudulent intention and caused wrongful

loss to the complainant. Therefore, a private complaint

came to be filed before the Magistrate, Bengaluru. The

learned Magistrate after recording the statement of the

complainant, took cognizance for the offence, which is

under challenge.

4. Learned counsel for the petitioners has contended

that the work executed by the respondent-complainant at

Navanagara, Bagalkot district is not within the jurisdiction

of Bengaluru. The respondent-complainant has filed a

false complaint against the petitioners. Thereafter, the

very complainant has also filed a police complaint before

the Bagalkot police which is registered as Crime

No.120/2018 where the police filed 'B' final report and the

complainant has filed a protest petition, which is pending

before the Magistrate at Bagalkot. It is contended that the

respondent-complainant has filed two complaints on the

same cause of action, one, by way of private complaint at

Bangalore and another, by way a complaint to the

Navanagara police, Bagalkot under Section 154 of Cr.P.C.

Apart from that, the respondent-complainant has also filed

a complaint to the income tax authorities whereby the

income tax authorities closed the complaint. Such being

the case, continuing the proceedings at Bengaluru is

nothing but abuse of process of law. The Court at

Bengaluru has no jurisdiction to entertain the complaint.

The petitioners are ready to go before the Court at

Bagalkot. Hence, prayed for allowing the petition.

5. Per contra, the respondent-party in person

(complainant) has seriously objected the petition and

contended that the petitioners have not at all attended the

Court at Bengaluru in spite of issuing warrant as well as

proclamation. The petitioner-accused persons have falsely

claimed that they have paid Rs.41,66,510/- to this

complainant by deducting Rs.41,675/-, but they have paid

only a meager amount. The respondent complainant has

paid the income tax deducted at source at Rs.41,675/-.

The accused persons credited the fund to some other

account created by them by showing the deduction in the

account of the complainant. Therefore, the matter

requires to be adjudicated. The respondent further

contended that the agreements were executed by the

company at Bengaluru. Therefore, the Court at Bengaluru

is having jurisdiction to try the case. He further contended

that even as per Section 210 Cr.P.C., both the private

complaint and the police case can be tried together as a

single trial. Therefore, prayed for dismissing the petition.

6. Having heard the arguments of both sides and

perused the records. The records reveal that it is not in

dispute that the complainant has filed a private complaint

before the IV Additional Chief Metropolitan Magistrate,

Bengaluru under Section 200 of Cr.P.C. alleging that the

accused though deducted Rs.41,000/-by showing the

amount to the complainant as more than Rs.23,00,000/-.

Subsequently, the accused behind back got the refund of

Rs.18,000/- stating that it was wrongly paid. It is seen

from the complaint as well as the first information given by

the complainant to the Navanagara police at Bagalkot,

under Section 154 Cr.P.C., for the same cause of action,

he has filed a private complaint at Bengaluru and a first

information report before the police under Section 154 of

Cr.P.C. Of course, the Navanagara police have filed 'B'

final report, but the same was not accepted by the

Magistrate, where the complainant filed a protest memo

which is pending. The learned counsel for the petitioners

has seriously contended that while filing the private

complaint by the complainant before the Magistrate, he

has not filed an affidavit accompanying the private

complaint. Therefore, it is contended that there is

violation guidelines of the judgment of the Hon'ble

Supreme Court in case of PRIYANKA SRIVASTAVA AND

ANOTHER Vs. STATE OF U.P. AND OTHERS reported in

(2015) 6 SCC 287. Therefore, the complaint filed by the

complainant and taking cognizance by the Magistrate, is

not sustainable under law.

7. It is pertinent to note and it is an admitted fact

that both the private complaint and the police complaint

are based upon the same cause of action and on the same

fact. The respondent complainant filed the private

complaint at Bengaluru on 12.04.2018 and subsequently,

he has filed a complaint to the police at Bagalkot on

20.04.2018. The Hon'ble Supreme Court, in Priyanka

Srivastava's case, supra, has categorically held that, the

private complaint shall have to be accompanied by an

affidavit of the complainant. Admittedly, the respondent-

complainant has not filed any such affidavit accompanying

the complaint. Even there is no reference in the private

complaint that he has approached any police, who refused

to register the case. Therefore, the criminal proceedings

against the petitioners on the private complaint without

supporting the affidavit is clear violation guidelines of

Hon'ble Supreme Court and therefore, the criminal

proceedings cannot be sustainable against the petitioner.

The Hon'ble Supreme Court, in Priyanka Srivastava's case,

supra, at paragraph 23 of the judgment, has held as

under:

"23. At this stage, we may usefully refer to what the Constitution Bench has to say in Lalita Kumari v. State of U.P. [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] in this regard. The larger Bench had posed the following two questions :

"(i) Whether the immediate non-registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made; and

(ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused."

Answering the questions posed, the larger Bench opined thus : "49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a

cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning."Shall"

***

72. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent.

***

111. The Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under Section 157 of the Code, if it appears to him that there is no sufficient ground to

investigate the same. The section itself states that a police officer can start investigation when he has 'reason to suspect the commission of an offence'. Therefore, the requirements of launching an investigation under Section 157 of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence.

***

115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint."

After so stating the Constitution Bench proceeded to state that where a preliminary

enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. After laying down so, the larger Bench proceeded to state :

"120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

120.7. While ensuring and protecting the rights of the accused and the complainant, a

preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the general diary entry."

We have referred to the aforesaid pronouncement for the purpose that in certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not."

8. In view of the judgment of the Hon'ble Supreme

Court and as the respondent-complainant has already filed

a police complaint to the Navanagara police on the same

cause of action, the proceedings against the petitioners on

the private complaint of the respondent are liable to the

quashed. The petitioner counsel submits that the petitioner

is ready to face trial at Bagalkot.

9. Accordingly, the criminal petition is allowed.

Criminal proceedings in C.C. No.26365/2019 pending on

the file of IV Additional Chief Metropolitan Magistrate,

Bengaluru, registered against the petitioners, based upon

the PCR No.6757/2018 for the offences punishable under

Section 120B, 403, 406, 415, 420 of IPC, is hereby

quashed.

Sd/-

JUDGE

Cs