MANU/KA/2127/2017

IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)

Writ Petition No. 102083/2017 (GM-RES)
Decided On: 04.09.2017
Appellants: Narayan
Vs.
Respondent: Sadanand and Ors.
Hon'ble Judges/Coram:
Budihal R.B., J.
Counsels:
For Appellant/Petitioner/Plaintiff: Jayakumar S. Patil, Senior Counsel for Naveen Chatrad,
Advocate
For Respondents/Defendant: D.M. Manjunath, Advocate
Case Note:
Criminal - Cognizance - Validity of - Sections 408,409,419,420,465 and 471 of
Indian Penal Code, 1860 - Present petition filed against order whereby Court
below took cognizance against Petitioner for offences punishable under
Sections 408, 409, 419, 420, 465 and 471 of Code - Whether impugned order
of cognizance was suffer from any material infirmity - Held, Court below held
that complainant had made out prima facie case as against Petitioner and
other accused persons - Perusal of impugned order show that it was with
sound and valid reasons - Merely on ground that sworn statement of
complainant and his witnesses were not recorded, impugned order could not
be rejected - Therefore, impugned order did not warrant any interference -
Petition dismissed. [9]
ORDER
Budihal R.B., J.
1 . This Writ Petition is filed by the writ petitioner/accused No. 1 under Articles 226 &
227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure
praying the Court to issue a writ or order or direction in the nature of certiorari to quash
the order dated 06.01.2017 passed by the learned I Additional Civil Judge and JMFC,
Court Hubballi in C.C. No. 109/2017 (P.C. No. 1318/2014) for the offences punishable
under Sections 408, 409, 419, 420, 465 and 471 of the Indian Penal Code.
2. The writ petitioner herein has challenged the order dated 6th January 2017 passed by
the JMFC Court at Hubballi taking cognizance for the aforesaid offences, ordering to
register the criminal case against the writ petitioner/accused No. 1 and others and
issuance of summons. The writ petitioner/accused No. 1 has challenged the said order
on the grounds as mentioned in ground Nos. 12 to 33 of the writ petition.
3 . Brief facts of the case before the learned JMFC Court are that respondent No.
1/complainant herein lodged a private complaint under Section 200 of the Code of
Criminal Procedure against the petitioner/accused No. 1 and three other persons for the
offences punishable under Sections 191, 192, 193, 403, 404, 406, 408, 409, 415, 416,

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418, 419, 420, 463, 465, 470 and 471 of Indian Penal Code. In the private complaint, it
is alleged that the petitioner/accused No. 1 herein is the elder brother of the
complainant, accused No. 3 is the Accountant of M/s. Sai Farm Equipments. Accused
No. 1, the petitioner herein, being the elder brother of the complainant was in a
dominant position in the family and taking advantage of his position, took signatures of
the complainant and other partners and borrowed loan by forging the signature of the
complainant and other partners from Maratha Cooperative Bank Limited, Hubli, to the
tune of 4 crore rupees. Accused No. 1 being the partner and accused No. 3 being the
Accountant of the said firm, forged the signatures of his father Sri Laxmansa Niranjan
and availed loan and have opened fictitious accounts. Accused No. 2 is a close friend
and classmate of accused No. 1. He was the General Manager of the Maratha
Cooperative Bank Limited, Martha Galli, Hubli. He used to be very obedient to accused
Nos. 1 and 2 and all secret and material financial transaction and dealings. An
arbitration notice came to be issued at the instance and instigation of accused No. 1 on
behalf of Maratha Co-operative Bank Limited, Hubli, with regard to alleged loan
transaction. The complainant received the said notice from the Arbitrator on
07.06.2005. But the complainant and other persons were not at all knowing the loan
transactions involved in the said arbitration proceedings. Accused Nos. 1 and 2 have
succeeded in getting a fraudulent award on 28.06.2005. Thereafter, the complainant
and other partners started to scrutinize the matters and others in respect of the said
partnership firms. Very recently, the complainant and other partners have reliably come
to know that accused No. 1 has opened some dummy account pertaining to M/s. Shri
Sai Equipments Hubli, Shri Sai Wheels, Gokul road, Hubli and also a dummy firm
known as Shri Sai Agro Sales and a sum of Rs. 2 Crores transaction have come to light
pertaining to Shri Sai Firm Equipments and a sum of Rs. 59,000/- pertaining to Shri Sai
Wheels. These transactions were not within the knowledge of the complainant and other
partners. Accused No. 1 has also forged the signatures of late Shri Laxmansa S/o.
Malharsa Niranjan and submitted forged documents to Joint Director, Rayapur, Dharwad
on 10.04.1997.
4 . After lodging the private complaint, the learned JMFC, Hubli, referred the matter to
the police for investigation and report. The Investigating Officer said to have completed
the investigation and filed the 'B' Summary Report in the case. The complainant filed
protest petition to the same and along with the said protest petition, the complainant
filed his affidavit in lieu of his sworn statement, and the complainant also examined one
witness as P.W. 2. After considering the same, the learned JMFC took cognizance of the
offences punishable under Sections 408, 409, 419, 420, 465 and 471 of IPC and
ordered to issue the process to the petitioner and so also other accused persons. Being
aggrieved by the said order dated 06.01.2017, petitioner/accused No. 1 is before this
Court challenging the legality and correctness of the same.
5. Learned Senior Counsel appearing for the counsel for the petitioner on record, during
the course of his arguments, made it clear to the Court that though he is having many
contentions in the matter, he would confine his arguments only with regard to the
aspect that when a private complaint is filed under Section 200 of Cr.P.C., recording of
the sworn statements of the complainant and the witnesses is mandatory and, in lieu of
that, the affidavit cannot be accepted and filing of the affidavits is not in compliance
with the requirement of Section 200 of Cr.P.C. The learned Senior Counsel argued only
on this point and submitted that the petitioner/accused No. 1 would raise the other
contentions at the appropriate time before the appropriate forum. He made the
submission that looking to the order of the learned JMFC Court, Hubballi, the learned
Magistrate has taken cognizance of the offences only on the basis of the affidavits filed,
without insisting the complainant and his witnesses for recording their sworn

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statements. As per the contention of the learned Senior Counsel, this procedure adopted
by the learned JMFC, Hubballi, itself is illegal and it is not sustainable in law and hence,
the learned Senior Counsel made the submission that the order taking cognizance as
against petitioner/accused No. 1 is to be set aside. In the alternative, learned Senior
Counsel also made the submission that after setting aside the order taking cognizance,
the matter can be remitted back to the learned JMFC Court for fresh consideration. In
support of his contentions, learned Senior Counsel relied upon the following decisions:
1. Gowdra Krishnappa Vs. S.D. Rudrappa reported in 1975 (1) Kar.L.J. 519
2. U. Vali Basha Vs. Mohd. Bashu and Another reported in MANU/KA/7110/2007
: ILR 2008 Kar 402
3 . Sri K. Venkataramaiah and Others Vs. Sri Katterao reported in
MANU/KA/7366/2007 : ILR 2008 Kar 474
4 . Smt. B.R. Premakumar Vs. Supraja Credit Co-Op. Society Ltd., reported in
MANU/KA/0462/2009 : ILR 2009 Kar 3477
5. Haridas Naik Vs. Hanchinamane Gadriyappa reported in MANU/KA/0163/2010
: ILR 2010 Karn 3529
6 . Per contra, learned Counsel appearing for the respondent No. 1/complainant made
the submission that relying on the affidavit of the complainant and the witnesses and
taking cognizance is not an illegality and it is a mere irregularity which can be cured
under Section 465 of Cr.P.C. He submitted that serious allegations are made against the
accused persons that by creating fictitious firms and opening the bank accounts in the
names of fictitious firms, crores of rupees has been siphoned of by the accused
persons. It is also his contention that the petitioner/accused No. 1 by forging the
signature of his father and the complainant, created false documents and, on the basis
of such false documents, he borrowed loan from the banks, and that the complainant
came to know about these aspects only when he received the notice from the Arbitrator.
He also made the submission that the case of the complainant mainly depends upon the
documentary evidence and he submitted that accused No. 1 forged the signature of his
deceased father and created many documents; there is a report of the handwriting
experts which is also considered by the learned Magistrate in the order. He also
submitted that the private complaint in P.C. No. 585/2005 was filed in the year 2005 in
the JMFC-I Court, Hubli, but, subsequently, on the point of jurisdiction, the private
complaint was transferred to First Additional Civil Judge and JMFC, Hubballi and it has
been renumbered. Hence, he submitted that after ten years, when such an order has
been passed taking cognizance of the offences, only on technicality that cognizance has
been taken based on the affidavit filed by the complainant and his witness, the said
order cannot be rejected and it is only a mere irregularity and counsel also made the
submission that it is a curable defect under Section 465 Cr.P.C. Hence, counsel
submitted that there is no merit in the petition and the same is to be rejected. In
support of his contentions, learned counsel for respondent No. 1 relied upon a decision
of this Court in the case of K. Srinivasa Vs. Kashinath reported in MANU/KA/0465/2004
: 2004 Crl.L.J. 4566 and on an order of this Court passed in Crl.P. No. 8943/2010 (M/s.
Mesh Trans Gears Private Limited Vs. Dr. R. Parvathreddy, decided on 22.03.2013),
which are produced along with a memo dated 09.08.2017.
7. Learned High Court Government Pleader appearing for respondent No. 2-State made
the submission that looking to the materials i.e., the contents of the private complaint
and the order taking cognizance, they go to show that a prima facie case has been made

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out as against the petitioner and other accused persons. He submitted that the learned
Magistrate considered all the materials and then took cognizance of the offences. Hence,
he too submitted that the said order cannot be rejected by this Court only on the ground
that sworn statement is not recorded and in its place only the affidavits are filed. Hence,
he submitted to reject the petition.
8 . I have perused the grounds urged in the writ petition, the documents produced by
the petitioner along with the petition and so also the objection statement filed by
respondent No. 1 to the petition along with documents. So also, I have perused the
order taking cognizance of the case by the JMFC Court, Hubballi, which is challenged in
this writ proceedings, and also the decisions relied upon by both the sides which are
referred to above.
9. The first and foremost contention of the writ petitioner/accused No. 1 is that, in lieu
of sworn statement, affidavits of the complainant and the witness have been filed and,
therefore, it is not in compliance with the mandatory requirements of Section 200 of
Cr.P.C. and the same vitiates the entire proceedings. But, as per the contention of the
respondents - the complainant as well as the State - the proceedings are not vitiated by
following the procedure by relying upon the affidavit in lieu of sworn statement of the
complainant and the witness is a mere irregularity and it is a curable defect as per
Section 465 of Cr.P.C. In this connection, I have perused the provision Section 200 of
Cr.P.C., which reads as under:
"200. Examination of complainant. A Magistrate taking cognizance of an offence
on complaint shall examine upon oath the complainant and the witnesses
present, if any, and the substance of such examination shall be reduced to
writing and shall be signed by the complainant and the witnesses, and also by
the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate
need not examine the complainant and the witnesses-
(a) If a public servant acting or purporting to act in the
discharge of his official duties or a court has made the
complaint; or
(b) If the Magistrate makes over the case for inquiry or trial to
another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to
another Magistrate under section 192 after examining the
complainant and the witnesses, the latter Magistrate need not
re-examine them."
It is no doubt true that looking to the wordings of Section 200 of Cr.P.C. recording of
the sworn statement of the complainant is necessary. But, the question is, if such
procedure is not followed, whether it can be said that it is an illegality which vitiates the
entire proceedings, or it is merely a irregularity which defect can be cured under
Section 465 of Cr.P.C. Before coming to the said aspect, perusing the contents of the
private complaint and the order passed by the learned JMFC Court, Hubballi, taking
cognizance of the offence, registering the case and issuing of process is concerned, I
have carefully examined the said order passed by the said Court. the learned JMFC
Court has considered each and every aspect of the matter in detail i.e., referring to the
contents of the private complaint, the affidavits filed in lieu of the sworn statement and

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so also the documents filed by the complainant and a detailed order has been passed by
the learned JMFC. It is held by the learned JMFC Court that the complainant has made
out a prima facie case as against the writ petitioner and other accused persons. Looking
to the order of the learned JMFC, it is with sound and valid reasons. When the Court,
after perusing the materials, has found that there is a prima facie case for taking
cognizance of the offences, then only on the ground that the sworn statement of the
complainant and his witnesses are not recorded, the said order cannot be rejected, it is
a procedural aspect and what is the procedure to be followed by the Magistrate Court
whenever the complaints are filed under Section 200 of Cr.P.C., and while taking
cognizance. By passing such order by the learned JMFC Court, whether the interest of
the petitioner is prejudiced in any way. The writ petitioner/accused No. 1 is having
every opportunity to contest the petition on merits. But, if the order taking cognizance
is set aside only on the ground that sworn statement of the complainant and his
witnesses are not recorded that too after a lapse of ten years from the date of initiation
of the criminal proceedings, it will affect the interest of the complainant and amounts to
denial of justice. It is no doubt true that in the decisions relied upon by the learned
counsel for the writ petitioner/accused No. 1, it is observed by the learned Single
Judges of the High Courts in the said decisions that recording of sworn statement is
must. But, so far as the decision relied upon by the learned counsel for respondent No.
1/complainant is concerned, they are for the offences under Section 138 of the
Negotiable Instruments Act. I am referring to the decision of the Karnataka High Court
in the case of Durvasa and others vs. Chandrakala reported in MANU/KA/0068/1994 :
1994 Crl.L.J. 3765. In para 15 of the said judgment, it is observed by the learned single
Judge as under:
"15. Thus, it is seen that where the sworn statement of the complainant is not
recorded by the Magistrate then it is only the complainant who will be
prejudiced if his complaint is dismissed and that if however the Magistrate
issues process and trial goes on the accused cannot complain of any prejudice
to him and the irregularity in the non-examination of the complainant would be
an irregularity which would be cured under present Section 465 of Cr.P.C. Thus
a non-examination or improper examination of the complainant cannot be made
a ground to set aside the order of the Magistrate issuing process at the instance
of the accused persons."
In this connection, I am also referring to another decision of the Calcutta High Court in
the case of Dipak Ghosh Dastidar Vs. Sanat Kumar Mukherjee & State reported in
MANU/WB/0603/2001 : 2003 (1) Crimes 297 of the Calcutta High Court. Para No. 11 to
17 of the said decision reads as under:
"11. In the present case we find the learned Judge did not examine the
complainant (opposite party No. 1) and issued the Warrant of Arrest against the
petitioner. From the said decision relied upon on behalf of the petitioner in A.R.
Antulay vs. Ramdas Srinivas Nayak and Anr., (supra) the Supreme Court had
laid down the proposition when a private complaint is filed the Court has to
examine the complainant on oath barring the cases set out in the proviso of
Section 200 of the said Code the Hon'ble Supreme Court in case of A.R. Antulay
vs. Ramdas Srinivas Nayak and Anr. (supra) was dealing with a question that
whether on a basis of Petition of Complaint the proceedings of the Special Court
could be switched on and in this regard, their Lordships of the Constitution
Bench held that the Special Court is a court of original criminal jurisdiction and
can take cognizance of an offence even on a private complaint but the Court has
to examine the complainant on oath except in the cases of the proviso of

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 Section 200 of the said Code and then to proceed in accordance with law as to
whether a case is made out for issuing of process.
12. In my humble view the decision cited on behalf of the petitioner cannot in
any manner be disputed on the proposition that the Special Court as a Court of
original jurisdiction can always take cognizance even on the basis of a
complaint filed by a person other than a public servant and in such event the
Special court has to examine such person who is the complainant and then to
proceed with Section 200 of the said Code - I most respectfully bow down to
the decisions of the Hon'ble Apex Court of the Constitution Bench judgment of
A.R. Antulay vs. Ramdas Srinivas Nayak and Anr. (supra). But the said decision
in my humble view cannot be squarely applicable in the facts of the instant
case.
13. But as here the point is otherwise and we have to arrive at the root of the
problem. I have to seek the answer to the question posed in the prelude. Will
non-examination of a complainant before issue of process (to be read as
issuance of Warrant of Arrest in the present case) is such an illegality which
would vitiate the entire proceeding? In my opinion if one delves a bit deep into
the problem it is to be seen whether such non-examination can invalidate a
proceeding.
14. We have to give the Law always a practical meaning. The question that
arises before the Court in the event a procedure has not been properly adopted
as to whether it is such an illegality which is an incurable irregularity because
of prejudice leading to a failure of justice or whether it is a mere irregularity
curable under Section 465 of the said Code. It has to be seen that as to whether
the defect that has occasioned has caused failure of justice or prejudice to the
accused and have affected him adversely.
15. In the instant case I find that the Petition of Complaint makes out a very
clear case against the accused person and simply for the failure to examine the
complainant on oath, cannot vitiate the entire proceeding and in my view, it is
at best a mere irregularity curable under Section 465(1) of the said Code. As in
the court of the learned Special Judge the non-examination of the complainant
cannot operate to the prejudice as a proper case has been made out against the
accused in the Petition of Complaint and the same was otherwise maintainable
it cannot be said that any question or prejudice has arisen.
16. On the contrary, if the Petition of Complaint is dismissed without examining
the complainant a question of prejudice may arise. Non-examination of a
complainant before issuance of process, if at all, it causes any prejudice it is
the prejudice of the complainant and not the accused. Always a practical and
realistic approach has to be adopted by the Court unveiling the curtains of
traditional veil and the Court should refrain from picking the holes in such veils
without adopting a practical approach.
17. In my view, the non-examination of the complainant in this case has not in
any manner affected the tenability of the proceeding as otherwise the Petition of
Complaint discloses a clear case against the accused persons and it also cannot
be said that there has been any prejudice which has resulted in a failure of
justice. As I have discussed here-in-above it is at best a curable irregularity
within the meaning of Section 465(1) of the said Code."

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10. Therefore, looking to the factual and legal aspects of the matter, referring to the
above decisions and so also the order of the learned Magistrate, which is challenged in
this writ petition, I am of the opinion that the impugned order passed by the learned
Magistrate cannot be interfered with by this Court on the ground that the complainant
and his witnesses are not examined. There is no merit in the writ petition and
accordingly, the same is hereby rejected.
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