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2020 DIGILAW 1141 (KAR)

Mahesh @ Maheshgouda v. State Of Karnataka

2020-06-19

B.A.PATIL

body2020
JUDGMENT B.A.Patil, J. - This petition has been filed by the petitioner accused under Section 482 of Cr.P.C. praying to quash the proceedings in C.C. No.2/2017 pending on the file of the Principal Civil Judge and JMFC, Athani for the offences punishable under Sections 170, 384, 504, 506 of IPC. 2. I have heard the learned counsel Sri Sanjay S. Katageri for the petitioner, the learned Additional S.P.P. for respondent No.1 and the learned counsel Sri.Srinand A. Pachhapure for respondent No.2 the complainant. 3. A complaint was registered by respondent No.2 complainant alleging that one and half month back, a call was received by the complainant stating that he is a Police Inspector from Belagavi and the complainant is involved in a sand raid squad and he knows the involvement of him in illegal sand extraction and asked him to pay Rs.25,000/-, so that he will manage the higher officials of the Police Department for his illegal activities and he instructed the complainant to come near Shanti Sagar hotel and there the complainant met him and then he came to know that the said person who had called over the phone is accused No.1 and was known to the complainant and he pretended as a Police Inspector and he threatened the complainant and he demanded an amount of Rs.25,000/-. In that light, the complainant in view of the threat given by the accused, he handed over a cheque for a sum of Rs.25,000/- signed by him through his banker Karnataka Vikas Grameena Bank. After eight days of issuance of the said cheque, the petitioner accused called the complainant and stated that there is no amount in the Bank and insisted to give the amount, as otherwise case will be registered and due to the said threat, the complainant is said to have been paid Rs.10,000/- to the petitioner. It is also further alleged that the accused has also abused in filthy language and threatened. On the basis of the complaint, a case has been registered in Crime No.141/2015. After investigation, the charge sheet was filed. 4. It is the submission of the learned counsel for the petitioner that the respondent has filed entirely baseless complaint, without there being any proof of documents. It is his further submission that the respondent complainant has involved in cases of illegal lifting the sand and cases have been registered under MMRD Act. After investigation, the charge sheet was filed. 4. It is the submission of the learned counsel for the petitioner that the respondent has filed entirely baseless complaint, without there being any proof of documents. It is his further submission that the respondent complainant has involved in cases of illegal lifting the sand and cases have been registered under MMRD Act. That itself goes to show that the complainant is not fair and creditworthy. It is his further submission that though in the complaint, it has been alleged that the cheque has been taken, the said cheque has not been traced or recovered either from the possession of the accused or from the Bank. Even the record goes to show that the said cheque has been bounced, but it is not forthcoming with any documentary evidence. It is his further submission that there is a delay of one and half month in filing the complaint. He further submitted that the petitioner accused is a social worker and in no way he is involved in any other case. It is his further submission that the complaint which has been filed is nothing but it is abuse of process of law and when there is no strict compliance of the evidence, then under such circumstances, the entire proceedings initiated are nothing but to affect the rights of the accused. If the appellant accused is asked to go with the trial, unnecessarily his liberty will be affected and he has to face a false trial before the Court below. On these grounds, he prayed to allow the petition and to quash the proceedings. 5. Per contra, learned Additional S.P.P. vehemently argued and submitted that the case registered against the accused is a warrant case and he can file an application before the Trial Court for discharge by urging all the grounds. In the present case, this Court cannot hold a mini trial and come to a conclusion whether there is a case or not. It is his further submission that prima face there is a material as against the petitioner accused. On these grounds, he prayed to dismiss the petition. 6. It is the contention of the learned counsel for the respondent No.2 that the character and other things are to be considered only at the time of trial and not at this stage. It is his further submission that prima face there is a material as against the petitioner accused. On these grounds, he prayed to dismiss the petition. 6. It is the contention of the learned counsel for the respondent No.2 that the character and other things are to be considered only at the time of trial and not at this stage. Merely because some cases have been registered under MMRD Act, the credibility of the said complaint cannot be discarded. It is his further submission that it is not only the cheque, the accused has also received an amount of Rs.10,000/- from the complainant and the said Rs.10,000/- has been given to the accused only because of the fear or the inducement made by the accused. In that light, there are ingredients of the alleged offence and taking into consideration the said aspect, the charge sheet has been filed as against the accused. On these grounds, he prayed to dismiss the petition. 7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 8. Learned counsel for the petitioner has also relied upon the decision in the case of State of Haryana and other vs. Bhajan Lal and others, (1992) Supp1 SCC 335 and contended that if there is no prima facie case, then under such circumstances, the material produced and the charge sheet can be quashed. I am not having any difference of opinion with regard to the ratio laid down by the Hon'bel Apex Court in catena of decisions on the same line. It is also well settled proposition of law that while considering the application under Section 482 of Cr.P.C, the merits of the case not to be assessed at that stage. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Taramani Parakh vs. Stae of Madhya Pradesh and others, (2015) 11 SCC 260 , it has been observed as under: "11. Referring to earlier decisions, in Amit Kapoor vs. Ramesh Chander and Anr.[4], it was observed: "27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. Referring to earlier decisions, in Amit Kapoor vs. Ramesh Chander and Anr.[4], it was observed: "27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist. 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence." 12. In Kailash Chandra Agrawal & Anr. vs. State of U.P. & Ors., it was observed: "8. We have gone through the FIR and the criminal complaint. In the FIR, the appellants have not been named and in the criminal complaint they have been named without attributing any specific role to them. The relationship of the appellants with the husband of the complainant is distant. In Kans Raj vs. State of Punjab & Ors, (2000) 5 SCC 207 , it was observed:- "5.........A tendency has, however, developed for roping in all relations of the inlaws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case." The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role. 9. The parameters for quashing proceedings in a criminal complaint are well known. If there are triable issues, the Court is not expected to go into the veracity of the rival versions but where on the face of it, the criminal proceedings are abuse of Court's process, quashing jurisdiction can be exercised. Reference may be made to K. Ramakrsihna and Ors. vs. State of Bihar, (2000) 8 SCC 547 , Pepsi Foods Ltd. vs. Judicial Magistrate, (1998) 5 SCC 749 , State of Haryana vs. Bhajan Lal, (1992) Supp1 SCC 335 and Asmathunnisa vs. State of A.P., (2011) 11 SCC 259 ." 9. Keeping in view the ratio laid down in the above said decision, on going through the material produced and the case made out, I am of the considered opinion that as per Section 383 of IPC, if any person intentionally puts any person in fear of any injury or induces the person to deliver any property or valuable security or anything signed or sealed that would be considered to be an "extortion" and keeping in view the said definition, the complaint and other materials if they are seen, then there appears to be prima facie case made out as against the petitioner accused. Whether the credibility of the complainant is there or not has to be seen only at the time of trial, that too when he is going to be cross-examined by the accused. 10. Though several grounds have been urged by the learned counsel for the petitioner accused, even if all the contentions taken by the appellant accused are taken on their face value, this Court cannot hold a mini trial and come to the conclusion whether there is a case or not. 10. Though several grounds have been urged by the learned counsel for the petitioner accused, even if all the contentions taken by the appellant accused are taken on their face value, this Court cannot hold a mini trial and come to the conclusion whether there is a case or not. An opportunity is left out to appreciate the said fact by the Court if an appropriate application is filed by the petitioner accused for discharge and in the event, if any such application is filed, it is for the learned trial Judge to consider the contentions regarding the discharge therein and thereafter he can pass appropriate order. 11. Though it is contended by the learned counsel for the accused that the cheque which is said to have taken by the accused has not been traced and it is not part of the charge sheet and that some matter which are to be considered and appreciated only at the time of trial and at this premature stage, it cannot be held that non production of the cheque is going to be fatal to the case of the prosecution. I am conscious of the fact that if there is no prima facie case made out or if there is any abuse of process of law, then under such circumstances, the continuation of the proceedings, it is going to affect the rights and liberties of the accused and he should not be unnecessarily made to stand in the court predicts. But that is not a general rule, if the said general rule is applied, then under such circumstances, all the cases will come under the same shelter and that the Court has to quash all the proceedings. In that light, the said submission has to be seen with reference to the facts and circumstances of each case and not in a generalized aspect. In that light, I am of the considered opinion, the submissions made by the learned counsel for the petitioner, I am not having any force so as to accept the same and to quash the proceedings. Petitioner has not made any good ground to quash the proceedings. In that light, the petition stands dismissed. The above observations will not come in the way of the disposal of the main case. In view of disposal of the main case, I.A. No.1/2019 is disposed of.