IN THE HIGH COURT OF KARNATAKA, BANGALORE :BEFORE: THE HON BLE MR.JUSTICE K.N. PHANEENDRA CRIMINAL PETITION NO.6306/2013

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1 IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 17 th SEPTEMBER, 2014 :BEFORE: THE HON BLE MR.JUSTICE K.N. PHANEENDRA BETWEEN CRIMINAL PETITION NO.6306/ SRI. KESHAVA ACHARYA, S/O LATE MONAPPA ACHARYA, MANAGING TRUSTEES NO.1, SHREE KALIKAMBA VINAYAKA, TEMPLE, CAR STREET, MANGALORE SRI M.VISHWANATHA ACHARYA, AGE 36 YEARS, MANAGING TRUSTEE NO.2, C/O SHREE KALIKAMBA VINAYAKA, TEMPLE, CAR STREET, MANGALORE PETITIONERS (BY SRI. ARUN SHYAM. M, ADVOCATE) AND 1. THE STATE OF KARNATAKA, THROUGH SHO NORTH, POLICE STATION, MANGALORE, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGLORE

2 2 2. SRI PRABHAKAR ACHARYA, S/O BABURAYA ACHARYA, AGED ABOUT 68 YEARS, R/AT SHIVAPRABHA, VIDHYANAGAR, KEENYA, MANGALORE TALUK RESPONDENTS (BY SRI. B.J. ESHWARAPPA, HCGP FOR R1, SRI. NISHIT KUMAR SHETTY,ADV., FOR R2) ****** THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED IN P.C.NO.153/2013 ON THE FILE OF THE J.M.F.C. (II COURT), MANGALORE, D.K., AND FURTHER PROCEEDINGS PURSUANT THERETO INCLUDING COMPLAINT. THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R Heard the learned counsel for petitioners, learned counsel for the second respondent and the learned High Court Government Pleader for the first respondent - State. Perused the records. 2. Brief facts are as fallows:

3 3 The second respondent herein lodged a Private Complaint in P.C. No.153/2013 u/s.200 of Cr.PC for the offences punishable under sections 403, 406, 424 read with Section 34 of IPC before the JMFC (II Court), Mangalore, Dakshina Kannada, making allegations that the temple called Sri Kalikamba Vinayaka Temple situated at Car street, Mangalore was under the control of endowment department till the year 2004 and thereafter, under the new Endowment Act, the temple is kept out of the purview of the endowment department and the said temple is now a dominion temple of Vishwa Brahmin Community. In the year 2008, A1 was elected as Managing Trustee, A2 was elected as 2 nd Managing Trustee with one Ramesh as 3 rd Managing Trustee and they have started misappropriating the funds of the said temple by indulging illegal activities. The complainant has filed a civil suit and also filed an interlocutory application for restraining A1 and A2 from holding the General Body Meeting and etc., It is

4 4 specifically alleged at paragraph 9 of the complaint that the said Kalikamba Temple owns a building known as Kalika Prasad in front of the temple and a building at Mulky and the temple fetches a rent of more than Rs.7 lakhs per year. The annual income and expenditure report placed before the General Body Meeting does not disclose the revenue from 2008 to Further, it is specifically alleged that the accused persons dishonestly and fraudulently from 2008 to 2012 have siphoned the money of the temple by misappropriating the same for their wrongful gain. Making such allegations, the said complaint was filed. So also, there are several matters pending before the appellate court in this regard. The complainant has also produced as many as 9 documents before the learned Magistrate and the learned Magistrate has referred the complaint to the jurisdictional police for investigation u/s.156(3) of Cr.PC. Therefore, seeking for quashing of the entire proceedings, the present petition is filed.

5 5 3. The learned counsel for the petitioners wants to rely upon several documents before this court which are not available to the learned Magistrate at the time of referring the matter for investigation. Further, it is contended by the learned counsel for petitioner that similar matter is pending before the appellate court on civil side and that will have a bearing so far as the present petition is concerned. This shows the matter is of both criminal and civil in nature. 4. Merely because civil remedy is also available to the parties, it cannot be said that no criminal proceedings can be initiated but whenever a purely civil matter is dragged on to the criminal Court, then only the court has to exercise power u/s.482 of Cr.PC in order to scuttle such type of false implication and criminal proceedings. When it is categorically alleged in the complaint that there was income to the said temple

6 6 and that has not been properly accounted to and an amount of Rs.7 lakhs per year has been misappropriated by the petitioners. This court opines that the investigation should go on and it cannot be scuttled at the initial stages. If at all, the accused have any documentary materials to show that the allegations made in the complaint are not proper or false and he has properly accounted the said money etc., they are at liberty to bring to the notice of the investigating officer by producing those documents, to enable the investigating officer to conduct impartial investigation and to submit a fair report to the court. At this stage, the Court cannot imagine as to what report the Police may submit to the Court. If the Police submit B report to the Court, or in the event the Police files charge sheet, then the court has to look into the entire papers in order to ascertain whether any cognizable offence is made out for taking cognizance against the petitioners herein.

7 7 5. In the above said circumstances, the allegations made in the complaint even broadly make out a case for investigation such proceedings cannot be quashed. 6. In this regard, it is worth to note a decision of the Hon ble Apex Court reported in (2012) 9 Supreme Court Cases 460 between Amit Kapoor Vs. Ramesh Chander and another, wherein at para has held that Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima-facie.

8 8 7. Looking to the above said facts and circumstances of the case and also the observations made by the Hon'ble Apex Court, it is too premature stage to interfere with the proceedings. Therefore, I do not see any strong reason to interfere in this petition. Accordingly, at the time of admission itself, the Petition is dismissed as devoid of merits. Liberty is given to the petitioners to approach the Trial Court if they are so advised if police files any charge sheet for their discharge. PL SD/- JUDGE