IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE Mr. JUSTICE G.NARENDAR CRIMINAL PETITION NO.6789 OF 2016 Between:
1. Sri. Chandrashekarappa, S/o Late Hanumappa, Aged about 66 years, Occupation: Retired Assistant Statistical Officer, Department of Agriculture, Karnataka.
Presently Residing at Care of L R Veena, W/o Late Rudramurthy, Gannayakanahalli, Hiriyur Taluk, Chitradurga District – 577 599.
2. Sandeep A C S/o Chandrashekarappa, Aged about 37 years, Presently Residing at Care of L R Veena, W/o Late Rudramurthy, Gannayakanahalli, Hiriyur Taluk, Chitradurga District – 577 599.
3. Chytra A C W/o Rajeev R/o at No.24/A, 1st Floor, 13th Cross, Mahalakshmi Layout, Bengaluru – 86.
(By Sri.B.O.Chandashekar, Advocate) And:
1. N P Prasanna Kumar, S/o Late N Parameshwarappa, Aged about 45 Years, Occupation: Advocate R/o at No.93, Veeranjaneya Nilaya, Thalagattapura, Kanakpura Main Road, Bengaluru – 62.
2. State of Karnataka, By Banashankari Police Station, State Public Prosecutor, High Court, Karnataka.
(By Sri.Mahesh Shetty, HCGP for R2;
...Petitioners …Respondents Sri. Afroz Pasha, Advocate for R1 (Absent)) This Criminal Petition is filed under Section 482 of Cr.P.C. praying to set aside the order dated 10.02.2015 passed by the III A.C.M.M., Bangalore in PCR No.24660/2013 (C.C.No.5449/2015) whereby cognizance was taken For the offence P/U/S 504 and 506 read with 149 of IPC as against the petitioners herein and consequently quash the entire proceedings in C.C.No.5449/2015 pending on the file of III A.C.M.M., Bangalore as against the petitioners herein.
This Criminal Petition coming on for Admission, this day, the Court made the following:
ORDER Heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for respondent No.2.
2. The petitioners are before this Court being aggrieved by the order dated 10.02.2015, whereby the Court of the III Additional Chief Metropolitan Magistrate, Bengaluru was pleased to take cognizance of the offences alleged against the petitioners in PCR No.24660/2013 and was further pleased to direct the registration of the case, which came to be registered as C.C.No.5449/2015 for the offence punishable under Sections 504 and 506 read with Section 149 of the Indian Penal Code.
3. The facts in brief are that respondent No.1 - a practicing advocate, has filed a private complaint noted above, alleging the commission of the offence punishable under Sections 467, 468, 469, 470, 471 and 420 of IPC read with Sections 494, 506 Part I and Part II of IPC.
4. That one C.B. Basavaiah was married to Girijamma and the said couple had no issues out the marriage and that the property bearing No.12/A, PID No.55-656-12/A now bearing PID No.182-W0128-19, 1st Cross, T.Thimmaiah Road, RKHBCS II Stage, Padmanabhanagar, Bengaluru was acquired by said Basavaiah; that the said Basavaiah died on 29.11.1992 leaving behind his wife said Girijamma, who also passed away on 22.07.2001 leaving behind her sister Smt.Kamalamma i.e., the mother of the complainant and her brother Chandrashekarappa; that the said Kamalamma, the mother of the complainant, the said Girijamma and accused No.1– Chandrashekarappa are the brothers and sisters; that the said Girijamma, after the demise of said Basavaiah, executed a registered Will in favour of accused No.2; that the said Will came to be registered as document No.37/90-91 in book No.3, volume No.2, pages Nos.159-163 in the office of the Sub-Registrar, Kengeri, Bengaluru on 20.07.1990; that after the demise of the testatrix, the BBMP authorities have mutated the name of petitioner No.2-accused No.2 in the revenue records in respect of the subject property and issued khata on 09.03.2010; that under the Sale Deed dated 08.08.2013, accused No.2 executed a registered Conveyance Deed in favour of the accused No.4 on 08.08.2013 and the same came to be registered as document No.2832/13-14 in Book No.1, stored in C.D No.BSGD 215, Sub-Registrar, Basavanagudi, Bengaluru.
5. It is contended by learned counsel for the petitioners that the complainant-respondent No.1 taking advantage of his standing in the profession as an advocate and on account of greed started to lay a claim to a share in the property, which had devolved upon accused No.2 under the registered Will and is said to have threatened the accused with consequences if the interest of the complainant is not taken care of; that in furtherance of the same, respondent No.1 proceeded to institute a suit for partition, which came to be registered as O.S.No.8007/2013, a copy of which is produced as Annexure-E to the petition and in the said suit, the complainant and his mother also filed an application under Order 39 Rules 1 and 2 of CPC praying for interim relief to restrain defendant No.4 i.e., accused No.4 from alienating the suit properties. The said application came up on 05.11.2013 and the Court was pleased not to grant any interim relief in favour of the complainant. The plaintiff and his mother having failed, the complainant-respondent No.1, proceeded to institute PCR NO.24660/2013 arraying the petitioners as accused Nos.1 to 3. The complainant also proceeded to array the purchaser of the suit property and intermediaries, who facilitated the sale as accused Nos.4 and 5.
6. In the complaint, it is alleged that on 17.11.2013, the petitioners along with accused Nos.4 and 5 came near the property and, (claiming that he is residing there along with his mother) asked them to vacate and hand over the vacant possession of the property. When the complainant and his mother refused to handover the vacant possession, all the accused threatened them with dire consequences and also gave life threats. That the complainant approached the jurisdictional police and requested that proper action be taken against the accused for fabricating documents and for giving life threats and abusing the complainant and his mother in vulgur language. That the police refused to initiate any action and directed the complainant to approach the Courts. As the police refused to receive the complaint, the complainant was constrained to approach the trial Court invoking the provisions of Section 200 of Cr.P.C. The trial Court after examining the complainant and after recording the sworn statement of the complainant, by the order impugned, has been pleased to take cognizance for the offence punishable under Sections 504, 506 read with Section 149 of IPC.
7. Learned counsel for the petitioners would primarily contend that the complaint is a false complaint and inviting the attention of the Court to the cause title in the plaint, which is produced as Annexure-E, he would submit that the very cause title would demonstrate the falsity of the compliant as the place of residence of the plaintiffs i.e., the complainant and his mother is described as No.93, Veeranjaneya Nilaya, Thalaghattapura, Kanakapura Main Raod, Bengaluru – 560 062. He would contend that this material itself is sufficient to demonstrate that the complaint is a false complaint. He would invite the attention of the Court to the averments in paragraph No.7 of the plaint and would submit that the complainant though being fully aware of the factum of alienation of the property and consequential transfer of possession has deliberately made a false statement that he is residing in the said property. He would further invite the attention of the Court to averments wherein plaintiffs, including the complainant, have specifically sought for possession of the property. He would also invite the attention of this Court to the prayer ‘(a)’ pleaded in the suit under which, it is seen that the plaintiffs have sought for possession of the property.
8. Learned counsel would further invite the attention of the Court to the cause title in the complaint wherein, the residential address of the complaint is again described as No.93, Veeranjaneya Nilaya, Thalaghattapura, Kanakapura Main Raod, Bengaluru – 560 062. He would submit that the complaint having detailed his correct address has with a mischievous intent added that they are “also” residing at the subject property, which is in Padmanabhanagar, Bengaluru – 560 070, well away from the complainant’s actual place of residence. That the act of pleading residence in the subject property is motivated and in order to create grounds for sustaining the complaint.
9. Learned counsel would also take the Court to sworn statement to contend that the complainant has not approached the Court with clean hands and has in fact falsely sworn that he has also produced a copy of the plaint in O.S.No.8007/2013. Whereas, only a copy of IA No.1 praying for ex-parte interim relief has been produced and that this fact is borne out by the impugned order dated 10.02.2015, wherein, the Court has noted that the complainant has only produced a copy of the order sheet, complaint and a copy of IA No.1 filed in O.S.No.8007/2013 and the legal notice. He would contend that no other material has been placed to even prima facie demonstrate that he was or is a resident of the property at Padmanabhanagar, Bengaluru – 560 070. He would also invite the attention of the Court to the proximity between the date of filing of the suit and the complaint. He would contend that the complainant having failed to convince the Civil Court to grant them any relief proceeded to lodge a false complaint. He would also invite the attention of the Court to Annexure-J – Rental agreement between accused No.2 and one T.N.Anantharaman, in respect of the premises bearing No.44, V Main Road, Padmanabhanagar, Bengaluru – 560 070 to contend that pursuant to the sale, the possession of the subject property had been handed over to accused No.4 and the petitioners had shifted to a rental accommodation under the said agreement. Hence, the contention of the complainant that he is residing along with his mother in the subject property is a blatant falsehood and the trial Court even without there being any material to demonstrate the residence or presence of the complainant at the said premises erred in taking cognizance and directing the registration of the complaint.
10. The matter was heard on previous dates and only with an intention of granting opportunity to the complainant-respondent No.1 herein, hearing was adjourned to today i.e., 14.11.2019. Despite grant of opportunity, respondent No.1 has remained absent. The conduct of respondent No.1, who is a practicing advocate, cannot be appreciated. Respondent No.1 was duty bound to appear and assist the Court as an officer of the Court. The absence of respondent No.1 is deliberate and to avoid any uncomfortable questions that may by put by this Court. The matter was adjourned from 12.11.2019 to 14.11.2019 only for the purpose of enabling respondent No.1-complainant to appear and assist the Court.
11. Having heard the learned counsel for the petitioners and the learned HCGP for respondent No.2 and having adverted to the contents of the plaint and the complaint, an irrefutable fact stands established. As rightly contended by learned counsel for the petitioners, the complainant has disclosed his place of residence as being in Talaghattapura, Bengaluru – 560 062. There is not even a whisper in the plaint that he is residing in the said property. Even in the complaint, the place of residence is detailed as Talaghattapura, Bengaluru – 560 062. The addition of the address of the subject property, which has been conveyed to accused No.4 appears to be made with a mischievous intent of sustaining the complaint i.e., to demonstrate his presence in the property and that the petitioners and other accused had congregated and threatened the complainant and his mother. That apart, the petitioners have also placed on record, a copy of the complaint lodged by petitioner No.1 against respondent No.1, which is registered on 13.11.2013, which is produced at Annexure-H.
12. Further, a perusal of the Sale Deed executed by accused No.2 in favour of accused No.4 would also disclose that accused No.2 has put accused No.4 in actual possession of the subject property pursuant to covenant No.3 of the Sale Deed. The factum of sale by accused No.2 in favour of accused No.4 is also pleaded before the trial Court by respondent No.1. The trial Court ought to have addressed itself to the said fact before it took cognizance of the complaint for the offence punishable under Sections 506 and 504 of IPC. The petitioners have been successful in prima facie demonstrating that the allegations are false. The materials on record, which cannot be disputed by the complainant, sufficiently demonstrates and it can be safely inferred that neither the complainant nor his mother are residents of the property at Padmanabhanagar, Bengaluru – 560 070. The deliberate absence of respondent No.1 – complainant, though a practicing advocate, further enables this Court to infer adversely against the complainant.
13. It is also submitted by learned counsel for the petitioners that the suit preferred by the complainant has been dismissed on 07.09.2018 for non-prosecution and that till date no attempt has been made even to have suit revived. In the above background, apparently taking advantage of his standing as a professional advocate, the complainant has attempted to abuse the process of Court by a complaint, which prima facie appears to be false and improbable. Hence, the criminal petition is allowed.
14. The complaint registered as C.C.No.5449/2015 pending on the file of III Additional Chief Metropolitan Magistrate, Bengaluru, is hereby quashed insofar as it relates to the petitioners.
Sd/- JUDGE dn/-