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2020 DIGILAW 2310 (KAR)

M. Babanna v. State Of Karnataka

2020-11-27

K.SOMASHEKAR

body2020
JUDGMENT/ORDER : 1. This petition is filed u/s.482 of Cr.PC., for quashment of the entire proceedings in PCR No.5543/2017 and for setting aside the order dated 5.5.2017 passed on the file of IV Addl. Chief Metropolitan Magistrate, Bengaluru City, by referring the matter for investigation u/s.156(3) of Cr.PC., to SHO, Jayanagar Police Station. 2. Though the matter is listed for admission, heard the learned counsel namely Sri L.M. Chidanandayya, appearing for the petitioner through Video Conference and the learned counsel namely Sri Y.B. Kuntoji, appearing for Sri A.Feroze Nizam, the learned counsel on record for the second respondent complainant Sri K. Manoharan, who is present before the Court physically; Smt. Rashmi Jadhav, learned High Court Government Pleader for the first respondent is present before the Court physically, and the matter is taken up for final disposal. Perused the entire records. 3. The gist of the complaint registered by the second respondent complainant T.Manoharan against the accused petitioner M.Babanna is that the petitioner/accused is a share holder and owner of number of companies carrying on various types of business in Bengaluru City. The second respondent-complainant approached the petitioner-accused that he will work for the petitioner and accordingly, the second respondent was appointed initially as a cashier/writer with the petitioner group of companies and also put incharge of entire group of companies and firms and toiled day and night for the improvement of the company and one day to his shock and surprise, he was asked to vacate the property and also to handover the keys of the car. Thereafter, he had issued a legal notice through his Advocate and lodged a complaint, which came to be registered in PCR No.5543/2017, wherein the learned IV Addl. CMM, Bengaluru City, taking cognizance of the case referred the complaint for investigation and report u/s.156(3) of Cr.PC., which is under challege by the petitioner herein. 4. Whereas, the learned counsel for the petitioner, who has taken me through the allegations made in the complaint filed by the second respondent before the Court of IV ACMM, Bengaluru City in PCR No.5543/2017. After resignation submitted by the second respondent on 8.10.2016, he came to the office premises on 24.3.2017 and abused the staff members, which is evident from the complaint filed on 31.3.2017, but on that day, the petitioner was not present and that he was threatening the staff members with dire consequences. After resignation submitted by the second respondent on 8.10.2016, he came to the office premises on 24.3.2017 and abused the staff members, which is evident from the complaint filed on 31.3.2017, but on that day, the petitioner was not present and that he was threatening the staff members with dire consequences. However, the second respondent who has initiated a Private Complaint against the accused alleging that the accused has committed some sort of offences. The petitioner who came to know that the second respondent has instituted a Civil case in OS No.2422/2017, seeking perpetual injunction against the petitioner, the learned counsel has produced the copy of it, marked as Annexure-G and the said Original Suit is pending for adjudication between the plaintiff and the defendant respectively. However, in that Original Suit, no injunctive relief was granted by the City Civil Court, where the suit is pending. When once the civil suit is pending for adjudication, it is the duty cast upon the plaintiff and the defendant to establish their case by adducing oral evidence and producing some material documents to establish their case. The Private Complaint dated 2.4.2017 filed by the second respondent is only a counter case and it is not appended with the sworn affidavit in support of the complaint made against the accused. There is no ingredients to constitute the offence punishable u/ss.324, 406, 420 and 506 of IPC. But, soon after registration of the complaint filed by the complainant against the accused and even without looking into the allegations made in the complaint, mechanically the learned IV A.C.M.M., Bengaluru City has passed an order dated 5.5.2017 referring the matter for investigation u/s.156(3) of Cr.PC., Therefore, the learned counsel for the petitioner prays in this petition, that the intervention of this court is required by exercising power u/s.482 of Cr.PC., if not, certainly, there shall be miscarriage of justice against the petitioner/accused herein. On all these premise, the petitioner has sought for setting aside the order of referring the matter for investigation u/s.156(3) of Cr.PC., 5. Though the learned counsel for respondent No.2, who is present before the Court physically, but seeks some short accommodation to proceed with this matter. But the civil in nature of a case will be termed as criminal in nature to file a complaint by the complainant against the accused, the same can be seen in the material available on record. Though the learned counsel for respondent No.2, who is present before the Court physically, but seeks some short accommodation to proceed with this matter. But the civil in nature of a case will be termed as criminal in nature to file a complaint by the complainant against the accused, the same can be seen in the material available on record. Therefore, deferment of this case any further does not arise and moreover seeking some short accommodation without any justifiable grounds. Therefore, consideration of the materials available on record where the case has been referred under Section 156(3) Cr.P.C. without being supported by an affidavit duly sworn by the complainant who is an author of the complaint for registering the private complaint before the court having jurisdiction. Therefore, invocation of Section 156(3) Cr.P.C. has been addressed in detail by a judgment reported in AIR 2015 SC 1758 . The same shall be referred in the later part of this order, keeping in view the contention taken by the learned counsel for the petitioner and so also the counsel for Respondent No.2. 6. It is relevant to refer the reliance rendered by the Hon'ble Supreme Court in the case of Priyanka Srivatsava and another Vs. State of UP and Others reported in AIR 2015 SC 1758 wherein at Head Note B, it is head that Direction for investigation Application for Power under Section 156(3) of Cr.PC., warrants application of judicial mind - Litigant cannot at its own whim invoke authority of Magistrate - Thus application under section 156(3) are to be supported by affidavit duly sown by the applicant seeking invocation of jurisdiction of Magistrate under Section 156(3) of Cr.PC., 7. In the judgment cited supra, the Hon'ble Supreme Court has referred several decisions such as: (1) AIR 2015 SCW 2058 (2) AIR 2014 SCC 187 (3) AIR 2014 SC (SUPP) 1801 (4) AIR 2013 SC (CRL.) 34 (5) 2011 (2) JCC 720 (SC) (6) AIR 2008 SC (SUPP) 706 (7) (2008) 5 SCC 668 (8) AIR 2007 SC 3234 (9) AIR 2005 SC 4284 (10) 2004 PART 13 SCC 472 (11) AIR 1976 SC 1672 . 8. In the instant case, the second respondent- complainant has not sworn any affidavit in support of the allegations made in the complaint. 8. In the instant case, the second respondent- complainant has not sworn any affidavit in support of the allegations made in the complaint. The counsel has produced in this petition several documents such as certified copy of the order sheet Annexure-A; copy of the Private Complaint Annexure-B; copy of the letter of resignation dated 8.10.2016 Annexure-C; copy of the notice dated 22.3.2017 Annexure-D and D1; copy of the acknowledgement dated 25.3.2017 for having lodged complaint Annexure-E; Copy of the proceedings dated 31.3.2017 Annexure-F; copy of the plaint in Original Suit No.2422/2017 Annexure-G; copy of the complaint dated 8.4.2017 lodged by the petitioner/accused herein Annexure-H; copy of the Crime No.219/2017 of Mico Layout Police Station on the file VI Addl. CMM Court, Nrupathunga Road, Bengaluru City Annexure-H1; copy of the legal notice issued by the complainant to the petitioner through Sri A.Feroze Nizam, Advocate Annexure-J; Reply to the legal notice dated 15.4.2017 by the petitioners counsel Sri L.M. Chidanandayya Annexure-J1; and the complaints lodged against the second respondent and his family members dated 18.4.2017 Annexures K, K1, K2, K3; and legal notice dated 24.4.2017 by the petitioners counsel Sri L.M. Chidanandayya Annexure-L. 9. On perusal of the entire materials on record produced before the Court, it is seen that the complaint came to be lodged against the petitioner pending on the file of the IV ACMM, Bengaluru City. But the complainant has not appended the sworn affidavit in support of the allegations. But, the case in PCR No.5543/2017 came to be registered and subsequently was ordered u/s.156(3) of Cr.PC., and for submitting report. Thereafter, a case in OS No.2422/2017 filed for perpetual injunction is pending for adjudication between the plaintiff and the defendant. The petitioner is the sole accused in the aforesaid case. 10. In this regard, it is relevant to refer the reliance placed in the case of Anand Kumar Mohatta and Another vs. State (Govt. of NCT of Delhi) Dept. of Home and Another reported in AIR 2019 SC 210 , and also in many number of judgments referred relating to quashing of FIR u/s.482 of Cr.PC., restricting exercise of power of court to prevent abuse of process of court or miscarriage of justice only to stage of FIR High Court can exercise jurisdiction u/s.482 Cr.PC., even if charge sheet is filed during pendency of application. In this judgment, the decision rendered in Indian Oil Corporation vs. NEPC India Ltd., and others reported in 2006 (6) SCC 736 , the court observed that 13. Xx any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged . Further, he court noticed a growing trend in business circles to convert purely civil dispute into criminal cases. 11. In the said reliance, the case of State of Karnataka vs. L.Muniswamy and others reported in AIR 1977 SC 1489 held as under: In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Courts has inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. 12. In the instant case, the Original Suit is pending between the plaintiff and the defendant which stated supra, whereas the petitioner is the sole accused who approached this court for quashment of the entire proceedings initiated against him in PCR No.5543/2017. Section 482 Cr.PC., has to be exercised judicially, judiciously, sparingly and cautiously, to prevent the abuse of the process of the court and shall not be miscarriage of justice against graveman of accused. Therefore, the high court can exercise inherent power u/s.482 of Cr.PC., for quashing the proceedings. 13. In terms of the aforesaid reasons, I am of the considered opinion that the petition deserves to be allowed and accordingly, I pass the following: ORDER : The Petition filed by the petitioner u/s.482 of Cr.PC., is allowed. Consequently, the criminal proceedings against the petitioner in PCR No.5543/2017 pending on the file of the IV Addl. CMM, Bengaluru City, are hereby quashed.