(Prayer: This Criminal Petition is filed U/S 482 of Cr.P.C. seeking that the Impugned Order Dated 07/07/2015 dismissing the Criminal Revision Petition No.113/2012 passed by the V Additional District and Sessions Judge, sitting at Hubballi of offence U/S.138 of N.I. Act, be quashed and the Criminal Revision Petition No.113/2012 may be allowed.)
1. This petition is filed by the petitioners-accused under Section 482 of Cr.P.C. praying to set-aside the impugned order dated 07.07.2015 dismissing the Crl.Revision Petition No.113/2012 by the V Addl. District and Sessions Judge, Dharwad, sitting at Hubballi, in respect of the offence under Section 138 of Negotiable Instruments Act, and to allow the said Criminal Revision Petition No.113/2012.
2. Brief facts as pleaded by the petitioner in the petition are that respondent No.1 filed W.P.No.12112/2004 before this Court against the petitioner and others alleging that his lands have been encroached illegally; this Court disposed of the said writ petition directing petitioners herein to disburse an amount of Rs.12,93,450/- to the owners of the property alleged to have been illegally encroached upon, after ascertaining the same. A cheque dated 02/06/2006 bearing NO.0730821 for Rs.12,93,450/- (Twelve Lakhs Ninety Three Thousand Four Hundred and Fifty Only) was drawn on the State Bank of Mysore in favour of the respondents herein in compliance of the final order passed in the writ petition. Petitioner learnt that lands of respondents not acquired and hence intimated their banker to stop the payment of the cheque as respondent need not be paid. Petitioner filed a Review Petition No.266/2006 in W.P.No.12112/2004 (LB-RES) and placed all the material facts before this Court and after due consideration the review petition came to be disposed of with certain observations. Respondents filed a private complaint No.239/2006 before the Court of JMFC-II, Hubballi, under Section 200 Cr.P.C. read with Section 138 of N.I.Act on 26.07.2006 against the petitioners for having stopped the payment of cheque. The petitioners/accused filed an application dated 20.02.2010 under Sections 197 and 251 of Cr.P.C. and 487 Karnataka Municipal Corporation Act before the trial Court in C.C.No.137/2007. The Court below misread the direction of this Court and rejected the application by seeing it is a defence, same is to be raised during trial. The petitioners/accused approached the jurisdictional District and Sessions Court in Criminal Revision Petition No.113/2012 with a prayer to consider the question of sanction as per the decision of the Apex Court in "Ashok Sahu V/S Gokul Saikia" reported in 1988 Lawsuit (SC) 237. The learned Sessions Judge dismissed the same by the impugned order dated 07/07/2015.
Being aggrieved by the same, the revision petitioners have preferred the present revision petition.
3. Heard the arguments of the learned counsel appearing for the petitioners-accused and also the learned counsel appearing for the respondents- complainants.
4. Learned counsel for the petitioners during the course of his arguments has submitted that the compliance have not at all made, the prima-facie case as against the petitioners herein to attract the offence under Section 138 of N.I.Act. He has also submitted that the account maintained by the Corporation in the name of accused No.1, the Commissioner of the Corporation, but the cheque in question is issued by accused No.2. Hence, looking to the wordings mentioned in Section 138 of N.I.Act, it is the person, who is having the account is to be the drawer of the cheque, and if such cheque is dishonored, there is a liability on the part of the said drawer of the cheque. In the present case, the Commissioner, in whose name the account is opened, has not issued the cheque and accused No.2, who is said to have issued the cheque is not having the account in the said bank. Therefore, there is no offence under Section 138 of N.I.Act. He has further submitted that when the petitioners approached this Court by filing the writ petition, though the writ petition was dismissed directing the petitioners herein to raise all such contentions before the trial Court during the course of trial. Petitioners filed an application bringing to the notice of the trial Court that the accused persons, being the Government servants, prior sanction under Section 197 of Cr.P.C. is necessary and submitted that the trial Court illegally rejected the said application. He has also submitted that when the petitioners challenged the order of the trial Court before the Sessions Court by filing a revision petition, the revisional Court also wrongly passed the impugned order. Hence, submitted that in view of the decision of the Hon'ble Apex Court, the sanction is must and therefore, the criminal proceedings initiated are not sustainable in law. Hence, he has submitted to allow the petition and to set-aside the order passed in the revision petition as prayed for in this petition.
In support of his contentions, learned counsel for the petitioners relied upon the following decisions filed along with the list of citations dated 18.04.2017 and 20.04.2017, which are as under:
i. CDJ 2006 Assam HC 370 in the case of K.Suresh and Another vs. Arihant Hire Purchase Co.Ltd.;
ii. CDJ 2008 DHC 2550 in the case of K.Suresh vs. M/s.Lloyds Finance Ltd. and Another;
iii. CDJ 2015 SC 1032 in the case of Dr.Manorama Tiwari and Others v/s. Surendra Nath Rai;
iv. CDJ 2016 SC 324 in the case of Amal Kumar Jha vs. State of Chhatisgarh and Another;
v. Appeal (Crl.) 1968 of 1996 in the case of Goa Plast (P) Ltd. vs. Chico Ursula D'Souza;
vi. Extract of Section 487 of the Karnataka Municipal Corporation Act;
vii. Extract of Section 499 of the Karnataka Municipal Corporation Act;
viii. Crl.A.No.838/2008 in the case of Aneeta Hada vs. Godfather Travels and Tours Pvt.Ltd.;
ix. CDJ 2016 SC 810 in the case of Prabhu Chawla vs. State of Rajasthan and Another.
5. Per contra, learned counsel for the respondents/complainants during the course of his arguments has submitted that the petition filed invoking the jurisdiction under Section 482 of Cr.P.C. is not maintainable and on that ground itself the petition is to be rejected. He has also submitted that, earlier the petitioners have challenged the order of the trial Court taking cognizance by filing the petition before this Court, which came to be rejected. Thereafter, petitioners filed an application under Section 197 and 251 of Cr.P.C. and Section 487 of Karnataka Municipal Corporations Act, 1976, and the complainants opposed the said application; the learned Magistrate passed a considered order dated 18.06.2012 and rejected the said application. He has further submitted that the said order has been challenged before the Sessions Court at Hubballi in Crl.RP.113/2012 and the said Court, after considering the merits of the case, ultimately dismissed the revision petition also. Hence, he has submitted that in view of the concurrent findings by the Courts below on the said application, the present application is filed only to delay the proceedings. He has also submitted that when the revisional Court has already considered the matter and passed the order, this petition filed invoking the jurisdiction under Section 482 of Cr.P.C. is only to circumvent the provision of Section 397(3) of Cr.P.C. He has also submitted that the matter is pending before the trial Court since 2007. He has also submitted that prior sanction under Section 197 Cr.P.C. is not necessary in this case to prosecute the petitioners/accused. Hence, submitted to dismiss the petition with exemplary costs. He has also submitted that in view of the pendency of the matter since 2007, the concerned trial Court may be directed to dispose of the matter within the time to be fixed by this Court.
In support of his contention, learned counsel for the respondents relied upon the following decisions filed along with the list of citations dated 18.04.2017:
i. 2015 Cri.L.J. 4764 (SC) in the case of Jitendra Vora v. Bhavana Y.Shah and another;
ii. 2002 Cri.L.J. 90(SC) in the case of Rajinder Prasad vs. Bashir and others
iii. 2010 Cri.L.J.3783 in the case of Garhwal Mandal Vikas Nigam Ltd. and Ors. v. M/s. Mata Garg and Co. and Anr.
6. I have perused the grounds urged in the petition, earlier order passed by this Court in the writ proceedings and also in the criminal petition, so also, the order passed by the District and Sessions Court in Crl.R.P.113/2012, wherein the order passed by the trial Court on the application filed under Section 197, 251 of Cr.P.C. and 487 of Karnataka Municipal Corporations Act, was challenged and the revisional Court rejected the said revision petition. I have also perused the decisions relied upon by the learned counsel on both sides, which are referred above.
7. It is the contention of the respondents/owners of the land that their land was encroached by the Municipal Corporation, Hubballi, in the process of widening of road. Respondent No.1 herein filed the writ petition before this Court in W.P.No.12112/2004 (LB-RES) and this Court by order dated 19.01.2006 directed the Commissioner of respondent No.1 therein (Corporation) to issue public notice and individual notices to the khatedars of the properties whose lands are acquired, identify the owners, and make over the compensation, and the petitioner in the said writ petition agreed to receive the compensation for the land acquired by respondent No.1 therein. Accordingly, the said writ petition came to be dismissed; there was also direction to the Commissioner to complete the entire process of identification and payment of compensation within a period of two months. Thereafter, the writ petitioner/Corporation filed the review petition No.266/2006 in the said writ petition and the same came to be rejected on 07.07.2006 holding that there is no merit in the said petition. Thereafter, the Chief Accounts Officer, Hubballi-Dharwad Municipal Corporation issued the cheque for an amount of Rs.12,93,450/- and it was presented for encashment, petitioner No.1 herein issued the stop payment instructions and accordingly, the said cheque was dishonoured. Respondents herein issued the legal notice to the petitioners herein about the dishonour of the said cheque and inspite of issuance of the legal notice when the petitioners herein have not made the payment, the respondents herein filed the private complaint under Section 200 of Cr.P.C. before the Magistrate Court for the alleged offence under Section 138 of N.I.Act. Learned Magistrate after considering the materials placed on record, took cognizance by his order dated 02.01.2007 against the petitioners herein and ordered for issue of process to the petitioners. The petitioner No.1 herein earlier has filed the criminal petition No.1328/2007 before this Court and this Court after hearing both sides dismissed the said criminal petition holding that there is no illegality committed by the learned JMFC in issuance of process against the petitioner for the said offence. However, the petitioner was given liberty to take all such defence available to him under law during the trial of the said case. Subsequently, the petitioners herein filed the application under Section 197 and 251 of Cr.P.C. and Section 487 of Karnataka Municipal Corporation Act, 1976 and the respondents opposed the said application by filing their objection statement; after hearing the said application, the learned Magistrate dismissed the said application.
8. Being aggrieved by the same, the petitioners herein preferred Crl.RP.113/2012 and after considering the merits of the case, the District and Sessions Judge Dharwad, sitting at Hubballi, dismissed the said revision petition by order dated 07.07.2015. The said order passed in the Crl.RP.113/2012 is challenged by the petitioners herein by filing this petition invoking the jurisdiction under Section 482 of Cr.P.C.
9. The main contention of the petitioners herein that petitioner Nos.1 and 2 being the public servants working in Hubballi-Dharwad Municipal Corporation, the issuance of cheque is in discharge of their day-to-day functions of the said Corporation, and their acts are protected under Section 197 of Cr.P.C., and hence, before filing the criminal case against the public servants, sanction under Section 197 of Cr.P.C. is must; in the present case no such sanction has been obtained for the prosecution of the petitioners herein, therefore, the respondents cannot proceed further in the matter against them.
In support of the said contention, learned counsel for the petitioners relied upon the decisions, which are referred above and the legal position in the said decision i.e., full bench of the Hon'ble Apex Court dated 27.04.2012 rendered in the case of Aneeta Hada vs. Godfather Travels and Tours Pvt.Ltd and the many other decisions, which are referred in the list of citations.
10. The public servants are protected of their acts in discharge of their official functions and for prosecuting such public servants, obtaining prior sanction under Section 197 of Cr.P.C. is necessary. But in the case on hand, the factual matrix, which I have already observed above, shows that taking cognizance of the offence and ordering for issue of process was earlier challenged before this Court by filing the criminal petition under Section 482 of Cr.P.C. and this Court after considering the merits, dismissed the said petition. No doubt, liberty was given to the petitioners to raise all such contentions during the course of trial. Thereafter, the application came to be filed under Section 197 and 251 of Cr.P.C. and Section 487 of Karnataka Municipal Corporations Act, and the said application was also dismissed, against which the criminal revision petition was preferred before the District and Sessions Court at Dharwad; the revision petition also came to be dismissed. When the cognizance was taken by the learned Magistrate and ordered for issue of process and when the criminal petition was preferred before this Court, the petitioners have not raised the point that obtaining prior sanction is necessary and without which the criminal case cannot be proceeded with. But it is only after dismissal of the criminal petition filed before this Court under Section 482 of Cr.P.C., the petitioners raised such contention by filing the application that obtaining prior sanction is necessary, without which the criminal proceedings cannot be proceeded with; the said application came to be dismissed by the learned Magistrate, so also, the criminal revision petition by the learned District and Sessions Judge, Dharwad.
11. In view of these factual aspects that has happened in the case, now, at this stage, whether the petitioners are permitted to question taking cognizance by the trial Court. In this regard, I have perused the decision relied upon by the learned counsel appearing for the respondents/complainants reported in 2002 Cri.L.J. 90(SC) in the case of Rajinder Prasad vs. Bashir and others and paragraph No.7 is relevant, which reads as under:
7. We are of the opinion that when the earlier revision petition filed under Section 397 of the Code had been dismissed as not pressed, the accused-respondents could not be allowed to invoke the inherent powers of the High Court under Section 482 of the Code for the grant of the same relief. We do not agree with the arguments of the learned counsel for the respondents that as the earlier application had been dismissed as not pressed, the accused had acquired a right to challenge the order adding the offence under Section 395 of the Code and arraying four persons as accused-persons by way of subsequent petition under Section 482 of the Code. The object of criminal trial is to render public justice and to assure punishment to the criminals keeping in view that the trial is concluded expeditiously. Delaying tactics or protracting the commencement or conclusion of the criminal trial are required to be curbed effectively, lest the interest of public justice may suffer.
For exercising power under Section 482 of the Code the learned Judge of the High Court relied upon a judgment of this Court in Krishnan v. Krishnaveni (1997) 4 SC 241. A perusal of the aforesaid judgment, however, shows that the reliance by the learned Judge was misplaced. This Court in Krishnan's case (supra) had held that though the power of the High Court under Section 482 of the Code is very wide, yet the same must be exercised sparingly and cautiously particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Section 482 of the Code. It was further held, "Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of provisions of Section 397(3) or Section 397(2) of the Code."
12. In view of the said legal position and as the earlier criminal petition filed under Section 482 of Cr.P.C. came to be dismissed and subsequently, the application filed under Section 197 Cr.P.C. also came to dismissed, which order was confirmed by the District and Sessions Judge, Dharwad, by dismissing the criminal revision petition, I am of the opinion that at this stage, the petitioners cannot challenge the order taking cognizance and as ordered by this Court in the earlier criminal petition, they can raise said contention during the course of trial and while recording the evidence in the said case.
13. With the above observations, this criminal petition is hereby dismissed.