MR. HEMANTH KUMAR. B. S. vs STATE OF KARNATAKA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 28 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
WRIT PETITION NO.17892 OF 2023 (GM-RES)
BETWEEN:
MR. HEMANTH KUMAR. B. S.
M/S JAJI DEVELOPER,
SAHAKARNAGAR BENGALURU CITY
COMPLETE ADDRESS IS AS BELOW
S/O N. SRINIVASA MURTHY
AGED 56 YEARS R/AT H-003/004
KRISHNA DIAMOND APARTMENTS
CITY CENTRAL LIBRARY ROAD,
SAHAKARANAGAR
BENGALURU - 560 092.
…PETITIONER
(BY SRI. K.R. KRISHNAMURTHY., ADVOCATE FOR
SRI. PRAKASH B N.,ADVOCATES)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY SHO
VIDHANA SOUDHA POLICE STATION
(CUBBON PARK SUB-DIVSION)
BANGALORE - 560 001.
2. MR. KUMARASWAMY S.P
INSPECTOR,
VIDANASOUDHA POLICE STATION,
B.R.AMBEDKAR VEEDHI,
BENGALURU-560 001.
Digitally signed
by SUMA B N
Location: HIGH
COURT OF
KARNATAKA
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3. MR. SRINIVAS GOWDA
DEPUTY COMMISSIONER OF POLICE (CENTRAL)
OFFICE AT, NO 8, CENTRAL DIVISION
KASTURBA ROAD,
NEAR YES BANK
SHANTHALA NAGAR,
ASHOK NAGAR, BANGALORE 560 001.
4. M/S COFFEE BOARD EMPLOYEES CO-OPERATIVE
HOUSING SOCIETY
A SOCIETY REGISTERED UNDER THE KARNATAKA
CO-OPERATIVE SOCIETIES ACT 1959,
OFFICE AT NO.1,
DR. B.R. AMBEDKAR VEEDHI
BANGALORE - 560 001.
5. MR. V.R. GUDDEGOWDA
S/O RANGE GOWDA
AGED ABOUT 63 YEARS
VICE PRESIDENT AT COFFEE BOARD EMPLOYEES
CO-OPERATIVE HOUSING SOCIETY,
OFFICE AT NO.1,
DR. B.R. AMBEDKAR VEEDHI
BANGALORE - 560 001.
…RESPONDENTS
(BY SMT. K.P. YASHODHA, AGA FOR R1;
R2 AND R3- SERVED
SRI. PRATHAP K.C. ADVOCATE FOR R4 AND R5)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA R/W SEC. 482 OF CR.PC PRAYING TO A)
DIRECTION IN THE NATURE OF CERTIORARI QUASHING THE FIR
NO.25/2023 DATED 03/04/2023 VIDE ANNEXURE-B, PENDING ON
THE FILE OF IIIRD ADDL CHIEF METROPOLITAN MAGISTRATE, AT
BENGALURU, FOR THE OFFENCE PUNISHABLE U/S 34, 120(B) OF IPC
R/W SEC 408 AND 420 OF IPC AND ALL FURTHER INVESTIGATION
PURSUANT TO IT AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL ORDER
1. Heard Sri. K.R. Krishnamurthy, learned counsel
appearing on behalf of Sri. Prakash B.N., learned counsel for
the petitioner, Smt. K.P Yashodha, learned AGA for the
respondent No.1 and Sri. Pratheep K.C, learned counsel
appearing for respondent Nos.4 and 5.
2. The present petition is filed under Articles 226 and 227
of the Constitution of India read with Section 482 of Cr.P.C with
the following prayer:
" a. Issue a writ, order or direction in the nature of certiorari
quashing the FIR No.25/2023 dated 03.04.2023 vide Annexure
B, pending on the file of IIIrd Additional Chief Metropolitan
Magistrate, at Bengaluru, for the offence punishable under
section 34, 120(B) of IPC read with Section 408 & 420 of IPC,
and all further investigation pursuant to it, insofar as the
Petitioner is concerned and;
a 1 ) Declare that the arrest and detention of the petitioner done
on the same day of service of notice under section 41A of CrPC
is illegal and unlawful.
b) Issue any other writ or order or direction to the Respondent
No.1 & 2 to compensate the Petitioner for arresting the
Petitioner illegally and without authority of law violating Article
21 of Constitution of India, and;
c) Issue such other writ or order or direction this Hon'ble Court
deems fit and proper, in the facts and circumstances of the
case;
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3. The facts in the nut shell which are utmost necessary
for disposal of the present petition are as under:
3.1 Petitioner herein is accused No.2 in respect of a
complaint lodged by respondent No.4 with the Vidhana Soudha
police station. Complaint came to be registered in Crime
No.25/2023.
4. Gist of the complaint averments is that there was a
Joint Development Agreement between complainant and
present petitioner being the proprietor of M/s. Jaji Developers.
5. According to the complainant, land belonging to the
Society was sold against the terms of agreement and proceeds
thereof was not remitted to the Society. Defrauded amount as
per the complaint averments is to the tune of Rs.15,00,000/-.
Therefore, action was sought against the petitioner and yet
another person by name Jayarama for the offence punishable
under Sections 408, 420 R/w Section 34 IPC. Very registration
of the case is called in question in this petition with the
aforesaid reliefs.
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6. Sri. K.R. Krishnamurthy, learned counsel appearing for
the petitioner reiterating the grounds urged in the petition
would contend that a pure civil litigation has been given the
colour of criminality by clever drafting of the complaint. There
is suppression of material facts in lodging the complaint itself
and without there being any iota of criminality in the incident, a
false complaint came to be lodged and therefore the same
needs to be quashed.
7. He would further contend that in respect of the dispute
that has arisen, arbitration proceedings is already commenced.
Therefore, continuation of the criminal proceedings parallelly is
totally uncalled for, besides resulting in abuse of process of law.
8. He further submits that in the guise of enquiry, the
Investigation Agency called the petitioner to the police station
and thereafter illegally arrested him without following the
requisite procedure. When the petitioner and another accused
did not return home, relatives of the accused persons enquired
the police and they were informed that the petitioner and
another accused have been arrested in the police station and
the arrest memo got issued and signature of the relatives were
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taken on the arrest memo, which is in utter violation of
established principles of law and thus sought for allowing of the
writ petition.
9. Per contra, Smt. K.P Yashodha, learned AGA for the
respondent No.1, would submit that prima facie materials found
in the complaint would be sufficient enough to proceed with the
investigation and therefore, writ petition needs to be dismissed.
10. Sri. Pratheep K.C, learned counsel appearing for
respondent Nos.4 and 5- defacto complainants would contend
that without there being any authorization, property of the
Society has been sold by the petitioner along with other
accused Jayarama, who claimed himself as the Secretary/CEO
of the Coffee Board Employees' Co-operative Housing Society
Ltd., and the proceeds thereof is swindled away by the
aforesaid Jayarama in active collusion with the present
petitioner, who shared the common intention of cheating and
misappropriating the amounts of the Society. Thus,
investigation needs to be conducted to unearth the truth in the
incident. As such, sought for dismissal of the petition.
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11. Having heard the arguments of both sides, this Court
perused the materials on record meticulously.
12. On such perusal of the materials on record, this Court
noted that there was a Joint Development Agreement entered
into by the Society with M/s. Jaji Developers, of which the
present petitioner is the sole proprietor.
13. How and when a FIR needs to be quashed is no
longer res-integra . In this regard, this Court places reliance on
the judgment of the Hon'ble Apex Court in the case of
Prashant Bharti Vs. State (NCT of Delhi) reported in
(2013) 9 SCC 293 . Relevant paragraph is at paragraph No.22,
which reads as under:
" 22. The proposition of law, pertaining to quashing of
criminal proceedings, initiated against an accused by a
High Court under Section 482 of the Code of Criminal
Procedure (hereinafter referred to as “CrPC”) has been
dealt with by this Court in Rajiv Thapar v. Madan Lal
Kapoor [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC
330 : (2013) 3 SCC (Cri) 158] wherein this Court inter
alia held as under: (SCC pp. 347-49, paras 29-30)
“29. The issue being examined in the instant case is
the jurisdiction of the High Court under Section 482
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CrPC, if it chooses to quash the initiation of the
prosecution against an accused at the stage of
issuing process, or at the stage of committal, or
even at the stage of framing of charges. These are
all stages before the commencement of the actual
trial. The same parameters would naturally be
available for later stages as well. The power vested
in the High Court under Section 482 CrPC, at the
stages referred to hereinabove, would have far-
reaching consequences, inasmuch as it would negate
the prosecution's/complainant's case without
allowing the prosecution/complainant to lead
evidence. Such a determination must always be
rendered with caution, care and circumspection. To
invoke its inherent jurisdiction under Section 482
CrPC the High Court has to be fully satisfied that the
material produced by the accused is such that would
lead to the conclusion that his/their defence is based
on sound, reasonable, and indubitable facts; the
material produced is such as would rule out and
displace the assertions contained in the charges
levelled against the accused; and the material
produced is such as would clearly reject and overrule
the veracity of the allegations contained in the
accusations levelled by the prosecution/complainant.
It should be sufficient to rule out, reject and discard
the accusations levelled by the
prosecution/complainant, without the necessity of
recording any evidence. For this the material relied
upon by the defence should not have been refuted,
or alternatively, cannot be justifiably refuted, being
material of sterling and impeccable quality. The
material relied upon by the accused should be such
as would persuade a reasonable person to dismiss
and condemn the actual basis of the accusations as
false. In such a situation, the judicial conscience of
the High Court would persuade it to exercise its
power under Section 482 CrPC to quash such
criminal proceedings, for that would prevent abuse
of process of the court, and secure the ends of
justice.
30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps
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to determine the veracity of a prayer for quashing
raised by an accused by invoking the power vested
in the High Court under Section 482 CrPC:
30.1. Step one: whether the material relied upon by
the accused is sound, reasonable, and indubitable
i.e. the material is of sterling and impeccable
quality?
30.2. Step two: whether the material relied upon by
the accused would rule out the assertions contained
in the charges levelled against the accused i.e. the
material is sufficient to reject and overrule the
factual assertions contained in the complaint i.e. the
material is such as would persuade a reasonable
person to dismiss and condemn the factual basis of
the accusations as false?
30.3. Step three: whether the material relied upon
by the accused has not been refuted by the
prosecution/complainant; and/or the material is
such that it cannot be justifiably refuted by the
prosecution/complainant?
30.4. Step four: whether proceeding with the trial
would result in an abuse of process of the court, and
would not serve the ends of justice?
30.5. If the answer to all the steps is in the
affirmative, judicial conscience of the High Court
should persuade it to quash such criminal
proceedings in exercise of power vested in it under
Section 482 CrPC. Such exercise of power, besides
doing justice to the accused, would save precious
court time, which would otherwise be wasted in
holding such a trial (as well as proceedings arising
therefrom) specially when it is clear that the same
would not conclude in the conviction of the accused.”
14. When we apply the principles of law enunciated in the
aforesaid decision of the Hon'ble Apex Court to the facts of the
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present case, it is crystal clear that the documents placed on
record by the petitioner herein is not of that impeccable quality
or sterling in nature so as to hold that prima-facie the
complaint is a false or a vexatious complaint.
15. Material on record would depict that there was indeed
a sale of the property belonging to the society to third party by
the petitioner and another accused.
16. At this juncture, learned counsel for the petitioner
would contend that portion of the amount is paid to the Society
which has been suppressed in the complaint averments.
17. What is the amount that has been paid to the society
and what is the balance amount that was required to be paid by
the Jayarama as well as the present petitioner is not
forthcoming in the grounds that has been pleaded before the
Court in the instant petition.
18. Furthermore, it is not the quantity of the money that
is relevant, while considering the prayer of the petitioner, it is
the dishonest intention in not paying the entire sale proceeds to
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the society after the sale of the property of the society has
been affected which needs to be taken note of by this court.
19. Further, it is settled principles of law and requires no
emphasis that a complaint or a FIR need not be termed as an
encyclopedia to include all relevant aspects of the matter. The
purpose of lodging a complaint which results in a FIR is only to
set the criminal law into motion and it is the investigation which
ultimately results in filing an appropriate report as is
contemplated under Section 173 Cr.P.C.
20. Petitioner has got every opportunity to explain to the
Investigation Agency that he had no role whatsoever in the
alleged fraud, misappropriation of the funds of the Society by
placing such material on record.
21. At any rate, materials placed on record by the
petitioner herein as well as the material that has already been
obtained by the Investigation Agency in the form of complaint
and other relevant documents, would not be sufficient enough
to hold that petitioner is totally innocent in the alleged incident
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and prima-facie materials would indicate that petitioner had
acted in excess of what the power that has been granted.
22. It is needless to emphasize that the other accused
namely Jayarama acting as the Secretary/CEO of the Coffee
Board Employees' Co-operative Housing Society Ltd., Bangalore
City together sold the property belonging to the Society without
proper authority prima-facie.
23. This Court in order to find out as to whether there
was a proper authority that has been granted to the petitioner
as well as Jayarama to sell the property supported by a
resolution, enquired the counsel appearing for the petitioner
about such a resolution being passed in the general body of the
society.
24. Sri. Krishnamurthy K.R., learned counsel appearing
for the petitioner is unable to point out that any such resolution
is available with the petitioner but has submitted that such a
resolution is available with the Society.
25. In this regard, Sri. K.C. Pratheep, learned counsel
appearing for the respondent Nos.4 and 5 categorically denied
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that no such resolution has been passed by the General Body of
the society authorizing the Jayarama as well as the present
petitioner to sell the property of the Society to third party.
26. These aspects of the matter which are disputed
seriously cannot be the basis for exercising the inherent power
vested in this Court under Section 482 Cr.P.C in quashing the
FIR.
27. In the considered opinion of this Court, Step 1 and
Step 2 mentioned in the Judgment of the Hon'ble Apex Court in
the case of Prashant Bharti Vs. State by NCT of Delhi
(Supra) itself is not applicable to the facts of the case on hand
and therefore this Court need not further discuss about the
Step 3 and Step 4 in quashing the FIR.
28. Suffice to say that having regard to the nature of
allegations leveled against the petitioner, investigation is must
in the case on hand which would only facilitate the
Investigation Agency to unearth the truth and if no act of
commission or omission is attributable to the petitioner,
necessarily suitable report would be filed by the Investigation
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Agency by resorting to the powers conferred under Section 173
of Cr.P.C. It is always open for the petitioner to challenge the
adverse report, if any with a successive petition.
29. Furthermore, insofar as the improper or illegal arrest
of the petitioner is concerned, the remedy for the petitioner lies
elsewhere in seeking for compensation in an appropriate writ
petition.
30. Reserving liberty for the petitioner to urge those
grounds in a duly constituted petition, following:
ORDER
(i) Petition is dismissed .
Sd/-
(V SRISHANANDA)
JUDGE
RL
List No.: 1 Sl No.: 39