IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3470/2013 C/W CRIMINAL PETITION NO.3044/2013 BETWEEN:
1. SHRI S.N.SIMHA S/O. LATE G.R.SWAMY AGED ABOUT 82 YEARS R/AT NO.16/2 COTTONPET CROSS ROAD BANGALORE-560 053 2. SMT. YAMUNADEVI W/O.S.N.SIMHA AGED ABOUT 76 YEARS R/AT NO.16/2 COTTONPET CROSS ROAD BANGALORE-560 053 … PETITIONERS IN CRL.P.NO.3470/2013 BETWEEN:
1. SHRI RAVI NARAYANA S/O. ASHWATHNARAYANA AGED ABOUT 57 YEARS MANAGER CHIKMANGALORE-KODAGU GRAMEENA BANK BAVIKERE BRANCH KADUR TALUK CHIKMANGALORE DISTRICT-577 548 2. MADHUSUDHAN S/O. RAMAKRISHNA BHAT AGED ABOUT 58 YEARS MANAGER CHIKMANGALORE-KODAGU GRAMEENA BANK BALEHONNUR BRANCH CHIKMANGALORE DISTRICT-577 112 … PETITIONERS IN CRL.P.NO.3044/2013 (BY SRI R.NAGENDRA NAIK, ADVOCATE) AND:
SRI NAVIN KANDAVAR S/O.LATE MAHABALASHETTY AGED ABOUT 45 YEARS ARCHITECT R/AT SHARAVATHI NAGAR SHIMOGHA-577 201 …RESPONDENT COMMON (BY SRI H.K.KENCHEGOWDA, ADVOCATE) THESE CRIMINAL PETITIONS ARE FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE PROCEEDINGS IN CC.NO.304/2013 ON THE FILE OF JMFC-II, SHIMOGA IN SO FAR AS THE PETITIONERS/ ACCUSED NOS.1 TO 4 ARE CONCERNED.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
COMMON ORDER These two petitions are filed by accused Nos.1 to 4 in CC.No.304/2013 seeking to quash the said proceedings registered for the offences punishable under Sections 409, 406, 420, 110, 120-B, 168, 169, 427 read with Section 34 of IPC.
2. Learned Counsel for the petitioners submits that the averments made in the complaint do not disclose the commission of any criminal offences by the petitioners. Even though it is alleged that on the assurance of entering into an agreement of sale, the complainant has paid Rs.2,10,000/- to the petitioners, the said transaction is flatly denied by the petitioners. Under the said circumstance, the dispute if any between the parties is purely civil in nature. The invocation of the criminal jurisdiction by the complainant is mala fide and intended to compel the petitioners to agree with the unlawful demands of the complainant. Hence, the proceedings are liable to be quashed.
3. Learned Counsel for the contesting respondent disputes the same and submits that even though there is no agreement of sale, yet the conversation between the parties is recorded in the CD and considering the said material, the trial Court has taken cognizance of the above offences. The said CD is required to be proved in the course of the trial. There is prima facie material to support the accusation made against the petitioners.
4. Considered the submission and perused the records. It is not in dispute that accused Nos.3 and 4 were the owners of certain sites. According to the complainant, accused Nos.3 and 4 executed a power of attorney in favour of accused No.1 authorising him to sell the said sites. According to the complainant he entered into negotiation to purchase three sites and paid consideration of Rs.2,10,000/-, but accused No.1 failed to execute the agreement of sale as promised. In his sworn statement, the complainant has produced the CD and has deposed that the conversation between accused No.1 and him is recorded in the said CD and the said conversation amounts to an agreement of sale between the parties.
5. In the impugned order, the learned Magistrate has observed that “accused No.1 had obtained a sum of Rs.2,10,000/- from the complainant. The witnesses have also paid a sum of Rs.1,00,000/- each in respect of purchase of the said properties. The complainant has also produced the CD before the Court containing the alleged conversation between himself and the accused persons. However, the CD is not accompanied by the certificate of the marker as per requirement of Section 68(B) of the Indian Evidence Act and therefore, no evidentiary value can be attached to it.”
6. In this background, if the averments made in the complaint are persued, in Para-3 of the complaint, it is stated that “accused No.3-S.N.Simha and his wife accused No.4-Yamunadevi agreed to sell the said schedule properties in favour of the complainant through accused No.1 for Rs.900/- Sq.ft. Initially, the complainant agreed for Rs.800 Sq.ft. after negotiation Rs.900/- Sq.ft. is settled and fixed between complainant and all the accused in respect of the said matter. The complainant believed the words of accused and on trust, promptly and honestly paid Rs.10,000/- and Rs.1,00,000/- and again Rs.1,00,000/- is paid to the accused through agent and accused also accept the same and received total amount of Rs.2,10,000/- as advance and it is clearly recorded in CD, cassette and mobile.”
7. From the above averments, it is not clear as to whom the said amount was paid, whether to accused No.1 or to any other accused. At one place, it is stated that accused Nos.3 and 4 agreed to sell the schedule properties but in the next paragraph, it is stated that accused Nos.3 and 4 have executed a power of attorney in favour of accused No.1. If the complainant had entered into an agreement of sale with the power of attorney holder i.e. accused No.1 and has paid an advance amount to him, the further averments made by the complainant that he has entered into an agreement with accused Nos.3 and 4 cannot be reconciled. These statements are contradictory to each other. If it is accepted that the witnesses namely, Samartharaja Shetty and Prashantha Shetty have paid Rs.1,00,000/- each on behalf of the complainant, the total amount paid to the accused comes to Rs.4,10,000/-. In wake of these glaring discrepancies the case of the complainant cannot be accepted at its face value. The averments made in the complaint even if accepted as true, it would at the most give rise to a civil obligation requiring the complainant to enforce the said agreement. The accused have flatly denied any transaction between them and the complainant and also have denied receiving any consideration from the complainant.
In the above circumstances, the only course open for the petitioners is to seek an appropriate remedy invoking the jurisdiction of the Civil Court rather than invoking the jurisdiction of the Criminal Court. The Police or the Criminal Court cannot decide the validity of the agreement between the parties. The averments made in the complaint do not make out the ingredients of the offences alleged against the petitioners. Even if it is accepted that payments have been made to accused No.1, criminal action against accused Nos.2 to 4 cannot be foisted on that score. It is not the case of the complainant that he has entrusted any money to accused Nos.2 to 4. Even with regard to the alleged promise to sell the property, there is no clear averment in the complaint as to whether the said assurance was made by accused No.1 or accused Nos.3 and 4. In the light of all these discrepancies and the contradictions apparent on the face of the record, in my view, the prosecution of the petitioners for alleged offences is blatantly illegal and an abuse of process of Court and is liable to be quashed. Accordingly, the petitions are allowed. The proceedings initiated against the petitioners in CC.No.304/2013 on the file of JMFC-II, Shivamogga are hereby quashed.
Liberty is reserved to the petitioners to seek appropriate remedy before the Civil Court in accordance with law.
Sd/- JUDGE LB