Allowed

Smt Bharathi v. the State of Karnataka

Karnataka HC6 Oct 2023WP/10965/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed criminal proceedings against petitioners for cheating and forgery. The court found the investigation flawed due to recording a statement from a deceased person and lack of evidence regarding the sale agreement, exercising suo motu judicial discretion to halt the prosecution.

What did the court decide?

The prosecution in C.C.No.855/2016 for offences under Sections 406, 420, 465, 209, 196, 120B read with 34 IPC pending before the Civil Judge and JMFC is quashed.

Smt Bharathi Vs the State of Karnataka — Cheating and Forgery | Karnataka HC (2023)

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NC: 2023:KHC:36355 WP No. 10965 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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WRIT PETITION NO. 10965 OF 2018 (GM-RES)

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BETWEEN:

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SMT. BHARATHI W/O. SRI. VIJAYAKUMAR, AGED ABOUT 49 YEARS, R/AT NO.68, RAJATADRI NILAYA, MMJ LAYOUT, NEAR HOUSING BOARD, HUDCO, MYSORE-570 018

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SRI. K.M. RAMACHANDRA S/O. LATE MARIGOWDA, AGED ABOUT 46 YEARS, HEMAVATHI EXTENSION, HOLENARASIPURA TOWN AND TALUK, HASSAN DISTRICT-571187.

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SRI. SHIVARAMEGOWDA S/O. SRI. KALARASEGOWDA, AGED ABOUT 59 YEARS, KONANUR VILLAGE AND HOBLI ARKALGUD TALUK, HASSAN DISTRICT-571187.

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…PETITIONERS

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(BY SRI. NAGESHA B.S, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY KONANUR POLICE STATION, ARKALGUD TALUK,

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HASSAN DISTRICT-571187.

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DR. SREENIVASA K., S/O SRI. CHALUVEGOWDA, AGED ABOUT 52 YEARS, SECRETARY, SREE JNANABHODINI HIGH SCHOOL, KERALAPURA, ARKALGUD TALUK HASSAN DISTRICT-571187.

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…RESPONDENTS

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(BY SRI. RAJAT SUBRAMANYAM, HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NO.1;

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RESPONDENT NO.2 - DR. SREENIVASA K.)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE COMPLAINT IN PCR NO.120/2015 FILED ON 05.03.2015 VIDE ANNEXURE-C, FIR IN CRIME NO.78/2015 VIDE ANNEXURE-D, CHARGE SHEET IN C.C. NO.855/2016 VIDE ANNEXURE-E, AND ORDER DATED 04.11.2016 AS PASSED IN PCR NO.120/2015 DIRECTING REGISTRATION OF THE CASE AS CRIMINAL CASE VIDE ANNEXURE-A AND THE ORDER DATED 24.11.2016 PASSED IN C.C. NO.855/2016 IN RESPECT OF ISSUANCE OF PROCESS TO THE PETITIONERS AS PASSED BY THE HON'BLE COURT OF CIVIL JUDGE AND J.M.F.C., ARAKALAGUD, HASSAN DISTRICT VIDE ANNEXURE-B.

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

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ORDER

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The petitioners have challenged the prosecution launched against them in C.C.No.855/2016 for the offences

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punishable under Sections 406, 420, 465, 209, 196 and 120B read with Section 34 of Indian Penal Code (henceforth referred to as 'IPC' for short) pending trial before the Civil Judge and JMFC, Arkalagudu, Hassan District.

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The respondent No.2 set the criminal law into motion by filing PCR No.120/2015 against the petitioners and another, wherein, he claimed that the petitioner No.1 was the Head Mistress of an institution named "Sree Kengal Vidya Samsthe (Vinayaka Convent)" in Keralapura, where the respondent No.2 was a secretary. He clamed that the petitioner No.2 and one Govinda were strangers to him as they were residing at the neighbouring hobli. The respondent No.2 claimed that the petitioner No.1 with an intention to sell away "Sree Kengal Education Institution" to him, executed an agreement dated 02.07.2012, for a total sale consideration of Rs.16,50,000/- and received a sum of Rs.10,00,000/- and a sum of Rs.6,50,000/- was agreed to be paid within one year from the date of execution of the agreement. As security for the payment of a sum of Rs.6,50,000/-, three blank signed cheques were handed over

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to the petitioner No.1, who undertook that she would not misuse the cheques for any reason. However, the respondent No.2 alleged that the petitioner No.1 did not keep up her words, but cheated him by withdrawing from the agreement to sell the institution. He therefore alleged that the petitioner No.1 had committed breach of trust. He alleged that the petitioner No.1 with an intent to cheat and misappropriate a sum of Rs.10,00,000/-, conspired with the other accused, by setting up the other accused to claim that the respondent No.2 had borrowed a loan of Rs.3,60,000/from the petitioner No.2, a sum of Rs.2,50,000/- from the petitioner No.3 and a sum of Rs.12,50,000/- from the petitioner No.4 and that the aforesaid three cheques were given to them towards repayment of the loan. The petitioner Nos.2 and 3 tendered the cheques for encashment, but were dishonoured, due to insufficient funds and hence proceedings under Section 138 of Negotiable Instruments Act, 1881 (henceforth referred to as 'N.I. Act, 1881' for short) were initiated against him. He therefore, contended that all the accused had conspired in obtaining blank cheques from the respondent No.2 and falsely launched a prosecution against

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the respondent No.2 for the offence under Section 138 of N.I. Act, 1881.

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The complaint was referred for investigation

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under Section 156(3) of the Criminal Procedure Code. Thereafter, the respondent No.1 took up investigation and recorded the statement of various witnesses and filed a charge sheet for the offences punishable under Sections 406, 420, 465, 209, 196, 120B read with Section 34 of IPC. The Trial Court took cognizance of the offences in terms of the order dated 23.11.2016 and issued summons to the accused.

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The petitioners therefore being aggrieved by the

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prosecution launched against them, have filed this petition.

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The learned counsel for the petitioners contended that even if the entire charge sheet material is considered, the offence under Sections 406, 420, 209, 465, 196 and 120B read with Section 34 of IPC is not made out, as the respondent No.2 admitted his signature on the cheques. The claim made by the respondent No.2 would be his substantive

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defence in the proceedings under Section 138 of N.I. Act, 1881. He also contends that the respondent No.1 has not conducted proper investigation, which is evident from the statement of CW.14 - (Mr.Raghu) who though had expired by the date of recording of his statement under Section 164 of Code of Criminal Procedure, but yet, the respondent No.1 claimed that the statement of the said Raghu was recorded on 18.12.2015. He submitted that none of the witnesses whose statements are recorded had witnessed the alleged transaction between the respondent No.2 and accused No.1

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as well as that the cheques in question were given to the accused Nos.2 and 3 towards the payment of consideration payable under the agreement of sale set up by the respondent No.2. He therefore, submits that this is a counter blast to the proceedings initiated by the petitioner Nos.2 and 3 under Section 138 of the N.I. Act, 1881.

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The respondent No.2 though served with the notice, has not appeared and has not contested the petition.

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This Court in terms of the order dated 16.08.2023 directed the learned High Court Government

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Pleader to secure instructions whether Mr. Raghu whose statement was recorded under Section 164 of Cr.P.C. on 18.12.2015 was alive, as on that date or not. Today, when the matter was taken up for disposal, it is stated by the learned High Court Government Pleader that the said Mr. Raghu had expired on 09.10.2012 i.e. prior to 18.12.2015 when his statement was purportedly recorded.

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A perusal of the charge sheet and the materials

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enclosed along with the charge sheet, do not disclose the seizure of the alleged agreement of sale dated 02.07.2012 stated to have been executed by the petitioner No.1/accused No.1 in favour of the respondent No.2. All that was seized by the respondent No.1 was the particulars of an account at Canara Bank, Keralapura and the list of members of Kengal Vidyasamsthe and a bond apart from the deposit.

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The statement of witnesses also does not disclose that they had witnessed the transaction between the petitioner No.1 and the respondent No.2. In addition, the way in which the respondent No.1 has conducted the investigation by recording the statement of a dead person

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goes to show that the respondent No.2 in collusion with the respondent No.1 has brought about a wrongful prosecution of the petitioners.

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In that view of the matter, the petition is allowed . The prosecution of the petitioners cannot continue and therefore, their prosecution in C.C.No.855/2016 (PCR No.120/2015) for the offences punishable under Sections 406, 420, 465, 209, 196, 120B read with 34 of IPC pending on the file of Civil Judge and JMFC, Arkalgudu, Hassan, is quashed.

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Before parting from the case, this Court secured the presence of the concerned investigating officer, to respond as to how the statement of a dead person was recorded. The concerned investigating officer who is present in the Court submitted that a person named Mr.Raghu was brought before him and he inadvertently and bonafide, believed the representations made and recorded the statement.

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Having regard to the way in which the

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investigation is done, more particularly, having regard to the fact that the investigating officer has casually dealt with the case, this Court proposed to direct a disciplinary enquiry against the investigating officer. However, as he pleaded innocence and claimed that he would make amends for the mistake committed by him, this Court felt it prudent to let him off, subject to the condition that he shall pay a sum of Rs.2,00,000/- to 'Belur Government Hospital' and submit a receipt for having deposited a sum of Rs.2,00,000/- within one month from the date of receipt of certified copy of this order.

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Sd/JUDGE

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List No.: 1 Sl No.: 7

Smt Bharathi v. the State of Karnataka

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Smt Bharathi v. the State of Karnataka

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