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.2610/2013 BETWEEN SRI DEVARAJU S/O SRI.ANJINAPPA, AGED ABOUT 35 YEARS, R/AT NO.33, KADUSONNAPPANAHALLI VILLAGE, KANNUR POST, BIDARAHALLI HOBLI, BANGALORE-562149. ... PETITIONER (BY SRI V SUDHAKAR, ADV.) AND 1. STATE BY SAMPIGEHALLI POLICE STATION REPRESENTED BY SPP, HIGH COURT OF KARNATAKA, BANGALORE.
2. SRI MUNIRAJ S/O BATHYAPPA AGED ABOUT 42 YEARS R/OF KUDUSONNAPPANAHALLI VILLAGE, KANNUR POST, BANGALORE EAST TALUK. ... RESPONDENTS (BY SRI NASRULLA KHAN, HCGP FOR R1, L.HARISH KUMAR, ADV. FOR R2 - ABSENT) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN CR. NO.52/2013 REGISTERED BY THE RESPONDENT POLICE AND ALL ACTS ARISING PURSUANT THEREOF.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The case of the second respondent is that a property bearing Sy.No.48/2 to an extent of 1 acre 2 guntas situate on Airport Link Road, Kadusonnappanahalli Village, Bidarahalli Hobli, Bangalore East Taluk, Bangalore District was sold by his father to accused no.2-Anand Surana without the consent and knowledge of the second respondent. Hence, he filed OS 1193/11 before the Civil Judge, Sr.Division, Bangalore. When the suit was pending, accused no.2 approached accused no. 1 - petitioner herein for compromise and petitioner herein assured the complainant and his family members that he is going to compensate a sum of Rs.20 lakhs on withdrawing the suit in OS NO.1193/11. Accordingly, the complainant consented for withdrawing the suit.
2. On 24.01.2012 the complainant was taken to Sub- Registrar’s Office and was made to sign a confirmation sale deed. Believing the words of the accused, complainant executed the confirmation sale deed in favour of accused no.2. On the next day when the complainant asked accused no.1 namely the petitioner herein as to when his share of 20 lakhs would be paid, Accused no.1 told him that he would get the amount within one or two days after clearing the cheque issued by accused no.2. Alleging that petitioner no.1 and accused no.2 have cheated the complainant and have misused a sum of Rs.17 lakhs paid by accused no.2 to accused no.1, the complainant sought action against the petitioner (accused no.1) and accused no.2 for the offences punishable under Sections 408, 419, 420 and 506(B) of IPC.
3. Learned Magistrate referred the complaint for investigation under Section 156(3) of Cr.PC. Accordingly, FIR No.52/2013 came to be registered against accused nos.1 & 2 for the offences punishable under Sections 408, 419, 420 and 506(B) of IPC. At that stage, accused no.1 namely petitioner herein has sought to quash the FIR.
4. Heard learned counsel for the petitioner and learned HCGP for respondent no.1. Counsel for respondent no.2 is absent.
5. From the reading of the private complaint, it is seen that the petitioner had filed a suit in OS No.1193/11 against his family members in respect of the properties bearing Sy.No.42/2 measuring 1 acre 2 guntas which was purchased by accused no.2. The petitioner herein was not party to the said proceedings. The said suit seem to have been withdrawn by the second respondent which is evident from the recitals of the confirmation deed wherein it is stated that pursuant to the decision of the petitioner, complainant withdrew the said suit. The petitioner herein has signed the deed as witness no.1. No consideration appears to have been passed between complainant and accused no.2 and others for execution of the deed of confirmation. The said deed of confirmation is dated 24.1.2012. There is nothing on record to indicate that the complainant has challenged the deed of confirmation till date for lack of consideration. On the other hand, the complainant has filed the aforesaid private complaint on 1.2.2013 more than one year one month after execution of the confirmation deed on the allegation that pursuant to the compromise, accused no.2 has paid the consideration payable to the complainant into the hands of accused no.1 namely the petitioner. It is not clear as to when the said consideration was paid by accused no.2 to accused no.1.
6. In the complaint it is stated that complainant went in search of accused no.2 and he met him in the office of his cousin Anand Pareka and it was revealed that the first accused has obtained Rs.7 lakhs at the 1st instance and Rs.10 lakh at the second instance from the second accused. The complaint is also silent as to when the said fact was revealed to the petitioner. When the confirmation deed was executed on 24.1.2012 and the suit itself was withdrawn, it cannot be assumed that, the complainant has executed the deed of confirmation and withdrawn the suit without receiving any consideration. On perusal of the deed of confirmation, it reveals that the deed was executed not only by the complainant but also by other members of the family & they have not raised any grouse about the alleged deal.
7. Under the said circumstances, in the absence of clear averments as to when an amount of Rs.17 lakhs was paid by accused no.2 into the hands of accused no.1, solely on the basis of the vague and unsubstantiated allegations, the petitioner herein cannot be prosecuted for the alleged offences under Section 420, 408, 419 and 506 of IPC.
8. It cannot be believed the complainant agreed to withdraw the suit without receiving any consideration from accused no.2. It also cannot be believed that complainant and other family members would allow such a huge amount of 17 lakhs to be paid into the hands of accused no.1 for and on behalf of complainant and his family members. The other family members of the complainant who are party to the confirmation deed have not raised any grievance about the consideration to be payable in respect of the said deal.
9. Taking into consideration all these circumstances, in my view, the prosecution of the petitioner is wholly illegal and cannot be sustained. Averments made in the complaint do not attract the ingredients of any of the offences under Sections 408, 419, 420 and 506(B) of IPC. Therefore, prosecution of the petitioners on the basis of such allegations cannot be continued.
Accordingly, the petition is allowed. Proceedings in CR NO.52/2013 are quashed so far as petitioner is concerned.
Sd/- JUDGE Sk/- CT-HR