IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.121 OF 2015 C/W CRIMINAL PETITION NO.123 OF 2015 C/W CRIMINAL PETITION NO.2583 OF 2015 IN CRL.P.NO.121/2015 BETWEEN:
SRI.CHANDRAPPA S/O SRI.MUNIVEERAPPA AGED 38 YEARS R/AT NO.419, 6TH MAIN ATTUR LAYOUT BENGALURU – 560 064.
…PETITIONER (BY SRI.M.S.RAJENDRA PRASAD, SENIOR ADVOCATE A/W SRI.K.ABHINAV ANAND, ADVOCATE) AND:
1. STATE OF KARNATAKA BY S.H.O. OF KODIGEHALLI POLICE STATION KODIGEHALLI BANGALORE CITY REPRESENTED BY THE LEARNED STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BANGALORE – 560 001.
2. SRI.M.CHANDRASHEKHAR S/O SRI.PULLAUMA RAJU AGED ABOUT 48 YEARS R/AT NO.13/1, SURAJ BRIGADE 2ND FLOOR, ‘G’ BLOCK SAHAKARANAGARA BANGALORE – 560 092. ... RESPONDENTS (BY SRI. VIJAYA KUMAR MAJAGE, ADDL.SPP FOR R1; SRI.R.NATARAJ, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE CRIMINAL PROCEEDINGS IN C.C.NO.12987/2014 ARISING OUT OF CRIME NO.201/2013 UNDER SECTION 420 OF IPC. REGISTERED BY THE 1ST RESPONDENT AGAINST THE PETITIONER WITHIN THE COGNIZANCE OF THE LEARNED CHIEF METROPOLITAN MAGISTRATE, BANGALORE CITY.
IN CRL.P.NO.123/2015 BETWEEN:
KUMARI. ARUNA D/O SRI.ANJINAPPA AGED 20 YEARS R/AT NO.303, 6TH MAIN ATTUR LAYOUT BENGALURU – 560 064. …PETITIONER (BY SRI.M.S.RAJENDRA PRASAD, SENIOR ADVOCATE A/W SRI.K.ABHINAV ANAND, ADVOCATE) AND:
1. STATE OF KARNATAKA BY S.H.O. OF KODIGEHALLI POLICE STATION KODIGEHALLI BANGALORE CITY REPRESENTED BY THE LEARNED STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BANGALORE – 560 001.
2. SRI.M.CHANDRASHEKHAR S/O SRI.PULLAUMA RAJU AGED ABOUT 48 YEARS R/AT NO.13/1, SURAJ BRIGADE 2ND FLOOR, ‘G’ BLOCK SAHAKARANAGARA BANGALORE – 560 092. ... RESPONDENTS (BY SRI. VIJAYA KUMAR MAJAGE, ADDL.SPP FOR R1; SRI.R.NATARAJ, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE CRIMINAL PROCEEDINGS IN C.C.NO.12987/2014 ARISING OUT OF CRIME NO.201/2013 UNDER SECTION 420 OF IPC. REGISTERED BY THE 1ST RESPONDENT AGAINST THE PETITIONER WITHIN THE COGNIZANCE OF THE LEARNED CHIEF METROPOLITAN MAGISTRATE, BANGALORE CITY.
IN CRL.P.NO.2583/2015 BETWEEN:
1. SMT. KEMPAMMA W/O LATE SRI.ANJINAPPA AGED 48 YEARS 2. SRI.SHIVAKUMAR S/O LATE SRI.ANJINAPPA AGED ABOUT 23 YEARS 3. SMT. SUMITHRA D/O LATE SRI.ANJINAPPA AGED ABOUT 28 YEARS PETITIONER 1 TO 3 ARE RESIDENTS OF HARIJANA COLONY SUNKALAMMA STREET YELAHANKA TOWN BENGALURU – 560 064. …PETITIONERS (BY SRI.M.S.RAJENDRA PRASAD, SENIOR ADVOCATE A/W SRI.K.ABHINAV ANAND, ADVOCATE) AND:
1. STATE OF KARNATAKA BY S.H.O. OF KODIGEHALLI POLICE STATION KODIGEHALLI BANGALORE CITY REPRESENTED BY THE LEARNED STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BANGALORE – 560 001.
2. SRI.M.CHANDRASHEKHAR S/O SRI.PULLAUMA RAJU AGED ABOUT 48 YEARS R/AT NO.13/1, SURAJ BRIGADE 2ND FLOOR, ‘G’ BLOCK SAHAKARANAGARA BANGALORE – 560 092. ... RESPONDENTS (BY SRI. VIJAYA KUMAR MAJAGE, ADDL.SPP FOR R1) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE CRIMINAL PROCEEDINGS IN C.C.NO.12987/2014 ARISING OUT OF CRIME NO.201/2013 UNDER SECTION 420 OF IPC.
REGISTERED BY THE 1ST RESPONDENT AGAINST THE PETITIONER WITHIN THE COGNIZANCE OF THE LEARNED CHIEF METROPOLITAN MAGISTRATE, BANGALORE CITY.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Crl.P.Nos.121/2015, 123/2015 and 2583/2015 have arisen out of the charge sheet laid against the petitioners (accused Nos.1 to 5) for the offence punishable under Section 420 of IPC.
2. The case of the prosecution is that the petitioners herein representing themselves to be the absolute owners of the land comprised in Sy.No.72, New No.72/P4 and Sy.No.141 measuring two acres four guntas situate in Hutthanahalli Village, Jala Hobli, Bangalore North Taluk, entered into an agreement of sale with the complainant / respondent No.2 for a total consideration of Rs.1,97,00,000/- and received an advance sale consideration of Rs.69 lakhs and received further advance of Rs.63 lakhs, in all a sum of Rs.1,32,00,000/-, but failed to execute the sale deed in terms of the aforesaid agreement of sale. Further allegations made in the complaint are that the petitioners were very well aware of the fact that the land was granted to the ancestors of the petitioners in the year 1942 subject to the condition of non-alienation of the said properties. Proceedings were initiated by the Assistant Commissioner for resumption of those land in Case No.KSC.ST.105/1995-96. Smt.Kempamma and her children were parties to the said proceedings. Suppressing the above fact, petitioners persuaded the complainant to enter into aforesaid agreement. Petitioners themselves had sought for cancellation of the said agreement before the Assistant Commissioner and had prayed for repayment of advance. The cheques issued by them also got dishonored, which indicate the dishonest intention on the part of the petitioners to cheat and defraud the complainant.
3. Learned counsel for the petitioners submits that as on the date of the alleged agreement, the petitioner – accused No.4 in Crime No.123/2015 was a minor. Therefore, the charge sheet could not have been filed against accused No.4 and no criminal intention could have been imputed to accused No.4. Further, he submits that even with regard to the other accused persons are concerned, the allegations made in the complaint as well as in the charge sheet indicate that dispute has arisen on account of non-performance of the terms and conditions of the agreement, which at the most give rise to a civil dispute and therefore, criminal prosecution of the petitioners is an abuse of the process of Court. The facts alleged in the charge sheet even if accepted in its entirety do not constitute the ingredients of the offence punishable under Section 420 of IPC. It is the borrower, who is required to satisfy the title of the property agreed to be purchased by him. The allegations made in the complaint do not indicate that at the inception of the contract, there was any element of dishonest intention on the part of any of the petitioners. Therefore, the prosecution of the petitioners for the alleged offence under Section 420 of IPC is illegal and abuse of process of Court and intended as a substitute for recovery of the money alleged to have been advanced under the said agreement. Therefore, he seeks to quash the impugned proceedings.
4. Defending the impugned charge sheet, learned Additional SPP however, submitted that the allegations made in the complaint indicate that the petitioners were very well aware at the time of execution of the agreement that the properties in question were resumed by the Government, as such, they had no right or title to enter into an agreement of sale. Further, the conduct of the petitioners in seeking cancellation of the said agreement in the pending proceedings before the Assistant Commissioner and subsequent issuance of the cheques knowing fully well that the petitioners were not having funds to their credit would amply demonstrate the dishonest intention of the petitioners making out an offence under Section 420 of IPC and hence, there is no case for quashing of the proceedings.
5. The facts discussed above in my considered opinion clearly attract the offence punishable under section 420 Indian Penal Code. What is ‘cheating’ is defined under Section 415 of Indian Penal Code as under:-
415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.
Illustrations (a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.
(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A cheats.
(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonored, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.
(h) A intentionally deceives Z into a belief that A has performed A’s part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats.
6. In the present cases, the facts discussed above clearly indicate that on account of action initiated under KPTCL Act, the petitioners had no right to enter into an agreement. Suppressing the said fact, the petitioners have entered into the aforesaid agreement which clearly falls within the above illustration thereby prima-facie making out the offence alleged in the charge sheet.
7. The contention of the learned counsel for the petitioners that one of the petitioner was a minor as on the date of the alleged agreement of sale cannot be a ground to quash the proceedings. It is open to the said accused to raise the said plea before the trial court and invite an order in that regard to determine his age. For the present, there are no material to show that the petitioner in Crl.P.No.123/2015 was a minor as on the date of the execution of the sale deed. Therefore, on that score, the impugned proceedings cannot be quashed.
8. Further, the contention of the learned counsel for the petitioners that the subsequent agreement entered into between the parties, whereunder, the parties have mutually agreed to settle the dispute, also cannot be a ground to quash the proceedings. The very fact, the said suit is still pending without any compromise having been materalised, it only fortifies the allegation made against the petitioners that even the promise of compromise made by the petitioners in the subsequent agreement is false and is made with dishonest intention. Therefore, considering all the above facts and circumstances, I do not find any justifiable reason to quash the impugned proceedings. The allegations made in the charge sheet and the material produced in support thereof prima-facie make out the offence alleged against the petitioners. Consequently, the petitions are dismissed.
Sd/- JUDGE VMB/mn