IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA WRIT PETITION NO. 36487/2016 (GM-RES) C/W WRIT PETITION NOS. 36488/2016, 36486/2016 (GM-RES) IN W.P. NO. 36487/2016:
BETWEEN:
SRI. MUNISWAMAPPA, S/O LATE MUNIRAPPA, AGED ABOUT 56 YEARS, R/A RAMAIAHANAPALYA, GANGADHARAPURA, MAJARA HOSAHALLI GRAMA, KASABA HOBLI, DODDABALAPURA TALUK, BANGALORE RURAL DISTRICT, DODDABALLAPURA – 561 203.
(BY SRI. C S PRASANNA KUMAR, ADVOCATE) AND:
1. STATE OF KARNATAKA, BY KODIGEHALLI POLICE, REPRESENTED BY STATION, HOUSE OFFICER, HIGH COURT OF KARNATAKA, BANGALORE – 560 001.
2. M RAJESH, S/O T V MALLIKARJUNAPPA, AGED ABOUT 33 YEARS, R/A LAVANAHALLI ROAD, HEEREYUR TALUK, …PETITIONER CHITRADURGA DISTRICT.
PRESENTLY RESIDING AT MAHALAKSHMI LAYOUT, BANGALORE – 560 079.
(BY SRI. NASRULLA KHAN, HCGP FOR R1; SRI. G SHANKAR, ADVOCATE FOR R2) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CR.P.C 1973, PRAYING TO QUASH THE COMPLAINT BEARING C.C.NO.6215/2013 BEFORE THE HON’BLE CHIEF METROPOLITAN MAGISTRATE, BANGALORE VIDE ANNEX-E DATED 06.07.2012 AND QUASH THE ORDER DATED 12.04.2013 PASSED BY THE CHIEF METROPOLITIAN MAGISTRATE, BANGALORE REFERRING THE COMPLAINT BEARING C.C.NO. 6215/2013 TO THE RESPONDENT NO.1 FOR INVESTIGATION VIDE ANNEX-A AND ETC., IN W.P. NO. 36488/2016:
BETWEEN:
SRI. KEMPARAJU, S/O K RAJANNA, AGED ABOUT 40 YEARS, R/A 2ND DIVISION, GANGADHARAPURA, 4TH WARD, DODDABALAPURA TALUK, BANGALORE RURAL DISTRICT, DODDABALLAPURA – 561 203.
(BY SRI. C S PRASANNA KUMAR, ADVOCATE) AND:
1. STATE OF KARNATAKA, BY KODIGEHALLI POLICE, REPRESENTED BY STATION, HOUSE OFFICER, HIGH COURT OF KARNATAKA, BANGALORE – 560 001.
2. M RAJESH, S/O T V MALLIKARJUNAPPA, …PETITIONER AGED ABOUT 33 YEARS, R/A LAVANAHALLI ROAD, HEEREYUR TALUK, CHITRADURGA DISTRICT.
PRESENTLY RESIDING AT MAHALAKSHMI LAYOUT, BANGALORE – 560 079.
(BY SRI. NASRULLA KHAN, HCGP FOR R1; SRI. G SHANKAR, ADVOCATE FOR R2) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CR.P.C 1973, PRAYING TO QUASH THE COMPLAINT DATED 06.07.2012 PENDING ON FILE OF THE HON’BLE CHIEF METROPOLITAN MAGISTRATE BANGALORE VIDE ANNEX-D AND QUASH THE ORDER DATED 12.04.2013 PASSED BY THE CHIEF METROPOLITAN MAGISTRATE, BANGALORE REFERRING THE COMPLAINT BEARING NO. C.C.NO6215/2013 TO THE RESPONDENT NO.1 FOR INVESTIGATION VIDE ANNEX-A AND ETC., IN W.P. NO. 36486/2016:
BETWEEN:
SRI. A CHOWDAPPA, S/O LATE K ANJANAPPA, AGED ABOUT 46 YEARS, R/A GANGADHARAPURA, MAJARA HOSAHALLI GRAMA, KASABA HOBLI, DODDABALAPURA TALUK, BANGALORE RURAL DISTRICT, DODDABALLAPURA – 561 203.
…PETITIONER (BY SRI. C S PRASANNA KUMAR, ADVOCATE) AND:
1. STATE OF KARNATAKA, BY KODIGEHALLI POLICE, REPRESENTED BY STATION, HOUSE OFFICER, HIGH COURT OF KARNATAKA, BANGALORE – 560 001.
2. M RAJESH, S/O T V MALLIKARJUNAPPA, AGED ABOUT 33 YEARS, R/A LAVANAHALLI ROAD, HEEREYUR TALUK, CHITRADURGA DISTRICT.
PRESENTLY RESIDING AT MAHALAKSHMI LAYOUT, BANGALORE – 560 079.
(BY SRI. NASRULLA KHAN, HCGP FOR R1; SRI. G SHANKAR, ADVOCATE FOR R2) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CR.P.C 1973, PRAYING TO QUASH THE COMPLAINT BEARING C.C.NO.6215/2013 DATED 06.07.2012 PENDING ON THE FILE OF THE HON’BLE CHIEF METORPOLITAN MAGISTRATE BANGALORE VIDE ANNEXURE-D AND QUASH THE ORDER DATED 12.04.2013 PASSED BY THE CHIEF METROPOLITAN MAGISTRATE BANGALORE REFERRING THE COMPLAINT BEARING C.C.NO.6215/2013 TO THE RESPONDENT NO.1 FOR INVESTIGATION VIDE ANNEXURE –A AND ETC., THESE WRIT PETITIONS ARE COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for the petitioners and the learned counsel appearing for contesting respondent No.2 and the learned HCGP appearing for respondent –State.
2. The petitioners are accused Nos. 2, 3 and 4 in C.C. No.6215/2013 on the file of Chief Metropolitan Magistrate, Bangalore, for the offences punishable under Sections 465, 468, 471, 420 read with Section 34 of Indian Penal Code, 1860. The petitioners have sought to quash the said proceedings on the ground that the allegations made against them are civil in nature, and that the material collected by the investigating agency prima facie does not disclose the commission of the alleged offences by the petitioners and hence the prosecution of the petitioners is illegal and abuse of the process of court.
3. The learned counsel appearing for the contesting respondent No.2/complainant contends that the allegations made in the complaint as well as in the charge sheet attract the ingredients of the offences under sections 465, 468, 471, 420 read with Section 34 of IPC. All the accused persons induced/persuaded the complainant to enter into a partnership on the strength of fabricated conversion order and made him to part with a sum of Rs.32.5 Lakhs and hence there is prima facie material to substantiate the accusations against the petitioners and thus, seeks to dismiss the petitions.
4. Learned HCGP appearing for respondent No.1 has argued in support of the charge sheet filed against the petitioners.
5. The substance of the accusations in the charge sheet reads as under:
“F zÉÆõÁgÉÆÃ¥Àt ¥ÀnÖAiÀÄ PÁ® £ÀA.4 gÀ°è £ÀªÀÄÆ¢¹gÀĪÀ DgÉÆæUÀ¼ÀÄ PÉÆrUÉúÀ½î ¥Éưøï oÁuÁ ¸ÀgÀºÀzÀÄÝ, mÁmÁ£ÀUÀgÀ, gÉÆûvï UÁqÀð£ï C¥ÁmïðªÉÄAmï, 3£Éà ªÀĺÀr, £ÀA.203 DgÉÆæ-2 gÀªÀjUÉ ¸ÉÃjgÀĪÀ zÉÆqÀا¼Áî¥ÀÄgÀ vÁ®ÆèPÀÄ, PÀ¸À¨Á ºÉÆç½, UÀAUÁzÀgÀ¥ÀÄgÀ UÁæªÀÄPÉÌ ¸ÉÃjzÀ ªÀiÁf ¸ÀªÉÃð £ÀA.42gÀ ºÁ° zÀÄgÀ¹ÛAiÀÄAvÉ ºÉƸÀ ¸ÀªÉÃð £ÀA.42/1 £À 1 JPÀgÉ d«ÄãÀ£ÀÄß ªÀiÁgÀ®Ä ªÀåªÀºÁgÀ PÀÄzÀÄj¹ d«ÄãÀÄ ¨sÀÆ¥ÀjªÀvÀð£É DVgÀĪÀÅzÁV £ÀA©¹ £ÀR¯É zÁR°UÀ¼À£ÀÄß ¸Àȶ׹ d«ÄäUÉ ºÉZÁÑV ºÀt ¥ÀqÉzÀÄPÉÆAqÀÄ ªÉÆøÀ ªÀiÁrgÀĪÀÅzÁV ªÉÄîÌAqÀ PÀ®AUÀ¼À jÃvÁå ²PÁëºÀð C¥ÀgÁzsÀªÉ¸ÀVgÀÄvÁÛgÉ. DzÀÄzÀjAzÀ F zÉÆõÁgÉÆÃ¥Àt ¥ÀnÖ”
6. A bare reading of the above indicates that accused Nos. 1 to 4 are sought to be prosecuted solely on the ground that the conversion order related to the properties comprised in Sy.No.42/1 of Gangadharapura Village, Kasaba Hobli, Doddaballapura Taluk, was fabricated. The case of the complainant is that accused No.2 Chowdappa was the original owner of Sy.No.42/1 of Gangadharapura Village and he entered into an Agreement to sell dated 29.12.2010 with one Channakeshava. The said Channakeshava in turn entered into an agreement to sell the very same properties to the complainant Shri Rajesh on 25.04.2012. The complainant in turn entered into an agreement on the same day to sell the said property to one Manjunath and Ramakanth. It is stated that complainant has filed a suit in O.S. No.133/2013 against Chowdappa for recovery of Rs.79,33,749/- arising out of the aforesaid transaction. Further, the subsequent agreement holders namely, Chandrakumar and Ramakanth have filed a suit in O.S. No.112/2013 against Rajesh and Chowdappa for specific performance of the sale agreement executed in their favour.
7. Even though there are wild allegations in the complaint that on the false promise and the inducement made by accused Nos. 3 and 4 the complainant entered into a partnership agreement with accused Nos. 1 and 2 and advanced Rs.25 Lakhs on 29.12.2010 and another sum of Rs.7,50,000/- on 29.01.2011 and has also made subsequent payment to accused No.2 from time to time, but the charge sheet is laid only for the offence of fabricating the conversion order. There are no allegations pertaining to advancement of money to accused No.2 by the complainant. Even otherwise the said dispute having arisen out of a contract between the parties the same could be a subject matter of a civil suit and as a matter of fact, civil suits are pending between the parties, as such no case is made out against accused Nos. 3 and 4 attracting the offences under Sections 465, 468, 471, 420 read with Section 34 of IPC. In the absence of any material to substantiate the accusation of accused Nos. 3 and 4, their prosecution is illegal and untenable.
Hence, the following order:-
i) W.P.No.36487/2016 filed by accused No.3 is allowed. Proceedings pending on the file of Chief Metropolitan Magistrate, Bangalore, vide Annexure-E dated 06.07.2012, Annexure-A dated 12.04.2013, Annexure-D dated 06.07.2012 and Annexure-B dated 06.07.2017 are quashed;
ii) W.P.No.36488/2016 filed by respondent No.4 is allowed. Annexure-D dated 06.07.2012, Annexure-A dated 12.04.2013, Annexure-E dated 06.07.2012 and Annexure- B dated 06.07.2012 are quashed;
The petition in W.P.No.36486/2016 against accused No. 2 - Chowdappa is dismissed. The trial shall proceed only against accused No.2 in accordance with law.
Sd/-
JUDGE Bsv