Allowed

Sri.D. Chandrashekara v. the State of Karnataka by

Karnataka HC18 Jul 2022CRL.P/8006/2018

Case brief

AI extract

What is this about?

A High Court bench allowed a criminal petition under Section 482 Cr.P.C. to quash proceedings. The court held that cognizance based on a protest petition lacking specific allegations was impermissible and the subsequent complaint was not maintainable due to procedural lapses.

What did the court decide?

The criminal proceedings in C.C. No. 999/2018 pending before J.M.F.C.-II, Shivamogga were quashed.

Sri.D. Chandrashekara Vs the State of Karnataka by — Quashing and FIR | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JULY, 2022

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BEFORE

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THE HON’BLE Mr. JUSTICE HEMANT CHANDANGOUDAR

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CRIMINAL PETITION No.8006 OF 2018

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BETWEEN :

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SRI.D. CHANDRASHEKARA, S/O D N DHARMACHAR, AGED ABOUT 57 YEARS, OCC: ASST. EXECUTIVE ENGINEER (ZP), TARIKERE TALUK PANCHAYAT, B H ROAD, TARIKERE, CHICKKAMAGALUR DISTRICT – 577 228.

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SRI. B.V.VISHWA RAJACHAR, S/O VISHWA BRAHMACHAR, AGED ABOUT 60 YEARS, R/O "ANURGRAHA" MIG-128, KHB COLONY, KALLAHALLI EXTENSION, VINOBANAGARA, SHIVAMOGGA CITY – 577 201.

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...PETITIONERS

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(VIDE ORDER DATED 21.10.2019, PETITION AGAINST P1 STANDS ABATED

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BY SRI.R.B.DESHPANDE, ADVOCATE FOR P2)

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AND :

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THE STATE OF KARNATAKA BY SUB-INSPECTOR OF POLICE, RURAL POLICE STATION, SHIVAMOGGA – 577 201.

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(REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU – 560 001).

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B.M.SIDDAPPA, S/O B.MANACHAR, AGED ABOUT 80 YEARS, OCC:RETIRED ACCOUNTANT, R/O GURUPURA, SHIVAMOGGA CITY – 577 201.

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...RESPONDENTS

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(BY SRI.ROHITH B.J., HCGP FOR R1, SRI. K.MURTHY, ADVOCATE FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS IN C.C.NO.999/2018 PENDING ON THE FILE OF J.M.F.C.-II COURT, SHIVAMOGGA.

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

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ORDER

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A private complaint was filed under Section 200 of Cr.P.C by the 2^nd respondent alleging that on 31.03.2009 the petitioner/accused formed a Society in the name of Kalikamba Devasthana Samithi and 18 persons were shown as members of the working committee and the 2^nd respondent was shown as Vice-President, along with the

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photographs of the said society by forging his signature. It was further alleged that by registering the said society, the petitioners/accused are collecting money from the public.

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The learned Magistrate referred the complaint to the Police for investigation under Section 156 of Cr.P.C. The police after investigation submitted a ‘B’ report stating that there is no material produced for having collected the money from the public by the petitioners/accused and also he had no knowledge of registration of the Society in 2011 and also the said Society has been dissolved.

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The respondent No.2 filed a protest petition to the ‘B’ report submitted by the police. The learned Magistrate after recording sworn statement of the 2^nd respondent took cognizance of the offence punishable under Sections 419, 420, 464, 465, 468, 469 and 471, r/w Section 34 of IPC. Taking exception of the same, this petition is filed.

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4. Learned counsel for the petitioner submits that

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the protest petition filed by the Respondent No.2 was not in the form of a complaint and in the absence of any allegation against petitioners/accused for having committed the aforesaid offences, the registration of the case for the aforesaid offences against the petitioner/accused is impermissible.In support, he places reliance on the decision of the Hon’ble Apex Court in the case of Basappa Vs. State of Karnataka reported in ILR 1987 KAR 995.

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Further submits that the Society was registered in the year 2001 and the complaint was filed in the year 2013 without offering any plausible explanation. Even otherwise, the allegations made in the complaint arises out of a dispute with regard to the management of the society. He further submits that the offences alleged against the petitioner/accused are cognizable and the complaint filed without complying with Sections 154(1) and 154(3) of Cr.P.C., is not maintainable, in view of the

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decision of the Hon’ble Supreme Court in the case of Sakiri Vasu v State of U.P reported in (2008)2 SCC 409.

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On the other hand, the learned High Court Government Pleader appearing for the respondent-State submits that the police after investigation have rightly filed the ‘B’ report and does not warrant any interference.

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I have considered the submissions of learned Counsel for the parties.

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A perusal of the protest petition indicates that the there is no allegation made against the petitioner/accused for having committed the offences alleged against the petitioner/accused. The Co-ordinate Bench of this Court in the case of Basappa (supra) has held that if there is no complaint made to the learned Magistrate, the question of Magistrate taking cognizance on the basis of protest memo does not arise particularly when the protest memo is not in the form of complaint and there are no allegations constituting any offence in the

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protest memo filed and there is no request to take action. Hence, in the absence of any allegation against the petitioner/accused for having committed the offences made in the protest memo, the cognizance taken by the learned Magistrate is impermissible.

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Even otherwise, the offences alleged against

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the petitioners are cognizable and the complaint filed by 2nd respondent, without complying with Sections 154(1) and 154(3) of Cr.P.C. which is mandatory as held by the Apex Court in the case of Sakiri Vasu (supra), is not maintainable. The 2^nd respondent was aware of the registration of the Society in 2011. However, the complaint was lodged in 2013 without offering any plausible explanation.

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In view of the preceding analysis, I am of the considered view that the complaint was lodged by the 2^nd respondent with an ulterior motive to wreak vengeance against the petitioner/accused and with revengeful intent.

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Accordingly, I pass the following order:

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ORDER

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(i) Criminal Petition is allowed.

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(ii) The impugned proceedings in C.C.No.999/2018 pending on the file of JMFC-II, Shivamogga, are hereby quashed.

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Sd/JUDGE

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Sri.D. Chandrashekara v. the State of Karnataka by

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Sri.D. Chandrashekara v. the State of Karnataka by

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