M. Bhagavantha vs B.R. Babu Prasad

K.N. Phaneendra, J.—Heard the learned counsel for the petitioners as well as the counsel for the respondents. Perused the records.

The present petition is filed seeking quashing of the entire proceedings in PCR 85/2006 and PCR No. 63/2006 pending on the file of the Civil Judge (Jr.Dn.) & JMFC at Sira.

The brief factual matrix of the case are that PCR No. 63/2006 was filed by the person by name B.R. Papanna against some of the accused persons. However, the said private complaint does not show that the petitioners are arraigned as accused persons. PCR No. 85/2006 was filed by the respondent herein, (who is dead and his Legal Representatives have already on record) against the petitioners and another by name N.R. Balakrishna, who is not before this Court. The said complaints appears to have been referred to the police for investigation and report. The jurisdictional police after due investigation, submitted ''B'' Summary Report. The court, after perusal of ''B'' Summary Report, rejected the same and allowed the parties to contest the proceedings by virtue of the protest memorandum submitted by the complainant. The records disclose that the complainant was examined himself as PW.1 and also examined his sister as PW.2 and got marked Exs.P1 to P51 On going through the complaint averments and the averments made in the protest memo, the learned Magistrate has considered the sworn statement of PWs.1 & 2 and the documents produced therein and has come to the conclusion that it is a fit case to reject ''B'' Summary Report and register a criminal case against the petitioners and another for the offences punishable u/s 120B, 406, 419, 420, 423, 463, 464, 465, 468, 470, 471, 474 r/w. Sections 23 and 29 of IPC. The said order of taking cognizance by the Magistrate and registering criminal case against the petitioners is called in question in this petition.

Learned counsel for the petitioners has strenuously contends that when PCR No. 63/2006 was filed by one of the brothers of the complainant in this case, they very well knew about the overt-acts and also the offences committed by these petitioners. But, in the earlier complaint, their names have not been depicted, but, subsequently, a separate complaint which is numbered as PCR No. 84/2006 is filed against these petitioners and another accused by name Balakrishna. As could be seen from the materials available on record, two private complaints have been filed by different persons. Though the factual matrix may be same, two complaints are filed by two different complainants. So, it can not be said that the earlier complaint filed by the same complainant, as such the second complainant is barred.

Secondly, learned counsel contended that even on translating the complaint averments do not disclose any offence against the accused persons. It is well-recognized principal of criminal jurisprudence that, after going through the contents of the complaint and as well as the sworn statements and the documents produced before the court, if the Magistrate is of the opinion that the allegations made in the complaint constitute offence under any of the provisions of penal laws for the time being in force, the Magistrate is bound to take cognizance and inquire into the matter. The High Court while exercising powers u/s 482 of Cr.P.C. should be very slow in setting aside or quashing such orders where on perusal of the complaint averments, it broadly constitute the offences against the accused persons. In such circumstances, the court should allow the continuation of the prosecution rather than scuttling the proceedings at the threshold, unless the court comes to the conclusion that there is serious abuse of process of law. It is seen from the materials available on record that except producing the copy of the order passed by the learned Magistrate before this court, no other materials are produced.

I have carefully perused the private complaint and the orders of the learned Magistrate. In the complaint it is categorically stated that the 1st petitioner is an advocate engaged by the complainant and his brother Papanna as their counsel for conducting O.S. No. 335/1989 on the file of Civil Judge (Jr. Dn.) & JMFC, Sira. The said case ended in a decree in favour of the complainant and his brothers. It is specifically alleged that during the pendency of the said case, the complainant and his brothers have executed some stamp papers as requested by the 1st accused stating that they we''re required for writing rectification agreement etc.. Under the belief and trust, the complainant and his brother have put their signatures on two stamp papers and thereafter, it is alleged that the said two stamp papers were misused by Accused Nos. 1 & 2 in order to use them as General Power of Attorney in favour of one Shivanna. It is also contended that the said General Power of Attorney came to be notarized by Accused No. 3. There is a specific allegation that Accused No. 3 is not unknown to the complainant and his brother, and A3 is also very well known to the complainant and his brother. This shows that they are deliberate in their action. Though the complainant and his brother never appeared before the 2nd petitioner, he identified and notarized the said document in favour of one Shivanna in collusion with Accused Nos. 1 & 2. Therefore, it is alleged that they have committed the above said offences.

On perusal of the complaint averments, the learned Magistrate has come to the conclusion that the said averments are sufficient to constitute the offences alleged against the petitioners herein. I do not find any strong reasons to differ from the opinion expressed by the learned Magistrate. When it is shown to the court that the averments in the complaint and the sworn statement constitute the offences alleged against the accused persons, then the magistrate is bound to take cognizance and enquire into the matter.

Though the learned counsel tried to persuade me submitting that during the course of investigation, the police have submitted ''B'' final report, wherein the police have specifically mentioned that the signatures found on the alleged forged documents are not the signatures of any of the accused persons. But nevertheless, the police have stated that they are not the signatures of the complainants herein. Therefore, it becomes the duty of the complainant to prove that actually the accused persons have connected those documents. How to establish and prove their case cannot be imagined by the court and it is left to them. Without giving opportunity to them, the proceedings cannot be scuttled down at this stage. Therefore, the petitioners are at liberty to approach the Trial Court for their discharge after the Trial Court examines the complainant and his witnesses u/s 244 of Cr.P.C.

Learned counsel contended that though an application is filed before the Court for discharge of the accused persons, the matter is still pending before the court. In a private complaint cases the learned Magistrate is bound to record the evidence of the complainant and his witnesses u/s 244 of Cr.P.C. and he has to pass an order u/s 245 of Cr.P.C. If the Magistrate is of the opinion that the accused are not entitled for discharge, then only charges have to be framed. This procedure cannot be obviated by the learned Magistrate while dealing with the case under a private complaint. Therefore, the arguments of the learned counsel is not sustainable. Hence, I am of the opinion that no grounds have been made-out before this Court in order to quash the entire proceedings pending before the learned Magistrate. Therefore, the petition fails and accordingly, it is dismissed.