IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5235 OF 2016 BETWEEN:
1. MR.AKSHAY B PANCHARIYA S/O MR.BALOO PANCHARIYA AGED ABOUT 26 YEARS 2. MR.AKASH B PANCHARIYA S/O MR.BALOO PANCHARIYA AGED ABOUT 24 YEARS BOTH ARE R/AT NO.141 4TH MAIN, SBM COLONY ANAND NAGAR BANGALORE – 560 024.
… PETITIONERS (BY SRI B.KESHAVA MURTHY, ADVOCATE) AND:
1. THE STATE OF KARNATAKA SHO, YELAHANKA POLICE STATION BANGALORE – 560 064 2. MR.SYED SADIQ S/O MR.SYED ABDUL REHAMAN AGED ABOUT 30 YEARS R/AT NO.535, 4TH ‘B’ CROSS M.M.LAYOUT, KAVALBYRASANDRA R.T.NAGAR BANGALORE – 560 032.
…RESPONDENTS (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1 SRI H.PAVAN CHANDRA SHETTY, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE CHARGE SHEET FILED AGAINST THE PETITIONER Nos.1 AND 2 HEREIN FOR THE ALLEGED OFFENCES PUNISHABLE UNDER SECTIONS 406, 420, 425, 447 AND 506 OF INDIAN PENAL CODE, PENDING ON THE FILE OF IV ADDL. CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN C.C.NO.15382/2014.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners are accused Nos.3 and 4 in the charge sheet laid by respondent-Police for the offences punishable under Sections 406, 420, 425, 447 and 506 of I.P.C.
2. Heard learned counsel for petitioners and learned counsel for respondent No.2 and learned Additional SPP for respondent No.1.
3. Respondent No.2 claiming to have entered into an agreement of sale to purchase a site bearing No.125 for a consideration of Rs.72,00,000/- from accused No.1 filed a complaint against four accused persons including the petitioners herein contending that during subsistence of the aforesaid agreement dated 17.07.2010, petitioners herein in collusion with accused Nos.1 and 2 entered into a registered agreement of sale dated 15.6.2013 for Rs.3,16,46,400/- with an intent to cheat and defraud the complainant.
4. The records indicate that an original suit was filed by accused No.1 against complainant in O.S.No.2251/2013 and the complainant in turn filed a suit for specific performance of the aforesaid agreement of sale dated 17.07.2010 against accused No.1 in O.S.No.5149/2013. The records produced by counsel for the petitioners indicate that in O.S.No.5149/2013, complainant and accused No.1 entered into a comprise by filing a petition under Order XXIII Rule 3 of C.P.C. and in terms of the said compromise, a decree was passed in favour of the complainant.
5. The allegations made against the petitioners herein is that in order to defeat the rights of complainant, petitioners herein have lent their names to the agreement of sale dated 15.06.2013. In this regard, it may be relevant to refer to the statement of complainant wherein the complainant has narrated about the suit filed by accused No.1 in O.S.No.2251/2013 as well as the suit filed by him for specific performance in O.S.No.5149/2013. The further statement made by complainant reads that accused No.1 with intent to cause loss to complainant, entered into an agreement of sale with the petitioners herein namely, accused Nos.3 and 4. The said statement attributes criminal intent only to accused No.1 and not to the present petitioners. There are no allegations whatsoever in respect of the present petitioners that they entered into the aforesaid sale agreement with accused No.1 with prior knowledge that the property in question was already the subject matter of a prior agreement dated 17.07.2010. In the said circumstance, there is no basis for the prosecution to implicate the present petitioners for the alleged offences punishable under Sections 406, 420, 425, 447 and 506 of I.P.C.
6. The allegations made in the complaint as well as in the charge sheet, even if accepted as true would at the most go to show that accused No.1 alone had a criminal intention to defeat the prior agreement entered into by the complainant with accused No.1. But the complainant himself having entered into a composition with accused No.1, there is absolutely no basis to sustain the charges leveled against the present petitioners. In that view of the matter, the prosecution initiated against petitioners based on the material collected by the Investigating Agency, in my view, is illegal and cannot be sustained. In the absence of any material to show that the petitioners entered into the agreement of sale with accused No.1 on 15.06.2013 with the knowledge that accused No.1 had already entered into an agreement with complainant in respect of the very same property, the petitioners are not liable for prosecution for the above offences.
As a result, the petition is allowed. The charge sheet and consequent proceedings in C.C.No.15382/2014 are quashed only insofar as the present petitioners/accused Nos.3 and 4 are concerned. The trial shall be proceeded against accused Nos.1 and 2 in accordance with law.
Sd/- JUDGE PYR