Jamshed Anjum vs State and Others

A.N. Venugopal Gowda, J.—Respondent No. 2, Mr. Rafiq Mansoor, lodged a complaint before the City Police Station, Tumkur Town, on 07.05.2011, against the petitioner. The material allegation made in the said complaint is, that the petitioner committed theft of Rs. 98,000/-, in his shop, at 7.15 pm., on 6.5.2011 and also caused dire threats to him and his workers. A case in Crime No. 60/2011 was registered by the respondent No. 1 and FIR was submitted to the jurisdictional Magistrate.

Respondent No. 2 and his wife, had instituted O.S. No. 62/2010 against the petitioner, to pass a decree of declaration, that they, the plaintiffs, are the sole and absolute owners and proprietors in lawful possession and control, to the exclusion of the defendants and all others, of the coffee business running in the name and style of "Neelgiri Coffee Propaganda", at Mandipete, Tumkuru, and to pass a consequent decree of permanent injunction, restraining the defendants from entering into the said business premises. Temporary injunction was granted on 10.03.2011. The petitioner and his brother i.e., defendants filed M.A. No. 14/2011 in the 1st Additional District Court, Tumkur. The appeal was allowed on 18.04.2011 and the said order of temporary injunction was set aside. By referring to the said civil litigation, this petition was filed, to quash the FIR in Crime No. 60/2011.

On 07.07.2011, regard being had to the grounds urged in the petition and the finding of the Civil Court with regard to the status of the petitioner and his brother in the partnership business and also the allegations made in the complaint, based on which, a case was registered and investigation was taken up, this petition was admitted and the investigation of the case by the first respondent was stayed.

Sri M.N. Sathyaraj, learned advocate, contended that the petitioner''s father was a partner in the business of ''Neelgiri Coffee Propaganda'' as per the Deed of Partnership dated 25.05.1992 and he having left a ''Will-Ya-Vashiyath'' dated 19.09.2008 and the litigation in O.S. No. 62/2010 relating to the business of ''Neelgiri Coffee Propaganda'' and also the close relationship between the parties i.e., the petitioner and the second respondent herein, investigation undertaken by the first respondent with reference to the complaint dated 7.5.2011 is illegal. He submitted that the respondent No. 2 has given criminal colour to a civil dispute, on account of vacating of temporary injunction in M.A. No. 14/2011 on 18.04.2011. He further contended that the dispute between the petitioner and the respondent No. 2 being of civil in nature, pertaining to carrying on business of ''Neelgiri Coffee Propaganda'', investigation by the respondent No. 1 being unnecessary, this petition may be allowed and the impugned FIR be quashed.

Sri Vasanth V. Fernandes, learned advocate for the respondent No. 2/Informant, on the other hand, submitted that the judgment dated 18.04.2011 passed in M.A. No. 14/2011 was set aside, on 24.10.2011, in Writ Petition No. 25908/2011 and thereafter, O.S. No. 62/2010 was decreed by the Civil Judge (Sr.Dn.), Tumkur, which decree, when assailed in R.A. No. 70/2012 by the petitioner and the other defendant, was set aside, against which, R.S.A. No. 179/2014 was filed and the same was allowed on 10.06.2014. He submitted that the suit having stood decreed, the petitioner cannot claim that he had a right in the business of ''Neelgiri Coffee Propaganda'' and his action at 7.15 pm., on 06.05.2011 of entering into the business premises and committing theft of Rs. 98,000/- do not constitute criminal acts and that the first respondent is unjustified in registering Crime No. 60/2011 for an offence punishable under Section 380 IPC for undertaking investigation. Learned Counsel submitted that in the said factual background, this petition being untenable, may be dismissed.

Sri Vijay Kumar Majage, learned HCGP, submitted that after conducting investigation in accordance with law, final report would be submitted to the Court.

Inherent jurisdiction under Section 482 Cr.P.C., can be exercised in terms of the settled principles of law. In R. Kalyani Vs. Janak C. Mehta and Others, , the following propositions of law have been laid down by the Apex Court:--

"(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."

In view of the factual background, the point for consideration is:

"Whether the allegations in the complaint dated 07.05.2011 disclosed no cognizable offence?" 9. The complaint, when perused shows that at 7.15 p.m., on 06.05.2011, the petitioner committed theft of Rs. 98,000/- and caused dire threats to the Informant and his workers, at the business premises of ''Neelgiri Coffee Propaganda''. O.S. No. 62/2010 filed by the respondent No. 2/Informant was decreed and has been affirmed in R.S.A. No. 179/2014.

The contention of the petitioner that he has 50% share in the said business concern and the said complaint was lodged by the second respondent to defeat his right in the business and prevent him and his brother from attending to the regular course of business, in view of the decree passed in O.S. No. 62/2010 and upheld in R.S.A. No. 179/2014, is unacceptable.

This petition having been filed in the background of the temporary injunction order passed in O.S. No. 62/2010 on 10.03.2011, having been vacated as per the judgment dated 18.04.2011 passed in M.A. No. 14/2011 by the 1st Addl District Judge, Tumkur, the said order having been set aside on 24.10.2011 in Writ Petition No. 24908/2011 and the suit also having been decreed, which was upheld in R.S.A. No. 179/2014, no case exists for the exercise of powers under Section 482 of Cr.P.C.

Since the complaint vide Annexure-E prima facie shows the ingredients of Theft'' defined in S. 378, investigation of the case by the first respondent cannot be quashed.

Consequently, this petition is dismissed.

It is however made clear that the observations in this order is only for deciding the issue raised at the present stage and shall not affect the defence of the petitioner, at a subsequent stage of the proceedings and that the first respondent shall conduct investigation and submit the final report to the jurisdictional Magistrate.