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2019 DIGILAW 28 (KAR)

Biliay Kuppa Naik v. State of Karnataka

2019-01-03

H.P.SANDESH

body2019
JUDGMENT : H.P. Sandesh, J. Heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader for respondent No.1 and also learned counsel appearing for respondent No.2. 2. The factual matrix of the case is that the respondent No.1 has filed a private complaint under Section 200 of Cr.P.C. for the alleged offences punishable under Sections 427, 504, 506, 149, 420, 467, 468 of IPC against these petitioners herein. The main allegation is that the complainant/respondent is the resident of Shiralikeri, Shirali Village, Bhatkal Taluk, in the month of May 2015. He approached the said Shirali Gram Panchayat and enquired petitioner No.3. Later he came to know that the tender process will be conducted in the month of June. The complainant in the month of June again approached Gram Panchayat Shirali, but he came to know that tender process was already over and alleged in the complaint that petitioner Nos.1, 2 and 6 had conducted tender process without informing the complainant and allotted the shop premises to the petitioner Nos.5, 7, 9 and 12 by creating illegal agreement and thereby made false entries in the Panchayat records and cheated the real bidders. 3. The other allegations that on 07.10.2013, when the complainant/respondent enquired with the Gram Panchayat, the accused abused the complainant and threatened the respondent with dire consequences. It is also the allegation that resolution was passed in respect of rent agreement without sufficient quorum and thereby cheated the real bidders. Further it is contended that the shops are allotted to these petitioners without following the procedure and the complainant has not participated in the bid and therefore he has not locus-standi to file any such complaint. Hence, the very complaint filed by the complainant is liable to be quashed. The other contentions were raised that the public auction was conducted the tender process on 27.03.2010. The panchayat authority executed an agreement in the name of bidders on 30.06.2010 and advance amount also deposited. The tender procedure of the panchayat is completed as per the rules and guidelines of the Karnataka Panchayat Raj Act, 1993. Hence, the complaint against the petitioners for the fabrication of the panchayat documents is not a cognizable offence and cognizance taken against these petitioners is illegal and the allegations made in the complaint is civil in nature. The tender procedure of the panchayat is completed as per the rules and guidelines of the Karnataka Panchayat Raj Act, 1993. Hence, the complaint against the petitioners for the fabrication of the panchayat documents is not a cognizable offence and cognizance taken against these petitioners is illegal and the allegations made in the complaint is civil in nature. The petitioner Nos.1, 7, 8 and 9 are the members of Shirali Panchayat and petitioner Nos.2 and 3 is Panchayat Secretary and Panchayat Development Officer of the said Panchayat. Petitioner No.4 is the President of Panchayat, petitioner No.5 is the bidder, petitioner Nos.6 and 10 are the witness to the agreement executed in the panchayat and there was total absence of any dishonest intention on the part of the petitioners in entering into the agreement with bidder. Hence, the very proceedings initiated against these petitioners is illegal. Therefore, the petition is liable to be allowed and the proceedings initiated against these petitioners are liable to be quashed. 4. Learned counsel appearing for the petitioners in his arguments has vehemently contended that the alleged transaction was taken place in the month of June and this complaint was given in the month of October 2013 and there was delay in lodging the private complaint. The Court below has failed to take note of the said fact into consideration while taking the cognizance. In support of his contention, he relied upon the judgment of the Hon'ble Apex Court in the case of Zandu Pharmaceutical Works Ltd Vs Sharaful Haque reported in, (2005) AIR SC 9 and contends that Imprisonment for Three Years-Period of Limitation under Section 468(2)(C) Cr.P.C. is three years and the Court could not have taken cognizance of offence after three years-Order of Magistrate not even referring to Section 473 on extension of period of limitation- complaint nothing but sheer abuse of process of law and liable to be quashed under Section 482 of Cr.P.C. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is said to be quashed, it is permissible to look into the materials to assess what the complaint has alleged and whether any offence is made out even if the allegations are accepted in toto. When a complaint is said to be quashed, it is permissible to look into the materials to assess what the complaint has alleged and whether any offence is made out even if the allegations are accepted in toto. When exercising jurisdiction under Section 482 of Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not. 5. Per contra, learned counsel appearing for the respondent in his arguments has contended that the Court below taking note of the averments made in the complaint and also considering the material available on record and that too on the sworn statement of the complainant who has been examined before the trial Court as found the material to proceed against these petitioners and the documents produced before the trial Court are also considered by the trial Court regarding manipulation of documents and rightly taken the cognizance against these petitioners. Hence, the petition is liable to be dismissed. 6. In reply to the arguments, the counsel for the petitioners contend that no cognizance is taken against accused Nos.2 and 3 and only against these petitioners the cognizance has been taken and same is not maintainable. 7. On perusal of the complaint allegation, it is seen that the complaint was given on 08.10.2013. The sum and substance of the complaint is that, the complainant approached the Gram Panchayat regarding allotment of shops in the month of May and PDO has replied that they are going to complete the tender process within 31st of the May and they are going to call the tender in the month of June and instructed him to participate in the tender process. Accordingly, in the month of June, again he went and approached the Panchayat Development Officer. At that time, he informed that tender process was already over and the accused Nos.1, 2 and 6 themselves have taken the shops. The allegation made in the complaint that without taking the tender process allotment is made. The PDO has replied that they have followed the procedure and immediately he has sought information under Right to Information Act and obtained the same from accused Nos.3 and 4. When he came to know that the shops were allotted in favourt of accused Nos.1, 2 and 6 in the year 2010 itself. The PDO has replied that they have followed the procedure and immediately he has sought information under Right to Information Act and obtained the same from accused Nos.3 and 4. When he came to know that the shops were allotted in favourt of accused Nos.1, 2 and 6 in the year 2010 itself. The shop No.3 was allotted to Sri Madev Laxman Naik, shop No.2 was allotted in favour Sri Rajendra B.Shanbag and shop No.5 was allotted in favour accused No.5. Even though, the very names were not found in the tender process and accused No.5 even did not participated in the tender process and no application was filed. Hence, there are no documents for having participated in the tender process and these accused persons were indulged in creating of documents and thereby committed an offence punishable under Sections 427, 504, 506, 149, 420, 467, 468 of IPC. The Court below, on receipt of the complaint referred the matter to police to investigate the same and submit report. Thereafter, the police after the investigation have filed 'B' report, which is challenged by the complainant. He was examined before the Court below and after recording the evidence of the complainant the Court below vide its order dated 24.06.2014, has taken the cognizance in respect of accused Nos.1, 4 to 8 for the offence punishable under Sections 427, 504, 506, 420, 467, 468 r/w 149 of IPC. 8. The petitioners in this petition being aggrieved by the order of taking cognizance against these petitioners have approached this Court invoking section 482 of Cr.P.C. contending that the trial Court erred in not considering the fact that the respondent failed to adduce legal evidence to prove the allegations made in the complaint that Sri Raghavendra Naik participated in the tender process as a representative of the petitioner No.5 and after completion of the tender process he gave a letter to execute the agreement with the petitioner No.5 and thereafter tenders are passed in the panchayat resolution. The averment in the complaint is baseless and against section 52 of the Karnataka Panchayat Raj Act 1993. 9. The other contention of the petitioners is that the tender process was completed in 2010 and the date of the complaint is dated 7.10.2013 and he has stated that he went to the panchayat and enquired about the resolution passed in the standing production committee on 20.7.2013. 9. The other contention of the petitioners is that the tender process was completed in 2010 and the date of the complaint is dated 7.10.2013 and he has stated that he went to the panchayat and enquired about the resolution passed in the standing production committee on 20.7.2013. The respondent has not made any specific allegations against any petitioners in the complaint and the standing committee passed the resolution with quorum and the respondent misconstrued the resolution and quorum and the clerical mistake in the document may be rectified by the panchayat authorities and the petitioners shall not made responsible for that and the very complaint is contrary to law. 10. It is further contended that the trial Court taken cognizance on a private complaint filed by the respondent and issued process which is contrary to the settled principles of law and the trial Court accepted the B report filed by the police inspector and in spite of B report, after the recording of statement cognizance is taken and failed to note that agreement is renewed for another three years an 3% of enhancement of the rent and the resolution was also passed in the committee and hence there is no evidence to prove the averment made in the complaint and in spite of it, the Court below has taken cognizance. 11. The counsel appearing for the petitioners in his argument vehemently contended that the trial Court ought not to have proceeded against these petitioners and the trial Court has not taken cognizance against accused Nos.2 and 3 and when cognizance was not taken against accused Nos.2 and 3, the trial Court ought not to have proceeded against these petitioners. In support of his contention, he has relied upon the judgment of Zandu Pharmaceutical Works Ltd vs. Sharaful Haque, regarding limitation point is concerned. 12. Per contra, the counsel appearing for the respondent No.2 in his argument contends that these petitioners have indulged in creating of documents and without any quorum, a resolution was passed and allotment was made in favour of these petitioners and they were indulged in creation of documents and no bid was conducted and these petitioners have joined together and created false documents and the Court below has rightly taken cognizance on perusal of the evidence of the complainant and the documents. 13. 13. Upon hearing the arguments of the learned counsels on both the sides and perusal of the complaint averments and in the complaint a specific allegation is made that the complainant was searching for the shop premises and he has approached the Gram Panchayat on 15th day of May and the PDO has informed that bid process will be completed within 31st day of May and in the month of June when he approached the Gram Panchayat, he was told that all process was over. The police after investigation have filed B report and thereafter the complainant was examined before the Court below and the Court below while passing the order of taking cognizance in paragraph No.8 of the order made an observation that, the Court has to consider only the averments made in the complaint or charge sheet and the Court is not required to sift and appreciate the evidence at that stage and the Court has to consider the averments made in the complaint. There is no necessity to go into the merits of the case. It is sufficient if the Court before issuing process takes into consideration the averments made by the complaint and to see whether the offence is made out on the basis of materials placed on record and only the requirement is to see whether any offence is made out against the accused and whether the averments made in the complaint and documents placed on record disclose the offences for which cognizance can be taken by the Court to proceed in the matter. On perusal of the complaint contents, sworn statement of the complainant and also on perusal of the documents produced by the complainant formed an opinion that it prima facie discloses that there are materials to proceed against the accused. 14. Now this Court would like to refer the judgment of the Apex Court reported in a case between Sonu Gupta vs. Deepak Gupta and others, (2015) 3 SCC 424 . In this judgment the Apex Court held that while invoking section 204 and 190 of Cr.P.C., for issuance of process and summoning of accused, matter to be considered by the Magistrate. At the stage of taking cognizance and summoning, the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence. In this judgment the Apex Court held that while invoking section 204 and 190 of Cr.P.C., for issuance of process and summoning of accused, matter to be considered by the Magistrate. At the stage of taking cognizance and summoning, the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence. At this state the Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant. 15. The Apex Court, also in a recent judgment in case between Himachal Pradesh Cricket Association and others vs. State of Himachal Pradesh and others decided on 2.11.2018, regarding inherent powers of the Court, it is held that inherent powers under this provision was not the Rule but it was exception. The exception is applied only when it was brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily or otherwise section 482 cannot be invoked. 16. In another case also reported in a case between Rakhi Mishra vs. State of Bihar and others, (2017) AIR SC 4019 the Apex Court held, while quashing of criminal proceedings, if FIR is lodged alleging cruelty and ill-treatment at hands of accused husband and other members of his family, if complaint discloses prima facie case against the accused persons, proceedings cannot be quashed. 17. For having taken note of the principles laid down in the judgment referred supra and also the order passed by the trial Court, while exercising the jurisdiction, the trial Court has taken cognizance based on the statement of the complainant and also the documents which are produced before the trial Court and the judgment of Sonu Gupta and Deepak Gupta and others (supra) is aptly applicable to the case on hand and at the stage of taking cognizance and summoning, the Magistrate is required to apply his judicial mind only in order to take cognizance of the offence and at this stage the Magistrate is not required to consider defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant. 18. 18. The trial Court while issuing process passed detailed order and found prima facie materials to proceed against the petitioners. I have already pointed out that the Apex Court in the judgment it is made clear that exception is only applied when it was brought to the notice of the Court that grievous miscarriage of justice would be committed if the trial is allowed to proceed and inherent power was not the Rule but it was an exception. 19. Under the circumstances, when the reasoned order was passed by the trial Court with regard to taking of cognizance against the petitioner, this Court do not find any reasons to invoke section 482 of Cr.P.C. to quash the proceedings against the petitioners. 20. The other contention of the petitioners that the very complaint is barred by limitation also has to be considered by the trial Court with regard to the material on record and it is a specific allegation that though bid was conducted in 2010, and the same was renewed subsequently, without following the procedure that was in 2013, and an averment is made that only on 3% enhancement of rent they have been continued in the premises and the contention of the petitioner that the same is barred by is also not applicable and the same is applicable of punishment is less than three years and the offence alleged against the petitioner is also under Section 468, 471 & same contention cannot be accepted. All these aspects require a trial and hence there are no grounds to invoke the provision under section 482 of Cr.P.C. to quash the proceedings and hence in view of the discussions made above, the petition is required to be dismissed and it is dismissed accordingly.