1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 3RD DAY OF JULY, 2017 BEFORE THE HON'BLE MR.JUSTICE B. A. PATIL CRIMINAL PETITION No.4181/2017 Between: [ENTITY] s/o Chanabasappa Jantikar Aged 39 Years, Occ : Practicing Advocate Bidar & President of Karnataka State Souharda Federation, Bengaluru R/o KHB Colony, Noubad, Bidar Dist.Bidar - 585 401. Petitioner (By Sri. [ENTITY], Advocate) And: 1. The [ENTITY] By its New Town Police Bidar Rep. by Addl. Public Prosecutor, High Court Kalburagi - 585 104. 2. [ENTITY] S/o Not Known Age Major, Occ : Journalist R/o Plot No.55 Sri Datta Dhana Bldg., Gowli Layout, Shivnagar (N) Bidar, Tq. & Dist.Bidar-585 401. Respondents (By Sri [ENTITY], HCGP for R1 ) 2 This Criminal Petition is filed under [SECTION] of [ACT], praying to quash the entire initiation of the trial Court entire proceedings in [CASE NUMBER] for the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION]/[SECTION] of [ACT] registered by New Town Police Station, Bidar and pending on the file of II Addl. [ENTITY]. This petition coming on for Admission this day, the Court made the following:- ORDER
This petition is filed by the petitioner-accused No.3 under [SECTION] of [ACT] for quashing the proceedings in [CASE NUMBER] for the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION]/[SECTION] of [ACT] registered by New Town Police Station, Bidar and pending on the file of II Addl. C.J.M. & J.M.F.C., Bidar.
2. The brief matrix of the case as per the complaint are that, the complainant is a a member of Anand Rathi Share & Stock Limited Company, Mumbai and was holding an account for the purpose of business. It is further alleged that Anand Rathi Company had also a branch office at Bidar and the affairs of the said branch office used to be looked after by one [ENTITY] and [ENTITY], The complainant contacted to said [ENTITY] and gave five cheques for a sum of Rs.1,00,252/- each on different dates in the name of Anand Rathi Company. The accused petitioner is the President of Kalyana Pattina Souharda Sahakari Bank Bidar and one [ENTITY] is the Chief Executive Officer and one [ENTITY] is the cashier and one [ENTITY] was the staff of the said bank. It is further alleged that the said persons have hatched the conspiracy, created fake bank accounts in bank of petitioner and mis-appropriated the said amount and he came to know through news paper regarding such mis-appropriation and he also came to know that his cheques were encashed through Kalyana Pattina Souharda Sahakari Bank Bidar and has not purchased the shares in the name of complainant from Anand Rathi Company and these persons have encashed them and thereby cheated the complainant and on the basis of the said transaction mis- appropriation of the cheque amount. On these basis the complaint came to be filed.
3. The main ground urged by the learned counsel for the petitioner are that, the petitioner has been falsely implicated in this case. There is no iota of evidence as against the petitioner. He would also further contend that, a fabricated and false story has been created for malicious prosecution against the petitioner. He would further contend that, the petitioner-accused is nothing to do with Anand Rathi Company and he is only the President of Kalyana Pattina Souharda Sahakari Bank, Bidar and he is going to deal with the affairs of the said bank and he is the only policy maker of the said bank. He further contend that, complainant in collusion with politicians has filed a false complaint as the petitioner is the President and member of many organizations, to tarnish his prestige in the society. He would also further contend that, the concerned cashier and accountant and the concerned clerk are going to deal with the cheque in the event the complainant has given any cheque. He would also further contend that, even the amount of the cheque is small amount and there is no question of petitioner involving in the said act. He would also further contend that, it is the accused no.1 who is having account in the said bank and he has created the cheque and if at all anything has happened, it is in between the staff of the bank and the accused no.1, the President of the Bank and petitioner is nothing to do with the said transaction. He would also further contend that prima-facie there is no any iota of evidence as against the accused petitioner and as such he prays for quashing the proceedings.
4. Per contra, learned HCGP for the State vehemently argued and contend that, President of the said Kalyana Pattina Souharda Sahakari Bank, Bidar, is at the helms of the affairs of the said bank and the bank is beneficiary of the said amount. He further contended that it is the specific allegation in the complaint that, the accused- petitioner as well as the other accused persons by constituting illegally involved in the act of cheating and absorbing the amount and the said activities have been done with the knowledge of accused petitioners. He further contended that there is specific allegation as against the accused petitioner that in collusion with other accused persons, petitioner has committed alleged offences, then, under such circumstances, it is a matter which is in dispute and it is a question of fact and law. Then under such circumstances, it cannot be held that, there is no prima-facie material as against the accused petitioner. He would also further contend that still the investigation is in progress, so many other cases have been filed in the similar fashion and crores of amount has been cheated and mis-appropriated by the accused persons. Under the circumstances, at this stage, it is not a fit case to quash the proceedings. On these grounds, he prayed for dismissal of the said petition.
5. I have carefully and cautiously gone through the submissions made by the learned counsel for the petitioner and learned HCGP.
6. As could be seen from the contents of the complaint, it clearly indicates that, the accused petitioner is the President of Kalyana Pattina Souharda Sahakari Bank, Bidar, and it is an admitted fact that accused no.1 is having an account in the said bank and it is also an admitted fact that, the complainant has given five cheques for a sum of Rs.1,00,252/- on different dates in the name of Anand Rathi Company, but the said amount has not been credited to the Anand Rathi Company and in spite of that by creating an fabricated one more account in the name of accused no.1, the said amount has been mis-appropriated by the accused no.1. It is the specific allegation in the complaint that, the accused being the President of the Kalyana Pattina Souharda Sahakari Bank, Bidar, has colluded along withother accused persons and he is also beneficiary under the said transaction. It is specifically alleged that, in the said fashion, crores of rupees has been mis-appropriated by cheating so many persons and still the investigation is pending. Final report has to be filed, under the circumstances, it cannot be held that, there is no prima-facie material so as to quash the proceedings.
7. The main allegation in the complaint is that in collusion with the present accused and other accused persons, they have mis-appropriated crores of rupees belonging to Anand Rathi Company by creating and fabricating the documents. The learned counsel for the accused petitioner would contend that, accused petitioner being the President, he is only a policy maker and he will not be having any knowledge about the transaction and that, it is a matter which has to be considered and adjudicated at the time of trial. Under what circumstances, how the power under [SECTION] of [ACT], has to be exercised has been elaborately discussed and decided by Hon'ble Apex Court in the case of [PRECEDENT]. At Para Nos.9 and 10 of the said decision reads as follows :-
"9. In [PRECEDENT] this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under [SECTION] of the [ACT], the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under [SECTION] of the [ACT] and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in [PRECEDENT].
A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under [SECTION] of Code except under an order of a Magistrate within the purview of [SECTION] of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under [SECTION] of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
8. As per the said decision, which has been quoted supra, if there is no material as against the accused and if there is any legal bar and if on perusal of the records, there is no material and if it amounts to abuse of process of law, then under such circumstances Court can exercise the power under [SECTION] of [ACT], But, on going through the allegations made in the complaint, if there is a material to show that the accused - petitioner has also involved in the said offence and transactions and there is collusion stated in the complaint itself, then under such circumstances, it requires detailed enquiry and thereafter it can be held that there is material or not. Under the circumstances, I feel that, it is not just and proper to exercise the power vested under [SECTION] of [ACT], to quash the proceedings.
Under the circumstances, petition stands dismissed.
JUDGE SGS