IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.2195 OF 2015 C/W CRIMINAL PETITION No.2197 OF 2015 AND CRIMINAL PETITION No.2194 OF 2015 IN CRL.P NO.2195 OF 2015 BETWEEN:
MR. SATEESH KUMAR N.C S/O CHANNABASAPPA N.B AGED ABOUT 41 YEARS R/O NO.4049, 2ND MAIN SRI MANJUNATHA SWAMY TEMPLE STREET SBM COLONY, BSK 1ST STAGE GIRINAGAR 4TH PHASE BANGALORE-560 050 … PETITIONER (BY SHRI. B.J. MAHESH, ADVOCATE) AND:
1. STATE OF KARNATAKA THROUGH STATION HOUSE OFFICER KADUGODI POLICE STATION REP. BY SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE-560 067 2. MR. RAMESH BABU TIRUKOTI S/O T.V. RAGHAVA RAO AGED ABOUT 46 YEARS RESIDING AT FLAT NO.BL-108 LEVEL-1, BLOCK-B (GROUND FLOOR) ITTINA ANU APARTMENT COMPLEX HOPE FARM JUNCTION WHITEFIELD MAIN ROAD BANGALORE-506 066 ... RESPONDENTS (BY SHRI. NASRULLA KHAN, HCGP FOR R-1;
SHRI. H.R. ANANTHAKRISHNA MURTHY, ADVOCATE FOR R-2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE PROCEEDINGS PENDING BEFORE THE A.C.J.M., BANGALORE RURAL DISTRICT, BANGALORE IN C.C.NO.5082/2010 IN PCR NO.237/2008 ARISED OUT OF CR. NO.14/2009 FOR THE OFFENCES P/U/Ss 120(B),34,406,418,420 OF IPC AGAINST THE PETITIONER.
IN CRL.P NO.2197 OF 2015 BETWEEN:
MR. SATEESH KUMAR N.C S/O CHANNABASAPPA N.B AGED ABOUT 41 YEARS R/O NO.4049, 2ND MAIN SRI MANJUNATHA SWAMY TEMPLE STREET SBM COLONY, BSK 1ST STAGE GIRINAGAR 4TH PHASE BANGALORE-560 050 … PETITIONER (BY SHRI. B.J. MAHESH, ADVOCATE) AND:
1. STATE OF KARNATAKA THROUGH STATION HOUSE OFFICER KADUGODI POLICE STATION REP. BY SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE-560 067 2. MR. PANKAJ KUMAR MISRA S/O SRI. M.L. MISRA AGED ABOUT 35 YEARS RESIDING AT FLAT NO.BL-401 LEVEL-4, BLOCK-B (THIRD FLOOR) ITTINA ANU APARTMENT COMPLEX HOPE FARM JUNCTION WHITEFIELD MAIN ROAD BANGLAORE-506 066 ... RESPONDENTS (BY SHRI. NASRULLA KHAN, HCGP FOR R-1; R2 – SERVED BUT UNREPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE PROCEEDINGS PENDING BEFORE THE A.C.J.M., BANGALORE RURAL DISTRICT, BANGALORE IN C.C.NO.5085/2010 IN PCR NO.3/2009 ARISED OUT OF CR. NO.67/2009 FOR THE OFFENCES P/U/Ss 120(B),34,406,418,420 OF IPC AGAINST THE PETITIONER.
IN CRL.P NO.2194 OF 2015 BETWEEN:
MR. SATEESH KUMAR N.C S/O CHANNABASAPPA N.B AGED ABOUT 41 YEARS R/O NO.4049, 2ND MAIN SRI MANJUNATHA SWAMY TEMPLE STREET SBM COLONY, BSK 1ST STAGE GIRINAGAR 4TH PHASE BANGALORE-560 050 … PETITIONER (BY SHRI. B.J. MAHESH, ADVOCATE) AND:
1. STATE OF KARNATAKA THROUGH STATION HOUSE OFFICER KADUGODI POLICE STATION REP. BY SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE-560 067 2. MR. VADAKKE VEEDU VYASAN S/O S. GOPALAKRISHNAN NAIR AGED ABOUT 42 YEARS RESIDING AT FLAT NO.BL-208 LEVEL-2, BLOCK-B (FIRST FLOOR) ITTINA ANU APARTMENT COMPLEX HOPE FARM JUNCTION WHITEFIELD MAIN ROAD BANGALORE-506 066 ... RESPONDENTS (BY SHRI. NASRULLA KHAN, HCGP FOR R-1;
SHRI. H.R. ANANTHAKRISHNA MURTHY, ADVOCATE FOR R-2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE PROCEEDINGS PENDING BEFORE THE A.C.J.M., BANGALORE RURAL DISTRICT, BANGALORE IN C.C.NO.5081/2010 IN PCR NO.234/2008 ARISED OUT OF CR. NO.11/2009 FOR THE OFFENCES P/U/Ss 120(B),34,406,418,420 OF IPC AGAINST THE PETITIONER.
THESE CRIMINAL PETITIONS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard Shri B.J. Mahesh, learned advocate for the petitioner, Shri Nasrulla Khan, learned HCGP for the State and Shri H.R. Ananthakrishna Murthy, learned advocate for respondent No.2 in Crl.Ps.No.2194/2015 and 2195/2015.
2. Petitioner in all these three petitions is a practicing lawyer, who was working with M/s. Ittina Properties Private Limited (‘Company’ for short) as Assistant Legal Officer. The said company was involved in developing properties. Complainants are purchasers of a flat from the Company. Sale Deeds were executed by the Directors of the Company on behalf of their group entity M/s. Orchha Hotels, Resorts and Residences Pvt. Ltd. By Special Power of Attorney dated 25.02.2008, the Company had authorized the petitioner to present the Sale Deeds and to admit the signatures of executants and receipt of sale consideration.
3. Based on the said Special Power of Attorney, petitioner presented the documents for registration. Three Sale Deeds, which are subject matter of these petitions, were executed on 21.04.2008, 15.05.2008 and 30.06.2008 respectively.
Purchasers of the flats, who are arraigned as respondent No.2 in all petitions presented private complaints registered as PCR Nos.234/2008, 237/2008 and 03/2009 against the Company and its 4 Directors namely, Mahabaleshwarappa, Veeresh Ittina, Mona Ittina and Manu Ittina. The said complaints were referred by the learned Magistrate under Section 156(3) of Cr.P.C., for investigation. Police, after investigation have filed the final report under Section 173 of Cr.P.C., against five persons. Petitioner is arrayed as accused No.5. Feeling aggrieved by the charge sheet, petitioner has presented these petitions.
4. Shri B.J. Mahesh, for the petitioner submitted that petitioner was not arrayed as an accused in the private complaints. There is no reference of any overt-act alleged to have been committed by the petitioner in the complaints. Police have falsely implicated petitioner as an accused for offences punishable under Sections 406, 420, 120B read with Section 34 of IPC. It is submitted that the Special Power of Attorney was given to the petitioner only to present the documents; to admit the signatures of the Executants of the documents and the receipt of consideration on behalf of the Company. In the private complaint, it is alleged that based on the representations given by the Directors of the Company, the complainants in each petition have purchased the flats. In the sale deed, it is clearly stated that the property which is sold is free from all encumbrances, attachments and claims etc. Later, purchasers learnt about the mortgage of the property in question by reading a paper publication in “Deccan Herald”, English Daily dated 05.08.2008.
5. Special Power of Attorney reads as follows;
“This Power of Attorney is made on this 25th day of February Two thousand eight (25/02/08) by us. M/s. ORCHHA HOTELS, RESORTS & RESIDENCIES PVT LTD.
company registered under the Indian Companies Act, 1956, its registered office at No.1054, 7th Main, III – Block, Koramangala, Bangalore – 560 034. Represented by its Managing Director Shri. l. MAHABALESWARAPPA.
WHEREAS we have developed and constructed the multistoried apartment building by name “ITTINA ANU” and we are empowered to execute conveyance deeds and register the said property which property is more fully described in the schedule and herein after called the schedule property.
And whereas it is not possible for us to be present during registration as we are preoccupied to do the same and hence it is necessary for a suitable person to appear and to represent us before the concerned Sub-Registrar, Mahadevapura Village, to present sale deeds and agreements in respect of the schedule property.
Whereas we have found Mr.Sateesh Kumar N.C, S/o.Channabasappa N.B aged about 34 years, residing at #1/1, Javaregowda Building, Doddamma Temple Street, Munishwara Block, Awalahalli, Bangalore-560 026 a fit and proper person to act as attorney for us and behalf and thus intend to appoint him as our attorney, giving him necessary power and authorization for the purpose of registering our Documents in respect of the scheduled property, only to present the documents for Registration which we have already executed.
Wherefore, we do hereby nominate, constitute and appoint Mr. Sateesh Kumar N.C, S/o. Channabasappa N.B, aged about 34 years, residing at #1/1, Javaregowda Building, Doddamma Temple Street, Munishwara Block, Awalahalli, Bangalore-560 026, to be our true and lawful attorney to do present before the Sub Registrar, Mahadevapura Village, for registration of Sale Deed, Agreements or any deeds made between us and others, to present them for registration, to admit our Signature, Thumb Impression and the receipt of the Sale Consideration amounts, to sign any connected papers and Affidavits and to do any acts or deeds or things as may be necessary to complete the Registration of the said Deeds in the manor required by law.”
(emphasis supplied) 6. Learned advocate further contended that the petitioner is not involved in any transaction inter se between the Company and the purchasers of individual flats. Accordingly, he prays for quashing criminal proceedings against the petitioner.
7. Learned advocate for respondent No.2 argued in support of the charge sheet and submitted that petitioner was aware of the facts of the case but did not reveal them to the purchasers. He next contended that there is delay in presenting these petitions. Charge sheet has been filed in the year 2010 and petitions have been filed in the year 2015. Accordingly, he prays for dismissal of these petitions.
8. I have carefully considered the rival contentions and perused the records.
9. In the light of the facts narrated hereinabove, it is clear that transaction was between the Company represented by its Directors on one part and purchasers of the flats on the other part. Admittedly, the petitioner has not been arrayed as accused in the private complaints. There is no whisper about involvement of the petitioner in the private complaint. The relevant portion of the Special Power of Attorney extracted hereinabove clearly shows that petitioner was assigned the job of presenting the documents before the jurisdictional Sub-Registrar for the acts mentioned therein.
10. In paragraph No.4 of the complaint, the complainant in each case has averred thus;
“4. The complainant submit that, Ittina Properties Private Limited has sold 56 apartments to M/s.Orchha Hotels, Resorts & Residences Pvt Ltd. a sister concern of Ittina properties. Out of the said apartments 36 apartments have been sold in favour of the complainant and various individuals by M/s.Orccha Hotels, Resorts & Residences Pvt Ltd. Before purchase negotiations were held. The accused No.1 to 4 have categorically represented to the complainant and other individuals that there is no trust, attachments, claims of payments whatsoever subsisting in the said property and the same is not subject matter of any suit, litigation or proceedings and the property is free from encumbrances. Based on the representations given by the accused No.1 to 4, the complainant and other individuals have purchased the apartments.”
(emphasis supplied) 11. Complainants have clearly averred that they have purchased the flats based on the representation given by accused No.1 to 4. It is also stated in the complaint that the Sale Deed was executed by accused No.4 – Manu Ittina.
12. In the light of the above facts, in my view, criminal prosecution against the petitioner amounts to abuse of process of law. In the circumstances, this petition merits consideration and it is accordingly allowed. Hence, the following proceedings are quashed so far as the petitioner is concerned.
(i) Proceedings in C.C.No.5082/2010 (PCR No.237/2008) arising out of Crime No.14/2009 pending on the file of Additional Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru;
(ii) Proceedings in C.C.No.5085/2010 (PCR No.03/2009) arising out of Crime No.67/2009 pending on the file of Additional Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru and;
(iii) Proceedings in C.C.No.5081/2010 (PCR No.234/2008) arising out of Crime No.11/2009 pending on the file of Additional Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru.
No costs.
Sd/- JUDGE AV