Karnataka High Court

P O Shivakumar vs C N Dharanish on 13 June, 2025

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

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                                                                NC: 2025:KHC:20439
                                                            CRL.P No. 3622 of 2024


                HC-KAR



                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 13TH DAY OF JUNE, 2025

                                             BEFORE
                        THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                    CRIMINAL PETITION NO. 3622 OF 2024 (482(Cr.PC) / 528(BNSS)
               BETWEEN:

               1.     P. O. SHIVAKUMAR,
                      SON OF LATE P. B. OMKARAMURTHY,
                      AGED ABOUT 64 YEARS,
                      RESIDING AT 57, OMKAR,
                      2ND PARALALL ROAD,
                      BLOCK, GANDHI NAGAR,
                      SHIVAMOGGA - 577 201

               2.     VINAY
                      SON OF BASAVARAJU,
                      AGED ABOUT 39 YEARS,
                      RESIDING AT NO.70,
                      C-6, FLAT 2ND MAIN, DOLLARS COLONY,
                      J. P. NAGAR, 4TH PHASE,
                      BENGALURU - 560 078

                      WORKING AS ASSISTANT PROFESSOR AT
                      DAYANANDA SAGAR COLLEGE OF ENGINEERING,
                      SHAVIGE MALLESHWARA HILLS
Digitally             KUMARASWAMY LAYOUT,
signed by             BENGALURU - 560 111
CHANDANA
BM                                                                   ...PETITIONERS
Location:      (BY SRI. SANDESH KUMAR M., ADVOCATE)
High Court
of Karnataka
               AND:

               C. N. DHARANISH,
               S/O C.S. NARASIHMAIAH,
               AGED ABOUT 48 YEARS,
               RESIDING AT NO.70,
               C-1 FLAT 2ND MAIN,
               DOLLARS COLONY, J. P. NAGAR 4TH PHASE,
               BENGALURU - 560 078.
                                                                     ...RESPONDENT
               (BY SRI. C. N. DHARANISH, PARTY-IN-PERSON)
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                                               NC: 2025:KHC:20439
                                          CRL.P No. 3622 of 2024


 HC-KAR



      THIS CRIMINAL PETITION IS FILED U/S 482 CR.PC PRAYING TO
QUASH THE PROCEEDINGS IN C.C.NO.33615/2023, ON THE BASIS OF
PRIVATE COMPLAINT FILED BY THE RESPONDENT HEREIN IN PCR
NO.3512/2023 BEFORE THE HON'BLE 30TH ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU FOR ALLEGING
OFFENCES COMMITTED BY PETITIONER UNDER SECTION 500 OF IPC
AND ALL CONSEQUENTIAL PROCEEDINGS ARISING THERE FROM AS AN
ABUSE OF PROCESS OF LAW.

     THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR


                          ORAL ORDER

This petition by the accused in C.C.No.33615/2023 arising

out of PCR No.3512/2023 on the file of the XXX Additional Chief

Metropolitan Magistrate, Bengaluru (for short "the Trial Court"), is

directed against the impugned order dated 02.05.2023, whereby

the Trial Court took cognizance of the private complaint filed by the

respondent for the offence punishable under Section 500 of IPC

and posted the matter for recording the sworn statement on

30.05.2023, pursuant to which the aforesaid private complaint was

registered as C.C.No.33615/2023 by the Trial Court.

2. Heard learned counsel for the petitioners and learned

counsel for the respondent - party-in-person and perused the

material on record.

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3. A perusal of the material on record will indicate that the

respondent-complainant filed the aforesaid private complaint in

PCR No.3512/2023 against the petitioners-accused for the alleged

offences punishable under Sections 120B, 181, 182, 191, 192, 193,

195, 196, 209, 211 and 500 r/w. Section 34 of IPC. After hearing

the respondent, the Trial Court proceeded to pass the impugned

order declining to take cognizance insofar as all offences except

Section 500 IPC, by holding as under:

"The complainant in person filed this private complaint U/s 204 against the accused No.1 & 2 alleging that, they have committed offence punishable U/s 120-B, 181, 182, 191, 192, 193, 195, 196, 209, 211, 500 r/w 34 of IPC and also sought for compensation of Rs.2,50,00,000/-.

2. The brief facts of the complaint:-

The complainant is mechanical engineer he has worked in may companies he has got good reputation in Private Sector. The complainant has served as project manager, Project Engineer at Abroad like USA, UAE etc., the complainant also served as engineer in Bengaluru constructed building i.e., UB City, Forum Mall Bengaluru.

3. The complainant hails from highly educated and respectable family. He has earned appreciation from his superior and sub ordinates and also stake holders. In the year 2007 the complainant purchased the building.

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4. Accused No.1 is owner of the site bg. No.70. Accused No.1 and M/s Maharaja Developers and Adventures entered into agreement. As per the said agreement, accused No.1 only is owner of the flats ie., accused no.1 & 2 situated at ground floor. Remaining plots are owned by the M/s. Maharaja Developers.

5. Accused No.1 without obtaining sanction from the BBMP he has started illegal construction at 3rd floor in this regard, M. C. Lokesh owner of the plot No. C-2 lodged the complaint to BBMP. BBMP official sited the spot and stopped the construction. Inspite of that, the accused No.1 illegally constructed building and also got prior connection based on the forged documents. The complainant questioned the illegal acts of the accused Nol. He has started harassment the complainant by lodged false, vexatious, fabricated criminal cases. In order to protect himself and his family, the complainant obtained law degree and also successfully completed AIBE-16 examination and got enrolled as an advocate.

6. Accused No.1 lodged false complaint. Based on that, the Puttenahalli Police Station have registered the case and complainant faced criminal trial before this court in C.C.No.21491/2015. After trial. case is ended in acquittal. In furtherance of the common intention. accused No.1 & 2 lodged false frivolous fabricated vexatious complaint against the present complainant in C.C.No.21491/2015. They have given false evidence before this court and also police have endorsed false shara, at the time of service of summons the witnesses. Hence, accused are committed lodged offences.

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7. Heard arguments.

8. The following points arises for my consideration:-

1. Whether this court authorised to the complainant to lodged this complaint against the accused No.1 & 2 for the offences punishable U/s.181, 182, 191, 192, 193, 195 196, 209, 211 of IPC.?

2. Whether sufficient material on record to take cognizance for the alleged offences punishable U/s.500 & 120-B r/w. 34 of IPC.?

3. What Order?

9. By considering the allegations made in the complaint and hearing of the parties, my answer to the above point is answered as follows:

Point No.1: IN THE NEGATIVE

Point No.2: IN THE AFFIRMATIVE

Point No.3: As per final order for the

....following

REASONS

10. Point No.1:- The complainant himself argued in Jength and urged his educational qualification, his service and why he has done la degree and also explained how he has faced criminal trial before this court. Based on the allegations made by the accused. Therefore, he sought for take cognizance for the alleged offences.

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11. Before going to the merits of the case, at this stage, I have relied on the Section 195 of Cr.P.C. reads thus:-

Section; 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-

1) No Court shall take cognizance -

(a) (i) of any offence punishable under sections 172 to 108 (both inclusive) of the Indian Penal Code, (45 of 1860), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of 110 the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.

12. The complainant made allegations against the accused No.1 & 2 that they have committed offence

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punishable U/s.191, 182, 191, 192, 192, 195, 196, 209 211 of IPC.

13. The complainant himself produced the Judgment of this court passed in C.C.No.21491/2015 dated 5.2.2021. the accused is acquitted in this case not for accused No.1 lodged frivolous complaint against him. He has acquitted due to non availability of the direct witnesses. This court nowhere opined that, PW1 deposed false evidence before this court. For this reason this court has not authorised his officers or not authorised to anybody to lodge complaint for the allegations made against the accused U/s.181, 182, 191, 192, 195, 196, 209, 211 of IPC.

14. Already this court opined that, in C.C.No.21491/2015 present complainant is acquitted due to non availability of the evidence of direct and eye witnesses. Therefore, the complainant lodged this complaint against the accused No.1. & 2 for these offences without obtaining prior sanction from this court as contemplated U/s.195(1), (a), (1) (II) (III) and 195(1) (b) (I) of IPC. Therefore, complaint against the accused No.1. & 2 for the alleged offences punishable U/s.181, 182, 191, 192, 193, 19*5, 196, 209, 211 of IPC is not maintainable. Accordingly, Point No. 1 is answered in the Negative.

15. Point NO.2:- The complainant himself pleaded that, he is innocent and hails from the respectable family and earned appreciation from the superiors and sub ordinate officers and also from the stake holders. Due to facing of criminal case, his reputation is defrauded. By considering

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this aspect, the complainant at this stage, established prima- facie case to take cognizance for the offence punishable U/s.500 of IPC.

16. Further, there is no sufficient material on record to shows that, accused No.1 & 2 have made all mind for criminal conspiracy.

Accordingly, there is no sufficient material on record to take cognizance for the offence punishable U/s.120-B of IPC. Accordingly, Point No.2 is answered in the Affirmative.

17. Point No.3:- For the forgoing, proceed to pass the following....

ORDER

Cognizance taken for the offence punishable U/s.500 of IPC.

Posted for sworn statement on 30.05.2023."

4. Aggrieved by the impugned order and further

proceedings pursuant thereto, the petitioners are before this Court

by way of the present petition.

5. A perusal of the impugned order dated 02.05.2023 will

indicate that the same suffers from two major illegalities and

infirmities, in as much as, firstly, the Trial Court in the first instance,

took cognizance and thereafter recorded sworn statement of the

respondent, but before taking cognizance, respondents ought to

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have recorded sworn statement and thereafter take cognizance of

the offence punishable under Section 500 IPC. Secondly, a perusal

of the impugned order taking cognizance of the offences under

Section 500 of IPC at paragraph 15 of the impugned order will

indicate that the same is a non-speaking, cryptic, unreasoned and

laconic order, passed without assigning valid or cogent reasons

and the Trial Court has taken cognizance of the aforesaid offence.

Under these circumstances, without expressing any opinion on the

merits/demerits of the rival contentions, I deem it just and

appropriate to set aside the impugned order and remit the matter

back to the Trial Court for reconsideration afresh, in accordance

with law.

6. In the result, I pass the following:

ORDER

i) The petition is allowed.

ii) The impugned order dated 02.05.2025 passed in

C.C.No.33615/2023 (arising out of PCR

No.3512/2023) by the XXX ACMM, Bengaluru, is

hereby set aside.

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iii) The matter is remitted back to the Trial Court for

reconsideration afresh in accordance with law.

iv) Respondent - party-in-person shall appear before

the Trial Court on 03.07.2025.

v) The Trial Court shall record the sworn statement of

the respondent and consider the statement of his

witnesses, if any and document produced by him

and proceed further in accordance with law.

Sd/-

(S.R.KRISHNA KUMAR) JUDGE

BMC