SMT N SATHYABHAMA Vs. SMT BHAGEERATHI KATTIGE

JUDGEMENT

(1.) The order dated 28th April 2016 passed in Crl.R.P.No.423/2015 by the LXVI Additional City Civil and Sessions Judge, Bangalore City, is under challenge by the aggrieved complainant, whereby the learned Court allowed the revision petition filed by the accused persons and set aside the order passed by the II Additional C.M.M., Bangalore, in C.C.No.6508/2015 dated 20.2.2015 in taking cognizance against the accused persons in respect of the offences under Sections 419, 420 and 506 read with Section 34 of IPC and issuing process against them.

(2.) Sri.P.Prasanna Kumar, learned Counsel appearing for the petitioner/complainant submits that the petitioner herein filed a private complaint before the jurisdictional Magistrate against the respondents/accused in respect of the offences under Sections 419, 420, 506 read with Section 34 of IPC. The learned Judge referred the complaint for investigation to the concerned Police and 'B' final report was submitted to the concerned Court. The petitioner herein/complainant challenged the said final report by way of protest memo. Enquiry was held by the jurisdictional Magistrate; the complainant examined herself as PW-1 and marked 10 documents. On overall consideration of the matter, the learned Magistrate vide order dated 20.2.2015 took cognizance in respect of the above offence. In the meantime, three of the accused persons had approached this Court under Section 482 of Cr.P.C. seeking quashing of the investigation/FIR, but those petitions came to be dismissed vide considered orders. The learned Revisional Court below without proper appreciation of the material on record allowed the revision petition of the accused persons with an observation to the effect that when both civil and criminal remedy is available, punishing the accused persons will not give benefit to the complainant, complainant can approach the civil court for efficacious and adequate remedy, which is grossly illegal and erroneous. It is the clear position of law that availability of civil remedy will not absolve the perpetuator from his liability under Penal law. (Placing reliance on (1) (2014) 3 SCC 389 in the matter of Vijayander Kumar and Others - vs- State of Rajasthan and Another; (2) (2013) 2 SCC 801 in the matter of Arun Bhandari -vs- State of Uttar Pradesh and Others; and (3) (2014) 10 SCC 616 in the matter of N.Soundaram -vs- P.K.Pounraj and Another).

(3.) In reply, Sri.Nagaraja Hegde, learned Counsel appearing for respondent Nos.1 to 3/accused submitted that, it is not only on the count that civil remedy was available to the complainant but also for the reason that accused Nos.1 and 4 were not alive as on the date the complaint was filed before the jurisdictional Court. The private complaint was filed on 21.12.2012. First accused had died on 19.12.2011 and the fourth accused died on 28.3.2012. The allegation in the complaint is to the effect that accused No.1 and his wife/accused No.2 both availed loan amount, on accused No.1 executing the loan agreement and accused No.2 subscribing her signature as a witness. In fact, these agreements are fabricated documents and notarized copies. The signature of accused no.2 nowhere can be found on any of these documents. Though the third loan agreement/Ex.P3 is said to be the consolidated version of Exs.P1 and P2, the contents of the agreement is mere repetition of the Exs.P1 and P2. At para-4 of the loan agreement/Ex.P3, there is a mention that, he had received Rs.16,25,000/- from the complainant/Sathyabhama and has repaid Rs.3,00,000/- by cash but still in the further paragraphs, the loanee is shown to be owing Rs.16,25,000/- to the complainant. The entire complaint is not corroborated with documentary proof or the evidence of any independent witnesses. In the above circumstance, the court below has rightly exercised its revisional jurisdiction to set aside the order of the trial court in taking cognizance and issuing process against the accused persons.