Karnataka High CourtD J Prashantha vs Roopa on 11 January, 2021Author:H.P.SandeshBench:H.P. Sandesh1\n\n\n\n       IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n         DATED THIS THE 11TH DAY OF JANUARY, 2021\n\n                          BEFORE\n\n           THE HON'BLE MR. JUSTICE H.P. SANDESH\n\n              CRIMINAL PETITION No.3947/2020\nBETWEEN:\n\n1.     D.J. PRASHANTHA\n       S/O. D.E. JANARDHAN\n       AGED ABOUT 31 YEARS\n\n2.     SMT. SUMITHRA\n       W/O. D.E. JANARDHAN\n       AGED ABOUT 64 YEARS\n\n3.     D.E JANARDHAN\n       S/O LATE ERAIAH\n       AGED ABOUT 68 YEARS\n\n       ALL ARE R/AT DADAHALLI VILLAGE\n       MALLIPATNA HOBLI\n       ARAKALGUD TALUK\n       HASSAN DISTRICT - 573 201           ... PETITIONERS\n\n              (BY SRI. SRINIVAS V., ADVOCATE)\nAND:\n\nROOPA\nD/O. ERAIAH\nAGED ABOUT 26 YEARS\nR/AT. DADADAHALLI VILLAGE\nMALLIPATNA HOBLI\nARAKALAGUDU TALUK - 573 102                ... RESPONDENT\n\n               (BY SRI. M.L. ALVA, ADVOCATE)\n                                 2\n\n\n\n      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482\nOF CR.P.C PRAYING TO ALLOW THIS PETITION AND SET ASIDE\nTHE ORDER AT ANNEXURE-B DATED 06.06.2019 IN PCR\nNO.200/2019 PASSED BY THE LEARNED CIVIL JUDGE AND JMFC\nAT ARAKALAGUDU, AND FIR AT ANNEXURE - C REGISTERED BY\nPSI, ARAKALAGUDU IN CR.NO.140/2019 DATED 20.06.2019.\n\n     THIS CRIMINAL PETITION COMING ON FOR ADMISSION\nTHIS DAY, THE COURT MADE THE FOLLOWING:\n\n                            ORDERHeard learned counsel for the petitioners.2.    Though the respondent engaged her Counsel, there\n\nis no representation on behalf of her.3.    This petition is filed underSection 482of Cr.P.C.\n\npraying this Court to set aside the order dated 06.06.2019\n\npassed in PCR No.200/2019 by the Civil Judge & JMFC., at\n\nArakalagudu at Annexure 'B' and FIR in Crime No.0140/2019\n\ndated 20.6.2019 at Annexure 'C'.4.    The   factual   matrix   of   the   case   is   that   the\n\ncomplainant has filed a private complaint before the learned\n\nMagistrate. In paragraph Nos.3 and 4 of the complaint, the\n\nallegation was made that these petitioners no way connected to3her family and indulged in creation of documents and got\n\ntransferred the property in favour of accused No.3, who is an\n\neducated person and retired bank employee. Thereafter, created\n\nthe gift deed, furnishing the false information and obtained the\n\nKhatha in favour of accused No.2 and executed the gift deed in\n\nfavour of the first accused. The learned Magistrate having\n\nperused the complaint averments and also the documents,\n\nformed an opinion that there are prima facie case against the\n\naccused and the complainant has made out a ground for\n\nreferring   the   matter   for   investigation   vide   order   dated\n\n06.06.2019. Hence, the present petition is filed.5.    The learned counsel for the petitioners vehemently\n\ncontends that in support of the complaint, no affidavit is filed\n\nand the Magistrate did not apply his mind while referring the\n\nmatter underSection 156(3)of Cr.P.C. The learned counsel in\n\nsupport of his contentions relied upon the judgment of the Apex\n\nCourt in the case ofPRIYANKA SRIVASTAVA AND ANOTHER\n\nv. STATE OF UTTAR PRADESH AND OTHERSreported in\n\n(2015) 5 SCC 287. Referring paragraph Nos.24, 30, 32 and 274of the judgment, the learned counsel would submit that non-\n\nfiling of the affidavit or otherwise it amounts to abuse of process\n\nand the Apex Court held that in order to prevent abuse of\n\nprocess, affidavit has to be filed.6.    The other contention of the petitioners' Counsel is\n\nthat the complaint is hopelessly barred by limitation and the\n\nMagistrate ought not to have referred the matter for police\n\ninvestigation. The third contention is that the matter is civil in\n\nnature and ought not to have registered the case and there is no\n\ncheating   and   complaint   averments   do   not   constitute   the\n\ningredients of the offences invoked against the petitioners.\n\nHence, it is liable to be quashed.7.    Having heard the submissions of the learned counsel\n\nfor the petitioners and also on perusal of the records, the\n\nlearned Magistrate referred the matter underSection 156(3)of\n\nCr.P.C, having found the contents of the complaint makes out a\n\nprima facie case. The factual matrix of the case in hand and also\n\nthe Judgment of the Apex Court in PRIYANKA SRIVASTAVA's\n\ncase (supra), are distinct. A case was registered against the5Bank officials, who have taken the recourse against the\n\ncomplainant in accordance with law. Hence, the Apex Court\n\ncomes to the conclusion that there is an abuse of process.      In\n\nthe case on hand, a specific allegation is made against these\n\npetitioners that they indulged in creation of documents even\n\nthough they are not connected to the family of the complainant.8.    The Apex Court in the case ofHDFC SECURITIES\n\nLTD. AND OTHERS v. STATE OF MAHARASHTRA AND\n\nANOTHERreported in AIR 2017 SC 61, held that, directing the\n\nInvestigating Officer, does not amount to causing an injury of\n\nirreparable nature and the said order cannot be quashed at a\n\npremature stage. The Apex Court in paragraph No.24 of the\n\njudgment held that while passing an order underSection 156(3)of Cr.P.C. requiring investigation by the police, cannot be said to\n\nhave caused an injury of irreparable nature which, at this stage,\n\nrequires quashing of the investigation.    It is further observed\n\nthat the stage of cognizance would arise only after the\n\ninvestigation report is filed before the Magistrate. Hence, power\n\nunderSection 482of Cr.P.C. cannot be exercised and should be6sparingly used.After discussing the Judgments of the Apex Court\n\nin the case of MAKSUD SAIYED v. STATE OF GUJARATH AND\n\nOTHERS reported in (2008) 5 SCC 668 and also in the case ofANIL   KUMAR      AND    OTHERS      v.   M.K.   AIYAPPA     AND\n\nANOTHERreported in (2014) 1 SCC (CRI) 35, and after\n\nconsidering the Judgments formed an opinion that while invokingSection 156(3)of Cr.P.C, the Court has to invokeSection 482of\n\nCr.P.C, sparingly, if it does not affect the right of the accused\n\nwhile ordering 156(3) ofCr.P.C, it should not be used in a casual\n\nmanner. The Court has to look into the contents of the\n\ncomplaint, if any specific allegation is made in the complaint\n\nthen invokeSection 156(3)of Cr.P.C. In the case on hand, the\n\nlearned Magistrate while passing the order dated 06.06.2019,\n\napplied his judicial mind and on perusal of the complaint after\n\nhearing the complainant's Counsel, a specific order has been\n\npassed that the available records and pleading have disclosed\n\nthe prima facie case against the accused and made out a ground\n\nto refer the matter underSection 156(3)of Cr.P.C.     When the\n\nMagistrate has applied his mind and considered the contents of\n\nthe complaint and also the documents which have been placed7along with the complaint, this Court does not find any error\n\ncommitted by the Magistrate while referring the matter underSection 156(3)of Cr.P.C, to the investigating Officer. Hence, I\n\ndo not find any merit in the petition.9.    The   other   contention     of   the   learned   counsel\n\nappearing for the petitioners is that the complaint is hopelessly\n\nbarred by limitation and it involves question of law and facts and\n\nthe same has to be considered during the course of the trial not\n\nat the stage of referring the matter under Section 156(3) of\n\nCr.P.C.10.   The   third   contention     of   the   learned   counsel\n\nappearing for the petitioners is that there is a civil dispute\n\nbetween the parties and the suit is also filed. The said contention\n\nalso cannot be accepted. While referring the matter underSection 156(3)of Cr.P.C, the Court has to look into the contents\n\nof the complaint and the specific allegation is made invoking the\n\noffence in the complaint and the same has to be investigated. It\n\nis settled law thatSection 482of Cr.P.C, has to be exercised8sparingly and not mechanically. Hence, I do not find any error in\n\nreferring the matter.11.     In view of the discussions made above, I pass the\n\nfollowing:-ORDER\n\n      The petition is dismissed.Sd/-JUDGE\n\n\n\ncp*