IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7010 OF 2016 BETWEEN:
1. SMT VANAJAKSHI T NAIK W/O SRI THIMMAPPA S NAIK, AGED 63 YEARS, R/AT NO.401, KADRI HIGHTS, AIRPORT ROAD, YEYYADI, KONCHADI POST, MANGALURU TALUK-575001.
2. SRI THIMMAPPA S NAIK AGED 70 YEARS, R/AT NO.401, KADRI HIGHTS, AIRPORT ROAD, YEYYADI, KONCHADI POST, MANGALURU TALUK-575001.
(BY SRI: ARUNA SHYAM M, ADVOCATE) AND 1. THE STATE BY BANTWAL POLICE THROUGH STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-560001 ... PETITIONERS 2. SRI SANDESH SHENOY S/O LATE N SRINIVASA SHENOY, AGED 37 YEARS, NO.9/8, 2ND CROSS, LIC COLONY, G.H. LAYOUT, 3RD BLOCK, JAYANAGAR EAST, BENGALURU-560011 (BY SRI:NASRULLA KHAN, HCGP FOR R1 ... RESPONDENTS SRI:K. PRASAD HEGDE, ADVOCATE FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE COMPLAINT FIR IN CR.NO.29/2016 AND ALL FURTHER PROCEEDINGS PURSUANT THERETO WHICH ARE PRODUCED AT DOCUMENTS NO.1 AND 2 RESPECTIVELY PASSED BY ADDL. CIVIL JUDGE (JR.DN) AND JMFC COURT, BANTWALA, DAKSHINA KANNADA DISTRICT.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners have sought to quash the FIR registered against them in Cr.No.29/2016 for the offences punishable under sections 416, 466, 467, 468, 471, 474 and 420 r/w 34 Indian Penal Code.
Heard the learned counsel for the petitioners, learned counsel for respondent No.2 and learned HCGP for respondent No.1.
2. The case of the complainant is that accused No.1 impersonated the erstwhile owner Susheela Bai and got up a sale deed in respect of the immovable properties in Sy.No.198/2 measuring 9 acres 99 cents situated at Ajjibettu Village, Buntwal Taluk and subsequently, the petitioners herein by joining hands with accused No.1 with intent to cheat the complainant built up a fabricated document dated 19.02.2015 and thereby committed the above offences.
3. Learned counsel for the petitioners’ submits that the allegations of forgery are directed only against accused No.1. Insofar as the present petitioners are concerned, they are bonafide purchasers. They purchased the properties from accused No.1 under a registered sale deed on payment of consideration of Rs.25,15,000/- There are no averments whatsoever in the entire complaint to suggest that the petitioners were aware of the alleged fraud played by accused No.1. Under the said circumstances, the prosecution of the petitioners for the alleged offences is wholly illegal and abuse of process of Court.
4. Refuting the submissions, learned counsel appearing for respondent No.2 submits that accused No.1 was an employee under accused No.3. In order to knock off the above properties, accused No.3 managed to obtain a sale deed in the name of accused No.1 and the very same properties were later transferred to the wife of petitioner No.2. This transaction is a shoddy transaction, which on the face of it, discloses the intention to cheat and defraud respondent No.2. Further he submits that the matter is under investigation and at this juncture, it is not proper to quash the proceedings on the purported plea set up by the petitioners.
Considered the submissions and perused the FIR as well as the documents produced in support of the contentions urged by the petitioners.
5. According to the complainant, a registered sale deed was executed in the name of accused No.1 on 17.10.2013. It is a registered sale deed executed for consideration of Rs.22.00 lakhs. A perusal of the said sale deed discloses that the said sale deed was purported to have been executed by Susheela Bai in favour of accused No.1. The specific contention of the complainant is that the executant of the said sale deed viz., Susheela Bai died on 11.05.1984. In the said circumstances, the said document would not have been executed by aforesaid Susheela Bai, but, for impersonation and fraud played by accused No.1 in bringing about the said sale deed. Even in the complaint, the allegation of fraud and manipulation are directed only against accused No.1. In that view of the matter, the registration of FIR against accused No.1 is well justified.
6. However, insofar as the present petitioners are concerned, the records reveal that petitioner No.1 is the subsequent purchaser of the aforesaid properties from accused No.1. Though the complainant had alleged that on account of inter-se relationship of the employer and employee between the husband of petitioner No.1 and accused No.1, the transaction appears to be shoddy and suspicious, but for the present, there is nothing on record to indicate that the petitioners herein were party to the aforesaid fraud or cheating. The only allegation made in the complaint with regard to the petitioners is that ‘petitioners joining together fraudulently and by way of cheating have built up fabricated document dated 19.02.2015’. The manner in which the alleged fraud is perpetrated is not spelt out. This allegation, in my view, is not sufficient to constitute the ingredients of the offences punishable under sections 416, 465, 466, 467, 468, 471, 474 and 420 r/w 34 Indian Penal Code.
7. In the absence of any specific allegation that the petitioners herein had played any role in bringing out the first sale deed dated 17.10.2013 which is executed by fraudulent impersonation, in my view, on the basis of the subsequent sale deed dated 19.2.2015, it is not proper to continue the proceedings against the present petitioners. That apart, it is a matter of record that both the sale deeds dated 17.10.2013 and 19.02.2015 are challenged by respondent No.2/complainant before the Civil Court. In the event, the first sale deed dated 17.10.2013 is found to be vitiated on account of fraud and impersonation, the subsequent sale deed executed in favour of petitioner No.1 would be rendered void. But, merely because petitioners are the subsequent purchasers of the said property from accused No.1, without there being any specific allegation that the petitioners herein were also involved in bringing out the sale deed dated 17.10.2013 by playing fraud and impersonation, the petitioners herein cannot be prosecuted for the alleged offences. Hence, the petition filed by petitioners deserves to be allowed.
Accordingly, the petition is allowed. The FIR registered in Cr.No.29/2018 against the petitioners viz., accused No.2 and 3 pending on the file of Addl. Civil Judge(Jr.Dn.) and JMFC, Bantwala, Dakshina Kannada is hereby quashed.
It is made clear that, during investigation, if any evidence surfaces incriminating the petitioners, this order shall not come in the way of the Investigating Officer or the Court proceeding against the petitioners in accordance with law.
In view of disposal of the main matter, I.A.No.1/2017 for stay does not survive for consideration. Accordingly, it is dismissed.
Sd/- JUDGE *mn/-