IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.551 OF 2014 BETWEEN:
1 DINESH ACHAR S/O. LATE RAMAIAH ACHAR AGED ABOUT 52 YEARS R/AT. KUNDIL HOUSE KATHAVARA POST, KARKALA TALUK UDUPI DISTRICT PIN CODE: 574 129 2 A.M. SURESH S/O. K. MYLARA AGED ABOUT 48 YEARS ADVOCATE VENKATESHWARA BUILDING NEAR PICTURE PALACE HASSAN, PIN: 573 201 3 VEERACHAR S/O. ESHWARACHAR AGED ABOUT 60 YEARS MALLIRAJA PATTANA RAMANATHAPURA HOBLI ARKALAGUD TALUK HASSAN DISTRICT PIN: 573 102 …PETITIONERS (BY SRI. B. ANAND, ADVOCATE) AND:
1 STATE OF KARNATAKA BY ARKALGUD POLICE HASSAN DISTRICT PIN: 573 102 2 CHAYADEVI W/O. M.T. SATHYANARAYANA HENTEGERE NEAR GOVT. JUNIOR COLLEGE PRESENTLY RESIDING AT VIVEKNAGAR, GOWRIKOPPALU HASSAN 3 M.L. SWAMY GOWDA S/O. LAKKE GOWDA DODDAMAGGE, ARAKALGUD HASSAN DISTRICT – 573 102 ...RESPONDENTS (BY SRI. VIJAYA KUMAR MAJAGE, ADDL. SPP FOR R1; SRI. N.R. RAVIKUMAR, ADVOCATE FOR R2 & R3) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH ALL THE PROCEEDINGS IN C.C NO.75/2013 [PCR NO.3/2011] ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ARKALGUD, HASSAN DISTRICT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for the petitioners and learned Additional SPP appearing for respondent No.1 and learned counsel for Respondent No.2.
2. Petitioners are Accused Nos.3, 4 and 5 against whom charge sheet is laid for the offences punishable under section 420 read with section 149 of Indian Penal Code.
3. The facts borne on record indicate that Accused Nos. 1 and 2 entered into an Agreement of Sale dated 29.03.2003 in favour of complainants/respondent Nos. 1 and 2. Since Accused Nos. 1 and 2 failed to execute sale deed in terms of the said agreement, Respondent Nos.1 and 2 filed a suit for specific performance in O.S. No.84/2008.
After trial, said suit came to be decreed, directing Accused Nos. 1 and 2 to execute sale deed in respect of the properties in question in favour of the respondents. Execution Petition filed by respondent No.2 for execution of the said decree is pending before the Civil Court. In the meanwhile, a sale deed came to be executed in favour of Petitioner No.1 [Accused No.3] on 15.11.2010. According to the prosecution, in order to defeat the rights of respondent Nos. 1 and 2, petitioners herein, in collusion with Accused Nos. 1 and 2 got up an antedated agreement of sale and on the strength of the said agreement, registered a sale deed dated 15.11.2010 in favour of Accused No.3.
4. There are specific allegations in the charge sheet that Accused No.4 procured stamp paper from the office and got up the said agreement by antedating it. The allegations against Petitioner No.1 [Accused No.3] is that inspite of being aware of the decree passed in favour of the respondents, he colluded with Accused Nos. 1 and 2 and obtained the sale deed in his favour. In the wake of these allegations, the contentions of the petitioners that prosecution of petitioner Nos.1 and 2 [Accused Nos.3 and 4] is wholly illegal, cannot be accepted as there are allegations prima facie constituting the ingredients of the offences and the said allegations are sought to be substantiated by reliable evidence. Hence, the proceedings against Accused No.3 cannot be quashed. However, insofar as Accused No.5 is concerned, there is absolutely no allegation whatsoever attracting the offence under section 420 of IPC. The only material available on record is that Accused No.5 signed the aforesaid Deed of Sale dated 15.11.2010 as witness. In the absence of any material to show that he was also a party to the alleged conspiracy or cheating, in my view, prosecution of Petitioner No.3 [Accused No.5] for the above offence is wholly illegal and cannot be sustained.
5. Consequently, petition is allowed in part.
Application filed by Petitioner Nos. 1 and 2 is hereby dismissed. Application filed by Petitioner No.3 is allowed. Prosecution initiated against Petitioner No.3 [Accused No.5] in C.C. No.75/2013 on the file of the Senior Civil Judge and JMFC, Arkalgud, is hereby quashed.
Having regard to the grounds urged in the petition, liberty is reserved to Petitioner Nos. 1 and 2 to seek for their discharge on such grounds available under law before the trial Court.
Sd/- JUDGE AN/-