Samraj Sundeep Kumar & Others vs State Of Karnataka & Others

H.P. Sandesh, J

These two petitions are filed by accused Nos.4 to 10 under Section 482 of Cr.P.C. praying this Court to quash the entire proceedings in FIR and

complaint in Crime No.31/2020 arising out of PCR No.15375/2019 on the file of IV ACMM, Bengaluru registered by the respondent police for the

alleged offences punishable under Sections 403, 406, 409, 420 and 380 of IPC and grant such other reliefs as deemed fit in the circumstances of the

case.

The factual matrix of the case is that respondent No.2 had filed a private complaint before the Trial Court which is numbered as PCR

No.15375/2019 making the allegations against the petitioners herein that the complainant is the Director of Impecca Essential Spaces Pvt. Ltd. and

accused No.1 who belongs to Australia came in contact through her friend. The accused No.1 stated that he is having the Company by name Life

Spaces Australasia Pvt. Ltd. and also having a Company in India called as 7Q Industries Pvt. Ltd. at Chennai. He stated that his son-in-law Mathew

Anthony Royan and Samraj Sundeep Kumar are the Directors of the Company and the other accused persons are taking care of the day to day

affairs of 7Q Industries Pvt. Ltd. He also stated that in between two companies i.e., Life Space Australasia Pvt. Ltd. and 7Q Industries Pvt. Ltd. they

are doing the transaction and both are in the ownership of accused No.1. He stated that his mother is suffering from cancer and as a result, the

Company is moving slowly and requested the complainant to invest the amount to the tune of Rs.2,28,81,373/- in the Company called 7Q Industries

Pvt. Ltd. Thereafter, the amount was transferred to his account. In all, an amount of Rs.5,46,84,098/- is paid from the account of the complainant.

Accused No.1 also requested the complainant to visit Australia stating that he will bear the expenses and when the complainant visited Australia,

Prepaid Multi Currency Card was stolen and an amount of Rs.1,71,058/- was withdrawn. In the balance sheet of 7Q Industries Pvt. Ltd., the accused

had shown the amount which was payable to the complainant as share application, money pending, allotment. In order to cheat the complainant, the

accused No.1 induced and committed fraud in getting the amount of Rs.5 Crores from the complainant and hence prayed the Court to take the

cognizance against the petitioners herein or to refer the matter under Section 156(3) of Cr.P.C.

Having received the complaint, the learned Magistrate, heard the counsel and passed the order dated 21.12.2019 and made an observation that the

complaint is supported with affidavit in compliance of the judgment of the Apex Court in the case of PRIYANKA SRIVASTAVA AND ANOTHER

v. STATE OF UTTAR PRADESH AND OTHERS reported in AIR 2015 SC 1758. On perusal of the complaint averments cognizable and non-

cognizable offences are disclosed. Hence, formed an opinion that it is just and proper to refer the matter to investigate into the allegations made

against the accused and referred the matter under Section 156(3) of Cr.P.C. for investigation.

The petitioners have challenged the same by filing these two petitions and vehemently contended that the ingredients of the offences alleged are not

made out and absolutely there is no material on record to implicate the petitioners herein. The allegations made in the first information report or the

complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offences or make out a case

against the petitioners/accused. It is also contended that the complaint has been filed with an ulterior motive in order to tarnish the image and

reputation of the petitioners. The learned counsel would contend that the complaint averments are absurd and inherently improbable on the basis of

which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the petitioners/accused. The learned

Magistrate without application of mind and without assigning any reasons has mechanically referred the matter for investigation under Section 156(3)

of Cr.P.C. The learned counsel would vehemently contend that even going through the entire complaint, no specific allegations are made against these

petitioners and only allegation is against accused No.1 and also there is no compliance of Section 154(1) and 154(3) of Cr.P.C. Hence, it requires

interference of this Court.

Per contra, the learned Senior Counsel for respondent No.2 would contend that the learned Magistrate after having received the complaint and also

taking note of the contents of the affidavit, formed an opinion that it is a fit case to refer the matter under Section 156(3) of Cr.P.C. The learned

Magistrate has applied his judicious mind and thereafter only referred the matter for investigation. The learned counsel would contend that specific

allegations are made in paragraph Nos.3, 4, 6 and 9 to 11 of the complaint against the accused persons and the very contention of the petitioners that

there is no specific allegations in the complaint cannot be accepted. The learned counsel would contend that in paragraph No.14 of the complaint there

is a reference with regard to the contents of the mail referring to 7Q invoice is false, prevaricated and without any legal or factual basis and an

afterthought with the sole intention of avoiding repayment of money to her. The learned counsel also brought to the notice of the Court paragraph

Nos.17, 18 and 23 of the complaint. Hence, the learned counsel would contend that Section 154(1) and 154(3) of Cr.P.C. are complied and apart from

that affidavit is also filed.

In reply to the arguments of the learned counsel for respondent No.2, the learned counsel for the petitioners would contend that when he had

applied for the certified copy of the order sheet, the same was not found in the records. The very filing of the affidavit in compliance with the

judgment of the Apex Court in the case of Priyanka Srivastava (supra) cannot be accepted.

The learned counsel for respondent No.2 has produced the certified copy of the order sheet, order as well as the affidavit dated 10.12.2019. Hence,

the learned counsel would contend that Section 154(1) and 154(3) of Cr.P.C. are complied and the Trial Court has referred the matter under Section

156(3) of Cr.P.C. for investigation.

Having heard the learned counsel for the petitioners and the learned counsel for respondent No.2, in the present petition the reliefs are sought on

behalf of accused Nos.4 to 10 praying this Court to quash the PCR and consequent upon FIR registered against them. The main contention of the

learned counsel for the petitioners is that there is no specific averment against the petitioners in the complaint. The learned Magistrate has not applied

his judicious mind while referring the matter under Section 156(3) of Cr.P.C. It has to be noted that once the complaint is filed, it is open to the learned

Magistrate either to take the cognizance or to pass any pre-cognizance order. In the case on hand, the Trial Court has not taken any cognizance.

Instead of passed a pre-cognizance order i.e., referring the matter under Section 156(3) of Cr.P.C. for investigation. Having perused the order passed

by the Trial Court, the Trial Court has referred in the order that affidavit is filed in compliance with the judgment in the case of Priyanka Srivastava

(supra). On perusal of the order, a reference was made that on perusal of the complaint averments, cognizable and non-cognizable offences are

disclosed. Hence, formed an opinion that it is just and proper to refer the matter to investigate into the allegations made against the accused. When the

complaint is filed and sought an order to refer the matter under Section 156(3) of Cr.P.C., the learned Magistrate has to apply his judicious mind.

Looking into the contents of the complaint and the documents, the Court formed an opinion that the complaint discloses committing of cognizable and

non-cognizable offences and referred the matter under Section 156(3) of Cr.P.C. for investigation. This Court cannot find fault with the order of the

Trial Court. The only question to be considered by this Court is whether the learned Magistrate has applied his judicious mind or not. On perusal of the

order, the learned Magistrate formed an opinion that it is a fit case to refer the matter under Section 156(3) of Cr.P.C. and also found that the

complaint discloses cognizable and non-cognizable offences. Hence, I do not find any force in the contention of the learned counsel for the petitioners

that the learned Magistrate has not applied the mind and passed the mechanical order. On perusal of the order, it cannot be said that mechanical order

has been passed.

The other contention of the learned counsel for the petitioners that there are no averments in the complaint with regard to the accused persons

cannot be accepted. Having perused the entire complaint, in paragraph Nos.3, 4, 6, 9 to 11 and 14 of the complaint, specific averments are made

against the petitioners herein and particularly paragraph No.17 and 18 discloses the allegations made against the other accused persons also. When

such being the case and when the matter is referred under Section 156(3) of Cr.P.C., the Investigating Officer has to probe the matter and unearth

the crime. It is also important to note that the order passed by the Trial Court does not affect the rights of the petitioners herein as held by the Apex

Court in the case of HDFC SECURITIES LTD. AND OTHERS v. STATE OF MAHARASHTRA AND ANOTHER reported in AIR 2017 SC 61

wherein in paragraph No.24 of the judgment, the Apex Court has held that passing of an order invoking Section 156(3) of Cr.P.C. does not affect the

rights of the accused persons and that it is only an order referring the matter under Section 156(3) of Cr.P.C. and if the Court invoking Section 482 of

Cr.P.C. quashes the same, it amounts to premature. Hence, I do not find any force in the contention of the learned counsel for the petitioners that the

learned Magistrate has not applied his judicious mind. I do not find any merit in the petition to quash the private complaint and also the investigation

ordered by the Trial Court.

In view of the discussions made above, I pass the following:

ORDER

(i) The petitions are rejected.

(ii) However, liberty is given to the petitioners to approach this Court after filing of the final report, if need arises.

In view of rejection of the main petitions, I.As., if any, do not survive for consideration and the same stands disposed of.