2021 Supreme(Kar) 228

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SREENIVAS HARISH KUMAR, J.
Sri Sathya Sai Central Trust, A Public Charitable Trust - Petitioners
Versus
State of Karnataka, By Nandi Giridhama Police Station – Respondent
CRIMINAL PETITION No.1422 OF 2021 C/W CRIMINAL PETITION Nos. 1197/2021, 1219/2021 AND 2286/2021
Decided On : 22-07-2021

Point of law : Whenever a Magistrate decides to refer a complaint to investigation by police under Section 156(3) Cr.P.C., he does not take cognizance, he awaits the filing of charge sheet and takes cognizance based on the charge sheet materials.

Headnote:

NI Act – Section 138 – Code of Criminal Procedure, 1973 – Sections 200, 202, 432, 156 – Indian Penal Code, 1860 – Sections 420, 511, 120, 463 – Indian Registration Act – Section 82 – Quashing of charge sheet – Second respondent lodged a complaint, PCR No. 216/2020, under section 200 Cr.P.C in court of II Additional Civil Judge and JMFC, Chikkaballapura against petitioners – Magistrate referred case to police for investigation under section 156(3) Cr.P.C – Thereafter police registered FIR in Cr. and filed charge sheet in relation to offences punishable under sections 420, 511 and 120B of IPC and section 82 of Indian Registration Act – In Crl.Ps. petitioners have sought quashing of FIR – In Crl.P. petitioner has sought quashing of charge sheet numbered as C.C – Whether allegations made by second respondent in his complaint constitute offences under sections 420, 511 and 120B IPC and section 82 of Registration Act – Whether complaint presented by GPA Holder of complainant is maintainable – Whether complaint is bad in law as it is not accompanied by a proper affidavit required to be filed in accordance with judgment of Supreme Court in case of Priyanka Srivastava and Another vs State of Uttar Pradesh and Others [(2015) 6 SCC 287] – Is there any procedural infraction in referring complaint to police for investigation under section 156(3) Cr.P.C and taking cognizance of offences – What conclusion.

Finding of the Court:

It is difficult to say that complaint discloses offences alleged by complainant – As has been already observed, he has to take recourse to a civil action if really he is under impression that his land has been included in lease deed. – It is not case of complainant that there is forgery, that a false document is created and that there is impersonation. – 37 guntas of land belongs to Loka Seva Trust, about which there is no dispute and cannot be disputed also. – If in respect of that land, lease deed was executed, it does not amount to cheating. – Complainant cannot taint these uncontroverted facts with colour of criminality. – Dispute is purely civil in nature. – There was an allegation that petitioners executed lease deed in respect of all properties of Loka Seva Trust fraudulently. – Court did not take cognizance; complaint was dismissed at threshold. – It is true that in earlier complaint, complainant herein was not a party; but it was filed by some persons claiming themselves to be trustees of Loka Seva Trust. – If once court of competent jurisdiction did not take cognizance of offences when a complaint was made and said order became final, another complaint on same allegations though filed by complainant in his individual capacity, cannot be said to be maintainable. – Court come to conclusion that point No.(i) is to be answered in negative. – Case on hand is such that complainant cannot straight away approach court of Magistrate with a complaint under Section 200 Cr.P.C., unlike, for instance, a complaint for offence under Section 138 of N.I.Act, where law itself prescribes that Magistrate can only entertain a complaint. – Magistrate appears to have not applied his mind before proceeding further. He ought to have directed complainant to file a proper affidavit. – Entertaining complaint is bad in law, complaint should have been rejected at threshold. – Therefore point No.(iii) is answered in affirmative – It is true that learned Magistrate in initial stage posted case for recording sworn statement of complainant and then at a subsequent stage, he referred matter to police for investigation under Section 156(3) Cr.P.C. – From discussion made above, it cannot be said that because Magistrate decided to record sworn statement, he had taken cognizance of offences at initial stage. – There is nothing wrong in directing matter for police investigation on a subsequent date as Magistrate had not taken cognizance tiil date of referring case to police for investigation. – In this view argument of Sri K.G.Raghavan and Sri Raghavendra Srivatsa cannot be accepted. – Point No.(iv) is answered in negative. – In view of points (i) and (iii) being answered in favour of petitioners, petitions are to be allowed.

Result : Petition allowed.