N.V. Babu Reddy vs State By Mahalakshmipuram P.S. & Anr.

This petition is filed praying this Court to quash the FIR in Crime No.30/2020, for the offences punishable under Sections 323, 324, 307, 120B read with Section 511 of IPC and the case is registered based on the private complaint in PCR No.1461/2020.

Heard the learned counsel appearing for the respective parties.

The counsel appearing for the petitioner brought to notice of this Court that an allegation is made in paragraph No.4 of PCR that initially the accused used to release the payments but after the work was completed, the accused abruptly stopped the payment and subsequently refused to pay. With this regard, complainant had filed a complaint against accused in HAL police station on 04.01.2019. The counsel would submit that the earlier complaint is quashed by this Court in Criminal Petition No.3511/2019 vide order dated 22.02.2023. The counsel relying upon the said order also vehemently contend that in paragraph No.5 of the PCR, it is stated that investigation is still incomplete and the accused still threatens of dare consequences of life. The complainant submits that the complainant had approached the accused as no action is being taken by the police to recover money. Hence, the allegation is made that the accused used to cause threat and abuse in vulgar language. The complainant kept constant pressure and on 17.12.2019, the complainant called the accused and the accused told the complainant to come at 03.00 p.m. near Geleyara Balaga, Mahalakshmi Layout, Bangalore. The complainant promptly reached the spot along with one Mr. Prabhakar and called the accused and he asked the complainant to wait at the spot and within a matter of minutes, the complainant and Prabhakar were surrounded by a group of people and they abused in filthy language and verbal altercation started and the matter escalated and they started for physically manhandle and when he noticed that Prabhakar saw one of the fellows pulling out weapons from the auto rickshaw, he ran to the car and started it and the complainant followed Prabhakar and escaped from the spot.

In paragraph No.6 of the complaint, it is stated that the complainant along with Prabhakar rushed to the Mahalakshmi Layout Police Station where the police have refused to accept the complaint as the complainant and Prabhakar did not sustain injuries and that they escaped.

The other allegation made in paragraph No.7 of the complaint is that accused again threatened the complainant with dire consequences to kill the complainant and his family. It is also submitted that on 27.01.2020, the complainant again approached Mahalakshmi Layout Police and requested to register the complaint as the complainant was under life threat from the accused. Accordingly, the said police have received the complaint the registered the same as NCR No.30/2020 and produced the copy of the NCR. Inspite of several complaints are received, the police have not taken any action. Hence, the present complaint is filed.

The Trial Court having considered the averments made in the complaint, referred the matter under Section 156(3) of Cr.P.C. Hence, case is registered and the present petition is filed.

The counsel appearing for the petitioner would submit that when the complaint was filed before the Trial Court, the same is not supported by any affidavit and the same is against the principles laid down in the judgment of Priyanka Srivastava and others vs State of UP reported in (2015) 6 SCC 287. To that effect, counsel also produces the order sheet and so also relied upon the earlier order of this Court in quashing the earlier complaint and also the earlier FIR. The counsel would vehemently contend that complainant has developed the habit of filing the complaint that too for money recovery when the work was done. The allegation in this complaint also money was not paid. Hence, it is nothing but an abuse of process.

Per contra, the learned Additional SPP appearing for respondent No.1/State would submit that when the matter was referred under Section 156(3) of Cr.P.C, FIR was registered and conducted the investigation and filed the charge-sheet. The learned counsel brought to the notice of this Court that the charge-sheet was filed on 15.05.2020 itself and hence, there cannot be any quashing. The copy of the charge-sheet is also produced before this Court.

Having considered the grounds urged in the petition as well as considering the submission of the learned counsel for the petitioner, the private complaint filed before the Magistrate is not supported by an affidavit in view of the judgment of the Apex Court in the case of Priyanka Srivastava (supra). The learned counsel for the petitioner would vehemently contend that there is no any compliance under Sections 154(1) and 154(3) of Cr.P.C. and hence, there cannot be any prosecution against the petitioner. Having perused the complaint, no doubt, in paragraph Nos.4 and 5 specific averments are made that when the complaint was given to the Mahalakshmi Layout Police, the police have refused to accept the complaint as the complainant and Mr.Prabhakar did not sustain injuries and they actually escaped. Further allegation is made in paragraph No.7 that they were subjected to life threat and once again, the complainant approached the Mahalakshmi Layout Police on 27.01.2020 and requested to register the complaint and the police have received the complaint and registered NCR No.30/2020. The copy of the complaint and NCR is also produced as Annexures-A and B. It is stated that the police have given acknowledgment dated 31.01.2020, stating that the dispute is in civil in nature and directed to approach the Court to file the complaint. The copy of the said acknowledgment is produced as Annexure-C. Without any other alternative, the complainant filed the complaint.

It is important to note that when the complaint was filed, the matter was referred under Section 156(3) of Cr.P.C. It is the specific case of the complainant that private complaint is not supported by an affidavit. Though the complainant is represented through the counsel, the counsel did not appear before this Court in spite of an opportunity is given. When there is no any affidavit in support of the complaint, in view of the judgment of the Apex Court in the case of Priyanka Srivastava (supra), the complaint cannot be entertained. The subsequent judgments of the Apex Court also reiterated the principles of the said judgment. No doubt, the police have received the complaint and issued the endorsement as well as issued the NCR and hence, the question of compliance of Sections 154(1) and 154(3) of Cr.P.C. does not arise as they have not refused, but entertained the complaint and given NCR and no need to approach the Superintendent of Police. There is a fundamental defect in filing the complaint that affidavit is not filed. The law in this regard is well settled. The Hon’ble Supreme Court, even in subsequent judgments following Priyanka Srivastava (supra) has reiterated that the complaint must be supported by an affidavit. No doubt, the learned Additional SPP appearing for respondent No.1/State filed copy of the charge-sheet and the charge-sheet was filed prior to granting of stay by this Court. But when there is a fundamental defect that the complaint itself is not supported by an affidavit, no value could be attached to the complaint and charge-sheet. Hence, the very initiation of proceedings against the petitioner requires to be quashed and consequently, Crime No.30/2020 requires to be quashed and also the filing of charge-sheet also is liable to be quashed.

In view of the discussions made above, I pass the following:

The petition is allowed. The proceedings initiated against the petitioner in Crime No.30/2020 and charge-sheet is quashed.