IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1113 OF 2013 BETWEEN:
1. K RAMESH S/O LATE KRISHNAPPA AGED ABOUT 44 YEARS RAVI TALKIES COMPLEX R T NAGAR, BANGALORE 560032 PRESENTLY R/AT 1-A & G-D SHUBHASHREE APARTMENT NO.31/3, 1ST MAIN ROAD 1ST BLOCK, RAHAMATNAGAR, 5TH CROSS, R.T. NAGAR BANGALORE 560032 2. S RISHI KUMAR S/O LATE K SURESH AGED ABOUT 37 YEARS RAVI TALKIES COMPLEX R T NAGAR, BANGALORE 560032 PRESENTLY R/AT G-D & 1-A SHUBHASHREE APARTMENT NO.31/3, 1ST MAIN ROAD 1ST BLOCK, RAHAMATNAGAR, 5TH CROSS, R.T. NAGAR BANGALORE 560032 3. S RAVIKUMAR S/O LATE K SURESH AGED ABOUT 34 YEARS RAVI TALKIES COMPLEX R T NAGAR, BANGALORE 560032 PRESENTLY R/AT G-D & 1-A SHUBHASHREE APARTMENT NO.31/3, 1ST MAIN ROAD 1ST BLOCK, RAHAMATNAGAR, 5TH CROSS, R.T. NAGAR BANGALORE 560032 4. M KRISHNAPPA S/O LATE PILLAPPA AGED ABOUT 65 YEARS FLAT NO.1-A & G-D, SHUBHASHREE APARTMENT NO.31/3, 1ST MAIN ROAD 1ST BLOCK, RAHAMATNAGAR, 5TH CROSS, R.T.NAGAR BANGALORE 560032 ... PETITIONERS (BY SMT: LEELA P.DEVADIGA, ADVOCATE FOR SRI: A K SUBBAIAH, ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY R.T.NAGAR POLICE STATION BANGALORE REP BY S P P HIGH COURT OF KARNATAKA HIGH COURT BUILDING BENGALURU-560001.
2. RAVI PATEL @ RAVIKUMAR K AGED ABOUT 42 YEARS S/O LATE KRISHNAPPA R/AT FLAT NO.3-D SHUBHASREE APARTMENT 1ST MAIN ROAD, 1ST BLOCK R.T. NAGAR BANGALORE 560032 ... RESPONDENTS (BY SRI: I.S.PRAMOD CHANDRA, SPP-II FOR R1 SRI: RANJITH SHANKAR, ADVOCATE FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE CHARGE SHEET IN C.C.NO.2121/2013 DATED 29.01.2013 PENDING ON THE FILE OF VIII A.C.M.M., BANGALORE.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners are accused Nos.1 to 4 in C.C.No.2121/2013. The accusations against the petitioners in the charge sheet is that the petitioners herein trespassed into Plot No.G-D situate in the ground floor and plot No.1-A situate in the first floor of Subhashree Apartment situate in Sy.No.31/3 of R.T. Nagar I Block, 1st Main Road, 5th Cross, Rahamathnagar, Bengaluru.
2. Learned counsel for the petitioners’ submits that as on the date of initiation of criminal proceedings, the civil court had passed a preliminary decree for partition of the common properties held by the complainant –respondent No.2 and the petitioners and therefore the charge under section 448 IPC r/w 34 IPC cannot stand against the petitioners. Further, she submits that in terms of the preliminary decree dated 23.12.2006 in O.S.No.3828/1995, a final decree has been passed in FDP No.31/2007 dated 23.01.2014, whereby the aforesaid properties are allotted to the petitioners and hence the prosecution against the petitioners is solely illegal and abuse of process of the Court.
3. Disputing the contentions, learned counsel for respondent No.2 submits that in the final decree proceedings, the aforesaid plot No.G-D on the ground floor and 1-A in the first floor are allotted to the share of the second respondent and therefore the allegations made against the petitioners’ stand reinforced and hence, there is no reason to quash the proceedings.
4. The contention of the learned counsel for respondent No.2 is contrary to the final decree proceedings passed by the civil court, which indicates that the plots situated on the ground floor and the first floor are allotted to petitioner Nos.2 to 5, whereas, plot situated on the third floor is only allotted to the exclusive share of 2nd respondent, nevertheless, as on the date of the alleged complaint, all the properties including the plots in question were declared to be the partible properties and the civil court had declared the respective share to all the petitioners and the 2nd respondent. Therefore, the accusations made against the petitioners that the petitioners had trespassed into the said properties is contrary to the said decree. The petitioners being lawful joint owners were entitled to be in possession of the said properties until the properties were divided by metes and bounds. Therefore, there could not have been any trespass into the common properties. Hence, the initiation of the proceedings and submission of charge sheet being an abuse of the process of Court, the same is liable to be quashed.
Accordingly, the petition is allowed. The proceedings presently pending on the file of LVI Addl. CMM Court, Bengaluru in C.C.No.2121/2013 for the offence punishable under section 448 r/w 34 of Indian Penal Code is hereby quashed.
Sd/- JUDGE *mn/-