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2017 DIGILAW 690 (KAR)

Rt. Rev. J. Prabhakar Rao v. Gilbert Tejpal Banna

2017-04-04

BUDIHAL R.B.

body2017
ORDER : Budihal R.B., J. Heard the arguments of the learned counsel appearing for the petitioners/accused and also the arguments of the learned counsel appearing for respondent No. 1, and so also the learned High Court Government Pleader for respondent No. 2 State. 2. This is a petition filed by the petitioners-accused praying to quash the complaint, as per Annexure-A, filed by respondent No. 1 in the Court of Civil Judge & JMFC, Mundaragi, in C.C. No. 145/2011 (P.C. No. 11/2008) under Section 200 of the Code of Criminal Procedure and the impugned order, as per Annexure-Q, dated 28.08.2013, passed in C.C. No. 145/2011 by the learned Civil Judge & JMFC, Mundaragi, insofar as the petitioners are concerned. 3. Brief facts of the case, as pleaded in the petition, are that petitioner No. 1 was earlier serving as Bishop of Church of South India Trust Association ('the CSITA' , for short). Petitioner Nos. 2 and 3 were former secretaries. The CSITA is registered and functioning under the provisions of the Indian Companies Act. The CSITA is the absolute owner and legal possessor of immovable property, including the lands in respect of which the compensation is received situated at Gumgol village, Mundaragi taluk, Gadag District. The said receipt of the compensation amount is questioned in the complaint. A private complaint came to be filed by respondent No. 1 against the petitioners herein and three others for the alleged offences under Section 463, 464, 420 read with Section 149 of the Indian Penal Code. In the said private complaint, it is alleged that the petitioners, along with other remaining three accused, viz., the Special Land Acquisition Officer and Assistant Commissioner, Singatalur Irrigation Project, Huvinahadagali and the Tahasildar, Mundaragi Taluka, Mundaragi that based on the alleged forged documents the compensation amount of Rs. 63,36,428/- has been received by the petitioners. On the basis of the said complaint, now, the Trial Court has issued the summons to the petitioners herein and also the other accused persons. 4. Learned counsel appearing for the petitioners, during the course of his arguments, made the submission that there is no such fraud committed by the petitioners in receiving the compensation amount. On the basis of the said complaint, now, the Trial Court has issued the summons to the petitioners herein and also the other accused persons. 4. Learned counsel appearing for the petitioners, during the course of his arguments, made the submission that there is no such fraud committed by the petitioners in receiving the compensation amount. He also made the submission that the judgment passed in R.S.A. No. 2030/2007 on 19.01.2009 clearly goes to show that it is the petitioners, who are the owners of the property, and hence, the complainant is not at all a trustee and has no right in respect of the said property. It is also his contention that this Court, by its order dated 28.11.2011 passed in Crl.P. No. 11222/2011, while partly allowing the petition had directed the learned Magistrate to record the evidence, follow the procedure prescribed under Sections 200 to 203 of Cr.P.C., and then, if there is a prima facie case, take cognizance and then issue summons to the accused, but the said direction is not at all followed by the Trial Court and no such exercise has been made and that the matter is pending before the Trial Court. He also made the submission that the Trial Court simply went on adjourning the matter and by order dated 28.08.2013 has issued summons to the petitioners/accused without making any efforts to record the evidence, as directed by this Court. Hence, the learned counsel submitted that looking to the pendency of the case before the Trial Court, it is nothing but the abuse of process of Court. Therefore, learned counsel prays for quashing of the entire proceedings initiated before the Trial Court. 5. Learned counsel appearing for respondent No. 1 also made the submission that the Trial Court has not at all followed the direction issued by this Court in Crl. P. No. 11222/2011. 6. Learned High Court Government Pleader made the submission that the petitioners cannot seek quashing of the criminal proceedings, however, as the direction issued by this Court is not followed by the Trial Court, at the most, the matter may be remitted to the concerned Magistrate Court to follow the directions issued by this Court and to proceed with the matter. 7. I have perused the grounds urged in the petition. 7. I have perused the grounds urged in the petition. So also, the orders of the Court below and the order dated 28.11.2011 passed by this Court in Crl.P. No. 11222/2011. 8. This Court, while passing the order in Crl.P. No. 11222/2011, had directed the Magistrate to record the evidence, follow the procedure prescribed under Sections 200 to 203 of Cr.P.C., then if there is a prima facie case, take cognizance and then issue summons to the accused. Looking to the order-sheet of the Trial Court, a copy of which has been produced, along with the petition, it clearly goes to show that on 31.10.2011 there is a entry mentioning ' Received copy of order from H.C. of Karnataka Circuit bench Dharwad in Cr.R.P. No. 11222 of 2011." When that is so, the learned Magistrate ought to have followed the direction issued by this Court in the aforesaid criminal petition. However, looking to the further entries/orders in the order sheet of the Trial Court, it is seen that the Trial Court simply went on adjourning the matter and, without recording the evidence, following the procedure as directed by this Court, by order dated 28.08.2013, has issued summons to the petitioners/accused. Therefore, the order dated 28.08.2013 issuing summons to the accused persons is illegal and not sustainable in law. 9. Apart from that, considering the submission made by the learned counsel appearing for the petitioners praying the Court to quash the entire proceedings is concerned, I am of the opinion that, when in the earlier proceedings, this Court has already given a direction to the Magistrate Court to follow the procedure and to proceed with the matter, the entire proceedings cannot be quashed at this stage, and the said submission of the learned counsel for the petitioners is not acceptable. The only remedy is to remit the matter to the concerned Magistrate Court with a direction to follow the direction issued by this Court in Crl. P. No. 11222/2011 and to proceed with the matter. 10. Accordingly, the petition is allowed partly i.e. to the extent of setting aside the order dated 28.08.2013 issuing summons to the petitioners/accused. The order dated 28.08.2013 passed by the learned Civil Judge (Jr. P. No. 11222/2011 and to proceed with the matter. 10. Accordingly, the petition is allowed partly i.e. to the extent of setting aside the order dated 28.08.2013 issuing summons to the petitioners/accused. The order dated 28.08.2013 passed by the learned Civil Judge (Jr. Dn.) & JMFC, Mundaragi, in C.C. No. 145/2011 is hereby set aside and the matter is remitted back to the said Court with a direction to follow the direction issued by this Court in Crl.P. No. 11222/2011 and to proceed with the matter.