Babu Venkatesh vs The State Of Karnataka

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 252 OF 2022 [Arising out of SLP (Crl.) No. 2183 of 2021]

BABU VENKATESH AND OTHERS …APPELLANT (S)

VERSUS

STATE OF KARNATAKA AND ANOTHER …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 253 OF 2022 [Arising out of SLP (Crl.) No. 2182 of 2021]

CRIMINAL APPEAL NO. 254 OF 2022 [Arising out of SLP (Crl.) No. 2162 of 2021]

CRIMINAL APPEAL NO. 255 OF 2022 [Arising out of SLP (Crl.) No. 2217 of 2021]

JUDGMENT

B.R. GAVAI, J.

1. Leave granted.

Signature Not Verified Digitally signed by Anita Malhotra Date: 2022.02.18 16:06:32 IST Reason: 1

2. The present appeals challenge the four judgments and

orders dated 22nd January 2021, passed by the High Court

of Karnataka at Bengaluru, thereby dismissing the criminal

petitions filed by the present appellants under Section 482

of the Code of Criminal Procedure (hereinafter referred to as

Cr.P.C.).

3. The facts in brief giving rise to the present appeals,

taken from the appeal arising out of Special Leave Petition

(Crl.) No. 2183 of 2021, are as under:

4. The appellant Nos. 2 and 3 on one hand and

respondent No. 2 on the other hand, entered into various

Agreements for Sale with respect to properties situated at

Bangalore. According to the appellants, the amounts as

mentioned in the agreements, were paid by them as

consideration by three cheques, one of them drawn from the

account of appellant No. 1, another one from account of

M/s. S.S.R.V Trans Solutions and other one from the

account of M/s. Shobha Tours and Travels, which are

operated by appellant No. 1. All these three cheques were

2 bearer cheques. It is the case of appellants that, all the

cheques were encashed by the respondent No. 2.

5. It is the case of the appellants that, after receipt of the

payments, the respondent No. 2 was avoiding to get the

Sale­deed registered. As such, the appellant Nos. 2 and 3 on

24th November, 2017 had filed four different suits being O.S.

No. 8020/2017, 8018/2017, 1616/2017 and 1614/2017,

before the Courts of Principal Senior Civil Judge and

Principal City Civil Judge at Bangalore, for specific

performance of contract. The respondent No. 2, who is the

defendant No. 1 in O.S. No. 8020/2017, filed his written

statement on 09th April 2018.

6. The respondent No. 2, thereafter filed a complaint

dated 10th September 2019, with Tilak Nagar Police Station,

Jayanagar, Bengaluru, against the appellants, thereby

making allegations of cheating. Thereafter, following a gap of

almost one year, the respondent No. 2 filed Private

Complaint being P.C.R. No. 12445/2019 on 18 th September

3 2019, before the Court of II Additional Chief Metropolitan

Magistrate, Bangalore.

7. On the same day, the respondent No. 2, along with his

wife who is the respondent No. 3 in the rest of the appeals

arising out of Special Leave Petition (Crl.) Nos. 2182/2021,

2162/2021, and 2217/2021, filed three other Private

Complaints being P.C.R. Nos. 12441/2019, 12443/2019

and 12444/2019 before the same court.

8. The allegations in the complaints are basically that the

appellant No. 1, who is the son of appellant Nos. 2 and 3,

had obtained blank stamp papers from the respondents and

created Agreements for Sale by misusing the said blank

stamp papers. As such, it is case of the respondents that,

the appellants committed forgery and cheated them, and as

such they are liable for punishment for offences punishable

under Sections 420, 464, 465, 468 and 120­B of the Indian

Penal Code (hereinafter referred to as the IPC).

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9. The II Additional Chief Metropolitan Magistrate, at

Bangalore on 6th December 2019, passed the order as

under:

“The Complainant has filed the present private complaint under section 200 of CrP.C., against the accused Nos. 1 to 3 for the alleged offences punishable under section 420,465,468,464 and 120­B of IPC. In the complaint, the complainant has made serious allegations against the accused persons. Therefore, it appears this court that, it is just and proper to refer the matter to the jurisdiction police for investigate and submit report. Accordingly, the matter is referred to PSI of Jayanagar Police Station under section 156 (3) of CrP.C., for investigation and submit report by 26.02.2020.”

10. On the basis of the same, a First Information Report

(hereinafter referred to as FIR) No. 258/2019 came to be

registered at Jayanagar Police Station Bengaluru City on

18th December 2019, for the offences punishable under

Sections 120­B, 420, 471, 468, 465, of the IPC. Three

similar FIRs came to registered against the appellants on

different dates in December 2019.

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11. The appellants thereafter filed petitions under Section

482 of the Cr.P.C. before the High Court of Karnataka at

Bengaluru, being Criminal Petition Nos. 6719/2020,

6733/2020, 6729/2020 and 6737/2020. The main

contention of the appellants in the criminal petitions was

that, the order under Section 156 (3) of the Cr.P.C. was

passed in a mechanical manner by the II Additional Chief

Metropolitan Magistrate, at Bangalore.

12. It was submitted that, the Magistrate was required to

apply his mind before passing an order under Section 156

(3) of the Cr.P.C. It was further submitted that, unless an

application under Section 156 (3) of the Cr.P.C. was

supported by an affidavit duly sworn by the complainant,

the learned Magistrate could not have passed an order

under the said provision.

13. It was further submitted that, the dispute was purely

civil in nature and the criminal complaint was filed by the

respondents only to harass the appellants. The Single Judge

of the High Court vide four identical impugned orders dated

6 22nd January 2021, dismissed the petitions on the ground

that, serious allegations of cheating and forgery were shown

in the complaint and as such no case was made out for

quashing the FIRs.

14. We have heard Shri Abdul Azeem Kalebudde, learned

counsel appearing on behalf of the appellants and Shri

Shubhranshu Padhi, learned counsel appearing on behalf of

the State. In spite of being duly served, none appeared for

respondent No. 2.

15. It is not in dispute that, apart from O.S. No.

8020/2017, the appellant Nos. 2 and 3 have filed suits

being O.S. No. 1614/2017, O.S. No. 1616/2017 and O.S.

No. 8018/2017, seeking specific performance of contract

with regard to the Agreements for Sale between the

appellant Nos. 2 and 3 on one hand and respondent No. 2

on the other hand. The said suits were filed on 24 th

November 2017.

16. It is also not in dispute that, written statements have

been filed by the respondent No. 2 in all the said suits,

7 between the period from 9th April 2018 to 1st August 2018. It

is the defense of the respondent No. 2 that, the appellant

No. 1 who is the son of appellant No. 2 and 3, is a money

lender and he lends money at a high rate of interest. It is

the further defense of respondent No. 2 that, when the

respondents approached the appellant No. 1 for financial

help, he used to take respondents’ signatures on the blank

paper and also collected cheques signed by the respondent

No. 2 as security for said loan.

17. It is the further contention of respondent No. 2 that he

had discharged the debt of the appellant No. 1 by paying an

amount of Rs. 56,50,000/­ (Rupees Fifty­Six Lakh and Fifty

Thousand only) by way of RTGS to the account of appellant

No. 1. The execution of Agreements for Sale was specifically

denied by the respondent No. 2.

18. After filing of the written statement on 09 th April 2018

in O.S. No. 8020/2017, respondent No. 2 on 10 th September

2019 filed a complaint before police station Jayanagar,

stating therein that, the appellant No. 1 had created forged

8 documents with regard to the properties belonging to the

respondent No. 2 and his wife. He has stated in the said

complaint that he has not signed the documents and that

the appellants were taking advantage of the blank cheques

and blank stamp papers. Thereafter on 18 th September

2019, respondent No. 2 filed a Private Complaint being

P.C.R. 12445/2019. He along with his wife filed three other

Private Complaints being P.C.R. Nos. 12441/2019,

12443/2019 and 12444/2019 before the Court of II

Additional Chief Metropolitan Magistrate, Bangalore, out of

which the present proceedings arise.

19. It could thus be clearly seen that, the said complaint

dated 10th September 2019, was filed almost after a period

of two years from the date of institution of suits by the

appellant Nos. 2 and 3, and almost after a period of one and

a half year from the date on which written statement was

filed by respondent No. 2.

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20. It will be relevant to refer to the following observations

of this court in the case of State of Haryana and Others

v. Bhajan Lal and Others,1 which read thus.

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where 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 offence or make out a case against the accused.

1 1992 Supp (1) SCC 335

10 (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non­cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so 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 accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act,

11 providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”

21. It could thus be seen that, though this court has

cautioned that, power to quash criminal proceedings should

be exercised very sparingly and with circumspection and

that too in the rarest of rare cases, it has specified certain

category of cases wherein such power can be exercised for

quashing proceedings.

12

22. We find that in the present case, though civil suits

have been filed with regard to the same transactions and

though they are contested by the respondent No. 2 by filing

written statement, he has chosen to file complaint under

Section 156 (3) of the Cr.P.C. after a period of one and half

years from the date of filing of written statement with an

ulterior motive of harassing the appellants. We find that, the

present case fits in the category of No. 7, as mentioned in

the case of State of Haryana v. Bhajan Lal (supra).

23. Further we find that, the present appeals deserve to be

allowed on another ground.

24. After analyzing the law as to how the power under

Section 156 (3) of Cr.P.C. has to be exercised, this court in

the case of Priyanka Srivastava and Another v. State of

Uttar Pradesh and Others2 has observed thus:

“30. In our considered opinion, a stage has come in this country where Section 156(3) 2 (2015) 6 SCC 287

13 CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons.

That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated

14 that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”

25. This court has clearly held that, a stage has come

where applications under Section 156 (3) of Cr.P.C. are to

be supported by an affidavit duly sworn by the complainant

who seeks the invocation of the jurisdiction of the

Magistrate.

26. This court further held that, in an appropriate case,

the learned Magistrate would be well advised to verify the

truth and also verify the veracity of the allegations. The

court has noted that, applications under Section 156 (3) of

the Cr.P.C. are filed in a routine manner without taking any

responsibility only to harass certain persons.

15

27. This court has further held that, prior to the filing of a

petition under Section 156 (3) of the Cr.P.C., there have to

be applications under Section 154 (1) and 154 (3) of the

Cr.P.C. This court emphasizes the necessity to file an

affidavit so that the persons making the application should

be conscious and not make false affidavit. With such a

requirement, the persons would be deterred from causally

invoking authority of the Magistrate, under Section 156 (3)

of the Cr.P.C. In as much as if the affidavit is found to be

false, the person would be liable for prosecution in

accordance with law.

28. In the present case, we find that the learned

Magistrate while passing the order under Section 156 (3) of

the Cr.P.C., has totally failed to consider the law laid down

by this court.

29. From the perusal of the complaint it can be seen that,

the complainant/respondent No. 2 himself has made

averments with regard to the filing of the Original Suit. In

16 any case, when the complaint was not supported by an

affidavit, the Magistrate ought not to have entertained the

application under Section 156 (3) of the Cr.P.C. The High

Court has also failed to take into consideration the legal

position as has been enunciated by this court in the case of

Priyanka Srivastava v. State of U.P. (supra), and has

dismissed the petitions by merely observing that serious

allegations are made in the complaint.

30. We are, therefore, of the considered view that,

continuation of the present proceedings would amount to

nothing but an abuse of process of law.

31. We therefore, allow these appeals and set­aside the

judgments and orders of the High Court dated 22nd January

2021, passed in Criminal Petition Nos. 6719/2020,

6729/2020, 6733/2020 and 6737/2020. Consequently, the

FIR Nos. 255/2019, 256/2019 filed on 16 th December,

2019, FIR No. 257/2019 filed on 17 th December, 2019 and

FIR No. 258/2019 filed on 18th December, 2019 registered

with Jayanagar Police Station, Bengaluru City are quashed

17 and set aside. Pending application(s), if any, shall stand

disposed of.

..............................J. [B.R. GAVAI]

.............................J. [ KRISHNA MURARI]

NEW DELHI;

FEBRUARY 18, 2022

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