IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05th DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.2318 of 2013 BETWEEN:
V. Mohammed Sanaulla, S/o B. Mohammed Amanulla, Aged about 40 years, No.1, 1st Floor, Cambridge Road, Ulsoor, Bengaluru - 560 008. …Petitioner (By Sri. S.A. Ahmed, Advocate) AND:
A. Ajay Prasad, S/o Ajit Prasad, Aged about 36 years, No.1, Ground Floor, Cambridge Road, Ulsoor, Bengaluru - 560 008. ...Respondent (By Sri. Balaram M.L, Advocate) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the proceedings against the petr. in PCR No.84/2012 and Crime No.259/2012 who is accused No.3 in the said PCR pending before the X Addl. CMM, Bengaluru.
This Criminal petition coming on for Hearing, this day, the Court made the following:
O R D E R The petitioner is accused No.3 in Crime No.259/2012. The said FIR was registered based on the directions of the learned Magistrate under Section 156(3) of Cr.P.C.
2. The respondent herein filed a private complaint in PCR No.84/2012 on the allegation that accused Nos.1 and 2 have committed an act of cheating and defrauding the complainant by executing a sale deed in respect of the property comprised in No.1, Cambridge layout, Ulsoor, Bengaluru-8 in favour of accused No.3 viz., the petitioner herein. According to the complainant, he had entered into an agreement of sale with accused No.1 on 05.12.2007 and pursuant to the said sale agreement a sum of Rs.7,26,302/- was directly paid towards the outstanding loan amount as the advance sale consideration and the complainant was due Rs.18,26,302/-
3. Heard the learned counsel for the petitioner and learned counsel for the respondent.
4. Learned counsel appearing for the petitioner/accused No.3 submits that the petitioner is no way connected with the alleged dispute between the complainant and the owner of the property. The petitioner is a bonafide purchaser for the value. There is nothing on record to show that the petitioner was aware of the alleged dispute between the complainant and accused No.1. In the sale deed, there is a specific recital that portion of the ground floor was in the possession of the complainant as a tenant and therefore, the prosecution of the petitioner for the alleged offence is wholly illegal and abuse of the process of the Court.
5. Refuting the submission, learned counsel appearing for the respondent/complainant would submit that the petitioner was aware of all the facts and circumstances of the case. He was residing on the first floor. He did not have any records or documents of title to the said property. He was also aware of the fact that the entire building was brought for sale by public auction. The notice of auction was pasted on the wall and at that juncture, to save his interest in the premises, the complainant offered to pay the outstanding dues to the Bank and with the consent of the owner, namely, accused No.1 took custody of the original title deeds, which are still in the possession of the complainant. In the said circumstances, the petitioner/accused No.3 could not have purchased the above properties without ascertaining/ verifying the original title deeds, itself is sufficient to show the conspiracy between the petitioner and accused Nos.1 and 2.
6. I have carefully gone through the grounds urged in the petition as well as contention taken in the private complaint and have perused the documents produced along with the petition. Complainant is claiming his right to the schedule property on the strength of an agreement of sale, which according to the complainant was entered into much prior to the execution of the sale deed in favour of the petitioner (accused No.3).
7. A reading of the sale deed indicates that the complainant was residing in a portion of the said premises. Therefore, the contention of the petitioner that he was a bonafide purchaser without any knowledge of the claim of the respondent in and over the properties cannot be accepted. Further more, the submission made by the learned counsel for the petitioner as well as submission made by the respondent indicate that the complainant was in custody of the title deed of the said properties. Under the said circumstances, the conduct of the petitioner in getting the sale deed in his favour without insisting for original title deed has remained questionable.
8. Having regard to the nature of transaction and the allegation of conspiracy between the petitioner and the erstwhile owner, an attempt appears to have been made by the petitioner and other accused person to defeat the rights of the complainant in respect of the properties in question. In that view of the matter, it cannot be said that the dispute between the parties is purely civil in nature. Therefore, the proceedings initiated against the petitioner cannot be quashed.
Accordingly, the petition is dismissed. Any observation made in this order shall not influence the civil Court in dealing with O.S. No.8723/2012 and 2797/2014.
SD/- JUDGE MBM