IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.4681 OF 2012 BETWEEN:
R SURESH S/O LATE RAJANNA, AGED ABOUT 39 YEARS, R/AT BEHIND THIPPAPURA CHOUTRY, CHOWDESHWARI TEMPLE ROAD, MADHUGIRI TOWN, TUMKUR DISTRICT.
(BY SRI: BIPIN HEGDE, ADVOCATE) AND 1. B H PANCHAKSHARAIAH S/O LATE H.ADAVAPPA, AGED ABOUT 58 YEARS, R/AT NEAR CIVIL BUS STAND, MADHUGIRI TOWN, TUMKUR DISTRICT.
2. RAJASHEKARARAADYA S/O SRIKANTARAADYA, AGED ABOUT 58 YEARS, R/AT DANDOORUBAGILU ROAD, MADHUGIRI TOWN, TUMKUR DISTRICT.
... PETITIONER 3. M S MALLIKARJUNAIAH S/O SIDDEGOWDA, MAJOR, MEDIGESHI VILLAGE, MADHUGIRI TALUK, TUMKUR DISTRICT.
4. S P BASAVARAJAPPA S/O PUTTAMALAIAH, MAJOR, R/AT SIDDAPURA VILLAGE, MADHUGIRI TALUK, TUMKUR DISTRICT.
5. P N UMESH S/O P.MALLAPPA, AGED ABOUT 48 YEARS, R/AT MALLESHWARASWAMY TEMPLE STREET, MADHUGIRI TOWN, TUMKUR DISTRICT.
... RESPONDENTS (BY SRI: A V GANGADHARAPPA, ADVOCATE FOR R1-R4 R5-SERVED AND UNREPRESENTED) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED:11.6.12 PASSED BY THE FTC-V, MADHUGIRI IN CRL.RP.NO.46/12.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard learned counsel for the petitioner and learned counsel for respondent Nos.1 to 4. Respondent No.5 is served and unrepresented. Perused the records.
2. Petitioner purchased a site from the respondents under a registered sale deed dated 07.03.2009. Said sale deed was signed and executed by respondent No.5 (accused No.2) on behalf of himself and on behalf of other respondents. On coming to know that said site was formed in a Government land by the vendors, petitioner sought prosecution of the respondents for the alleged offences punishable under sections 418, 419, 420, 431, 434 r/w 34 Indian Penal Code. Learned Magistrate took cognizance of the alleged offences and issued summons to the respondents. Said order was challenged by the respondents before Fast Tract-V, Madhugiri and by order dated 11.06.2012 in Crl.R.P.No.46/2012, the revisional court allowed the petition and consequently dismissed the complaint filed by the petitioner in PCR No.61/2010.
3. Learned counsel for the petitioner submits that the allegations made in the complaint prima-facie disclose commission of the offences alleged in the private complaint, under the said circumstances, the learned Sessions Judge has committed serious error and illegality in dismissing the complaint.
4. Learned counsel for respondent Nos.1 to 4 however submit that the allegations made in the complaint do not disclose any dishonest intention or deception by any one of the respondents. Moreover, petitioner having filed a civil suit in O.S.No.142/2012, is not entitled to prosecute the respondents on the same set of allegations. Thus, he seeks for dismissal of the petition.
5. Considering the rival submissions and on perusal of the averments made in the complaint, I find that the allegations made in the complaint squarely attract the ingredient of Section 420 of Indian Penal Code. Necessary averments in this regard find place in para 6 of the complaint which is extracted hereinbelow.
6. xxxxxxxx But unfortunately, FORTUNE DID NOT COME TO HIS AID, and at last, the complainant has started to UNEARTH the TRUTH ATTACHED TO THE CAPTIONED PROPERTY and in this regard, he has explored and collected so many documents and by virtue of this he got confirm that the accused have GAIN and to cause a WRONGFUL GAIN and to cause a WRONGFUL LOSS to the complainant and other sites purchased from the accused. VIOLATING AND BREACHING THE MANDATORY CONDITION LAID DOWN UNDER ORDERS PASSED ON 16.9.2000 BY A.C, Madhugiri in case No. ALNSCR.NO. 33/1998-99, ILLEGALY appropriated the government kharab land measuring 18 guntas shown in the land bearing sy.no.53/1A9 of Madhugiri Village, which is exclusively meant for and reserved for SIDDARAKATTE HALLA KHARAB and usurping this kharab portion of 18 guntas, the accused have got more than 10,000.00 square feet EXCESS area in addition to the converted area and utilizing the same, they have formed more sites in the GOVERNMENT LAND-BASAVANNABETTA, which is situated and located towards the east of the captioned property, and WITHOUT SHOWING OR EXPOSING THIS FACT OF ENCROACHMENT AND UTILIZATION OF KHARAB PORTION OF 18 GUNTAS IN ANY DOCUMENTS. By this encroachment and illegal utilization of the kharab portion, LOCATION of some of the sites including the site bearing no.22 shifted to the Government land-
Basavannanabetta. In fact, disclosing all these facts, the complainant has once again requested the accused to make good in that regard, but they shown SCANT respect to his request and did not allow him to meet them. At last, the complainant has through the counsel, on 28.5.2010 caused the issuance of a legal notice to the accused and requested them to make good to his grievance, but the accused no.1,3 to 5 without showing at least a minimum inclination to resolve the dispute and to come to his aid, have on 10.7.2010, issued a reply notice denying all the contentions raised in the notice dated 28.5.2010 and have also shifted the responsibility and liability on the accused No.2.
6. The assertions made in the complaint go to show that even though the revenue authorities had initiated action and had come to the conclusion that the site alienated to the petitioner was formed in Government land, suppressing this fact, respondents herein alienated the site falsely representing to the petitioner as absolute owners thereto and thereby caused loss to the petitioner. In the wake of these allegations, it cannot be said that the dispute between the parties is civil in nature. Though civil suit is pending between the parties, the same does not preclude the petitioner from resorting to criminal action as the facts depicted in the complaint prime facie make out the ingredients of criminal offence. As the material on record prima- facie disclose commission of alleged offences, the order passed by the Revisional Court being contrary to the material on record, cannot be sustained.
Accordingly, petition is allowed. The impugned order passed by the Presiding Officer, Fast Track Court-V, Madhugiri in Cr.R.P.No.46/2012 dated 11.06.2012 is set-aside. Consequently, the order passed by the learned Magistrate is restored. Since the matter is of the year 2010, the trial court is directed to expedite the trial.
Sd/- JUDGE *mn/-