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2021 Supreme(Kar) 22
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.A.PATIL, J.
Dr.M.G.Gopal Principal & Dean of KIMS S/o late M.G.Govindaiah – Appellant
Versus
State by Central Police, CCB (F and M Division) – Respondent
Criminal Revision Petition No.34 of 2018 C/W. Criminal Revision Petition No.1237 of 2016
Decided on : 18-01-2021
Advocate Appeared:
For the Appellant :Sri Shankarappa, Advocate
For the Respondent:Sri V.M.Sheelvant, Sri S.Subramanya, Advocate
Point of Law: Breach of trust and cheating – Cognizance of offence - When the final report is filed without there being any authority, it is not a final report under Section 173(2) of the Code and the Court cannot take cognizance under Section 190(1) of the Code
Headnote:
Indian Penal Code,1860 – Section 406, 477, 420, 120(B), 114 r/w. 34 – Criminal Procedure Code,1973 - Section 164(5), 173 and 190 – Offence of Criminal breach of trust – Cheating and dishonestly inducing delivery of property – Criminal conspiracy - Institute of Medical Sciences is one among several other educational institutions run by Rajya Vakkaligara Sangha - For academic year, in respect of allotment of medical seats, though under management quota there was scope for admission, accused No.1 by misusing his power, got admitted six medical students by directing accused No.3, though accused No.3 intimated him that it is not possible for him to do same - He got admitted said students by taking an amount of Rs.30 Lakhs - Subsequently, on an amount Rs.17 Lakhs was paid for getting son of the complainant admitted to first Year MBBS Course - One reference letter has been given by accused No.2 to get seat under management quota and Rs.65 Lakhs has been collected for development charges has been collected for Educational Trust - Whether Inspector of CID can be treated in law as officer in charge of police station for purpose of submitting report contemplated under Section 173(2) of Code –
Finding of the Court: learned counsel for respondent complainant by bringing notice of this Court to order passed by a coordinate Bench of Court in writ proceedings contending that some facts are admitted and present petitions are not maintainable - In that light, Court of considered opinion that order passed by trial Court is not in accordance with law - It is also contention of learned counsel for accused No.3 that accused No.3 is not at all concerned with alleged offence - It is well settled proposition of law that on perusal of charge sheet material, if no case has been made out so as to frame charge, then Court has to discharge accused - When final report is filed without there being any authority, it is not a final report under Section 173(2) of Code and Court cannot take cognizance under Section 190(1) of Code - In that light, order dated is also liable to be set aside – Court of considered opinion that petitioners-accused Nos.1, 3 and 4 have made out a case so as to allow petitions and to set aside impugned orders dated - In that light, petitions are liable to be allowed –
Result: Petitions are allowed.
ORDER :
Criminal Revision Petition No.34/2018 is filed by accused No.3 challenging the order dated 7.12.2017 passed in CC.No.13525/2016, whereas Criminal Revision Petition No.1237/2016 is filed by accused Nos.1 and 4 to set aside the order dated 1.6.2016 passed in very CC.No.13525/2016, on the file of IV Additional CMM Court, Bengaluru, for the offences punishable under 406, 477, 420, 120B, 114 r/w. Section 34 of IPC.
2. I have heard Sri Shankarappa, learned counsel for accused No.3petitioner in Criminal Revision Petition No.34/2018; Sri C.V.Nagesh, learned Senior Counsel for accused Nos.1 and 4petitioners in Criminal Revision Petition No.1237/2016; Sri V.M.Sheelvant, learned SPPI for respondent-State; and Sri S.Subramanya, learned counsel for the complainant-respondent No.2 in Criminal Revision Petition No.34/2018 and respondent No.3 in Criminal Revision Petition No.1237/2016.
3. The gist of the case as averred in the complaint is that Kempegowda Institute of Medical Sciences (‘KIMS’ for short) is one among several other educational institutions run by Rajya Vakkaligara Sangha. For the academic year 201415, in respect of allotment of medical seats, though under the management quota there was scope for admission, accused No.1 by misusing his power, got admitted six medical students by directing accused No.3, though accused No.3 intimated him that it is not possible for him to do the same. He got admitted the said students on 31.5.2014 by taking an amount of Rs.30 Lakhs. Subsequently, on 3.6.2014, an amount Rs.17 Lakhs was paid for getting the son of the complainant admitted to the first Year MBBS Course. For the purpose of recommendation from accused No.2 the Director of Vakkalagira Sangha, a reference letter has been given. One reference letter has been given by accused No.2 to get seat under management quota and Rs.65 Lakhs has been collected for development charges; Rs.10,000/for hostel charges; Rs.5,000/as donation; and Rs.5,000/has been collected for Krishnappa Rangamma Educational Trust. It is further alleged that on 16.8.2014 an amount of Rs.3,72,000/has been taken as the fees, Rs.1,00,000/has been taken towards Teachers’ Gratuity Fund donation; Rs.7,150/for Students’ Welfare Association; and Rs.13,900/for graduation charges. Subsequently, instead of admission of the son of the complainant, they got admitted the niece of accused No.5. and thereby they have committed an offence of breach of trust, cheating and other offences.
4. It is the submission of Sri Shankarappa, learned counsel for accused No.3 (petitioner in Crl.RP.No.34/2018) that whatever the instructions which have been given by the management, accused No.3 has carried the same. He is not at fault at any time and he has not committed any offence as alleged with the mala fide intention. It is his further submission that police assured accused No.3 to become approver and make him as a witness. Without arresting him, the police brought him before the learned Magistrate on 10.11.2014 and his statement has been recorded under Section 164(5) of Code of Criminal Procedure (‘Code’ for short). It is his further submission that in spite of the assurance, petitioner-accused No.3 has been arrayed as accused No.3. It is his further submission that accused No.3 has not played any role while giving admission to the students beyond Rules. He has only carried out the instructions given by the management, being an employee of the said institution. It is his further submission that no independent power has been entrusted to him in this behalf. It is his further submission that subsequently the son of the complainant has got admitted in the said institution by virtue of the order passed in WP.No.49585/2014 & connected matters, disposed of on 8.7.2015 and as such the present complaint is not sustainable in law. It is his further submission that the trial Court without looking into the factual matrix of the case has erroneously dismissed the application filed for discharge under Sectio
