IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.9375 OF 2016 BETWEEN:
MR. SUNIL KUMAR S/O LATE SIRI KISHAN, AGED 62 YEARS, R/AT HOUSE NO.771, SECTOR 17A GURGAON-122 001, HARYANA.
(BY SRI. DEVAIAH I.S., ADVOCATE) AND:
1. MR. C VENKATACHALAPATHY S/O LATE CHIKKAVENKATESHAPPA, AGED ABOUT 47 YEARS, R/AT HOUSE NO.386, NAGAWARA MAIN ROAD, NEAR OUTER RING ROAD, ARABIC COLLEGE POST, NAGAWARA, BENGALURU-560 045.
2. MR.GHANSHYAM PRASAD S/O MR.RAMACHANDRA PRASAD, AGED ABOUT 62 YEARS, R/AT FLAT NO.A-103, 1ST FLOOR, BLOCK-A, ‘THE LEDGE’ APARTMENT COMPLEX, ... PETITIONER CORPORATION NO.7 & 8 JAKKUR VILLAGE, YELAHANKA HOBLI, BENGALURU NORTH TALUK, BENGALURU-560 087.
(BY SRI.B.M.THEJESH, ADV., AND SRI.K.SRINIVASA, ADV., FOR R1-ABSENT;
…RESPONDENTS SRI.N.JAI PRAKASH RAO, ADV., FOR R2 – ABSENT) THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 14.09.2016 PASSED BY THE LIX ADDL. CITY CIVIL AND S.J., BENGALURU IN CRL.R.P.NO.320/2016 (ANNEXURE-A) AND CONSEQUENTLY SET ASIDE THE ORDER DATED 29.1.2016 PASSED BY THE IV A.C.M.M., BENGALURU IN PCR NO.14178/2014 (ANNEXURE-K) AND DIRECT THE IV A.C.M.M., BENGALURU TO PROCEED IN ACCORDANCE WITH LAW AGAINST THE ACCUSED IN PCR NO.14178/2014.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner herein purchased an apartment from respondent No.1 under registered deed of sale dated 25.08.2011 on payment of a consideration of Rs.20 lakh. He was put in possession of the said apartment. Since the petitioner was a permanent resident of Haryana, he kept the said premises under lock and key. Taking advantage of his absence, respondent No.2 broke open the lock and gained unlawful entry into the premises. Petitioner issued a notice to respondent No.2 on 11.12.2013 calling upon him to vacate the premises. Respondent No.2 issued a reply putting forward a sale deed executed in his favour by the vendor of the petitioner himself vide sale deed dated 05.09.2012. Hence, the petitioner filed a private complaint under Section 200 Cr.P.C. seeking action against the respondents for the offences punishable under Sections 406, 420, 448, 465, 468, 474, 506B r/w.34 of IPC.
2. The learned Magistrate recorded the sworn statement of the complainant. He produced 8 documents at exhibits C1 to C8. By order dated 29.01.2016 the learned Magistrate dismissed the complaint on the ground that the dispute between the parties is purely civil in nature. The petitioner/complainant carried the matter in revision before the Additional Civil Judge, Bengaluru and by order dated 14.09.2016, even the Criminal Revision Petition has been rejected.
3. Learned counsel for the petitioner submits that both the courts have committed error in treating the dispute as civil in nature. The allegations made in the complaint and the supporting documents clearly indicate that with an intention to cheat the complainant, the respondents entered into a conspiracy with each other and executed a sale deed in respect of the very same property which was sold by respondent No.1. The circumstances pleaded in the complaint and reflected in the documents, especially the encumbrance certificate, indicate that the factum of prior registration of property in the name of the petitioner was well within the knowledge of the second respondent. In spite of it, with an intention to coerce the petitioner to part with the property, has brought about a dubious sale deed by playing fraud and forgery. The facts averred in the complaint clearly make out the offences under Sections 406, 420, 448, 465, 468, 474, 506B r/w.34 of IPC. Hence, rejection of the complaint by the Court below has resulted in miscarriage of justice and hence, seeks to set aside the impugned orders and direct prosecution of the respondents for the above offences.
4. Learned counsel appearing for the respondents are absent.
5. Perused the records.
6. Both the Courts below have held that the dispute between the parties is civil in nature and therefore, criminal prosecution of the respondents cannot be permitted under law. A reading of the complaint and the documents produced along with the complaint indicate that the petitioner herein had purchased the apartment described in the registered sale deed dated 25.08.2011 from respondent No.1. It is a registered deed. Encumbrance certificate produced along with the complaint indicates that the registration of the said document was entered in the property register and as such, there is prima facie evidence to show that the factum of registration of the property in the name of the petitioner was well within the knowledge of respondent No.2. That being the case, respondent No.1 has executed the sale deed in favour of the second respondent in respect of the very same property and has taken forcible possession of the said properties. These allegations, in my view, clearly attract the ingredients of the offences alleged in the complaint.
7. Section 415 of IPC defines ‘cheating’ as under :-
“Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person to deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
Illustration (i) thereto clearly applies to the facts of the instant case. The said illustration reads as under :-
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z, A cheats.
The facts in the instant case, in my view, clearly fall within illustration (i) of Section 415 of IPC. As such, the facts disclosed in the FIR prima facie constitute the offence under section 420 of IPC.
8. Coming to the offence of ‘forgery’ is concerned, Section 463 of IPC defines the offence as under :-
463. Forgery – Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
A bare reading of the above provision makes it evident that whoever makes any false document with intent to cause any person to part with his property, is deemed to have forged the said document.
In the instant case, specific allegations against the respondents is that respondent No.1, who had already executed a document in respect of an apartment which was sold to the petitioner, has executed another document in respect of the very same property with an intention to cause and coerce the petitioner herein to part with his property. These facts clearly fall within the definition of Section 463 of IPC.
9. The offence under Section 468 of IPC is also be made out by the petitioner. By virtue of the prior execution of the sale deed in favour of the petitioner herein, respondent No.1, though has lost title to the said property, by fraudulently and dishonestly representing to respondent No.2 that he is the genuine owner of the said property, has executed the second sale deed which, in my view, falls within the mischief of Section 471 of IPC.
10. In the light of the above discussion, the reasonings of the Court below that the facts alleged in the complaint would only give rise to civil action and not criminal action cannot be accepted. Transactions entered into between the respondents on the face of it appear to have been executed solely with an intention to dupe and deceive the complainant of the ownership of his properties which is a valuable security as defined under Section 420 of IPC. Therefore, without any hesitation, I hold that the allegations made in the complaint clearly attract the offences under Sections 420, 465, 468, 474 r/w.34 of IPC Consequently, the impugned orders passed by the learned Magistrate as well as the learned Sessions Judge cannot be sustained.
11. Accordingly, the petition is allowed. The impugned order dated 29.01.2016 passed by the learned Magistrate and the order dated 14.09.2016 passed by the Additional Civil Judge, Bengaluru are quashed. The trial Court shall take cognizance of the offences punishable under Sections 406, 420, 448, 465, 468, 474, 506B r/w.34 of IPC and shall proceed against the respondents in accordance with law.
Sd/- JUDGE rs