Vishwanath Kolli and M.C. Malkajappa C. Totad (M.C. Totad) vs State of Karnataka and Abdul Gaffar

Anand Byrareddy, J.—Heard the learned counsel for the petitioners and the learned counsel for the respondents. It is the case of the petitioners that Respondent No. 2 herein had filed a private complaint in P.C. No. 32/2010 before the Court of III Judicial Magistrate First Class, Gulbarga for the offences punishable under Sections 341, 366, 324, 504, 506, 406, 409 and 420 read with Section 34 of Indian Penal Code, 1860 against the petitioners and one other Hanmantharaya wherein it is alleged that the complainant approached Hanumantharaya for purchasing a vehicle bearing Registration No. KA 28-687 registered at Bijapur standing in the name of accused No. 1 and that the first petitioner herein and accused no. 2 namely Hanumantharaya had agreed to sell the vehicle to the complainant for a sum of Rs. 2,82,000/- and it was alleged that it was agreed to be sold as on 07.04.1991 and that the complainant had paid a sum of Rs. 1,00,000/- and the balance amount of Rs. 1,82,000/- was to be paid to the Karnataka State Finance Corporation, as the vehicle had been purchased by hypothecation of the documents pertaining to the vehicle and the complainant was to pay the remaining amount. It was further alleged that the vehicle had been seized by the Finance Corporation on default in repayment of the installments due to it. It is further alleged that the present petitioner No. 1 along with Hanumantharaya and the present petitioner No. 2 had come to Gulbarga and had taken the complainant and restrained him in a police station without mentioning the date on which the said incident had occurred and claim that accused had committed the various offences punishable under several sections cited above. It was also alleged that the accused had taken the complainant and the lorry with them. It was after a lapse of four days that the complainant''s father had filed writ petition in W.P. No. 329/1992 and it is only upon petition having been filed that the complainant was released. The complainant had thereafter called upon the first petitioner herein and Hanumantharaya to return the lorry and the complainant had also learnt that they have forged the document pertaining to the vehicle and sold the lorry to a third party at Bangalore and therefore the complainant had demanded that the amount paid by him in advance be returned, on which the complainant was abused and assaulted. It is thereafter that a private complaint has been lodged by the complainant. The Court below has directed investigation u/s 156 (3) of Code of Criminal Procedure, 1973, and case is registered in Crime No. 32/2010 and therefore the present petition is filed seeking to quash the proceedings.

The learned counsel for the petitioners would submit that all the allegations in the complaint would at best indicate a civil dispute between the parties and the bald allegations of assault and illegal confinement etc. are self serving allegations without any basis and the claim of having paid moneys which is illegally retained by the accused is at best a claim to be prosecuted by recourse to civil proceedings and cannot give rise to any criminal offence and hence seeks that the proceedings be quashed.

The reliance is placed on a decision of the Apex Court in the case of Suneet Gupta Vs. Anil Triloknath Sharma and Others, to contend that even at the preliminary stage, it is possible for this Court to intervene to quash the proceedings as has been done in the reported judgment which has been affirmed by the Apex Court and therefore, seeks that the proceedings be quashed otherwise the petitioners would have to stand trial in a criminal case which cannot be sustained at all given the allegations and the absence of any material in support of the allegations.

While the learned Additional State Public Prosecutor would contend that notwithstanding the claim of the petitioners, the petitioners are armed with an alternative remedy before the Court below. The present case is at a stage where the charge sheet has been filed and therefore the appropriate stage at which the petitioners could seek discharge on the very grounds urged in the petition is when they would be heard before framing of charge. Hence, it is appropriate that the matter is allowed to run its course, even if the petitioners have a good case on merits without exhausting their remedy available before the Court below, it could not be necessary for this Court to take upon itself the burden of examining the record and deciding in favour of the petitioners which the Court below could do with more convenience.

Given the above facts and circumstances, as rightly contended by the learned Additional State Public Prosecutor, the petitioners have not exhausted the remedy that is available to them before the Court below. Attractive though as the arguments sounds that from prima facie examination of the complaint and the allegations therein, no criminal case could be made out against the petitioners, is a contention that could very well be raised before the Trial Court itself and it would be possible for the Court below to exercise its discretion to discharge the petitioners, if they are indeed in a position to sustain their claim that there is no semblance of a case made out against them. Therefore, without prejudice to the case of the petitioners, the present petition is disposed of leaving it open for the petitioners to urge their case on merits before the Trial Court at the appropriate time. The further contention that the Apex Court in the above cited decision has affirmed the judgment of the High Court whereby the High Court had intervened in a case at preliminary stage as in the present case on hands is concerned, the discretion available to the High Court has been exercised which does not lay down a precedent that it should be so in all cases brought before the High Court. In the opinion of this Court the petitioners are yet to exhaust an alternative remedy available to them and therefore the present order.