IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.6569 OF 2014 BETWEEN:
SMT.C.M.BHAGYALAKSHMAMMA W/O SHRI G M GANGADHARAIAH AGED ABOUT 51 YEARS NO.81, 6TH CROSS M L LAYOUT BANGALORE 560 086 ... PETITIONER (BY SRI: G.KRISHNAMURTHY, SENIOR ADVOCATE A/W SMT: APARNA.N., ADVOCATE) AND SHRI H.K.MALLIKARJUNA S/O M KAKIMALLAIAH AGED 46 YEARS RESIDING AT HULIKUNTE KASABA HOBLI, KORATAGERE TQ., TUMKUR DISTRICT (BY SRI: K.N. NITISH, ADVOCATE FOR ... RESPONDENT SRI: K V NARASIMHAN, ADVOCATE) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.355/12 (PCR NO.9/12) PENDING ON THE FILE OF THE JMFC, KORATAGERE, TUMKUR DIST., VIDE ANNEXURE-A.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner has sought to quash the proceedings registered against her in C.C.No.355/2012(PCR 9/2012) for the offences punishable under sections 415, 419, 420, 427, 499 and 500 Indian Penal Code.
Heard learned Senior Counsel Sri. G. Krishnamurthy appearing for the petitioner and learned counsel appearing for the respondent. Perused the records.
2. Learned Senior counsel appearing for the petitioner at the outset would submit that the transaction in question is arising out of a written Agreement of Sale. Pursuant to the said agreement, sale deed has been executed in favour of the respondent. In connection with the said transaction, respondent issued a Demand Draft for Rs.5.00 lakhs. When the said Demand Draft was presented for encashment, respondent himself issued a notice to the Bank not to honour the said Demand Draft and in this background, a publication was issued in the Newspaper bringing it to the notice of the general public the acts committed by the respondent. Said notice was not intended to malign the name of the respondent or to cause any defamation. Said publication is covered under Ninth and Tenth Exception to Section 499 of IPC. As such, no offence has been made out against the petitioner under Sections 499/500 IPC. Further, he submits that the complaint does not contain any allegations of fraudulent or dishonest intention on the part of the petitioner. The averments made in the complaint do not constitute the offences punishable under sections 415, 419, 420 or 427 of IPC. Under the said circumstances, the learned Magistrate has committed serious error in taking cognisance of the above offences. The order passed by the learned Magistrate does not reflect application of mind to the facts of the case. Hence, the impugned proceedings initiated against the petitioner are liable to be quashed. In support of his submission, learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in INDER MOHAN GOSWAMI & ANOTHER vs.
STATE OF UTTARANCHAL & ORS reported in AIR 2008 SC 251 and has emphasized that the Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendentta or with an ulterior motive to pressurize accused. On the same point, learned counsel has referred to the decision of this Court in Crl.P.No.4538/2010 dated 22.07.2014 and has sought for quashing the entire proceedings initiated against the petitioner.
3. Countering the arguments, learned counsel appearing for the respondent would submit that the contents of the publication are per-se defamatory. The demand draft referred in the public notice do not refer to the sale transaction. Sale transaction was completed and the entire sale consideration of Rs.1,84,000/- was paid to the petitioner. Under the said circumstances, the publication made by the petitioner was calculated to malign the name of the respondent. Further, in the said publication, the public were cautioned not to deal with the respondent in respect of the property mentioned therein. When the sale itself was completed and no other transaction was pending between the parties in respect of the said property, publication was malicious and obliquely motivated. Insofar as the other offences are concerned, learned counsel submits that there are clear allegations of mischief committed by the petitioner which squarely attract the offence punishable under section 427 of IPC and therefore, the learned Magistrate was justified in taking cognisance of the above offences.
Considered the submissions and perused the material on record.
4. A reading of the private complaint indicates that the petitioner has based the complaint on two set of allegations. Firstly, it is contended that the petitioner had agreed to convey 15 ft of land to the respondent for formation of road for a consideration of Rs.2,65,000/-, but the petitioner failed to transfer the said land to the respondent and thereby defrauded the respondent. This allegation even if accepted in its entirety, does not disclose the ingredients of any criminal offence, much less offences under Sections 420, 419 and 415 IPC. The case of the respondent that the petitioner has not executed any agreement in respect of the aforesaid extent of land. Under the said circumstances, there was no cause of action for the respondent to make allegations against the petitioner seeking his prosecution for the alleged offences under Sections 415, 419 or 420 IPC. To that extent, the cognisance taken by the learned Magistrate for the offences under Sections 415, 419 and 420 IPC is liable to be set-aside.
5. Insofar as allegations attracting the offences under Sections 427, 499 or under Section 500 IPC are concerned, I find that the material on record prima-facie disclose the commission of these offences. It is not in dispute that the petitioner herein caused a publication in “Prajapragathi” Kannada Daily Newspaper dated 03.08.2011. In the said publication, the public were cautioned not to deal with the respondent in respect of the properties comprised in Sy.No.114/1. Further, it is stated that even though the respondent/complainant had issued a demand draft for Rs.5.00 lakhs towards consideration for purchase of the said properties, the respondent gave a false declaration before the Bank to the effect that the said demand draft was lost and that the respondent had failed to execute the document and he has not paid consideration in respect of the land situated on the southern side. A copy of the registered sale deed executed by the petitioner is produced before the Court. A perusal of the said document discloses that the petitioner has sold an extent of 21 guntas in Sy.No.114/1 in favour of the respondent/complainant for consideration of Rs.1,84,000/-. It is recited in the sale deed that the entire consideration has been paid and acknowledged by the vendor. Under the said circumstances, there was absolutely no basis for the petitioner to issue paper publication connecting the alleged Demand draft to the transaction covered under the sale deed. The manner in which imputations are worded manifest a clear intention to harm the name and reputation of the respondent. Even though it is contended that the amount was due by the respondent pursuant to the written agreement between the parties, yet the circumstances discussed above suggest that the petitioner was not entitled to connect the issuance of Demand draft to the transaction in question and on that account, to caution the public not to deal with the properties belonging to the complainant. This act, in my view squarely attracts Section 499 IPC. The argument of the learned counsel for the petitioner that the alleged publication falls within the Ninth and Tenth Exception could be a defence which could be urged and proved only during trial. Said defence cannot be a ground to quash the proceedings initiated against the petitioner for the offences punishable under sections 427 and 499/500 IPC.
6. Having regard to the prima-facie material produced by the respondent in support of the accusations made against the petitioner attracting the offences punishable under sections 499/500 and 427 Indian Penal Code, the learned Magistrate was justified in taking cognisance of these offences and issuing summons to the petitioner to face charges for the offences under Sections 499/500 and 427 IPC. To this extent, petition is liable to be rejected.
Accordingly, petition is allowed-in-part. The proceedings initiated against the petitioner for the offences punishable under sections 415, 419, 420 IPC and the consequent order passed by the learned Magistrate taking cognisance of these offences and issuing summons to the petitioner to answer the charges for the said offences is hereby quashed. The action initiated against the petitioner for the offences punishable under sections 427 and 499/500 IPC is sustained. Any observations made in this order shall not influence the trial Court in whatsoever manner.
Sd/- JUDGE *mn/-