IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1786/2016 BETWEEN SRI S.R.S. VASAN, AGED 75 YEARS, SON OF SRI. RAMANSWAMY IYENGAR S.K. RESIDENT OF NO. 370, 4TH CROSS, J.P. NAGAR, 3RD PHASE, BENGALURU-560 078. ... PETITIONER (BY SRI. N JAGADISH BALIGA, ADV.) AND 1. THE STATE OF KARNATAKA REPRESENTED BY J.P. NAGAR POLICE, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COUR OF KARNATAKA, BENGALURU-560 001.
2. SRI. R. KUMAR, AGED ABOUT 36 YEARS, SON OF SRI. D.V.R. REVANNA, RESIDING AT NO.79/A, CHUNCHGATTA MAIN ROAD, SHARADA NAGAR, BENGALURU-560 078. ... RESPONDENTS (BY SRI. I.S.PRAMOD CHANDRA, SPP-II FOR R1, R2 – SERVED AND UNREPRESENTED.) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE FIRST INFORMATION REPORT IN CR.NO.781/2015 OF J.P.NAGAR POLICE STATION AND THEREBY QUASHED THE ENTIRE PROCEEDIGNS IN P.C.R.NO.11900/2015 ON THE FILE OF XLIV ADDL.C.M.M., BENGALURU AND THEREBY ACQUIT THE PETITIONER.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Learned SPP-II takes notice for respondent No.1.
2. Counsel for respondent No.2 is duly served and unrepresented.
3. Heard the learned counsel for the petitioner and the State Public Prosecutor-II.
4. The petitioner has sought to quash the FIR in Crime No.781/2015 registered for the offences punishable under Section 420 of Indian Penal Code.
5. The respondent No.2 took a premises from the petitioner herein on leave and license basis vide agreement dated 15.09.2014. The grievance raised by respondent No.2 is that under this agreement, the petitioner herein had received Rs.2,50,000/- as advance amount on behalf of accused No.1 and they were receiving Rs.5,000/- as rent. Respondent No.2 has effected a part construction in the said place by spending Rs.13,00,000/-. At the time of construction, the Bangalore Development Authority officials stopped the construction on the ground that reconstruction was being made without prior permission.
6. These allegations in my view do not disclose the commission of any offence under Indian Penal Code, much less an offence under Section 420 of Indian Penal Code. The very nature of the document executed between respondent No.2 and the petitioner indicates that it was a leave and license agreement whereunder the respondent No.2 was permitted to use the premises for dog breeding purpose.
7. I have perused the copy of the leave and license produced by the petitioner. Clause No.7(e), (g) & (h) read as follows:
e) To use the Said property in good condition during the period of this license for their family residential purpose only and for no other purposes whatsoever. The LICENSEE shall be responsible only for damages arising out of normal wear and tear or damages arising out of his own misuse at his own cost and expenses. LICENSEE shall maintain the Said property to keep the same in good and habitable condition during the period of this license.
g) The LICENSEE shall not fix any removable or irremovable items within the Said property without prior consent of LICENSOR, and if permitted then LICENSEE should remove it before vacating the Said property at his own cost without causing damage to the Said property. The LICENSOR shall be entitled to deduct amounts from the security deposit for the purpose of getting the damages repaired and rectified. If the LICENSEE fails to pay 2 consecutive months License Fees in full, then this agreement shall stand cancelled at the option of the LICENSOR.
h) The LICENSEE shall not make any structural changes in the Said property.”
8. In the wake of the said agreement, the accused No.1/respondent No.1 could not have commenced construction of any structure in the said premises. Despite the said agreement, respondent No.2 herein has commenced construction of the building and has incurred expenses of Rs.13,00,000/- as stated in the complaint, the same may give rise to a cause of action for civil proceedings and not for criminal prosecution. There is nothing in the entire complaint to indicate that either at the time of execution of the leave and license agreement or any time thereafter, the petitioner herein had an intention to cheat or to deceive respondent No.2 so as to make out the ingredients of offence punishable under Section 420 of Indian Penal Code. In the backdrop of the above facts, in my view, the prosecution of the petitioner for the above offences is malafide, calculated to vindicate a civil right which amount to abuse of law and, therefore cannot be allowed to be continued.
9. For the above reasons, the petition is allowed.
The proceedings initiated against the petitioner in Crime No.781/2015 of J.P. Nagar Police Station arising out of P.C.R. No.1190/2015 on the file of XLIV Additional Chief Metropolitan Magistrate, Bengaluru for the alleged offence punishable under Section 420 of Indian Penal Code is hereby quashed.
Sd/- JUDGE Chs* CT-HR