BABU VENKATESH VS STATE OF KARNATAKA
BABU VENKATESH VS STATE OF KARNATAKA
NONREPORTABLE
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]
J U D G M E N T
B.R. GAVAI, J.
1. Leave granted.
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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
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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 18th September
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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
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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 24th
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,
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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 09th April 2018
in O.S. No. 8020/2017, respondent No. 2 on 10th September
2019 filed a complaint before police station Jayanagar,
stating therein that, the appellant No. 1 had created forged
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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 18th 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
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(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,
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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
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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
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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.
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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
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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 16th December,
2019, FIR No. 257/2019 filed on 17th December, 2019 and
FIR No. 258/2019 filed on 18th December, 2019 registered
with Jayanagar Police Station, Bengaluru City are quashed
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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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