IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.7974/2015 BETWEEN:
Sri. T.M. Shivayogi Swamy, S/o. T.M. Rajashekharaiah, Aged about 54 years, Business, R/o. Door No.1712, Behind Blue Bell Public School, G.K. Layout, Hosur Road (Hosa Road), Electronic City, Bangalore – 100, And also residing at :- D.No.1712, III Main, III Cross, Vinoba Nagara, Davangere – 577 006. …Petitioner (By Sri. Revanna Bellary, Advocate) AND:
1. Sri. H. Nagaraja Rao, S/o. H. Hanumantha Rao, Aged about 44 years, Businessman, Proprietor of Bhavani Military Hotel, D.No.735/29, T.M.P. Compound, P.B.Road, Davangere – 2.
R/o. 1st Main, 8th Cross, Vinobanagara, Davangere.
2. Sri. Shivananda Kurudekar, S/o. late Vasudeva Kurudekar, Aged about 63 years, Businessman, R/o. Door No. 1863/5, Someshwara Nilaya, 4th Main, 3rd Cross, Vinobanagara, Yellammanagara, Davangere – 577 006.
3. Sri. P. Prakash, S/o. Bandri Dugappa, Aged about 49 years, Business, R/o. Near Renuka Yellamma Temple or Shaneshwara Temple, 3rd Main, Jali Nagara, Near Shivali Talkies, Davangere – 577 006. ...Respondents This Criminal petition is filed under Section 482 of Cr.P.C. praying to set aside the orders dated 27.08.2015 in Crl.R.P.No.71/2014 of II Addl. District and Sessions Judge at Davangere and order dated 08.04.2014 in P.C.R. No.8/2010 of JMFC- I Court, Davangere and allow the P.C.R.No.8/2010 in favour of the petitioner directing trial Court JMFC – I Court, Davangere to register P.C.R.No.8/2010 in C.C. Register and to send summons to the respondent Nos. 1 to 3 throughout costs.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Heard learned counsel for the petitioner. Perused the records.
2. Petitioner is aggrieved by the concurrent orders passed by the Courts below on the complaint filed by the petitioner under Section 200 Cr.P.C. The petitioner herein sought prosecution of the respondents on the allegations that in respect of properties allotted to his share under a registered partition dated 24.11.2005, an agreement of sale was got up by the father of the complainant and hence the complainant sought prosecution of the respondents for the alleged offences punishable under Sections 120(A), 120(B), 177, 181, 191, 192, 193, 196, 205, 209, 210, 220, 405, 406, 416, 417, 418, 419, 420, 425, 426, 463, 468 IPC read with 34 IPC.
3. On recording the sworn statement of the complainant and two of his witnesses, by order dated 08.04.2014, the learned Magistrate dismissed the complaint on the ground that accused No.1 has filed a suit in O.S.No.68/2009 against the father of the complainant for specific performance of the contract based on the above agreement of sale dated 29.04.1998 and the said suit was decreed and the father of the complainant was directed to execute the sale deed in favour of accused No.1. In the said judgment, it was held that the father of the complainant being an elder member of the family had executed the agreement of sale. Further the learned Magistrate was of the opinion that the decree having been passed on contest, the father of the complainant was bound by the said decree. The said order was challenged in revision by the complainant and by order dated 27.08.2015, the learned II Additional District and Sessions Judge, concurred with the reasoning of the learned Magistrate and dismissed the revision petition.
4. The learned counsel for the petitioner submits that the allegations made in the private complaint and the documents produced by the petitioner/complainant clearly disclose the commission of the offence against the respondents and therefore the Courts below have committed error in dismissing the private complaint filed by the petitioner.
5. On going through the records and the impugned orders passed by the Courts below, I do not find any error in the course adopted by the Courts below. A reading of the complaint filed by the petitioner/complainant, indicates that the dispute between the parties is purely civil in nature. Petitioner does not dispute the fact that under the registered partition deed certain properties were allotted to him. The said partition deed was registered in the year 2005. The records indicate that much earlier to the said Deed, a suit was pending between the agreement holder and the father of the complainant. It is also borne on record that the father of the complainant had suffered a decree and he was under an obligation to execute the sale deed in respect of the purchaser of the agreement holder. In the said circumstances, if for any reason, the properties allotted to the petitioner under the partition deed could not have been enjoyed by the petitioner, the only remedy available for the petitioner is to seek cancellation of the said partition deed and seek reallotment of the share in the family property. That having not been done, the petitioner cannot convert the alleged civil dispute into a criminal offence. The averments made in the complaint do not make out the ingredients of criminal offence paving way for the prosecution of the respondents. Therefore, the Courts below were justified in dismissing the complaint.
I do not find any justifiable reason to interfere with the impugned orders passed by the Courts below.
Consequently, the petition is dismissed.
Sd/- JUDGE Mgn/-