Allowed

Mr Chandrasekharan Nair P v. the State by

Karnataka HC10 Feb 2022CRL.P/167/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed two criminal petitions filed under Section 482 Cr.P.C. seeking to quash proceedings initiated against the petitioners. The court ruled that a private complaint filed by respondent No.2 was non-maintainable due to lack of compliance with Section 154 requirements and quashed the impugned order taking cognizance.

What did the court decide?

Quashed the impugned proceedings in PCR No.840/2017 in CC No.4935/2018 pending before the Principal Civil Judge and Judicial Magistrate, Hassan.

Mr Chandrasekharan Nair P Vs the State by — Civil Procedure and Limitation | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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CRIMINAL PETITION NO.167 OF 2019 C/W CRIMINAL PETITION NO.168 OF 2019

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IN CRIMINAL PETITION NO.167/2019:

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BETWEEN:

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MR CHANDRASEKHARAN NAIR P, S/O MR M CHACHU KUTTY, AGED ABOUT 44 YEARS, M/S MALABAR GOLD PRIVATE LTD., LAKSHMI ARCADE, B M ROAD, HASSAN-573201. …PETITIONER

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(BY SRI HANEEF M.H, ADVOCATE)

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AND:

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THE STATE BY CITY POLICE HASSAN, HASSAN CIRCLE, HASSAN, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE-560001.

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MR. VASANTHA A

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S/O LATE MR ANNAPPA, AGED ABOUT 27 YEARS, RESIDING AT Y N PURA VILLAGE,

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-:2:-

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RAYARAKOPPALU POST, ALURU TALUK, HASSAN-573213. ...RESPONDENTS

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(BY SRI ROHITH B.J, HCGP FOR R1, SRI H.S.RAGHAVENDRA, ADVOCATE FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.PC. PRAYING TO QUASH THE ORDER DATED 30.10.2018, PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, AT HASSAN IN PCR.NO.840/2017 (C.C.NO.4935/2018) (ANNEXURE-A) AGAINST THE PETITIONER.

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IN CRIMINAL PETITION NO.168/2019:

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BETWEEN:

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MR M.P.AHAMED, SON OF MR.MOHAMMED KUTTY HAJI, AGED ABOUT 60 YEARS, RESIDING AT MONTANA PLAS, MONTANA ESTATE PERINGOLAM POST, PAINGOTTUPURAM, KUNNA MANGALAM, PERINGOLAM, KOZHIKODE, KERALA - 673571, DIRECTOR M/S MALABAR GOLD PRIVATE LIMITED. …PETITIONER

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(BY SRI HANEEF M.H, ADVOCATE)

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AND:

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THE STATE BY CITY POLICE HASSAN, HASSAN CIRCLE, HASSAN, REPRESENTED BY THE

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-:3:-

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STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE-560001.

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MR. VASANTHA A S/O LATE MR ANNAPPA, AGED ABOUT 27 YEARS, RESIDING AT Y N PURA VILLAGE, RAYARAKOPPALU POST, ALURU TALUK, HASSAN-573213. ...RESPONDENTS

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(BY SRI ROHITH B.J, HCGP FOR R1, R2 SERVED AND UNREPRESENTED)

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---THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.PC. PRAYING TO QUASH THE ORDER DATED 30.10.2018 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND J.M.F.C., HASSAN IN P.C.R.NO.840/2017 (C.C.NO.4935/2018) AGAINST THIS PETITIONER (ANNEXURE-A).

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

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ORDER

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Since both the petitions arise out of the same

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impugned proceedings they are taken up together and disposed of by a common order.

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The respondent No.2 filed a private complaint under Section 200 of Cr.P.C., before the jurisdictional Magistrate alleging that he purchased a Silver Bracelet weighing 31.22 grams on 8.1.2015 for a sum of Rs.3,256/and he was told that the bracelet is of 22 carat but when he started using the same, it went on turning into black colour. After examining, he came to know that the same is of the low quality. It was further alleged that when he approached the shop and intimated the fact and sought for refund of the amount, the accused gave vague reply and refused to take back the bracelet and refund the money.

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The Jurisdictional Magistrate referred the complaint to the jurisdictional Police for investigation under Section 156(3) of the Cr.P.C. The Police after investigation submitted a 'B' report before the Jurisdictional Magistrate. The complainant filed the protest petition to the 'B' report submitted by the Police. The learned Magistrate by order dated 11.09.2018 allowed the protest petition filed by the

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-:5:-

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complainant and after taking cognizance issued summons to the petitioners. Being aggrieved by the same, these petitions are filed.

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The learned counsel appearing for the petitioner would submits that the offence punishable under Section 420 of IPC registered against the petitioner is cognizable and non-bailable. Hence, he submitted that the complainant without complying with the requirements in Sections 154(1) and 154 (3) of Cr.P.C. has filed private complaint and the same is not maintainable in law. He further submitted that the learned Magistrate without rejecting the 'B' report at the first instance has simultaneously rejected the 'B' report and further taken the cognizance of the offence and the same is not sustainable in law. In support of his submission he placed reliance of the decision of the Apex Court in the case of

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Priyanka Srivastava and another -Vs- State of Uttar Pradesh and Others reported in (2015) 6 SCC 287 and also the decision of this Court in the case of Dr. Ravikumar

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-:6:-

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-Vs- Mrs. K.M.C. Vasantha reported in ILR 2018 KAR

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1725 .

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On the other hand, learned HCGP appearing for respondent-State would submit that the Police after investigation have rightly filed the 'B' report.

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I have examined the submission made by the learned counsel appearing for the parties.

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Perusal of the complaint discloses that the complainant has not filed an affidavit stating that the private complaint was filed only after complying with the requirement of Section 154 (1) and 154 (3) of Cr.P.C. The Apex Court in the case of Priyanka Srivastava supra in paragraphs No. 31 and 32 held as follows:

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"31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under

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Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 154(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being hard to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offence, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."

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"32. The present lis can be perceived from another angle. We are slightly surprised that the financial institution has been compelled to settle the dispute and we are also disposed to think that it has so happened because the complaint cases were filed. Such a situation should not happen."

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In view of the ratio enunciated in the case of Priyanka Srivastava supra, complaint filed by respondent

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-:8:-

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No.2 without complying with the requirements under Section 154 (1) and 154(3) of Cr.P.C. is not maintainable in law. Even otherwise, learned Magistrate without rejecting the 'B' report at the first instance has simultaneously passed an order of rejecting the 'B' report and further taken cognizance of the offence which is not sustainable in law.

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In view of the preceding analysis, I am of the considered view that the impugned proceedings pending against the petitioner is not sustainable in law. Accordingly, I pass the following order

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(i) Criminal Petitions are allowed;

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(ii) The Impugned Proceedings in P.C.R. No.840/2017 in C.C.No.4935/2018 in both the writ petition pending on the file of the Principal Civil Judge and Judicial Magistrate First Class at Hassan, is hereby quashed.

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Sd/JUDGE

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Mr Chandrasekharan Nair P v. the State by

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Mr Chandrasekharan Nair P v. the State by

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