Murigeppa vs The State of Karnataka

S.N. Satyanarayana, J.—1. Accused in P.C. No. 22/2015, on the file of Prl. Senior Civil Judge and CJM, Bagalkot, has come up in this petition seeking quashing of the same on the ground that referring the private complaint which is filed under Section 200 of Cr.P.C, for investigation under Section 156(3) of Cr.P.C, is not properly considered and it is mechanically done without applying mind and also on the ground that the dispute between the parties being civil in nature, this private complaint is made use of as a tool to coerce the accused to come for settlement and it is also sought to be quashed on the ground that the complaint is not properly pleaded.

Heard the learned counsel for the petitioner and the learned Government pleader appearing for respondent No. 1 and also the learned counsel appearing for the 2nd respondent.

The sum and substance of the complainant''s grievance is that the accused in private complaint is none other than his brother. According to him, since 1995-96, the complainant, his brother the accused in P.C. No. 22/2015, their mother Smt. Sharadabai and another brother by name Shivappa were carrying on business in partnership under the name and style M/s. V.P. Nara. It is also stated that the complainant, accused and their another brother Shivappa started another partnership firm under the name and style M/s. Prakash Traders, which was commenced on 28.5.1998. It is further stated that their brother Shivappa retired from both the firms in the year 2013. The case of the complainant is that neither the complainant nor his another brother Shivappa or their mother had given power of attorney to any person for running aforesaid business.

When the matter stood thus, it is stated that on 2.2.2015, the complainant had gone to Biluru Gurubasava Credit Co-operative Society, APMC Yard, Navanagar, Bagalkot. In the said bank, it is stated that there is a current account bearing No. 2 which was opened in the name of M/s. V.P. Nara and another account in the name of M/s. Prakash Traders bearing No. 349 an overdraft account on the basis of a general power of attorney said to have issued in the name of accused. On verification, it is stated that he was given to understand that aforesaid accounts were opened by the accused on the basis of power of attorney said to have executed by the complainant, his brother Shivappa and their mother, on 23.8.1999.

It is also stated that when he made enquiry with the accused, he did not give convincing reply. Hence he also enquired with other financial institutions and on such verification he came to know that accounts were opened in (a) Biluru Gurubasava Credit Cooperative Society, (b) Basaveshwar Bank, APMC Yard, Navanagar, Bagalkot, (c) Basaveshwar Bank, Adata Bazar branch, Bagalkot, (d) State Bank of Mysore, Bagalkot branch, on the basis of aforesaid forged general power of attorney.

It is also stated that when he tried to confront the accused with the aforesaid information in the presence of elders, he was made to bring the original of the said general power of attorney before the elders who sat for panchayat, wherein it was observed by everybody that signatures of complainant, his brother Shivappa and that of their mother Sharadabai was forged on the said document. When the same was confronted to the accused, he left the panchayat by taking the original document with him. It is thereafter the complaint was filed alleging that the accused has committed offence punishable under Section 465, 468, 471, 474 and 417 with an intention to cheat the complainant, his brother Shivappa and their mother.

The said complaint when presented before the Court of Magistrate, Bagalkot, it was registered as PCR No. 22/2015 and in the said proceedings the learned Magistrate after hearing the counsel for accused directed the said complaint for investigation under Section 156(3) of Cr.P.C. and to file report. Being aggrieved by the same, the accused has come up in this petition on the ground that the order passed by learned Magistrate for investigation is mechanically ordered; there is no application of mind; and that the learned Magistrate has not properly understood the contents of the complaint and has not indicated that he was convinced of there being a prima facie case for investigation into the complaint filed by 2nd respondent is erroneous and the same is required to be set aside.

Heard the learned counsels appearing for the parties, perused the petition filed and also the copy of complaint and the judgment relied upon by the learned counsel for the petitioner reported in the matter of Narendra P. Shah and others v. State of Karnataka, and others, wherein it is observed as under:

"It is evident from the order of Magistrate while referring the matter for investigation that he has not applied his mind to the substance of the complaint. An omnibus order is passed without specifying in reference to which of the offences under penal law the investigation has to be conducted. The importance of application of mind by the Magistrate before exercising jurisdiction under Section 156(3) or Section 200 of Cr.P.C. has been fell for consideration in Priyanka Srivastava''s case (supra). After a survey of earlier judgments it was observed that Magistrate has to remain vigilant with regard to the allegations made and the nature of allegation and not to issue directions without proper application of mind; he also has to bear in mind that sending the matter would be conducive to justice and then he may pass requisite order."

On going through the said judgment and also the case on hand it is clearly seen that the complaint is self explanatory. Particulars of the alleged offence is furnished in detail in the said complaint. It is not as if the Magistrate has not gone into the same. On going through the same, it would give an indication that possibility of offence cannot be ruled out. When the learned Magistrate has gone through the same, he has felt that the matter requires investigation. Therefore he has rightly applied his mind in referring the matter for investigation. No doubt in the judgment referred in the matter of Narendra P. Shah, there is reference to survey of earlier judgment and observation that Magistrate has to remain vigilant.

This Court is unable to understand in what way the Magistrate is required to apply his mind. On seeing the complaint, understanding a person holding that position is expected to understand whether the complaint confronting would constitute an offence or not. It does not mean that he has to give a report to the satisfaction of everybody that he has gone through the contents thereof and try to convince that there is justification in his order in referring the same for investigation.

Similarly the learned counsel also refers to the decision in the matter of Anil Kumar and others v. M.K. Aiyappa and another, reported in , 2013 AIR SCW 5570, wherein he would draw the attention of this Court, where the Special Judge while passing order for investigation made the following order.

"On going through the complaint, documents and hearing the complainant, I am of the sincere view that the matter requires to be referred for investigation by the Deputy Superintendent of Police, Karnataka Lokayukta, Bangalore Urban, under Section 156(3) of Cr.P.C. Accordingly, I answer point No. 1 in the affirmative."

When the same was challenged, the Apex Court in one breath says that, "the application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient" and further in the very same judgment it is stated that, "the Magistrate should reflect in the order through a detailed expression of his view" and it is further stated that, "though a detailed expression of his views is neither required nor warranted", is observed in the very same judgment".

With this environment it is impossible for the Magistrates to discharge their duty. If they make an endorsement on the complaint that they have gone through the same, understood, then there is expression that it is not sufficient. That they need to give particulars, in another place it is stated that detail expression is neither required nor warranted. With such contradictory views, this Court is unable to follow any of them. As rightly stated by the Apex Court in the matter of Prakash Chandra Pathak v. State of Uttar Pradesh reported in , AIR 1960 SC 195, the judgments rendered in criminal matters on set of facts do not amount to strict precedence to be followed, as observed in para 8 of the aforesaid judgment which reads as under:

"....xx...xxx..... It is enough to say that decisions even of the highest court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular facts. The general principles governing appreciation of circumstantial evidence are well-established and beyond doubt or controversy. The more difficult question is one of applying those principles to the facts and circumstances of a particular case coming before the Court. That question has to be determined by the Court as and when it arises with reference to the particular facts and circumstances of that individual case. It is no use, therefore, appealing to precedents in such matters. No case on facts can be on all fours with those of another.... xxx... xx...."

If that is taken into consideration, under the facts and circumstances, this Court feel that the Magistrate after going through the complaint, being rightly convinced that the contents therein amounting to an offence being convinced, the possibility of there being material to investigate the offence alleged, has rightly ordered for investigation under Section 156(3) of Cr.P.C.

On going through the material once again by this Court, it is felt that such order should neither be doubted nor unnecessarily interfered unless it is shown that a gross injustice is sought to be afflicted to the accused in the said proceedings. The order of investigation by Magistrate should not be lightly interfered and the spoke should not be put in the process of investigation unnecessarily. With such observation this Court holds that the petitioner herein has not made out any grounds to interfere with the order of learned Magistrate in referring the matter for investigation.