Criminal Petition No. 5332 of 2022 · The High Court
Case Details
- 1 - NC: 2025:KHC:3821 CRL.P No. 5332 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL PETITION NO. 5332 OF 2022 BETWEEN: 1. SRI. MUTHURAJ S/O T.M RAJU AGED ABOUT 35 YEARS R/AT NO.165, ASHIRVAD 2ND MAIN, 4TH BLOCK KUVEMPU NAGAR TUMKUR-572 101. CHARGE SHEET ADDRESS: R/AT NO.87, RAJABHAVAN, TIMMANNANAYAKANA KOTE PARASHURAMPURA HOBLI CHLLAKERE TALUK CHITRADURGA-577 538. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA AND: (BY SRI. ANOOP HARNAHALLI, ADVOCATE FOR SRI. SRINIVAS RAO S.S., ADVOCATE) …PETITIONER 1. STATE OF KARNATAKA BY SANJAY NAGAR POLICE STATION, REPRESENTED BY SPP HIGH COURT BUILDING BENGALURU-560 001. 2. SRI. PRASHANTH G.R. S/O G.M. RUDRAPPA AGED ABOUT 47 YEARS R/AT NO.178, 11TH CROSS - 2 - NC: 2025:KHC:3821 CRL.P No. 5332 of 2022 3RD MAIN ROAD HIG, DOLLARS COLONY, SANJAYNAGARA BENGALURU-560 094. …RESPONDENTS
Legal Reasoning
there is no prima facie case against the petitioner, there cannot be continuation of proceedings against this petitioner. Learned counsel also brought to notice of this Court that the allegation made in the complaint is baseless and also brought to notice of - 4 - NC: 2025:KHC:3821 CRL.P No. 5332 of 2022 this Court that the very wife of the informant filed the petition against her husband, wherein also allegation is made against informant and counsel would contend that subsequently, divorce has also taken place between both of them. Learned counsel also would contend that wife has also given complaint to the Commissioner of Police stating that no such incident has taken place as alleged by the informant and registration of the case. Apart from that wife came and filed the affidavit before this Court denying the very such incident. When such material is available on record, it is a fit case to quash the proceedings and if the proceedings against the petitioner is continued, it is nothing but an abuse of process. Hence, counsel prays this Court to quash the same. 4. Learned counsel for the petitioner, in support of his argument relied upon the judgment of the Apex Court in IQBAL ALIAS BALA AND OTHERS VS. STATE OF UTTAR PRADESH AND OTHERS reported in (2023) 8 SCC 734 and brought to notice of this Court paragraph No.9, wherein discussion was made with regard to exercising powers under Section 482 Cr.P.C. and in paragraph No.11, it is observed that in frivolous or vexatious proceedings, the Court owes a duty to - 5 - NC: 2025:KHC:3821 CRL.P No. 5332 of 2022 look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between lines. The Court while exercising its jurisdiction under Section 482 Cr.P.C. or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. The counsel referring this judgment would contend that during the course of investigation, nothing is collected against this petitioner and though money is transferred from the account of the informant and his wife, the same is not to the account of this petitioner. Hence, this Court has to exercise the power under Section 482 Cr.P.C. 5. Per contra, learned counsel for respondent No.2 would contend that though the petition was filed by the wife in the year 2020 and case was registered, wife has made 164 statement before the Magistrate and learned counsel would contend that specific allegations are made against this petitioner about the transaction and incident concerned is of - 6 - NC: 2025:KHC:3821 CRL.P No. 5332 of 2022 the year 2019 and 2020. The counsel would vehemently contend that this petitioner was having knowledge of the divorce between the wife and informant and immediately taken the wife of the informant to the Commissioner of Police and given the complaint and also contend that he was able to bring the wife before this Court and filed the affidavit before the Court and the same was looked into and investigation is completed and charge sheet is filed. He would vehemently contend that the petitioner was able to take her to the Commissioner and also to this Court and the same is subsequent to obtaining of divorce from the Court. Hence, this Court has to take note of the conduct of this petitioner. 6. Learned counsel for respondent No.2 in support of his argument, relied upon the judgment of Apex Court in RAJENDRA SINGH VS. STATE OF U.P. AND ANOTHER reported in (2007) 7 SCC 378 and brought to notice of this Court paragraph No.7, wherein discussion was made that the High Court has basically relied upon the statements of six witnesses which had been recorded by the investigating officer under Section 161 Cr.P.C. to record a positive finding that the respondent could not have been present at the scene of - 7 - NC: 2025:KHC:3821 CRL.P No. 5332 of 2022 commission of the crime as he was present in a meeting of Nagar Nigam at Allahabad. A statement under Section 161 Cr.P.C. is not a substantive piece of evidence. In view of he proviso to sub-section (1) of Section 162 Cr.P.C., the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh could not have been present at the scene of commission of the crime. Learned counsel also brought to notice of this Court discussion made in paragraph No.8 with regard to scope of Section 482 Cr.P.C. and also Section 103 of the Evidence Act. Learned counsel would vehemently contend that amount which were drawn from the account of C.Ws.1 and 2 were withdrawn and gave the amount to this petitioner only by C.Ws.6 to 22. 7. Learned counsel for the respondent No.2 would contend when C.Ws.1 and 2 agreed to transfer the amount to this petitioner, he expressed the difficulty of income tax and hence, requested to transfer the amount to different persons and they have withdrawn the amount and gave it to the - 8 - NC: 2025:KHC:3821 CRL.P No. 5332 of 2022 accused. Learned counsel for the respondent No.2 also relied upon the judgment in RAJEEV KOURAV VS. BAISAHAB AND OTHERS reported in (2020) 3 SCC 317 with regard to scope of Section 482 of Cr.P.C. and also Section 161 of Cr.P.C. regarding quashment of proceedings and brought to notice of this Court paragraph No.8 and 9, wherein also the Apex Court discussed the scope of Section 482 Cr.P.C. and also statement made under Sections 161 Cr.P.C. and observed that statement of witnesses recorded under Section 161 Cr.P.C. being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 Cr.P.C. 8. Having considered the submission of learned counsel for the petitioner, learned HCGP for respondent No.1 and learned counsel for respondent No.2 and also looking into the material on record, it is not in dispute that earlier the petitioner approached this Court challenging the crime at the initial stage and after filing of the charge sheet, present petition is filed. It has to be noted that an allegation of cognizable offence was that alleged in the complaint and police have registered the case and investigated the matter and recorded - 9 - NC: 2025:KHC:3821 CRL.P No. 5332 of 2022 the statement of witnesses C.Ws.6 to 22. The main contention of the learned counsel for the petitioner is that amount is transferred in favour of C.Ws.6 to 22 and not in favour of the petitioner. But, having perused the statement of C.Ws.6 to 22, they categorically admit that amount was transferred to their account and immediately given the amount to the petitioner herein after drawing the same. 9. It is also important to note that wife herself appeared before the Magistrate and made the statement under Section 164 and no doubt, subsequent to the divorce, she made contra statement before the Commissioner of Police and before this Court by filing an affidavit, but while considering the petition under Section 482 Cr.P.C., the Court has to consider the material on record, whether it is a case to proceed against the petitioner or not and if any abuse of process in initiating the case. No doubt, the wife of the complainant made the statement before this Court by way of an affidavit and also before the Commissioner that no such incident has taken place and whether such incident has taken place or not cannot be decided sitting under Section 482 Cr.P.C. and that is an aspect to be considered during the course of trial on considering the - 10 - NC: 2025:KHC:3821 CRL.P No. 5332 of 2022 material on record. The statement of C.Ws.6 to 22 makes it very clear that the amount which has been withdrawn belongs to C.Ws.1 to 2 and they gave the same to the petitioner and also stated regarding payment is concerned and allegation is also made that at the inception of the transaction itself, with an intention to cheat, the same was done getting transferred the money to the account of C.Ws.6 to 22 and the same is a matter of trial and this Court cannot look into the same and categorically stated that he requested to transfer the amount to C.Ws.6 to 22 to avoid the income tax complications. 10. No doubt, learned counsel for the petitioner relied upon the judgment in (2023) 8 SCC 734, wherein discussion was made that while exercising its jurisdiction under Section 482 Cr.P.C. or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation and continuation of the proceedings would amount to abuse of process of law, in the judgment referred by the respondent also. The Court has to look into the material on record with regard to scope of Section - 11 - NC: 2025:KHC:3821 CRL.P No. 5332 of 2022 161 Cr.P.C. as well as 482 Cr.P.C., wherein discussion is made, if any statement is made by C.Ws.6 to 22, even if it is made, the same has to be considered during the course of trial to contradict the same. No doubt, that is not the substantive piece of material, but when no case is made out by the learned counsel for the petitioner to quash the proceedings under Section 482 Cr.P.C., I do not find any ground to exercise the power under Section 482 Cr.P.C. Hence, the very contention of the learned counsel for the petitioner cannot be accepted and matter requires full-fledged trial, in view of statement of C.Ws.6 to 22 and other material collected by the Investigating Officer. 11. In view of the discussion made above, I pass the following:
Arguments
(BY SRI. SRINIVAS RAO S.S., ADVOCATE; SRI K. NAGESHWARAPPA, HCGP FOR R1; SRI. TOMY SEBASTIAN, SENIOR COUNSEL FOR SRI. MELANIE SEBASTIAN, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.3334/2021 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 448, 341, 323, 354, 420, 504 AND 506 OF IPC, PENDING BEFORE THE VIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE ARISING OUT OF CR.NO.6/2020 REGISTERED BY THE SANJAY NAGAR POLICE STATION AGAINST THE PETITIONER FOR OFFENCES PUNISHABLE UNDER SECTIONS 143, 144, 147, 148, 448, 323, 504, 506(B), 354, 420 149 OF IPC 1860 BASED ON THE WRITTEN INFORMATION DATED 10.01.2020. THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER Heard learned counsel for petitioner and learned HCGP the respondent No.1 and learned counsel for respondent No.2. 2. The petitioner had earlier approached this Court when the crime was registered in Crime No.6/2020 seeking for quashing of the FIR and this Court vide order dated 13.01.2021 in Crl.P.No.1346/2020 having taken note of the contents of the - 3 - NC: 2025:KHC:3821 CRL.P No. 5332 of 2022 complaint, arrived at the conclusion that at this stage, the Court cannot exercise power under Section 482 Cr.P.C., since in the complaint, allegation is made out both cognizable and non-cognizable offence. The contention that with malafide intention complaint has been filed cannot be adjudicated at this stage by exercising the power under Section 482 of Cr.P.C. and rejected the same. Now, the charge sheet is filed and the petitioner has again approached this Court. 3. The main contention of learned counsel for the petitioner before this Court is that amount which is alleged in the complaint and in the statement of witness is not credited to the account of this petitioner and single paisa was not transferred to the account of this petitioner and the same was transferred to some other person. Learned counsel would contend that the persons, who have received money i.e., C.Ws.6 to 22 have been made as witnesses and not arraigned as accused persons. Learned counsel would contend that when
Decision
ORDER The criminal petition is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 36