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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
John Michael Cunha, J.
Sri. P C Mohan – Petitioner
Versus
The Deputy Commissioner Of Police (South) And Ors. – Respondents
Writ Petition No.51914 of 2019 (GM-RES)
Decided On : 05-01-2021
Constitution of India,1950 – Article 226 and 227 - Indian Penal Code,1860 – Section 505(3), 380, 389, 120B, 384, 420, 408 r/w 34,171G,191,193,199 and 200 to 203 - Criminal Procedure Code,1973 – Section 156(3),155(2),195,200,202 and 190 - Indian Partnership Act, 1932 – Section 19 - Representation of People Act, 1951 – Section 75A - Partnership Firm - Seeking prosecution - Respondent No.2 herein filed a private complaint seeking prosecution of the petitioner for offences punishable under sections 171G, 177, 181, 191, 193, 199, 200 of Indian Penal code, on allegation that the petitioner intentionally out of fear that he would hurt feeling of a particular community and thereby loose elections, suppressed assets held by him and made a false declaration in Form submitted before Returning Officer for contesting Parliamentary Election filed false affidavit on oath suppressing factum of holding assets in form of immovable properties - Whether Magistrate or Special Judge has any discretion to call for a report under section 202 Cr.P.C – Held, thus, even going by recitals of partnership deed, it is seen that as on date of filing affidavits and making declaration in Form petitioner was holding 75% share out of the total assets but in Form submitted by him, he has furnished the details of investment in P C Realty (Partnership Firm) amounting - Averments made by the petitioner in petition as well documents produced by him clearly point out that as on date of filing of Form petitioner was holding assets in his name to tune as partner of P C Realty - Under the said circumstances, there being prima-facie material to proceed against petitioner for alleged offences, court do not find any justifiable ground to quash proceedings initiated against petitioner - In the light of discussion, petition is allowed-in-part - Impugned order passed by learned LXXXI Additional City Civil and Sessions Judge in PCR is modified and Special Judge is directed to take cognizance of alleged offences under section 190 Cr.P.C. and thereafter proceed in accordance with sections 200 to 204 of Cr.P.C – Order accordingly.
ORDER :
Respondent No.2 herein filed a private complaint seeking prosecution of the petitioner for the offences punishable under sections 171G, 177, 181, 191, 193, 199, 200 of Indian Penal code, on the allegation that the petitioner (hereinafter referred to as “accused”) intentionally out of fear that he would hurt the feeling of a particular community and thereby loose elections, suppressed the assets held by him and made a false declaration in Form No.26 submitted before the Returning Officer for contesting the Parliamentary Election in the year 2014 and 2019 and filed false affidavit on oath suppressing the factum of holding assets in the form of immovable properties measuring 42 acres 14 guntas situated at Lakshmipura Village, Kasaba Hobli, Devanahalli Taluk, Bangalore Rural District worth more than Rs.33,60,00,000/-.
2. The contention of the petitioner is that he has not withheld any material information either in his affidavit or in Form No.26. The properties purchased by him under various sale deeds were purchased by him for and on behalf of the firm by name P.C. Realty. In this regard, he has entered into a Partnership Deed dated 30.03.2013. It is registered in accordance with the provisions of the Indian Partnership Act, 1932 (hereinafter referred to as “Act” for brevity). On 07.07.2014, he executed a “Confirmation and Reconstitution Deed to the Partnership Agreement dated 30.03.2013” (hereinafter referred to as “Confirmation and Reconstitution Deed” for short) and all the six items of immovable properties purchased by him under registered sale deeds dated 27.12.2013 were brought into the Partnership Firm as the capital contributed by him. The relevant recitals in this regard read as under:-
“(1) It is expressly made clear that the Schedule Property mentioned are registered in the name of the first party is for and on behalf of the Firm and as such the First Party individually has no right over the Schedule Property.
(2) However, in order to dispel any doubts and to bring clarity it is hereby agreed that the First Party herein has contributed the Schedule Property which was held by him for and on behalf of the partnership firm to the firm as his capital once again by this deed of confirmation and reconstitution."
3. Based on the above recitals and the terms of Confirmation Deed dated 07.07.2014, learned counsel appearing for petitioner emphatically submitted that the properties in question were brought into hotchpotch as the capital of the petitioner and as a result, petitioner had only interest in the partnership assets of the firm which has been clearly mentioned in the respective declarations submitted by the petitioner before the Returning Officer in Form No.26. Learned counsel referred to Annexure-II of the Form No.26 dated 26.03.2014 and the same is extracted as hereinbelow:-
| Sl. No. | Description of the Investments | Self-P.C. Mohan | Spouse Mrs. Shyla Mohan | Dependent-1 Ms Rithika | Dependent-2 Mr. Rithin | P C Mohan HUF |
|
| Shares in Private Companies |
|
|
|
|
|
| 1 | Celebrations Software Pvt Ltd. (5000 shares of Rs.10 each) | 50,000 | 50,000 | Nil | Nil | Nil |
| 2 | G M C Bank (160 shares of Rs. 25 each) | 4,000 | Nil | Nil | Nil | Nil |
| 3 | Sudhashree Tech Park Pvt. Ltd. (26,000 shares of Rs. 10 each) | Nil | 2,60,000 | Nil | Nil | Nil |
|
| Other Investments |
|
|
|
|
|
| 1 | P C Realty (Partnership Firm) | 14,65,04,955 | Nil | Nil | Nil | Nil |
| 2 | Vishaka Real Estate and Builders (Partnership Firm) | 12,89,248 | Nil | Nil | Nil | Nil |
|
| Total | 14,78,48,203 | 3,10,000 | Nil | Nil | Nil |
Likewise, in Form No.26 submitted by him on 22.03.2019, in the liability column, he has declared as under:-
| Sl.No. | Description | Self Mr. P.C. Mohan | Spouse-Mrs. Shyla Mohan | HUF-P |
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