At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE JOHN MICHAEL CUNHA
For the Petitioners: Nishit Kumar Shetty, Advocate. For the Respondents: R1, Sandesh. J. Chouta, SPP - II, R2, V. Nagamani, K. Nagabhushana Reddy, Advocates.
(Prayer: This Criminal petition is filed under Section 482 of Cr.P.C praying to quash the entire proceedings in C.C.No.13057/2013 for the offence punishable under Sections 420, 504 and 506 r/w 120(B) of IPC pending on the file of 24th A.C.M.M., Bengaluru against the petitioners/accused No.3 and 4.)
1. The petitioners have sought to quash the proceedings in C.C.No.13057/2013 pending on the file of the 24th Addl. Chief Metropolitan Magistrate, Bengaluru, for the offences punishable under sections 420, 504 and 506 r/w 120(B) of IPC.
2. Heard learned counsel for the petitioners, learned SPP-II and learned counsel for respon
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3. Respondent No.2 presented a private complaint against accused nos. 1 to 4 alleging that accused nos.1 and 2 being the owners of the immovable properties compromised in Sy.No.5 of Subhedarpalya, Yeshvanthpur, Bengaluru, measuring East to West 25 ft. and North to South 52 ft. agreed to sell the said properties to the complainant(respondent No.2) vide agreement dated 19.2.2011. However, with an intent to cheat the complainant, the said property was alienated by accused nos. 1 and 2 in favour of accused no.3 by virtue of sale deed dated 3.8.2011. Further it is alleged that when the complainant approached the accused to question about this dealing, the accused threatened the complainant.
4. On recording the sworn statement of the complainant, the learned Magistrate issued summons to the petitioners. Contending that the proceedings initiated against the petitioners are malafide and the dispute between the parties is purely civil in nature, petitioners have invoked the jurisdiction of this Court under Section 482 of Cr.P.C. to quash the same. Petitioner are arraigned as accused Nos.3 and 4 respectively.
5. Learned counsel for the petitioners at the outset submitted that respondent no.2 has filed a suit before the Civil Court based on the aforesaid agreement of sale dated 19.2.2011 in O.S.No.26591/2012. In the said suit, an issue was also framed to the effect that accused no.3 was a bonafide purchaser of the properties in question. After trial, the suit has been dismissed by judgment and decree dated 24.02.2018. Respondent no.2 has not preferred any appeal against the said judgment and decree. As a result, the judgment and decree passed by the Civil Court has attained finality. None of the allegations made against the petitioners attract the ingredients of the offence under Sections 420 or 504 of IPC.
6. Learned counsel appearing for respondent no.2 contends that the sworn statement of the complainant coupled with the recitals of the agreement clearly indicate that with intent to cheat the complainant, the properties which were the subject matter of the Agreement of Sale were sold to accused no.3 and therefore there is prima facie case to proceed against the petitioners for the alleged offences.
7. Considered the submissions. Perused the records. It is not in dispute that at the earliest instance, accused nos. 1 and 2 being the absolute owners of the properties in question, entered into an agreement with the complainant to sell the properties to the complainant, as per the Agreement of Sale dated 19.2.2011. In respect of the very same properties a sale deed came to be executed by accused nos.1 and 2 in favour of accused no.3. The complainant has challenged the said Sale Deed before the Civil Court and sought specific performance of the agreement executed in her favour. In the said suit a specific issue was framed as to whether accused no.3 was a bonafide purchaser for value? After recording the evidence of the complainant as well as accused nos. 1 to 4, the trial court has recorded a positive finding holding that accused no.3 was a bonafide purchaser of the suit schedule properties. In the wake of the said finding, the allegations made in the complaint that with an intent to cheat the complainant, the alleged transaction has taken place falls to the ground. As such, the prosecution of the petitioners for the alleged offence under section 420 of IPC cannot be sustained.
8. Insofar as accused no.4 is concerned, there are absolutely no allegations whatsoever attracting either the offence under Section 420 of IPC or Sections 504, 506 and 120(B) of IPC. The only allegation in this regard finds place at para No.8 of the F.I.R. which reads as follows:
8. The complainant further submit that the complainant astonished by the acts of the accused No.1 to 4, herself, her husband and other friends went and asked them why they have cheated her.Then accused No.1 to 4 colluded together and said whatever the complainant wants to do let her do and A1 and A2 is neither ready to pay the amount nor ready to get registered said property to the complainant's name. As already the property has been sold to accused no.3, then the complainant, her husband and other asked the accused knowing fully why they have cheated the complainant. Then the accused No.1 to 4 used most filthy language and said that it is their nature of transaction and also threatened to the complainant not to go to the site and should not ask to return the money. If the complainant will not surrender to the accused they threatened saying that they are going to remove the legs and limbs and still the complainant is not going to surrender to the accused they are saying to do away with the life of the complainant and her husband.
9. As could be seen from the above, allegations made therein are vague and general in nature. The complainant has not even specified the date and place where the alleged incident has taken place. She has given up the said allegations in her sworn statement. As a result there was absolutely no basis for the learned Magistrate to take cognizance of the alleged offences. The learned Magistrate therefore has misdirected himself in taking cognizance of the alleged offence and issuing summons to the petitioners. The material on record does not indicate that the petitioners have committed any of the offences alleged against them. Therefore, the prosecution initiated against the petitioners being an abuse of the court cannot be sustained.
Accordingly the petition is allowed. The proceedings initiated against the petitioners in C.C.No.13057/2013 pending on the file of the 24th Addl. Chief Metropolitan Magistrate, Bengaluru, for the offences punishable under sections 420, 504 and 506 r/w 120(B) of IPC is hereby quashed.