w w w . L a w y e r S e r v i c e s . i n



Pramila Mehra v/s Yogesh Kapoor & Others

    Criminal Revision Petition No. 1076 of 2011

    Decided On, 04 January 2021

    At, High Court of Karnataka

    By, THE HONOURABLE MRS. JUSTICE K.S. MUDAGAL

    For the Petitioner: M.M. Ashoka, Advocate. For the Respondents: R1 & R2, C.R. Abdul Rasheed, Advocate, R3, H.R. Showri, HCGP.



Judgment Text

(Prayer: This Criminal Revision Petition is filed Under Section 397(1) read with Section 401 of Cr.P.C praying to set aside the order dated 26.09.2011 passed by III Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.8275/2001.)

1. Aggrieved by the order of III Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.8275/2001 discharging accused Nos.1 and 3 from taking up trial, the petitioner has preferred the above revision petition.

2. The petitioner was the complainant and respondent Nos.1 and 2 were accused Nos.1 and 3 in C.C.No.8275/2001 on the file of III Additional Chief Metropolitan Magistrate, Bengaluru. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court.

3. The complainant is the sister of accused Nos.1, 3 and accused No.2 Vikas Kapoor. They inherited a house named Ranjitha Avenue situated in Amritsar, Punjab from their parents. On 20.09.1997, the complainant executed registered General Power of Attorney in Bengaluru in favour of accused Nos.1 to 3 to manage, develop and alienate the said property. Accused sold the said property to one Madhusharma under the registered sale deed dated 29.10.1997. The sale consideration quoted in the sale deed was Rs.3,00,000/-.

4. The complainant filed complaint under Section 200 of Cr.P.C. in PCR No.156/2000 before the trial Court against the accused alleging that on obtaining General Power of Attorney without her knowledge and consent they sold the property for consideration of Rs.36,00,000/-. She further alleged that the accused suppressed the said fact of sale with the dishonest intention to deprive her share in the said property. She claimed that on learning about the same, she issued notice dated 25.11.1999 demanding her share of Rs.9,00,000/- (1/4th share) which was not complied, thereby the accused have committed the offences punishable under Section 403 and 120 of IPC.

5. The trial Court acting under Section 156(3) of Cr.P.C. referred the said complaint to Indiranagar police for investigation. The said police on investigation submitted 'B' report to the Court stating that the matter is in the nature of civil dispute. The complainant filed protest petition to the 'B' report. The trial Court on recording the sworn statement of the complainant and on hearing the complainant, by order dated 10.09.2001 took cognizance for the offence punishable under Section 403 of IPC, registered the case in C.C.No.8275/2001 and summoned accused Nos.1 to 3.

6. Pending the complaint, accused No.2 Vikas Kapoor died. Therefore, the case against him was abated. Since the case was registered otherwise than on the police report, on appearance of the accused, the trial Court posted the matter to hear before charge and recorded the evidence under Section 244 of Cr.P.C. On hearing the parties, the trial Court by order dated 13.10.2008 accepted the 'B' report exercising the power under Section 203 of Cr.P.C. and dismissed the complaint.

7. The complainant challenged the said order in Crl.R.P.No.561/2008 before the Presiding Officer, Fast Track Court-VI, Bengaluru City. The Sessions Court by order dated 17.12.2009 allowed the revision petition and set aside the order of the trial Court dated 13.10.2008 on the ground that after taking cognizance of offences, the trial Court cannot dismiss the complaint under Section 203 of Cr.P.C. The Sessions Court remanded the matter to the trial Court to proceed in accordance with law.

8. After such remand, the complainant adopted the evidence led by her prior the order dated 13.10.2008. At that stage, accused filed application under Section 245 of Cr.P.C. seeking discharge on the ground that the dispute is civil in nature and only the Court at Amritsar have the jurisdiction to try the case. The complainant filed objections to the said application.

9. The trial Court on hearing the parties by the impugned order dated 26.09.2011 allowed the application and discharged the accused on the following grounds:

(i) The General Power of Attorney relied on by the complainant does not contain clause regarding sharing of the sale proceeds and does not state that the complainant has share in the sale proceeds of the property. Therefore, case of entrustment attracting Sections 403 and 405 of IPC are not made out;

(ii) Since the accused disputed the complainant's 1/4th share in the sale proceeds, she has to get her share declared by filing the suit before the Civil Court;

(iii) The complainant has not produced any record to show that she has 1/4th share in the sale proceeds and the dispute is civil in nature;

(iv) The complainant claims that the property was sold for Rs.36,00,000/-. The copy of the sale deed produced by her itself says that property was sold only for Rs.3,00,000/-.

(v) Ex.P6 the report of the Government Valuer shows that the structure was valued at Rs.21,57,670/- and not at Rs.36,00,000/- and it was not her case that the property was undervalued to deprive her share;

(vi) There is unexplained delay of two years in demanding her share.

(vii) There was variation in the sale consideration mentioned in the sale deed and the complaint;

(ix) In coming to such conclusion, the trial Court relied on the following judgments:

(a) Bal Kishan Das vs. P.C.Nayar (AIR 1991 SC 1531)

(b) M/s.LMJ International Ltd. Rep. By its Director & Ors. vs. State of Karnataka & Ors (ILR 2007 KAR 3665).

(c) M/s REPLE Ltd. & Ors. vs. ICDS Ltd Rep. By its G.P.A. Holder & DGM, Manipal & Anr (ILR 2008 KAR 3541)

10. Sri M.M.Ashoka, learned Counsel for the complainant/petitioner seeks to assail the impugned order on the following grounds:

(i) The trial Court can discharge the accused under Section 245 of Cr.P.C. only if no case is made out against the accused;

(ii) The evidence of PWs.1 and 2 and Ex.P1 General Power of Attorney, Ex.P2 Sale deed, Exs.P4 and P5 notice and reply, Ex.P6 valuation report were not controverted;

(iii) In Ex.P1 general power of attorney there is mention that the complainant has share and the same is referred to in Ex.P2 sale deed also;

(iv) There is nothing on record to show that accused had paid any share in the sale consideration either in Rs.3,00,000/- or Rs.36,00,000/-. Thereby there was criminal breach of trust and misappropriation.

(v) Under Ex.P6 the report of the Government Valuer, only the structure was valued and the value of the land under that was not valued. Therefore, it was too early for the learned Magistrate to hold that the value of the property is below Rs.36,00,000/-.

(vi) The material on record clearly showed that there was case to go for trial. Therefore, the order of the trial Court in discharging the accused is perverse;

(vii) When an act of a person amounts to offence under the criminal law as well as breach of civil right of the party, the aggrieved party shall not be compelled seek the remedy before the civil court only. The complainant had option to proceed under the criminal law also;

(viii) The complaint was not barred by time;

(ix) Having regard to Section 181 of Cr.P.C., the trial Court did have the jurisdiction to try the case.

11. In support of his contention, learned Counsel for the petitioner relied upon the following judgments:

(i) State of Rajasthan v. Basant Nahata (AIR 2005 SC 3401)

12. Per contra, Sri C.R.Abdul Rasheed, learned Counsel for respondent Nos.1 and 2/accused seeks to justify the impugned order on the following grounds:

(i) There was unexplained delay in issuing notice and filing the complaint;

(ii) The material on record and the evidence adduced by the complainant itself show that there was no ground to proceed against the accused;

(iii) If the complainant has any share in the property, her remedy was to file the civil suit and she cannot turn such dispute into a criminal case;

(iv) Since the accused were residing at Amritsar and the sale deed was effected in Amritsar, the trial Court was justified in holding that it has no jurisdiction;

(v) As rightly held by the trial Court, the sale was only for Rs.3,00,000/-. The recitals in the sale deed to that effect was contrary to the allegations of the complaint and it was sufficient to discharge the accused; &

(vi) At the stage of consideration of the application under Section 245 of Cr.P.C., the trial Court was not expected to hold a mini trial;

(vii) This Court cannot in the revisional jurisdiction re-appreciate the evidence and reverse the order of the trial Court.

13. In support of his contentions, he relies upon the following judgments:

(i) G.Hanumaiah v. The State of Karnataka (Crl.R.P.No.906/2011 (DD 23.10.2020))

(ii) S.A.Kumar & Ors. Vs. State and Ors. (Crl.O.P.No.24291/2017 C/w Crl.M.P.No.14034/2017 (DD 30.11.2020))

(iii) State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand & ors. (AIR 2004 SC 4412)

(iv) B.Radhakrishnan Nair vs. State of Kerala (Crl.R.P.No.611/2013 DD 20.08.2013)

(v) V.Y.Jose v. State of Gujarat ((2009) 3 SCC 78)

(vi) Pepsi Foods Ltd. & Ors. Vs. Special Judicial Magistrate & Ors. (MANU/SC/1090/1998)

14. Having regard to the rival contentions of the parties, the point that arises for consideration of this Court is "In discharging the accused whether the trial Court exercised its power in accordance with Section 245 of Cr.P.C.?".

15. The impugned order of discharge is passed purportedly exercising the power under Section 245(1) of Cr.P.C. which reads as follows:

"245. When accused shall be discharged.- (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him."

16. In the light of the above provisions, this Court has to examine whether unrebutted material/evidence placed by the complainant was sufficient to draw the inference of conviction of the accused. Reg. The complainant making out case against the accused for the offences punishable under Sections 403 and 120B of IPC:

17. The trial Court has taken cognizance for the offence punishable under Section 403 of IPC. The complainant sought prosecution of the accused for the offences punishable under Sections 403 and 120B of IPC. In the complaint, she also narrated that the accused while acting as her agent under General Power of Attorney executed by her, without her knowledge sold the property and misappropriated the funds, her such allegations attracts Section 409 of IPC also.

18. Sections 403 and 409 of IPC read as follows:

"403. Dishonest misappropriation of property.-- Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

19. Section 120B of IPC deals with punishment for the criminal conspiracy as defined under Section 120A of IPC. Sections 120A and 120B of IPC read as follows:

"120A. Definition of criminal conspiracy When two or more persons agree to do, or cause to be done. --

(1) an illegal act; or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

PROVIDED that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

120B. Punishment of criminal conspiracy. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punishable with imprisonment of either description for a term not exceeding six months, or with fine or with both."

20. To show that there was material to proceed against the accused for trial of the aforesaid offences, the complainant relied on the evidence of herself (PW.1) and her husband (PW.2) recorded under Section 244 of Cr.P.C. and Exs.P1 to P6. Those were all admitted documents.

21. Admittedly, the complainant and the accused inherited the house property named as Ranjith Avenue situated at Amritsar from their parents. In the General Power of Attorney Ex.P1 as well as in Ex.P2 the sale deed dated 29.10.1997 there is mention of the complainant having share in the property.

22. The fact of execution of the General Power of Attorney Ex.P1 to enable the accused to sell the property itself shows that she had interest in the property. The General Power of Attorney Ex.P1 was executed on 20.09.1997. The property was sold on 29.10.1997. The complainant in Ex.P4 her notice dated 25.11.1999 alleged that during her visit to Amritsar she came to know that the accused have sold the property, suppressed that fact and have not given her share in the sale proceeds, thereby they have cheated her.

23. In Ex.P5 the reply to the notice Ex.P4, the accused disputed only the quantum of sale consideration. They claimed that property was sold for Rs.3,00,000/- only. In the reply they very evasively denied the complainant's share, either in Rs.36,00,000/- or in any amount.

24. The complainant relying on Exs.P1 to P6 and her deposition states that by selling the property without her knowledge and utilizing the sale proceeds for themselves without giving her share, the accused have committed criminal breach of trust and misappropriation.

25. The other defence of the accused in their application under Section 245 of Cr.P.C. was that after the death of their father, they took care of the complainant and spent huge, countless money on her and to reciprocate the same, the complainant voluntarily executed General Power of Attorney Ex.P1 in their favour to deal with the property as they deemed fit.

26. The evidence of PWs.1 and 2 was not even rebutted by cross-examination. The unrebutted evidence showed that the complainant had share/interest in the property sold and such sale was on the basis of General Power of Attorney. Whether the accused gave her share of money to her or the General Power of Attorney executed was in consideration for the amount already allegedly spent by them on her were the matter of defence of the accused in trial. As rightly argued by learned Counsel for the accused at that stage the trial Court was not expected to put itself in the armchair of adversary and hold mini trial.

27. In Basant Nahata's case referred to supra relied upon by learned Counsel for the petitioner, the Hon'ble Supreme Court held that the power of attorney is executed to enable the agent to act on his behalf and the agent cannot use the General Power of Attorney for his own benefit. It was further held that the Power of Attorney Holder acts in a fiduciary capacity and an act of infidelity against the interest of the principal/executants of the power of attorney amounts to breach of trust.

28. Perusal of the unrebutted evidence of PWs.1 and 2 and Exs.P1 to P6 show that the trial Court acted in a perverse manner, contrary to Section 245 of Cr.P.C. and judgment in Basant Nahata's case in holding that no case against the accused was made out.

Reg.Limitation:

29. The trial Court discharged the accused on the ground that there was unexplained delay of two years from the date of sale in issuing notice and filing the complaint, thereby the trial Court impliedly says that the complaint was time barred.

30. The law that deals with limitation in taking cognizance for the offences under the Indian Penal Code is Section 468 of Cr.P.C. which reads as follows:

"468. Bar to taking cognizance after lapse of the period of limitation.-(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only;

(b) One year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year, but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment."

31. Section 469 of Cr.P.C. deals with commencement of the period of limitation. For the purpose of this case, Section 469(1)(b) is relevant which reads as follows:

"469. Commencement of the period of limitation.-(1) The period of limitation, in relation to an offender, shall commence,-

(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or"

32. In the case on hand, the sale deed was executed on 29.10.1997. The complaint was lodged on 12.05.2000 that was after two years six months. The offence under Section 403 of IPC is punishable with imprisonment upto two years. The allegations were that the accused being entrusted with her share of property as the General Power of Attorney holders dishonestly misappropriated her share of consideration, thereby committed criminal breach of trust.

33. The said allegations of breach of trust by attorney/agent attract the offence under Section 409 of IPC which is punishable with imprisonment for life or imprisonment up to ten years. Under section 468(1)(c) of Cr.P.C. no time limitation is prescribed for the said offence.

34. Even for the offence under Section 403 of IPC, the period of limitation prescribed is one year. Having regard to Section 469 of Cr.P.C., the period of limitation has to be reckoned from the date of the knowledge of the complainant of such offence. In the notice, the complainant claimed that she gained knowledge of such sale, soon before the said notice. The accused had not denied her statement to that effect by cross-examining her. Therefore, whether she had knowledge of sale prior to that was the matter of trial. Under the circumstances, the trial Court was in error in discharging the accused on the ground of delay.

Reg: Dispute being civil in nature:

35. The trial Court held that the complainant is claiming that, by virtue of her share in the property, she was entitled to 1/4th of the sale consideration, but the accused disputed her share, therefore, her remedy was before the civil Court by way of suit for partition and she cannot prosecute the accused for the offences under the Indian Penal code. To come to that conclusion, the trial Court relied on the judgment of this Court in M/s.LMJ International Ltd.'s case and the judgment of the Supreme Court in Bal Kishan Das's case.

36. The judgment in Bal Kishan Das's case arose out of the arbitration agreement which was commercial dispute. It was held that the matter was purely of civil nature. Therefore, the said judgment is not applicable to the facts of this case.

37. The judgment in M/s.LMJ International Ltd.'s case was rendered relying on the judgment of the Hon'ble Supreme Court in Indian Oil Corpn. v. NEPC India Ltd.11.This Court has extracted the judgment of the Indian Oil Corpn.'s case and the trial Court in turn reproduces the same. In the very judgment, the Hon'ble Supreme Court further held that genuine complaint for criminal prosecution should not be thrown out of the Court only because two remedies were available.

38. The Hon'ble Supreme Court in para 12(v) of the judgment in Indian Oil Corporation's case held as follows:

"12(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the (2006) 6 SCC 736 complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."

(Emphasis supplied)

39. Similarly in para 14 it was held that no one with a legitimate cause or grievance should be prevented from seeking remedies available in the criminal law.

Therefore, it was clear that merely because civil remedy is also available to the complainant or availed is not a ground to oust the party from the criminal prosecution.

40. In the case on hand also, the complainant alleged that persuading her for the purpose of selling the property accused obtained the General Power of Attorney from her, sold the property without her knowledge, suppressing the fact of sale utilized her share of money with dishonest intention. She had the right to pursue both the complaint for criminal breach of trust and misappropriation as well as to file the suit for partition/recovery of her share of money.

41. When the power of attorney and the sale deed themselves had the recitals that she had a share in the property simply because the accused denied her share, she should not be compelled to go to the Civil Court. Actually, in the reply notice the accused had not even denied her share. In their application, first time it was contended that they had spent on her and to reciprocate that, the complainant had executed the power of attorney. Therefore, they had to prove their defence. Again that was a matter of trial. Under such circumstances, the trial Court was not right in saying that her remedy was only by way of civil suit.

Reg: Territorial jurisdiction of the trial Court:

42. The accused sought discharge on the ground that the property in question situated at Amritsar and was sold at Amritsar, therefore, the trial Court lacked jurisdiction to proceed against them. The trial Court by the impugned order accepted the said contention and discharged the accused.

43. Admittedly the cognizance was taken on the complaint other than the police report. In such case, if the Court finds it lacks jurisdiction the course open to it as per Section 201 of Cr.P.C. was to return the complaint for presentation to the proper Court with endorsement to that effect and not to discharge the accused under Section 245 of Cr.P.C. Section 245 of Cr.P.C itself does not contemplate discharge on the ground of want of jurisdiction.

44. As per Section 181(4) of Cr.P.C, the offence of criminal misappropriation or breach of trust may be inquired into or tried by the Court within whose jurisdiction the offence was committed or any of the property which is the subject matter of the offence was received or retained, or was required to be returned or accounted for by the accused persons.

45. Further the complaint was for the

Please Login To View The Full Judgment!

offences of breach of trust and misappropriation. According to the complainant, the accused obtained General Power of Attorney from her with dishonest intention of misappropriation of sale proceeds and to cheat her. According to the complaint, since the accused obtained General Power of Attorney at Bengaluru, they were required to account her share of sale consideration and return that at Bengaluru. The trial Court in holding that it has no jurisdiction failed to examine the application with reference to Section 181(4) of Cr.P.C, thereby committed jurisdictional error. Reg. Power under Section 397 of Cr.P.C.: 46. Learned Counsel for respondent Nos.1 & 2/accused contended that the order of discharge amounts to acquittal and this Court in the revisional/supervisory jurisdiction cannot interfere with the same on re-appreciating the evidence. It is no doubt true that the scope of interference in the revisional jurisdiction is limited. However, the language in Section 397 of Cr.P.C. itself says that the Court can examine the correctness, legality or propriety of the findings of the trial Court. In other words, if the findings of the trial Court are found patently incorrect, illegal and improper, there is always scope for the revisional Court to interfere with the same. 47. As already discussed, the trial Court acted contrary to Sections 245, 468, 469 of Cr.P.C and the judgment of the Hon'ble Supreme Court in Indian Oil Corpn.'s case referred to supra in discharging the accused. Therefore, the judgments relied upon by learned Counsel for the accused in that regard are not applicable. For the aforesaid reasons, the impugned order of discharge is liable to be set aside and the matter requires to be remanded to the trial Court. 48. As could be seen from the records, the complainant was 61 years as on the date of filing of this revision petition in 2011. The complaint was filed in the year 2001. By this time, 20 years have elapsed. The complainant has crossed 70 years as on the date. One of the accused has already passed away pending the proceedings. Therefore, the matter requires to be expedited. The petition is allowed. The impugned order of discharge passed by the trial Court is hereby set aside. The application of the accused for their discharge is hereby rejected. The matter is remanded to the trial Court to proceed from the stage where the impugned order interdicted them. The accused shall appear before the trial Court on 18.01.2021 without further notice. The trial Court shall frame the charges, conclude the trial and dispose of the matter uninfluenced by the observations made in this order, within three months from the date of appearance of the parties before it.
O R