Registration Of Criminal Case In Absence Of Prima Facie Material To Establish Nexus With Alleged Crime Violates Article 21: Karnataka High Court

The Karnataka High Court has said that in order to proceed against a person with criminal action, the complainant or prosecuting agency must show prima facie material whereby some nexus could be established to the alleged crime with a person. If such material is not available, very registration of the case against such persons would definitely amount to abuse of process of law affecting the right of a citizen enshrined in Article 21 of the Constitution of India.

A single judge bench of Justice V Srishananda sitting at Dharwad bench allowed the petition filed by one Vipul Prakash Patil and quashed the FIR registered under Sections 406, 420 of IPC and Section 9 of Karnataka Protection of Interest of Deposits in Financial Establishment Act.

The bench said “In the case on hand, since only name of the present petitioner is taken in the complaint without there being any documentary proof to remotely establish the nexus to the alleged fraud and the present petitioner, this Court is of the considered opinion that continuation of investigation as against the present petitioner in Crime No.242/2022 would necessarily result in abuse of process of law.”

As per complainant Shivanand there was an offer made by Pankaj Namadev Patil and Santosh Gangaram Ghodake along with the present petitioner that if a sum of Rs.1,00,000, is invested, they would return the amount within ten months in instalments. Accordingly, the complainant and others invested huge sums of money, he claimed.

It was further averred that initially, in order to gain the confidence of the complainant and other investors, Pinomic Company, a limited liability partnership firm, repaid the amount for a few months and thereafter stopped paying the amount. The efforts made by the complainant and others to recover the money went in vain and left with no alternative they approached Chikkodi police and filed the complaint.

The petitioner argued that in the absence of any preliminary satisfaction report lodged by the competent authority with the State Government, registration of case for the offence punishable under Section 9 of KPID Act or for that matter the other IPC offences would not arise at all and therefore registration of the case would affect the personal liberty of the petitioner and also results in abuse of process of law and sought for quashing of further proceedings.

The prosecution opposed the plea saying the scheme of the KPID Act is for redressal of both civil and criminal actions under one roof by the Special Judge and therefore, satisfactory report is unnecessary for registration of a case.

Findings:

The bench on going through the records said that in the absence of any prima facie documentary proof to hook in the present petitioner in the alleged fraud, the very registration of complaint as against the present petitioner is unnecessary and has resulted in abuse of process of Court.

Noting that the documents that are produced by Harshawardhan M Patil (counsel for complainant) would no doubt make out a case that the money is received by Pankaj Namadev Patil and Santosh Gangaram Ghodake, the bench held “The defacto complainant is unable to place any documentary proof whatsoever at least at this stage in order to establish the nexus between the alleged fraud and the present petitioner.”

Rejecting the argument of the complainant that it is for the investigating agency to investigate the matter thoroughly and file an appropriate report, the bench observed “Such an argument on behalf of the defacto complainant is farfetched.”

It added “No person shall be allowed to undergo the ordeal of a criminal investigation unless there is some material which would connect the said person with the alleged crime.”

Case Title: Vipul Prakash Patil And State of Karnataka & ANR

Case No: CRIMINAL PETITION NO. 104152 OF 2022

Citation: 2023 LiveLaw (Kar) 217

Date of Order: 30-05-2023

Appearance: Senior Advocate Pramod Kathavi for Advocate Ramachandra A Mali for Petitioner.

HCGP Girija S Hiremath for R1.

Advocate Harshawardhan M Patil for R2.

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