(Prayer: This Crl.P is filed u/S.482 Cr.P.C praying to quash the entire proceedings in C.C.No.373/2018 on the file of Prl.Civil Judge and JMFC, Hosanagara for offences p/u/S 406, 420, 504, 506 r/w 34 of IPC.)

Ravi V. Hosmani, J.

CAV Order

1. Challenging entire proceedings in CC no.373/2018 pending on file of Prl. Civil Judge & JMFC, Hosanagara for offences punishable under Sections 406, 420, 504, 506 read with Section 34 of Indian Penal Code, 1860 (IPC), this petition is filed.

2. Sri BS Prasad, learned counsel for petitioners submitted that petitioners were accused no.1 and 2 in PCR no.6/2015 filed on 14.01.2015 by respondent no.2 (complainant) stating that with intention of booking motorcycle for own use complainant met accused no.1 and 2 at their office in 'Nagarahalli Honda Motor Bike Agency', NT Road, Shivamogga city (NHMB) in first week of June 2014, when accused no.1 suggested that Umesha (accused no.3) was distributor of same brand of motorcycle and had Agency at Ripponpet (Agency) and to book vehicle through it. That as per advice of accused no.1, complainant visited Agency and paid booking amount of Rs.10,000/- on 05.06.2014 and balance amount of Rs.53,750/- on 08.06.2014 and purchased Black Honda Dream Yuga Motorcycle bearing Chassis no.ME4JC589DET.131020 and Engine no.JC58ET3318011 (Motorcycle). And accused no.3 not only acknowledged receipt of entire sale consideration under receipt no.443 but also assured Registration Certificate would be got issued in name of complainant.

3. While he was using motorcycle and availed free service from Agency, on morning of 17.12.2014 accused no.2 called on complainant's mobile phone and confirmed purchase of motorcycle from accused no.3 and told that accused no.3 had not remitted sale proceeds to NHMB and in high-pitched tone demanded complainant to return motorcycle and threatened that to repossess it, if he failed. Accused no.2 also threatened to file complaint against complainant similar to one against accused no.3. And when complainant replied that it was internal financial dispute, accused no.2 abused in filthy language, threatened to break his limbs and take away motorcycle.

4. Further, when complainant informed accused no.1, even he abused complainant in filthy language and threatened him. On enquiry, accused no.3 disowned responsibility by claiming to have remitted purchase amount to NHMB and as police complaint was filed against him, complainant had to resolve issue on his own. On above allegations, complaint was filed with Ripponpet Police Station on 17.12.2014. But Police Sub-Inspector issued endorsement on 27.12.2014 stating that Crime no.266/2014 was registered against accused no.3 based on complaint by accused no.2 on 19.10.2014. It was stated that endorsement indicated collusion between police and accused, therefore private complaint was filed.

5. It was submitted though after direction by Court, FIR in Crime no.21/2015 was registered for offences punishable under Sections 406, 420, 504 and 506 read with Section 34 of IPC ('offences'), without proper investigation 'B' report was filed on 21.01.2016. Complainant opposed it and filed protest petition. By order dated 19.12.2017, learned Magistrate rejected 'B' Report, recorded sworn statement of complainant as CW.1 and marked documents as Exs.C1 to C5 on 02.02.2018 and by order dated 18.07.2018 directed registration of criminal case against accused no.1 to 3 for offences and to issue summons to accused. Challenging entire proceedings, present petition was filed.

6. Relying on decision of this Court in Dr.Ravikumar v. Mrs.KMC Vasantha reported in (2018) 2 KLJ 140, it was contended that rejection of 'B' Report without reasons and order for issuance of process without taking cognizance in mechanical manner was illegal. That Hon'ble Supreme Court in Sunil Bharti Mittal v. Central Bureau of Investigation reported in (2015) 4 SCC 609, held explicit reasons for issuing summons under Section 204 of CrPC was mandatory. Further, order for summons without reasons about prima facie case would violate ratio in Smt.Shylaja & Anr. v. Superintendent of Police & Anr. [2017:KHC:33] and impugned order warranted interference. It was submitted, learned Magistrate failed to note that both FIRs in Crime no.266/2014 was virtually in respect of same incident as in Crime no.21/2015 and thus illegal.

7. Further, allegations in complaint would not attract offences under Sections 405 and 406 of IPC. Even as per complainant, he made payment to accused no.3 and took delivery of motorcycle from him and there was no entrustment of any property or even allegation of misappropriation by petitioners. And offences under Sections 504 and 506 of IPC would not sustain as allegations against petitioners were vague, general and omnibus. On said grounds, prayed for allowing petition.

8. Smt.Sowmya R., learned HCGP for respondent no.1-State, opposed petition. It was submitted that learned Magistrate had passed detailed order based on material which attracted offences alleged and cognizance was deemed taken. Hence, prayed for dismissal.

9. Respondent no.2-complainant is served and unrepresented.

10. Heard learned counsel and perused material on record.

11. This petition is by accused no.1 and 2 challenging orders rejecting 'B' Report, issuing summons and entire proceedings for offences.

12. Main grounds urged are, failure to pass considered order while rejecting 'B' Report as per Dr.Ravikumar's case (supra) and at time of passing order for issuance of summons as per Smt.Shylaja and Sunil Bharti Mittal's cases (supra); that complaint did not contain essential ingredients of offences alleged and on ground that registration of second FIR for same offences was not permissible.

13. This Court in Dr.Ravikumar's case (supra) has held that after filing of 'B' Report, Court has to look into said report to ascertain whether investigation by Police was proper or further investigation was required. Or if 'B' Report indicated cognizable case, to record its opinion under Section 204 of CrPC and take cognizance against accused. If not, pass express order referring to 'B' Report to reject it and examine whether Complaint/Protest Petition disclose any offence. If not, provide opportunity to complainant by sworn statement and production of material to support complaint. And pass reasoned order on taking cognizance. Even after taking cognizance, if it is of opinion that allegations require investigation to direct same and on receipt of report, consider and pass reasoned order to either dismiss complaint/protest petition or issue summons to accused.

14. Order dated 19.12.2017 rejecting 'B' Report reads:

          "By considering facts and circumstances of the case and the contents of protest petition and submissions on 'B' report, Court finds that it is just and necessary to provide an opportunity to complainant to bring home guilt of accused persons and denial of such opportunity would amount to denial of justice and complainant would be put to hardship."

15. Said order passed after Police filed 'B' report, ex facie reveals failure to apply mind to 'B' Report and pass reasoned order as mandated by Dr.Ravikumar's case (supra). Failure to assign reasons while taking cognizance/issuance of process is also in violation of ratio in Smt.Shylaja and Sunil Bharti Mittal's cases (supra).

16. Next contention about FIR in Crime no.21/2015 arising out of PCR no.6/2015 being untenable on account of registration of FIR in Crime no.266/2014 earlier, would not appeal this Court as cause of action differ. Crime no.266/2014 was registered based on complaint by present accused no.2 against accused no.3 alleging that accused no.3 had obtained Motorcycles from accused no.2 as agent and failed to remit payment after sale. Whereas in Crime no.21/2015, present complainant alleges that he had paid entire purchase price of Motorcycle and took delivery and accused no.3 assured to have it registered in his name, but failing to do so and on enquiry, accused abusing him, threatening him and cheating him by misappropriating purchase money paid by him.

17. Insofar as contention about non-existence of essential ingredients of offences alleged, impugned proceedings herein are registered for offences punishable under Sections 406, 420, 504 and 506 read with Section 34 of IPC. Hon'ble Supreme Court in case of Delhi Race Club (1940) Ltd. & Ors. v. State of Uttar Pradesh & Anr., reported in (2024) 10 SCC 690, has held offences under Sections 406 and 420 of IPC cannot be invoked simultaneously.

18. Though it is contended that complaint does not contain essential ingredients of offences alleged, as there is no entrustment of property to petitioners or about any gain by petitioners, since it is opined that order passed on 'B' Report as well as while taking cognizance and ordering for process against petitioners, impugned proceedings would not sustain, it is found appropriate to defer consideration of said aspect by trial Court itself, in light of ratio laid down by Hon'ble Supreme Court in case of Jupally Lakshmikantha Reddy v. State of Andhra Pradesh reported in 2025 SCC OnLine SC 1950.

19. Hence, petition is allowed in part, order dated 19.12.2017 rejecting 'B' Report and order dated 18.07.2018 for issuance of process against accused are quashed, with direction to pass orders afresh in light of ratio in Dr.Ravikumar, Smt.Shylaja and Sunil Bharti Mittal as well as Jupally Lakshmikantha Reddy's cases (supra) and reserving liberty to petitioners to urge all contentions before trial Court itself.