IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.7752/2018 BETWEEN:
1. SMT.UMA PRASAD AGED ABOUT 51 YEARS W/O N.SHIVAPRASAD.
2. N. SHIVAPRASAD AGED ABOUT 56 YEARS S/O NANJAPPA.
BOTH ARE RESIDING AT NO.415, 6TH A MAIN, HRBR LAYOUT, 2ND STAGE, KALYANANAGAR, BENGALURU – 560 043.
...PETITIONERS (BY SRI.M.T.NANAIAH, SENIOR COUNSEL FOR SRI.M.T.SUBRAMANI, ADVOCATE) AND:
M/S MAXWORTH REALTY INDIA LIMITED, A LIMITED COMPANY HAVING ITS OFFICE AT NO.12/1, RAILWAY PARALLEL ROAD, NEAR SHIVANANDA CIRCLE, NEHRU NAGAR, BENGALURU – 560 020.
REP BY ITS DIRECTOR SAGAR H.G. ... RESPONDENT (BY SRI.M.VINAY KEERTHY, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO
P.C.R.NO.658/2017 FOR THE OFFENCE P/U/S 341,406,420,504 AND 506 R/W 34 OF IPC PENDING ON THE FILE OF ADDITIONAL CIVIL JUDGE AND J.M.F.C., DEVANAHALLI, BENGALURU RURAL DISTRICT AND ETC.
THIS CRIMINAL PETITION COMING FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri.M.T.Nanaiah, learned senior counsel appearing for petitioners and Sri.Vinay Keerthy, learned counsel appearing for respondent/complainant. Perused the records.
2. Sri.M.T.Nanaiah, learned senior counsel appearing for petitioners has vehemently contended that proceedings pending before trial Court is of a civil nature and there is no criminality attributable to petitioners and as such, proceedings initiated against petitioners by respondent is liable to be quashed. He would also draw the attention of Court to the proceedings pending before trial Court to contend that without taking cognizance of the offence learned Magistrate has recorded the sworn statement and it is liable to be quashed. Hence, he prays for allowing the petition.
3. Per contra, Sri.Vinay Keerthy learned counsel appearing for respondent in support of the complaint filed would contend that though in actual words, order taking cognizance is not found in the order, the very fact that there is application of mind could be seen from said order and it would meet the requirement of law. Hence, he prays for dismissal of the petition.
4. On perusal of records it would disclose that respondent herein has filed a complaint alleging that accused persons are the owners of non-agricultural land bearing Sy. Nos.142 to 148 situated at Chikkathathamangala Village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District measuring 19 acres 13 guntas and have got said land converted from agricultural to non-agricultural residential purpose. It is further alleged that accused persons have formed a residential layout by carving sites of various dimension in the layout known and called as “Max Keerthana” and have sold several sites through the complainant and now with an intention to cheat the complainant and their customers, they have clandestinely obtained another layout plan from Bengaluru International Airport Area Planning Authority (BIAAPA) by suppressing the fact of earlier layout having been formed by creating and fabricating documents to obtain such second layout plan.
5. It is further alleged that accused No.2 as GPA Holder of accused No.1 have sold several sites which had already been sold to the customers of the complainant by changing the numbers of earlier sites and thereby both A.1 and A.2 have cheated complainant and its customers. The complaint in question having been presented on 22.12.2017, was listed before the learned Magistrate on 08.02.2018 for recording of sworn statement. Matter has been listed from time to time and on 04.04.2018, sworn statement of authorized representative of the complainant came to be recorded and Ex.C.1 to C.16 were got marked. A perusal of order sheet would disclose that there is no order passed by learned Magistrate taking cognizance of the offence which is mandate of Section 200 Cr.P.C. As such, continuation of proceedings by the learned Magistrate without taking cognizance of offence would be contrary to Section 200 Cr.P.C. On this short ground, petitioners are entitled to succeed in present petition.
6. However, it would not be open to the petitioners to contend that proceedings are not required to be remitted back to the trial Court for being continued from the stage of taking cognizance. Hence, I proceed to pass following;
O R D E R (i) Criminal Petition is allowed.
(ii) Order dated 08.02.2018 and all subsequent orders passed in C.C.No.2811/2018 (arising out of PCR No.658/2017) is set-aside and matter is remitted back to Additional Civil Judge and JMFC, Devanahalli for being proceeded in accordance with law from the stage of taking cognizance.
(iii) It is made clear that no opinion is expressed on merits of the case.
Consequently, I.A No.1/2018 for stay does not survive for consideration and it stands dismissed.
SD/-
JUDGE NBM