Allowed

Ashok Kheny v. State of Karnataka

Karnataka HC15 Jun 2023WP/570/2023

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging the quashing of an investigation order. The jurisdictional police had previously closed a complaint as civil. The Court held that invoking Section 156(3) Cr.P.C. with the same police force, who had already issued a final endorsement, was contrary to law, and quashed the criminal proceedings.

What did the court decide?

The writ petition is allowed; the investigation/proceedings in Crime No.232/2022 are quashed; subject contents open.

Ashok Kheny Vs State of Karnataka — Civil Procedure and Limitation | Karnataka HC (2023)

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NC: 2023:KHC:20803 WP No. 570 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 570 OF 2023 (GM-RES)

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BETWEEN:

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ASHOK KHENY AGED ABOUT 72 YEARS S/O LATE MAHARUDRAPPA KHENY AVAILABLE AT MIDFORD HOUSE MIDFORD GARDEN, M.G.ROAD BENGALURU - 560 001.

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…PETITIONER

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(BY SRI. C.V.NAGESH, SENIOR ADVOCATE FOR SRI S.B.MATHAPATI, ADVOCATE)

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AND:

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA BY STATION HOUSE OFFICER HALASURU POLICE STATION BENGALURU – 560 001.

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M/S. UMANG REALTECH PVT. LTD., REP. BY MR.GOURAV VERMA HAVING ITS REGISTERED OFFICE AT, NO.D-64, 2^ND FLOOR, DEFENCE COLONY, NEW DELHI – 110 024. A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956.

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…RESPONDENTS

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(BY SMT. K.P.YASHODA, HCGP FOR R-1;

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R-2 SERVED)

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2 - NC: 2023:KHC:20803 WP No. 570 of 2023

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C., PRAYING TO CALL FOR THE RECORDS IN PCR NO. 11652/2022 PENDING ON THE FILE OF THE IV ADDL. CHIEF METROPOLITAN MAGISTRATE, BANGALORE CITY.

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THIS WRIT PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court calling in question an order dated 03.08.2022, passed by the IV Additional Chief Metropolitan Magistrate, Bengaluru, in P.C.R.No.11652/2022, by which, the learned Magistrate refers the complaint made by respondent No.2 for investigation as obtaining under Section 156(3) of the Cr.P.C.

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Heard Sri C.V.Nagesh, learned counsel for petitioner and Smt. K.P.Yashodha, learned High Court Government Pleader for respondent No.1.

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Respondent No.2 - complainant though served remains unrepresented.

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Facts in brief, germane, are as follows:

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3 - NC: 2023:KHC:20803 WP No. 570 of 2023

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A joint development agreement is executed between the complainant and the petitioner on 27.02.2014. Alleging that there has been certain breach of the conditions of the joint development agreement, respondent No.2 - complainant seeks to register a complaint before the jurisdictional police on 24.09.2021. The jurisdictional police in terms of its endorsement dated 19.02.2022, closes the complaint holding that it was purely civil in nature as it involved dispute regarding property and payment of money, which the police would not investigate. After issuance of the endorsement dated 19.02.2022, it transpires that the very complainant moves the learned Magistrate invoking Section 200 of the Cr.P.C. by filing a private complaint, for the very same relief, on 22.07.2022. The learned Magistrate refers the matter for investigation and then becomes a crime in crime No.232/2022, registered by the very same jurisdictional police. It is the registration of the crime that drives the petitioner to this Court in the subject petition.

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Sri C.V.Nagesh, learned senior counsel representing the petitioner would vehemently contend that a complaint comes to be filed on 24.09.2021 on certain allegations of

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4 - NC: 2023:KHC:20803 WP No. 570 of 2023

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breach of the conditions of joint development agreement, by the petitioner. The police seek to investigate the matter and then issue the endorsement closing the complaint indicating that the issue is a civil in nature and the police would not go into the matter relating to property or money. Later, it was not open to the complainant to have knocked the doors of the learned Magistrate, seeking reference under Section 156(3) of the Cr.P.C. to the very same jurisdictional police, who had already issued the endorsement. He would further contend that the complainant did not have any locus to register a complaint, as the complainant is before the National Company Law Tribunal and Resolution Professional is already appointed.

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Learned High Court Government Pleader would refute the submissions of the learned senior counsel representing the petitioner to contend that the police have no choice to register a FIR once the matter is referred to investigation by the learned Magistrate and therefore, investigation should be permitted to be continued.

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I have given my anxious consideration to the submissions made by the learned senior counsel for the

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NC: 2023:KHC:20803 WP No. 570 of 2023

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petitioner and the learned High Court Government Pleader and

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have perused the material on record.

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The afore-narrated facts are not in dispute and requires no reiteration. The dispute between the petitioner and respondent No.2 – complainant is also not in dispute. The issue that leads to dispute is the alleged breach of certain conditions of the joint development agreement. The complainant seeks to register a complaint by directly approaching the Director General of Police on 24.09.2021. Investigation was directed to be conducted by the jurisdictional police. The police conducted investigation and issued the following endorsement:

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“This is to inform you that your petition complaint, given in The Director General Of Police, Bangalore, Karnataka State, Regarding Cheating Against Company Named Nandi Economic Corridor Enterprises Limited, Your application related civil in Nature because including property and money. Therefore to applied relevant court and decided.

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This is for your kind information.”

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(Emphasis added)

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6 - NC: 2023:KHC:20803 WP No. 570 of 2023

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The endorsement is issued on the score that the issue is purely civil in nature concerning property and money and therefore, the complaint was closed on 19.02.2022.

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Immediately after closure of the complaint, the very complainant knocks at the doors of the learned Magistrate invoking Section 200 of the Cr.P.C., seeking to register a private complaint in P.C.R.No.11652/2022 and seeks to refer the matter for investigation under Section 156(3) of the Cr.P.C. The learned Magistrate refers the matter to the jurisdictional police, which becomes a crime in Crime No.232/2022. The jurisdictional police is the one which closed the matter by issuing an endorsement on 19.02.2022, indicating that the matter is purely civil in nature involving property and money and police would not interfere in the matter. Notwithstanding this, the learned Magistrate without looking into the complaint, which was closed by the jurisdictional police by issuing the endorsement as afore-extracted, has referred the matter for investigation. Therefore, referring the matter to the very same jurisdictional police for investigation under Section 156(3) of the Cr.P.C., who has closed the issue by issuing the endorsement is contrary to law and the registration of the

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NC: 2023:KHC:20803 WP No. 570 of 2023

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crime, in Crime No.232/2022, would also be rendered unsustainable. However, liberty is reserved to the complainant to initiate proceedings in a manner known to law.

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Insofar as the submission of the learned senior counsel with regard to who would represent the company, is the respondent No.2 – the complainant himself, that need not

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be gone into at this juncture as the petition deserves to succeed on the preliminary ground of the reference under Section 156(3) of the Cr.P.C. being rendered unsustainable.

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For the aforestated reasons, the following:

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ORDER

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a. The writ petition is allowed.

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b. The investigation / proceedings in Crime No.232/2022, pending before the IV Additional Chief Metropolitan Magistrate, Bengaluru, stands quashed.

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c. All the contentions of the parties would remain open.

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NVJ

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List No.: 1 Sl No.: 64/CT:SS

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Sd/JUDGE

Ashok Kheny v. State of Karnataka

Case brief

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Ashok Kheny v. State of Karnataka

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