IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.3807 OF 2011 BETWEEN:
MISS SHEEBA C.J. AGED 32 YEARS D/O JOHN C.J. SONAL APARTMENT FLAT NO.2, R.C. ROAD MANGALORE, D.K. … PETITIONER (BY SHRI K. CHANDRANATH ARIGA, ADVOCATE) AND:
GILBERT D’SOUZA AGED 51 YEARS S/O MANUAL D’SOUZA PADUBELLE VILLAGE UDUPI TALUK BY HIS POWER OF ATTORNEY HOLDER WILFRED R. D’SOUZA AGED 65 YEARS S/O LAWRENCE D’SOUZA ADI-UDUPI-576 101 UDUPI DISTRICT ... RESPONDENT (BY SHRI GILBERT D’SOUZA, PARTY-IN-PERSON-ABSENT) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO.24/07 ON THE FILE OF THE PRL.C.J. (SR.DN.) AND CJM, UDUPI.
THIS CRIMINAL PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard Shri K. Chandranath Ariga, learned advocate for the petitioner.
2. Petitioner is a practicing advocate. A property belonging to one Rev. Fr. Peter Theodore D’souza (‘R.F. D’souza’ for short) represented by his General Power of Attorney – Tony Fernandez (accused No.4) was sold in favour of one Ancilla Jyothi Fernandez (‘Jyothi Fernandez’ for short) under a registered Sale Deed dated 19.05.2006.
3. Respondent - Gilbert D’souza filed a private complaint in PCR No.21/2006 contending inter alia that the property in question was earlier sold to him by R.F. D’souza. As he was not staying in India, taking advantage of his absence, his property bearing No.87-1/1H/1P-1 has been sold by one Tony Fernandez (GPA Holder of R.F. D’souza) in favour of Jyothi Fernandez. Accordingly, the private complaint was filed and the learned Magistrate referred the matter to the police for investigation under Section 156(3) of Cr.P.C. After investigation, police have filed the charge sheet against accused No.1 and 2 namely, R.F. D’souza and Jyothi Fernandez. Learned Magistrate, has issued process by order dated 04.08.2010, directing to include accused No.3-5 in the charge sheet.
4. Shri Ariga, learned advocate for the petitioner submits that R.F. D’souza is accused of having sold the property in favour of Jyothi Fernandez. Petitioner has prepared the document as per vendor’s instructions. There is no complicity of her crime in the alleged criminal act. He further contends that learned Magistrate, while passing the impugned order directing inclusion of petitioner in the charge sheet, has reiterated the allegations contended in the private complaint and has not recorded any reasons. With these submissions, he prays that impugned order may be set-aside.
5. Though served, none appears for the respondent – complainant.
6. I have carefully considered the rival submissions and perused the records.
7. In the Sale Deed, R.F. D’souza is shown as the Vendor represented by his General Power of Attorney-Tony Fernandez and Jyothi Fernandez is described as purchaser. Except the statement on behalf of the complainant that petitioner had known that this property belonged to the complainant and had joined other accused in fraudulently alienating the property, no other material is forthcoming. However, learned Public Prosecutor filed an application under Section 319 of Cr.P.C. A careful perusal of the impugned order dated 04.08.2010 passed on the said application, shows that it only records averments contained in the complaint and no reasons are forthcoming with regard to complicity of the petitioner in the crime.
8. In the circumstances, the impugned order is unsustainable in law. Resultantly, this petition merits consideration and hence, the following:
ORDER (i) Order dated 04.08.2011, passed in C.C.No.24/2007 by Principal Civil Judge (Sr.Dn.) CJM, Udupi, allowing the application under Section 319 of Cr.P.C., and directing inclusion of petitioner in the charge sheet as accused is set aside;
(ii) The matter is remitted to the learned Magistrate to re-consider the aforesaid application afresh and to pass a reasoned order, in accordance with law.
Petition allowed. No costs.
Sd/- JUDGE AV