Allowed

Sri N H Raju v. Thirthahalli Avishkar Souhardha

Karnataka HC2 Jan 2023CRL.P/7998/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a criminal petition under Section 482 Cr.P.C. and quashed an FIR registered against the petitioner. The court held that the investigation was illegal as the offence attracted is not cognizable absent a private complaint, and the FIR lacked substance against the petitioner.

What did the court decide?

Criminal petition allowed. Impugned FIR in Crime No.389/2017 quashed insofar as it relates to the petitioner/accused No.9.

Sri N H Raju Vs Thirthahalli Avishkar Souhardha — Quashing and FIR | Karnataka HC (2023)

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CRL P No.7998/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JANUARY, 2023

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BEFORE

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THE HON’BLE Mr. JUSTICE HEMANT CHANDANGOUDAR

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CRIMINAL PETITION No.7998 OF 2018

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BETWEEN :

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SRI. N.H.RAJU, AGED ABOUT 57 YEARS, S/O SRI. NAGARAJ, CHARTERED ACCOUNTANT BY PROFESSION, R/OF THE PREMISES BEARING MIG NO.100, 7^TH CROSS, 7^TH MAIN, 2^ND STAGE, A.D.HALLI, BASAVESHWARANAGAR, BANGALORE – 560 079.

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...PETITIONER

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(BY SRI.C.V.NAGESH, SENIOR COUNSEL FOR SRI.RAGHAVENDRA K., ADVOCATE)

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AND :

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THIRTHAHALLI AVISHKAR SOUHARDHA SHARE-HOLDERS' UNION, THIRTHAHALLI, SHIVAMOGGA DISTRICT. REPRESENTED BY ANIL.

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THE CIRCLE POLICE INSPECTOR, THIRTHAHALLI, SHIVAMOGGA DISTRICT. REPRESENTED BY S.P.P., HIGH COURT OF KARNATAKA, BANGALURU – 560 001.

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...RESPONDENTS (BY SRI.MAHESH SHETTY, HCGP FOR R2; R1 SERVED AND UNREPRESENTED)

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CRL P No.7998/2018

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 01.09.2017, PASSED IN THE CASE ORDERING THE REFERENCE OF THE COMPLAINT OF THE FIRST RESPONDENT TO THE SECOND RESPONDENT POLICE FOR INVESTIGATION AND REPORT UNDER SECTION 156(3) OF THE CODE OF CRIMINAL PROCEDURE AND FURTHER BE PLEASED TO QUASH THE FIR IN CRIME NO.389/2017 REGISTERED AT THIRTHAHALLI POLICE STATION, SHIVAMOGGA DISTRICT, FOR THE OFFENCE WHICH ARE MADE PENAL UNDER SECTIONS 142 AND 138 OF THE N.I ACT AND UNDER SECTION 420 OF IPC AS AN ACT CONSEQUENTIAL TO THE ORDER OF REFERENCE PASSED IN THE CASE.

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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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Respondent No.1-Union had filed a private

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complaint under Section 200 Cr.P.C. for the offence punishable under Section 138 of the N.I. Act and 420 of IPC alleging that the petitioner-accused No.9 and other accused had not returned the amount invested by the members of the Union in the form of shares and the cheque issued by accused No.1 when

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CRL P No.7998/2018

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presented for realisation was dishonoured for want of funds.

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On the submission made by the Learned

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counsel for the complainant, that the complainant would proceed against the accused person for the offence punishable under Section 420 of IPC, the learned Magistrate referred the matter to the police for investigation under Section 156(3) Cr.P.C. for the offence punishable under Section 420 of IPC. Thereafter, the police registered an FIR for the offence punishable under Sections 420 of IPC and also under Section 138 of the N.I. Act, against the petitioner (A9) and other accused. Taking exception to the same, this Criminal Petition is filed.

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Sri C V Nagesh, learned Senior Counsel appearing for the petitioner would submit that the complaint filed without complying with Section 154(1)

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CRL P No.7998/2018

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and (3) of Cr.P.C. is not maintainable as held by the Hon'ble Supreme Court in the case of Priyanka

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Srivastava and Another vs. State of Uttar Pradesh and Others reported in (2015) 6 Supreme Court Cases 287. He further submits that in the absence of any specific allegation as against the petitioner/accused No.9, the registration of the FIR for the offence punishable under Section 420 of IPC and also under Section 138 of the N.I. Act is impermissible.

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Respondent No.1-complainant, though served with notice, has remained absent.

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The learned HCGP appearing for the State

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submits that the allegations made in the complaint disclose commission of cognizable offence and as such, registration of the FIR at this stage does not warrant interference.

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CRL P No.7998/2018

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Considered the submissions of the learned counsel for the parties.

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Perusal of the complaint indicates that the complainant initially had approached the Thirthahalli Police Station, and upon summoning, the accused No.1 executed an agreement stating that he would refund the amount invested by the members of the complainantUnion and in that regard, he issued a cheque dated 10.11.2016 for a sum of Rs.44,00,000/- and when the said cheque was presented for realisation, the same was dishonoured for want of funds.

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Even accepting the allegation made in the complaint on the face of it, utmost, it would constitute an offence under Section 138 of N.I. Act and not an offence under Section 420 of IPC.

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Even otherwise, there is no specific allegation as against the petitioner/accused No.9 that he either issued the cheque to the complainant towards refund of

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CRL P No.7998/2018

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the amount invested by the members of the

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complainant-Union. In the absence of any essential ingredient so as to constitute the commission of offence punishable under Section 420 of Cr.P.C., the registration of the FIR as against accused No.9 is without any substance.

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The Police have registered the FIR for the offence under Section 138 of N.I Act which is impermissible, since cognizance of the offence can be taken only upon the complaint in writing by the complainant by the learned Magistrate. Hence, registration of offence punishable under Section 138 of N.I Act is one without authority of law.

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The offences alleged against accused No.9 are cognizable and the complaint filed without complying Sections 154(1) and (3) of Cr.P.C. is not maintainable as held by the Hon'ble Supreme Court in the case of Priyanka Srivatsava supra.

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CRL P No.7998/2018

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Hence, the continuation of investigation

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against respondent No.9/petitioner will be an abuse of process of law, since the probability of the police filing charge sheet against accused No.9/petitioner is remote and bleak. Accordingly, the following order is passed :

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ORDER

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i) The Criminal petition is allowed;

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ii) The impugned FIR in Crime No.389/2017 by Thirthahalli Police Station, Shivamogga District, insofar as it relates to the petitioner/accused No.9, is hereby quashed.

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In view of the disposal of the writ petition, pending

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I.A.1/2022 does not survive for consideration.

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Sd/JUDGE

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Sri N H Raju v. Thirthahalli Avishkar Souhardha

Case brief

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Sri N H Raju v. Thirthahalli Avishkar Souhardha

Case brief

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