IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.465 OF 2016 BETWEEN:
1. NISHANTH HIREMATH S/O H M BASAVAIAH AGED ABOUT 38 YEARS.
2. SMT. R. USHA W/O H M BASAVAIAH AGED ABOUT 59 YEARS.
3. SRI. H. M. BASAVAIAH S/O LATE M. VEERAIAH AGED ABOUT 63 YEARS.
ALL ARE RESIDING AT :
FLAT NO.106 2ND FLOOR POINEER PRIDE APARTMENT OPP. TO IIMB NEAR APPOLLO HOSPITAL BANNERGATTA ROAD BENGALURU – 560 076.
... PETITIONERS (BY SRI. CHANDRASHEKAR P. PATIL, ADVOCATE) AND:
1. SRI. SIVAN S/O LATE SRI. SANGAPANI AGED ABOUT 85 YEARS RESIDING AT NO 3, BASAVESHWARA LAYOUT 1ST MAIN, NAGASHETTYHALLY BENGALURU – 560 094.
2. THALAGHATTAPURA POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU.
... RESPONDENTS (BY SMT. ROOPA K.R., ADVOCATE FOR R-1 SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R-2) THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH THE COMPLAINT AND FIR IN CR.NO.413/2015 (PCR NO. 431/2013) OF THALAGHATTAPURA POLICE, BENGALURU RURAL DIST, BENGALURU AND ENTIRE PROCEEDINGS IN CR.NO. 413/2015 (PCR NO. 431/2013) PENDING ON THE FILE OF THE LEARNED CHIEF JUDICIAL MAGISTRATE, BENGALURU RURAL DIST., BENGALURU NOW ASSIGNED AND PENDING BEFORE THE HON'BLE 2nd ADDL. C.M.M., BENGALURU RURAL DIST., BENGALURU INSOFAR IT PERTAINS TO THE PETITIONERS.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard learned counsel for petitioners and the learned Additional SPP for respondent No.2. Counsel for respondent No.1 is absent and has not addressed any argument.
2. Contention of the petitioners is that on the same set of allegations, respondent No.1 had filed a private complaint in PCR No.85/2011 alleging commission of offences under Section 120B and 420 of Indian Penal Code. The said complaint was referred for investigation under Section 156(3) of Cr.P.C. After investigation police submitted a ‘B’ summary report on 26.10.2012. Thereafter, respondent No.2 filed the instant complaint based on the same set of allegations which are legally untenable and an abuse of process of Court and hence liable to be quashed in exercise of the powers under Section 482 of Cr.P.C.
3. Learned SPP for respondent No.2 however argued in support of the impugned action contending that the allegations made in the private complaint prima facie disclose the ingredients of the offence under Sections 406, 420, 120B of Indian Penal Code and hence there is no reason to quash the impugned proceedings.
4. The grievance of the complainant is that on the request of A1 to A3, he executed a registered sale deed in favour of accused Nos,.1 and 2 for a total consideration of RS.6,60,000/-. Out of that amount, A1 to A3 paid only Rs.2,20,000/- to the complainant and assured that they would send the DD bearing No.615098 dated 20.11.2004 issued in the name of the complainant through Vijaya Bank, Residency Road Branch, Bengaluru, for a sum of Rs.4,40,000/- but the accused failed to pay the said amount.
5. On perusal of the records produced by the petitioners it is noticed that the earlier complaint was also filed by the petitioners on the same set of allegations and after enquiry, the police submitted a ‘B’ summary report. It is submitted by the learned counsel for the petitioners that the said ‘B’ summary report has been accepted by the learned Magistrate. If so, the only remedy available by the petitioners is to challenge the order passed by the learned Magistrate accepting the ‘B’ summary report and not by way of separate complaint on the same set of allegations. Hence, the prosecution initiated against the petitioners by filing the second complaint on the same set of allegations in PCR 431/13 being an abuse of the process of Court is liable to be set aside.
Accordingly, the petition is allowed. FIR in Crime No.413/2015 arising out of PCR 431/13 is hereby quashed.
Sd/- JUDGE rs