#Karnataka High Court Archives - Page 13 of 14

23 Jun

Karnataka High Court: SHO Empowered to Seek Magistrate’s Permission Under Section 155(2) CrPC for Investigation of Non-Cognizable Offenses

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Karnataka High Court

Vijesh Pillai v. State of Karnataka & ANR

WRIT PETITION No.11186 OF 2023

Bench- HON’BLE MR. JUSTICE M. NAGAPRASANNA

Decided On 16-06-2023

Facts of the case-

The petitioner, in this case, is the complainant and the 2nd respondent is the accused. On 11-03-2023, the petitioner filed a complaint against the 2nd respondent, alleging that the 2nd respondent has threatened and intimidated the petitioner. The complaint was submitted to the K.R.Puram Police Station.

The Station House Officer of the police station, recognizing that the offense falls under Section 506 of the Indian Penal Code (IPC) for criminal intimidation, sought permission from the X Additional Chief Metropolitan Magistrate in Bengaluru to register the crime. Since Section 506 of the IPC is a non-cognizable offense, obtaining the permission of the Magistrate is necessary as per Section 155 of the Code of Criminal Procedure (Cr.P.C).

Upon receiving the requisition from the police, the learned Magistrate reviewed the request and granted permission for the crime to be registered. Following the Magistrate’s approval, the police formally registered the crime based on the petitioner’s complaint.

However, the petitioner, dissatisfied with the decision to grant permission, has approached this Court through the subject petition. It should be noted that the petitioner’s petition does not challenge the merits of the case but rather alleges that the learned Magistrate failed to apply due diligence in granting permission for the registration of the crime.

Judgement

The Court clarified that it is not necessary for only the complainant to approach the Magistrate court under Section 155(2) of the Code of Criminal Procedure (Cr.P.C) seeking permission to investigate a non-cognizable offense. The Court acknowledged and considered the judgments passed by the High Courts of Allahabad, Andhra Pradesh, and Kerala, which held that either the first informant or the police officer can approach the Magistrate seeking permission to register a First Information Report (FIR) for a non-cognizable offense.

After analyzing the various judgments, the Court concluded that “It is open to a Police Officer or any complainant to approach the Magistrate under sub-section (2) of Section 155 of the Cr.P.C., to investigate a non-cognizable offense. There is nothing in the section to indicate that the informant alone should seek permission from the Magistrate to commence investigation.”

Regarding the order issued by the Magistrate court, the bench stated, “I find it appropriate to quash the order granting such permission and the resulting registration of the crime. I direct the learned Magistrate to reconsider the requisition and issue a fresh order, taking into account the observations made during this judgement.”

In summary, the Court’s judgement clarified that both the complainant and the police officer can approach the Magistrate court seeking permission to investigate a non-cognizable offense under Section 155(2) of the Cr.P.C. The Court quashed the previous order granting permission and registration of the crime and directed the Magistrate to reconsider the requisition and issue a fresh order in accordance with the observations made in the judgement.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

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23 Jun

Karnataka High Court Rules: Married Woman Cannot Allege Cheating by Man for Breach of Promise of Marriage

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Blog #Karnataka High Court, #Marriage, #Promise of Marriage, Prime Legal

Karnataka High Court

Prajith R v. XXX & ANR

CRIMINAL PETITION No.544 OF 2021

Bench- HON’BLE MR. JUSTICE M. NAGAPRASANNA

Decided On 16-06-2023

Facts of the case-

The 1st respondent, who is also the complainant, seeks to file a complaint against the petitioner, who is the sole accused. The complainant lodged the complaint on 10-11-2020, making specific allegations against the petitioner. According to the complainant’s account, she is married to a man named Jagadish. When she was eight months pregnant, her husband dropped her off at her parents’ house in Arakalgud, Hassan District. After two years, Jagadish returned to the matrimonial house and took the complainant and their daughter back to Bangalore. However, after staying together for about six months, Jagadish left the house and did not return for some time.

Due to this situation, the complainant had to find employment at Mariko Marketing Company. It was during her employment there that she came into contact with the petitioner. Allegedly, the petitioner promised to marry the complainant. The complainant informed the petitioner that she was five years older than him, but she was lured into a relationship with him based on his assurance of marriage. When the petitioner failed to fulfill his promise of marriage, the complainant filed a complaint with the jurisdictional police on 10.11.2020, accusing the petitioner of offenses punishable under Sections 498A, 504, 507, and 417 of the Indian Penal Code (IPC). The petitioner approaches this Court through the present petition in response to the registration of the crime against him.

Judgement

the court has dismissed the FIR filed by a married woman against a man, alleging that he deceived her by failing to fulfill his promise of marriage. Upon reviewing the records, the bench observed that the petitioner resided in Malaysia and regularly sent money to the complainant for her living expenses. The complainant claimed that this act established the man as her husband. Additionally, she accused him of ceasing communication with her.

The court pointed out that no evidence was presented to demonstrate that the petitioner was ever married to the complainant. The offense in question falls under Section 498A of the IPC (Indian Penal Code), which deals with cruelty towards married women. Furthermore, the complainant admitted that she was already married and had a child from her current marriage.

The court found it perplexing that the petitioner could be considered the complainant’s husband when she was already married. The complainant did not mention obtaining a divorce decree from her previous husband in her objections. As long as the earlier marriage remained intact, it could not be claimed that the petitioner was her husband and responsible for the maintenance of the complainant and her daughter.

Regarding the monthly financial assistance provided by the petitioner to the woman, the bench clarified that merely sending money on some occasions does not establish an obligation for the petitioner to support them in the absence of a legal marital bond between the complainant and the petitioner.

Based on these considerations, the court decided to quash the complaint.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

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22 Jun

Karnataka High Court Declares Notice and Assessment Order in the Name of Non-Existing Company as Illegal and Lacking Jurisdiction

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Blog #Jurisdiction, #Karnataka High Court, #Non-Existing Company, #primelegal

Karnataka High Court

COFFEE DAY RESORTS (MSM) PVT. LTD. V. THE DEPUTY COMMISSIONER OF INCOME-TAX

WRIT PETITION NO. 9594 OF 2023 (T-IT)

Bench- HON’BLE MR JUSTICE S SUNIL DUTT YADAV

Decided On 01-06-2023

Facts of the case-

Coffee Day Resorts (MSM) Pvt. Ltd. (hereinafter referred to as the petitioner) has raised concerns regarding the validity of the reassessment proceedings initiated against them. The petitioner, formerly known as Shankar Resources Pvt. Ltd., was a non-banking financial company (NBFC) that underwent a merger with the petitioner company pursuant to an order of amalgamation by the National Company Law Tribunal (NCLT).

Subsequently, the respondent, referring to the provisions of Section 148A (b) of the Income Tax Act, 1961, issued a notice to Shankar Resources Private Limited, seeking an explanation as to why a notice under Section 148 of the said Act should not be issued.

In response, the petitioner submitted a reply stating that the company to which the notice under Section 148A (b) was directed, namely M/s. Shankar Resources (P) Ltd., had been amalgamated with M/s. Coffee Day Resorts (MSM) Pvt. Ltd. Consequently, as of April 1, 2018, M/s. Shankar Resources (P) Ltd. ceased to exist, and there was no longer any assessable entity under the name of M/s. Shankar Resources (P) Ltd. for the assessment year 2019-20.

It is imperative to analyze the legal implications of the aforementioned facts. The merger of Shankar Resources Pvt. Ltd. with Coffee Day Resorts (MSM) Pvt. Ltd. has been carried out in accordance with the order of amalgamation issued by the NCLT. Such an amalgamation signifies the consolidation of both entities, resulting in the cessation of the existence of Shankar Resources Pvt. Ltd. from the effective date of the amalgamation, i.e., April 1, 2018.

Therefore, the petitioner contends that the notice issued under Section 148A (b) is misplaced, as it is directed towards an entity, M/s. Shankar Resources (P) Ltd., that no longer exists. The petitioner, now known as Coffee Day Resorts (MSM) Pvt. Ltd., is the only surviving and accessible entity following the merger.

In light of these facts, the petitioner asserts that there is no valid basis for the reassessment proceedings for the assessment year 2019-20 to be conducted against them. The amalgamation has effectively dissolved the identity and legal existence of Shankar Resources Pvt. Ltd., leaving Coffee Day Resorts (MSM) Pvt. Ltd. as the only relevant entity subject to assessment.

Consequently, the petitioner seeks legal redress and challenges the validity of the reassessment proceedings, arguing that the notice issued under Section 148A (b) is untenable given the amalgamation and the subsequent cessation of Shankar Resources Pvt. Ltd.

Judgement

The Court has ruled that a notice and assessment order issued in the name of a non-existent company is fundamentally illegal and lacks jurisdiction. The Court specifically noted that M/s. Shankar Resources (P) Ltd., which had merged with the petitioner company, no longer existed at the time the notice was issued. As a result, the notice issued under Section 148A(b) is declared null and void.

The Court emphasized that the tax department is entitled to initiate appropriate proceedings, as permissible by law, against the petitioner company based on the contents of the notice under Section 148A(b). However, such proceedings must be in accordance with the relevant legal provisions. The Court clarified that the petitioner company is still subject to assessment and can be subjected to lawful actions by the tax department.

Therefore, the Court sets aside the notice issued under Section 148A(b) in relation to M/s. Shankar Resources (P) Ltd., while affirming that the tax department retains the authority to commence appropriate proceedings against the petitioner company, Coffee Day Resorts (MSM) Pvt. Ltd., in compliance with the applicable laws.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

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22 Jun

Property Tax Exemption for Educational Institutions under Karnataka Municipalities Act: No Yearly Certificate Required, Rules High Court

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Blog #Educational Institutions, #Karnataka High Court, #primelegal, #Property Tax Exemption

Karnataka High Court

THE CITY MUNICIPAL COUNCIL V. AKBAR PATEL

WRIT PETITION NO. 87922 OF 2012 (LB-TAX)

Bench- HON’BLE MR JUSTICE SURAJ GOVINDARAJ

Decided On 23-05-2023

Facts of the case-

The petitioner, formerly known as the City Municipal Council and now upgraded to a Municipal Corporation, is dissatisfied with the decision made by the II Additional Sessions Judge in Crl.Revision Petition No.139/2012, which pertains to the petitioner’s demand for payment of arrears of municipal tax. The petitioner operated as a City Municipal Council under the provisions of the Karnataka Municipalities Act, 1964 (referred to as ‘the Act of 1964’).

On January 11, 2012, the petitioner issued a demand notice under Section 142(1)(v) of the Act of 1964, requesting the respondent to pay outstanding municipal taxes amounting to Rs. 38,79,674/- for the period spanning from April 1, 2002, to March 31, 2012.

The respondent, feeling aggrieved, filed an appeal (Crl.Appeal No.134/2012) under Section 150 of the Act of 1964 before JMFC-I, Bijapur. However, the appeal was dismissed due to a delay in its filing and the respondent’s failure to obtain an exemption from the City Municipal Council for the aforementioned period.

In response to the dismissal of the appeal, the respondent filed a Criminal Revision Petition No.139/2012, which was subsequently allowed by the II Additional Sessions Judge, Bijapur. The judge ruled that, in accordance with Section 94(1-A)(i) of the Act of 1964, the respondent, being an educational institution, was exempted from paying property taxes.

Consequently, the City Municipal Council, feeling aggrieved by this decision, has approached this Court seeking the aforementioned reliefs.

Judgement

The court has rendered a judgment stating that according to Section 94(1-A)(i) of the Karnataka Municipalities Act, an educational institution is exempted from paying property taxes. The court clarified that there is no requirement for the institution to obtain an exemption certificate annually. This exemption applies to all buildings used for educational purposes and related activities.

Upon reviewing Section 94(1-A)(i), the bench concluded that no certificate is necessary, as argued by the petitioner, for claiming exemption under this provision of the Act. However, for exemptions mentioned under Section 94(1-A)(a, c, and d) of the Act, certain conditions must be fulfilled. Additionally, for exemption under Section 94(1-A)(j) of the Act, a certificate must be issued by the Government or an authorized officer, confirming that a building or vacant land belonging to the Central or State Government is utilized for State Government purposes and not for residential or commercial use. Neither Section 94(1) nor Section 94(1-A) of the Act requires any certificate to be issued by any authority.

Based on these findings, the court dismissed the petition and affirmed that the Revisional Court rightly applied Section 94(1-A)(i) of the Act to revise the order passed by the JMFC-I, Bijapur, exempting the respondent from paying property tax as an educational institution.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

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21 Jun

Karnataka High Court Strikes Down Requirement for Wife to Fund Husband’s Travel from the USA in Matrimonial Cross-Examination

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Karnataka High Court

SINDHU BOREGOWDA V. YASHWANTH BHASKAR B P

WRIT PETITION NO.24827 OF 2022 (GM-FC)

Bench- HON’BLE MR JUSTICE KRISHNA S DIXIT

Decided On 05-06-2023

Facts of the case-

In Bengaluru, a husband has initiated divorce proceedings by filing a petition for dissolution of marriage. The trial of the case is currently halfway through, but the husband is residing in the United States. On November 16, 2022, the family court issued an order granting the wife permission to cross-examine her husband. However, the court imposed a condition that the wife must cover the expenses for her travel.

The petitioner’s lawyer argued that his client is already paying a monthly maintenance amount of Rs. 20,000 to the wife, and there are still some outstanding dues. Therefore, the counsel asserted that it was unreasonable to require the wife to bear the significant cost of the travel expenses. The husband opposed this plea.

Judgement

The court has overturned a previous order issued by the Family Court, which allowed the wife’s application to cross-examine her husband under the condition that she bear his travel expenses of Rs 1.65 lakhs from the USA to Bengaluru. The bench noted that the lower court had already directed the payment of a monthly maintenance amount of Rs. 20,000 to the petitioner, who lacks a means of livelihood. The bench questioned the logic behind requiring the petitioner to cover the travel expenses of the respondent, who is gainfully employed in the United States of America.

Furthermore, the bench expressed concerns about the petitioner’s ability to afford such a payment, especially considering that it was the respondent’s choice to travel and incur those expenses. The bench clarified that the respondent-husband is not financially incapable and, therefore, should have been responsible for his own travel expenses since he initiated the Marriage Dissolution Case. The bench emphasized that if it were the petitioner-wife who had filed the case, different considerations might have arisen.

Consequently, the petition was granted, and the court requested the lower court to arrange for cross-examination or further cross-examination at the convenience of both parties.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

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