w w w . L a w y e r S e r v i c e s . i n



M/s. State Bank of Mysore, (Now State Bank of India), Sharad Sharma, (Retd.) Managing Director & Others v/s P. Mukundan & Others


Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- S C SHARMA AND CO PRIVATE LTD [Active] CIN = U74899DL1948PTC001507

Company & Directors' Information:- SHARMA INDIA PRIVATE LIMITED [Active] CIN = U74999UP2008PTC035620

Company & Directors' Information:- BANK OF MYSORE LIMITED [Dissolved] CIN = U99999KA1913PLC000001

Company & Directors' Information:- S AND S CO MYSORE PRIVATE LIMITED [Active] CIN = U72200KA2013PTC069942

Company & Directors' Information:- K P SHARMA (INDIA) PVT LTD [Strike Off] CIN = U51109WB1988PTC045569

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- SHARMA CORPORATION PRIVATE LIMITED [Active] CIN = U51909WB2017PTC220657

Company & Directors' Information:- P C SHARMA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U45201DL1981PTC012750

Company & Directors' Information:- J. R. SHARMA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U24211DL1966PTC004602

Company & Directors' Information:- SHARAD AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U32304DL1990PTC041408

Company & Directors' Information:- M K SHARMA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74994DL1982PTC014090

Company & Directors' Information:- SHARMA AND SHARMA PRIVATE LIMITED [Active] CIN = U74900DL2015PTC276949

Company & Directors' Information:- SHARMA & CO. PVT LTD. [Strike Off] CIN = U28991WB1949PTC018064

Company & Directors' Information:- R SHARAD AND CO PVT LTD [Strike Off] CIN = U25199GJ1943PTC000370

    Criminal Revision Petition No. 377 of 2019

    Decided On, 13 December 2019

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE B.A. PATIL

    For the Petitioners: Jayakumar S. Patil, Senior Counsel, A. Mahammed Tahir, Advocate. For the Respondents: R1, Rajadithya Sadashivan, Advocate.



Judgment Text


(Prayer: This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the order dated 29.11.2018 passed by the LX Additional City Civil and Sessions Judge at Bengaluru (CCH-61) in Criminal Revision Petition No.588/2018 by confirming the order of dismissal passed by the learned IV Additional Chief Metropolitan Magistrate at Bengaluru, dated 04.04.2018 in PCR No.15450/2014, by allowing this Criminal Revision Petition which is necessary.)

1. Though this case is listed for admission, with the consent of learned counsel appearing for the parties, the same is taken up for final disposal.

2. This petition has been filed by petitioners-accused Nos.1 to 3 challenging the order passed by LX Additional City Civil and Sessions Judge, Bengaluru in Crl.R.P.No.588/2018 dated 29.11.2018.

3. I have heard Sri.Jayakumar.S.Patil, learned Senior Counsel appearing for Sri. Mohammed Tahir.A., learned counsel for petitioners-accused and Sri.Rajadithya Sadashivan, learned counsel for respondent No.1- complainant. Notice to respondent Nos.2 to 10 is dispensed with vide order dated 29.05.2019.

4. The case of the respondent No.1/complainant before the Court below is that, he filed a private complaint against the petitioners herein and other accused persons alleging that complainant held a fixed deposit along with his father in State Bank of Mysore, Chamarajpet Branch from 16.7.1996. As and when the fixed deposit matured, the maturity value would be rolled over and new fixed deposit receipt used to be issued. The payment of initial FD and every subsequent roller over FD was "either or survivor". All the FD receipts and interest certificates stood only in the name of complainant and his father G.Parthasarathy. All the F.D. receipts were surrendered for issuance of fresh rolled over F.D. and they were with State Bank of Mysore. The F.D. receipt dated 12.3.2009 for Rs.8,91,094/- was issued for a period of 24 months and in the said FD, TDS was wrongly deducted. After noticing the same, the complainant through his G.P.A. holder i.e., his father issued a letter dated 24.6.2009 to State Bank of Mysore and the said Bank issued fresh F.D. dated 24.6.2009, after adding the TDS, for an amount of Rs.9,19,863/-. The said FD was also on 'either or survivor' and was jointly held by complainant and his father. Subsequently, in view of death of father of the complainant on 16.7.2011, the complainant having become the absolute owner of the said F.Ds., the State Bank of Mysore shall take instruction only from the petitioner in respect of the said FDS held by the petitioner and his father. But accused Nos.4 to 8, upon death of complainant's father have fraudulently taken away the original FD receipt. Being unaware of the said fact, complainant issued a letter dated 28.9.2011 to the State Bank of Mysore informing the death of his father and also contending that the original FD was misplaced and requested to issue fresh FD receipt in the name of the complainant. Upon enquiry, the complainant was shocked to notice that the Bank had pre- closed the FD without any instructions from the complainant and disbursed the said amount to accused Nos.4 to 8. As such, a private complaint has been filed. However, the said private complaint came to be dismissed on 9.12.2016 before appearance of the accused. Being aggrieved by the same, complainant filed Crl.R.P.No.997/2016 before the LX Additional City Civil and Sessions Judge, Bengaluru. By order dated 31.5.2017, without giving any opportunity to the petitioners herein, the order dated 9.12.2016 was set aside and the matter was remitted back to the learned Magistrate to dispose of the same afresh. Further, by order dated 4.4.2018 the learned Magistrate dismissed the complaint filed by the complainant. Being aggrieved by the said order, complainant preferred Crl.R.P.No.588/2018 wherein by order dated 29.11.2018, the revision petition was allowed and the order of learned Magistrate was set aside and the complaint was restored to its original stage with direction to proceed by issuing process to the respondents and thereafter dispose of the matter. Being aggrieved by the same, petitioners-accused Nos.1 to 3 are before this Court.

5. It is the contention of the learned Senior Counsel appearing for the petitioners that the said complaint is baseless, imaginary and concocted. The lower appellate Court has committed an error in allowing the criminal revision petition without providing any opportunity of hearing to the petitioners. It is his further submission that as per Section 398 of Cr.P.C., the lower appellate Court has to give an opportunity before passing such order. It has failed to consider the said provision of law and has erroneously allowed the petition. The dismissal of the complaint is termination of complaint proceedings. In that event, the persons against whom the allegations of having committed the offence have been made in the compliant have been terminated. Though no process has been issued, they should be given an opportunity of hearing. It is his further submission that accused are entitled for an hearing by the revisional Court. In order to substantiate the said contention, he relied upon decision in the case of Manharibhai Muljibhai Kakadia and another Vs. Shaileshbhai Mohanbhai Patel and others reported in (2012) 10 SCC 517. He further submitted that the order passed against the accused is an adverse order, inasmuch as the matter was remitted. Under such circumstances, the order of the trial Court is not sustainable in law. He further submitted that the decision in the case of Manharibhai Muljibhai Kakadia quoted supra, has been referred in the subsequent decision of Priyanka Srivastava and another Vs. State of Uttar Pradesh and others reported in (2015) 6 SCC 287. It is his submission that the lower appellate Court has completely erred in passing the order. It has not only restored the dismissal of the complaint, but further has directed the learned Magistrate to proceed with the case by issuing process to the respondents, which itself indicates the fact that the lower appellate Court has exercised a wider jurisdiction and overstepped which is not vested with it, it has taken cognizance and directed the learned Magistrate to proceed with issuance of process, which is not sustainable in law. In order to substantiate his argument, he relied upon the decision in the case of Popular Muthiah Vs. State, Represented by Inspector of Police reported in (2006) 7 SCC 296. On these grounds he prayed to allow the petition and to set aside the impugned order.

6. Per-contra, learned counsel appearing on behalf of the respondent No.1-complainant has vehemently argued and submitted that as per Section 403 of Cr.P.C. Court has got wider discretion and provisions of Section 401 of Cr.P.C. are not attracted and no notice is necessary to the accused persons, as the complaint has been dismissed at the stage of pre-cognizance, at which stage, accused will not be having any right. It is his further submission that the provisions of Sections 398 and 399 of Cr.P.C. would not attract since the trial Court records are not called for and perused. It is his further submission that the lower appellate Court is conferred with wider power to call for the records and examine the correctness, legality or propriety of the finding of the Court below. In order to substantiate the said contention, he relied upon the decision of the Co- ordinate Bench of this Court in the case of Patel Siddegowda Vs. K Siddegowda and others reported in 1976 Crl.L.J. 1967. It is his further submission that though there is direction by the lower appellate Court, but since the case is at pre-cognizance stage, the accused need not appear before the Court below unless, the lower Court takes cognizance and issues summons. The learned Magistrate has to make an enquiry into the case and thereafter, issue show cause notice. In order to substantiate the said contention, he relied upon the decision of Patna High Court in the case of Rajendra Lal Das and others Vs. The State of Bihar and Nalin Kumar Das. It is his further submission that the question as to whether the persons who are arraigned as accused in the complaint have a right to be heard in the matter pending before the Revisional Court was considered by the Hon'ble Apex Court in the case of Manharibhai Muljibhai Kakadia and in this regard it is his submission that even if the opportunity is not given, no prejudice would be caused to the accused persons. Though the matter has gone to the stage of taking cognizance, but if the case has not been heard and decided on merits, it is at the pre-cognizance stage and as such, the provisions of Section 398 of Cr.P.C. are not attracted. On these grounds, he prayed to dismiss the petition.

7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties. Perused the records and the decisions quoted by the learned counsel appearing for the parties.

8. It is not in dispute that a private complaint has been filed by the complainant in PCR No.15450/2014 on the file of IV Additional Chief Metropolitan Magistrate Court, Bengaluru city. It is also not in dispute that earlier the said complaint was dismissed and again in the Crl.R.P.No.588/2018 filed by the complainant, petition was allowed and order of the learned Magistrate dated 4.4.2018 was set aside and the learned Magistrate was directed to proceed by issuing process.

9. The main contention of the learned Senior counsel appearing for the petitioners is that dismissal of the complaint is termination of complaint proceedings. Under such circumstances, the accused will get a right of being heard. In order to substantiate the said contention, he has relied upon the decision in the case of Manharibhai Muljibhai Kakadia quoted supra, wherein at paragraph No.48 it has been observed as under:

"48. In a case where the complaint has been dismissed by the Magistrate under Section 203 of the Code either at the stage of Section 200 itself or on completion of inquiry by the Magistrate under Section 202 or on receipt of the report from the police or from any person to whom the direction was issued by the Magistrate to investigate into the allegations in the complaint, the effect of such dismissal is termination of complaint proceedings. On a plain reading of sub- section (2) of Section 401, it cannot be said that the person against whom the allegations of having committed the offence have been made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process has been issued. The dismissal of complaint by the Magistrate under Section 203--although it is at preliminary stage--nevertheless results in termination of proceedings in a complaint against the persons who are alleged to have committed the crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or the Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get the right of hearing before the Revisional Court although such order was passed without their participation. The right given to "accused" or "the other person" under Section 401(2) of being heard before the Revisional Court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Sections 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of the complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of the express provision contained in Section 401(2) of the Code. The stage is not important whether it is pre- process stage or post process stage." Keeping in view the ratio laid down in the above decision, if the provisions of Sections 202 and 203 of Cr.P.C. are perused, the persons arraigned as accused in the complaint will have a right of being heard in the revision petition and subsequently, the said ratio has been reiterated in the case of Priyanka Srivastava quoted supra wherein at paragraph Nos.5 and 6 it has been observed as under:

"5. Be it noted, the learned Additional Sessions Judge heard the counsel for Respondent 3 and the learned counsel for the State but no notice was issued to the accused persons therein. Ordinarily, we would not have adverted to the same because that lis is not the subject-matter in the appeal, but it has become imperative to do only to highlight how these kind of litigations are being dealt with and also to show the respondents had the unwarranted enthusiasm to move the courts. The order passed against the said accused persons at that time was an adverse order inasmuch as the matter was remitted. It was incumbent to hear the respondents though they had not become accused persons.

6. A three-Judge Bench in Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel [(2012) 10 SCC 517 : (2013) 1 SCC (Cri) 218] has opined that in a case arising out of a complaint petition, when it travels to the superior court and an adverse order is passed, an opportunity of hearing has to be given. The relevant passages are reproduced hereunder: (SCC pp. 540-41 & 544, paras 46, 48 & 53) "46. ... If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence.

48. In a case where the complaint has been dismissed by the Magistrate under Section 203 of the Code either at the stage of Section 200 itself or on completion of inquiry by the Magistrate under Section 202 or on receipt of the report from the police or from any person to whom the direction was issued by the Magistrate to investigate into the allegations in the complaint, the effect of such dismissal is termination of complaint proceedings. On a plain reading of sub-section (2) of Section 401, it cannot be said that the person against whom the allegations of having committed the offence have been made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process has been issued. The dismissal of complaint by the Magistrate under Section 203--although it is at preliminary stage--nevertheless results in termination of proceedings in a complaint against the persons who are alleged to have committed the crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or the Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get the right of hearing before the Revisional Court although such order was passed without their participation. The right given to 'accused' or 'the other person' under Section 401(2) of being heard before the Revisional Court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Sections 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of the complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of the express provision contained in Section 401(2) of the Code. The stage is not important whether it is pre-process stage or post-process stage.

53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan [P. Sundarrajan v. R. Vidhya Sekar, (2004) 13 SCC 472 : (2006) 1 SCC (Cri) 345] , Raghu Raj Singh Rousha [Raghu Raj Singh Rousha v. Shivam Sundaram Promoters (P) Ltd., (2009) 2 SCC 363 : (2009) 1 SCC (Cri) 801] and A.N. Santhanam [A.N. Santhanam v. K. Elangovan, (2012) 12 SCC 321 : (2012) 4 SCC (Cri) 432] . We hold, as it must be, that in a revision petition preferred by the complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed the crime is entitled to hearing by the Revisional Court. In other words, where the complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed the crime have, however, no right to participate in the proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process."

10. No doubt, the complaint has been dismissed at pre-cognizance stage, but when the complaint was dismissed, the accused gets a right. As such, the learned District Judge ought to have given an opportunity to the accused persons.

Even though the learned counsel for respondent No.1-complainant relying upon the decision of Manharibhai Muljibhai Kakadia contended that under Section 203 of Cr.P.C. if the complaint is dismissed at the post-cognizance and pre-issuance of process stage, question of hearing the accused does not arise, on a close reading of the said decision, it has been observed that if the Revisional Court overturns the order of the learned Magistrate dismissing the complaint and the complaint is restored to the file of the learned Magistrate for fresh consideration, then the accused will have no right to participate in the proceedings nor they are entitled for any hearing before the Magistrate until the matter is considered for issuance of process. Paragraph No.53 of the said decision reads as under:

"53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan [(2004) 13 SCC 472 : (2006) 1 SCC (Cri) 345] , Raghu Raj Singh Rousha [(2009) 2 SCC 363 : (2009) 1 SCC (Cri) 801] and A.N. Santhanam [(2012) 12 SCC 321 : (2011) 2 JCC 720] . We hold, as it must be, that in a revision petition preferred by the complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed the crime is entitled to hearing by the Revisional Court. In other words, where the co

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mplaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed the crime have, however, no right to participate in the proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled." 11. As could be seen from the order of the revisional Court, the observation made by the learned Sessions Judge is a passing remark and a direction has been issued to the learned Magistrate to proceed with the case by issuing process, the same ought not to have been done. But, the petitioners herein have not made out any case regarding the prejudice caused to them that too when the complaint has been dismissed at a pre-cognizance stage, when they have not appeared before the learned Magistrate. If they had appeared before the learned Magistrate, then the factual matrix would have been quite different and right of hearing would have accrued to them. In that light, they should be given an opportunity of being heard against the order of dismissal of the complaint. Hence, the observation of the learned District Judge with regard to issuance of process has been expunged. Insofar as other part of the order is concerned, it is confirmed. It is made clear that the complaint is at a pre-cognizance stage. If the learned Magistrate, after application of mind and on perusal of records, feels that there is a prima facie material, then he can proceed in accordance with law. With the above observations, revision petition is disposed of.
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