IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No. 2691 /2016 BETWEEN:
1. Mr.Ramanlal M.Sha S/o Mr.Manikchand Sha, Aged about 62 years, Director, Ms.Rajarajeshwari Buildcon Pvt. Ltd., A company incorporated under the Companies Act, 1956 Office at No.67/1, ‘Sri Ranga’, Nettakallappa Circle, Basavanagudi, Bengaluru – 560 004.
2. Mr.Mitesh Kumar J.Sha S/o Mr.Manikchand Sha, Aged about 43 years, Director, Ms.Rajarajeshwari Buildcon Pvt. Ltd., A company incorporated under the Companies Act, 1956 Office at No.67/1, ‘Sri Ranga’, Nettakallappa Circle, Basavanagudi, Bengaluru – 560 004.
3. Mrs.Yashoda Sundararajan W/o Late Mr.K.S.Sundararajan, Aged about 72 years, Presently residing at No.301, 3rd Floor, R.R.Elegance, No.39, 36th ‘F’ Cross, 4th T Block, Jayanagar, Bengaluru.
(By Sri.Muhammed Shamil, Advocate for Sri.P.B.Ajith, Advocate) AND:
1. State of Karnataka Represented by Tilak Nagar Police Station, Tilak Nagar, Bengaluru – 560 041. Represented by the State Public Prosecutor.
2. Mr.B.N.Vishwanath S/o Late T.V.Narayanaswamy, Aged about 61 years, Residing at No.12, 28th Cross, 2nd Main, 7th Block, Jayanagar West, Bengaluru – 560 082.
... Petitioners ... Respondents (By Sri.Vijayakumar Majage, Addl.SPP for R1; Sri.H.C.Shivaramu, Advocate for R2) This Criminal Petition is filed under Section 482 of Cr.P.C praying to quash the FIR in Cr.No.185/2016 on the file of II ACMM, Bengaluru registered by the 1st respondent Tilak Nagar Police Station, Bengaluru against the petitioners for the offences P/U/S 420 read with 34 of IPC on the compliant dated 29.03.2016 lodged by the 2nd respondent and to quash the proceedings in C.C.No.20609/2017 on the file of VI Addl.CMM, Bengaluru initiated pursuant to the charge sheet dated 29.03.2017 filed by the 1st respondent (Tilak Nagar Police) against the petitioner No.1 & 2 for the offences P/U/S 406, 419, 420 read with 34 of IPC .
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Petitioners have sought to quash the FIR in Crime No.185/2016 registered by the 1st respondent-Tilak Nagar Police Station for the offences punishable under Sections 420 read with 34 of IPC and to quash the proceedings in C.C.No.20609/2017 on the file of VI Additional CMM, Bengaluru initiated pursuant to the charge sheet dated 29.03.2017 filed by the 1st respondent (Tilak Nagar Police) against the petitioner Nos.1 and 2 for the offences punishable under Sections 406, 419, 420 read with 34 of IPC.
2. Heard learned counsel for petitioners, learned counsel for respondent No.2 and learned Additional SPP for respondent No.1. Perused the records.
3. The substance of accusations levelled against petitioners is that the petitioners alienated flat Nos.002, 301, 304 and 404 and received a sum of Rs.3,69,54,000/-
claiming to be the owners of those flats even though they had no right over those flats.
4. Learned counsel for the petitioners would submit that the parties are being governed by Joint Development Agreement dated 07.08.2013 followed by a Memorandum of Understanding dated 19.02.2015. In respect of the dispute that has arisen on account of breach of performance of the terms and conditions of the aforesaid Memorandum of Understanding dated 19.02.2015, the dispute was adjudicated by the arbitrator and final award has been rendered in AC No.87/2017. As against the said award, appeals are filed under Section 34 of Arbitration and Conciliation Act, 1996 by the petitioners as well as respondent No.2. Hence, the alleged dispute having been seized by competent Court, initiation of prosecution against the petitioners is untenable and abuse of process of court.
5. I have gone through the allegations made in the complaint and the findings recorded by the arbitrator. The arbitrator in its final award dated 30.11.2018 at clause 7(c) has held as under:
“c) The direction for delivery of possession of flats No.101, 302 and 303 in terms of issue no.7(g) are not granted in terms of findings but a direction is issued to the claimant to deliver vacant possession of flat No.403 to the respondent.”
6. As already stated above, the grievance of the petitioners relates to alienation of flat Nos. 002, 301, 304 and 404 and received a sum of Rs.3,69,54,000/-. The said dispute has not been answered by the arbitrator and it is not the subject matter of arbitration suit pending between the parties. Under the said circumstances, there being clear allegations that the petitioners have sold and alienated the flats without any authority contrary to the terms of Memorandum of Understanding dated 19.02.2015, there are no grounds to interfere in this matter. Hence, the petition is dismissed.
Sd/- JUDGE UN