Allowed

Shanmukhappa D v. State of Karnataka

Karnataka HC21 Jun 2021CRL.P/4407/2018

Case brief

AI extract

What is this about?

Bengaluru High Court allowed a criminal petition to quash proceedings initiated by a complainant who was simultaneously being prosecuted for cheque dishonour by the petitioners. The court held that the proceedings amounted to abuse of process as the complainant failed to comply with procedural requirements under Cr.P.C. and the complaint appeared to be a counter-blast.

What did the court decide?

Impugned complaint in PCR No.80/2018 and consequent FIR in Crime No.158/2018 against the petitioners are hereby quashed.

Shanmukhappa D Vs State of Karnataka — Cheque Dishonour | Karnataka HC (2021)

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Crl.P.No.4407/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JUNE 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL PETITION No.4407/2018

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BETWEEN :

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SHANMUKHAPPA D S/O KADLE ESHWARAPPA AGED ABOUT 55 YEARS (B.E.) CIVIL AND AGRICULTURIST CONSULTANT ENGINEER

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THANUJA B G W/O SHANMUKHAPPA D AGED ABOUT 42 YEARS HOUSEHOLD WORK

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BOTH ARE R/AT KOTE VENUGOPALASWAMY TEMPLE HOLALKERE TOWN CHITRADURGA DISTRICT – 577 526 …PETITIONERS

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(BY SMT.SARITHA KULKARNI, ADVOCATE)

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AND :

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STATE OF KARNATAKA REPRESENTED BY S.P.P. HOLALKERE POLICE STATION HOLALKERE – 577 526

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H V VINAYAKA S/O VISHWAVIGNACHAR AGED ABOUT 52 YEARS BUSINESSMAN R/AT J C EXTENSION HOLALKERE TOWN – 577 526 …RESPONDENTS

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(BY SRI K.S.ABHIJITH, HCGP FOR R1; SRI SHIVANANDA D.S. ADVOCATE FOR R2)

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Crl.P.No.4407/2018

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN P.C.R.NO.80/2018 AND CONSEQUENT FIRST INFORMATION REPORT DATED 02.04.2018 REGISTERED BY HOLALKERE POLICE STATION, HOLALKERE CIRCLE CHITRADURGA DISTRICT IN CRIME NO.158/2018 PENDING BEFORE THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., HOLALKERE.

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THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT THROUGH VIDEO CONFERENCE MADE THE FOLLOWING:

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O R D E R

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“Whether the proceedings in PCR No.80/2018 and consequent first information report in Crime No.158/2018 of Holalkere Police Station against the petitioners amount to abuse of the process of the Court”? is the question involved in this case.

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Respondent No.2 filed complaint in PCR No.80/2018 against the petitioners before the Principal Civil Judge & J.M.F.C., Holalkere to prosecute them for the offences punishable under Sections 193, 323, 327, 384, 403, 406, 417, 420, 421, 426, 465, 467, 468 and 499 of IPC.

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Respondent No.2 for the purpose of his glass and plywood business had borrowed loans from various money lenders. Respondent No.2 himself admitted that when the borrowers started pestering him for repayment,

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Crl.P.No.4407/2018

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he went absconding from 02.10.2009 to 2015. Petitioner Nos.1 and 2 filed PCR Nos.39/2018 and 43/2018 respectively to prosecute him for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short).

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On taking cognizance, PCR No.39/2018 was registered in C.C.No.959/2018 and PCR No.43/2018 was registered in C.C.No.908/2018. In both cases it was alleged that respondent No.2/complainant towards discharge of his liability issued cheques for Rs.10,00,000/and Rs.2,00,000/- respectively and they were dishonoured for want of sufficient funds, thereby he has committed the offences punishable under Section 138 of the Act.

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Respondent No.2 in the impugned complaint alleged that in the guise of settling the cheque bounce cases and as security for settlement, the petitioners obtained one cheque from him. He further alleged that forging several other cheques, the petitioners have implicated him in false prosecution.

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Crl.P.No.4407/2018

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Learned Magistrate on receiving such

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complaint, by order dated 26.03.2018 acting under Section 156(3) of Cr.P.C. referred the matter to respondent No.1 police for investigation. On the basis of such reference order and the complaint, respondent No.1 police have registered the first information report in Crime No.158/2018 of their Police Station as per Annexure-B.

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The petitioners seek quashing of the said proceedings on the following grounds:

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(i) Reading of the complaint does not make out any case constituting the alleged offences;

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(ii) The complaint itself discloses that respondent No.2 was defaulted debtor and he was absconding for quite long time;

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(iii) The complaint was lodged as counter blast to the complaints filed by the petitioners for prosecuting him for the offence punishable under Section 138 of the Act.

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Reiterating the said grounds, learned Counsel for the petitioners submits that the order of reference was

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Crl.P.No.4407/2018

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illegal and consequently the proceedings against the

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petitioners amount to abuse of the process of the Court.

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Learned Counsel for respondent No.2 submits that the first information report is already registered and there are no grounds to interfere with the investigation.

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Initially the complaint was filed before the Court of Principal Civil Judge & J.M.F.C., Holalkere. The said Court by order dated 02.12.2017 listed the matter for hearing on maintainability of the complaint. The records further show that by administrative order dated 13.12.2017 the case was transferred from Principal Civil Judge, Holalkere to the Court of the Senior Civil Judge & JMFC, Holalkere for disposal.

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After receiving the records, the transferee Court from 20.01.2018 to 07.03.2018 went on listing the matter for hearing on maintainability. Ultimately on 07.03.2018, the complainant filed memo along with his affidavit and on receipt of the same, the trial Court referred the matter to the police for investigation.

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Crl.P.No.4407/2018

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Hon’ble Supreme Court in para 108 of the

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judgment in State of Haryana and others vs. Bhajan Lal and others¹ , laid down guidelines identifying the category of cases which are fit for quashing under Section 482 of Cr.P.C. For the purpose of this case, paras 108(1) and

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108(6) are relevant which read as follows:

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“108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should exercised.

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Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in

1 AIR 1992 SC 604

Crl.P.No.4407/2018

their entirety do not prima facie constitute any

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offence or make out a case against the accused.

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……………………………………………………………

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……………………………………………………………

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……………………………………………………………

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Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.”

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(Emphasis supplied)

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Admittedly by the time, the complaint in issue was filed, respondent No.2 was facing prosecution on the basis of the complaints filed by the petitioners for the offence punishable under Section 138 of the Act. He himself in the complaint claims that he was absconding from 2009 to 2015. Admittedly the offences alleged in the complaint were cognizable offences.

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The impugned order of reference is purportedly passed exercising power under Section 156(3) of Cr.P.C. Registration of the first information report in cognizable

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case is governed by Section 154 of Cr.P.C. The power to refer the matter to the police for investigation in cognizable cases is governed by Sections 154(3) and 156(3) of Cr.P.C. Section 154(3) of Cr.P.C indicates that first the complainant has to file complaint before the concerned police and if they refuse to act upon such complaint, he has to send the copy of the complaint to the concerned Superintendent of Police in writing and by post.

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Regarding requirements in referring a complaint under Section 156(3) of Cr.P.C. in cognizable cases the Hon'ble Supreme Court in para 29 of the judgment in Priyanka Srivastava vs. State of Uttar Pradesh² held that the litigant at his own whim cannot invoke the authority of the Magistrate to refer the matter to the police for investigation and has to approach the Court with clean hands.

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In paras 30 and 31 of the judgment it was held that whenever complaints were filed before the learned Magistrate calling reference of the same to the police, the complainant has to state in the complaint that he has 2 (2015) 6 SCC 287

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Crl.P.No.4407/2018

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approached the concerned police and they refused to act upon such complaint, then he sent the complaint to the concerned Superintendent of Police in writing and by post as required under Section 154(3) of Cr.P.C. It was held that in addition to such pleading he has to produce the proof for the same. In the case on hand, there was no such compliance of the ratio of the judgment in Priyanka Srivastava’s case.

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Further the records sufficiently show that much before respondent No.2 filing of the impugned complaint, the petitioners initiated the proceedings against respondent No.2 under Section 138 of the Act. There is much force in the contentions that as counter blast to such complaints, the present complaint was filed. The allegations in the impugned complaint may constitute defence for respondent No.2 in the cases filed by the petitioners against him for the offence punishable under Section 138 of the Act.

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This case falls under category of cases mentioned in para 108 (1) and (6) of the judgment of the

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Crl.P.No.4407/2018

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Hon'ble Supreme Court in Bhajan Lal’s case referred to supra. Therefore continuation of the proceedings against the petitioners amount to abuse of the process of the Court. The petition is allowed.

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The impugned complaint in PCR No.80/2018 on the file of Principal Civil Judge & JMFC, Holalkere and consequent first information report in Crime No.158/2018 of Holalkere police station against the petitioners are

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hereby quashed.

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KSR

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Sd/JUDGE

Shanmukhappa D v. State of Karnataka

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Shanmukhappa D v. State of Karnataka

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