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2001 DIGILAW 52 (KAR)

H. Venkatesh Reddy v. State of Karnataka

2001-01-12

B.K.SANGALAD

body2001
ORDER B.K. Sangalad, J.—These five petitions are filed for quashing the proceedings pending on the file of I Additional Chief Metropolitan Magistrate, Bangalore in CC Nos. 3200 of 1999, 2299 of 1999, 2330 of 1999, 2323 of 1999 and 2324 of 1999. 2. The complaints have been filed on 10.11.1998 before the Commissioner of Police who in turn referred them to the Additional DGP who in turn referred them to be CCB for investigation. On 16.12.1998 the Respondents have filed their FIRs before the IV Additional CMM, Bangalore, alleging offence punishable under Sections 406 and 420 Indian Penal Code read with Section 120-B Indian Penal Code. After perusal of the cases, the learned Additional CMM, Bangalore ordered issuance of summons and after receipt of the summons the Petitioners on 28.9.1999 have filed these petitions. Filing of the complaint before the Commissioner of Police, on 10.11.1998, the complainants in each of the cases have filed Regular Civil Suits before the City Civil Courts in O.S. No. 7408 of 1998, 7409 of 1998, 7412 of 1998, 7413 of 1998 and 7415 of 1998. These are all the Money Recovery Suits. 3. The main allegation by the complainants are to the effect that the Petitioners have received a large sum of amount agreeing to sell land which did not belong to any SC/ST grant lands. Admittedly, the subject matter of lands are 2 acres in Sy. No. 125/7 and 1 acre in Sy. No. 125/8. These lands were granted to Adi Karnataka Nimma Varga Person. A copy of the saguvali chit is also filed. The alleged transaction took place on 31.5.1995. The complaints have been filed after a delay of 41 months. The complainants have not stated with clarity and precision that the accused have wilfully and dishonestly acted at the time of Promise/Transaction. Merely because the Petitioner No. 1 is the husband of Petitioner No. 2, it cannot be said that there was a conspiracy between the Petitioners. The further facts are that the monies alleged to have been paid by the complainants are actually by Mrs. Salarpuria Properties Private Limited, a company operating in Calcutta through their Power of Attorney Holders. The clauses in the agreement also mention that the requisite permission is to be procured under Section 4(2) of the SC/ST Prevention of Transfer of Certain Lands Act, 1979. The permission was applied in 1997 and procured in 1999. Salarpuria Properties Private Limited, a company operating in Calcutta through their Power of Attorney Holders. The clauses in the agreement also mention that the requisite permission is to be procured under Section 4(2) of the SC/ST Prevention of Transfer of Certain Lands Act, 1979. The permission was applied in 1997 and procured in 1999. The necessary documents are also produced. In view of the sequence of facts and circumstances of the case, the initiation of the proceedings have to be quashed. 4. Mr. Sriram, learned Counsel for the Petitioner relied upon the decision in the case of M/s Silk Import and Export Inc. Vs. M/s Exim Aides Silk Exporter and another, ILR (1997) KAR 2595 wherein it is stated as follows: Quashing of Criminal Proceedings instituted on a private complaint for the offences punishable under Section 418 and 420 Indian Penal Code - can be quashed if it is shown that at the time of entering into the contract or transaction, the only intention of the opposite party was to cheat the complainant and not otherwise. He further relied upon another decision in the case of A.P. Thirumalaisamy Vs. Tmt. Bangarammal and Others, (1999) CriLJ 1256 wherein it is stated as follows: Criminal Procedure Code (2 of 1974), Section 203-Private complaint-Complainant entered into agreement with accused for sale of property-Accused alleged to have made part payment-Private complaint against accused that he had forged document proving full payment-Complainant also filed a suit in civil Court for specific performance-However, complainant failed to produce documents after collecting materials to show that said documents were forged Filing of private complaint in absence of materials for offences under Penal Code not permissible. Code of Criminal Procedure, 1973-Section 482 read with Section 245-Inherent powers of High Court-Quashing of Criminal Proceedings-Filing of application before trial Court for discharge is not a bar to exercise jurisdiction by High Court. ii) Code of Criminal Procedure, 1973, Section 482-Inherent powers of High Court-Quashing of FIR/Criminal proceedings-Complaint under Sections 406/420 against appellants-Allegation that appellant borrowed, as directors of Company Rs. ii) Code of Criminal Procedure, 1973, Section 482-Inherent powers of High Court-Quashing of FIR/Criminal proceedings-Complaint under Sections 406/420 against appellants-Allegation that appellant borrowed, as directors of Company Rs. 50 lakhs and failed to return same and defrauded complainant-Prior to complaint plaint under Section 138 of Negotiable Instruments Act filed which was still pending-No plea of offence under Section 406/420 Indian Penal Code pleaded therein-No details about fraud committed by appellant stated in complaint under Section 406/420 Indian Penal Code-No allegation of corrupt practice by any of accused as if they duped complainant Finance company in parting with amount-Sole purpose of complaint under Section 406/420 is getting loan by browbeating and tyrannizing appellant in criminal proceedings-Complaint to prosecute under Section 406/420 is an abuse of process of law-Prosecution quashed. 5. Mr. Bhavani Singh, learned High Court Government Pleader opposed the submissions tooth and nail and submitted that since large sum is involved, in this case and the transaction is contrary to the terms of the agreement, the Petitioners were only interested for money without having any intention to make valid transfer of the property. This aspect has to be gone into. As such at this stage, there cannot be any quashing of the proceedings. In view of these rival submissions, now it is to be seen whether the initiation of proceedings against the Petitioner can be quashed. 6. The facts have made it crystal clear in respect of the transactions between the parties. Petitioner No. 2 is the agreement- holder. Petitioner No. 1 is none other than the husband of Petitioner No. 2. There is no specific allegation that he actively participated to see that his wife would be profited by cheating or by committing the offence of forgery. It is also further pertinent to note that 9 original suits have been filed and against Petitioner No. 1, the plaints are rejected. The prosecution has not shown the action taken against the rejection of the complaint against the Petitioner No. 1. This makes it amply clear that his hands are not stained with any intention of committing cheating or forgery. Petitioner Nos. 1 and 2 are agreement holders from A-3, 4 and 5 who are the GPA holders of the land owners. The prosecution has not shown the action taken against the rejection of the complaint against the Petitioner No. 1. This makes it amply clear that his hands are not stained with any intention of committing cheating or forgery. Petitioner Nos. 1 and 2 are agreement holders from A-3, 4 and 5 who are the GPA holders of the land owners. After entering into an agreement with A.3, A.4 and A.5 in turn have entered into an agreement of sale with these 9 different persons that too with the consent of the GPA holder. According to Mr. Sriram, learned Counsel for the Petitioner the only condition was that necessary permission should be obtained from the Government to show that the lands could be sold without any hindrance as they were granted in favour of the Nimna Varga person. 7. Mr. Sriram, learned Counsel has relied upon the document at page No. 55 of the paper-book. This document makes it amply clear that what he submitted is correct. Looking to this document there is no impediment for any transaction of civil nature in future to show that the Petitioners were bent upon cheating. There must be some mens rea element of criminality. To show that they did not suffer from any of these ingredients, the original suits filed will come to the rescue of the Petitioners. In fact already the plaints are rejected as far as Petitioner No. 1 is concerned. All the suits are filed for recovery of money. They can vindicate their rights there itself. It is pertinent to note that this complaint came to be filed subsequently after filing of the suit. One can understand if the complaints were filed soon after the transaction took place in the year 1995, then there might be some truth in the allegation. Almost after 3 and half years the complaints have been filed and that too after filing of the suits for recovery of the money. It appears that the complainants are trying to put the cart before the horse and also they are simultaneously making efforts to ride on the back of two horses which are running in the opposite directions. In this case, the decision of the Madras High Court is squarely applicable without any second thought. Hence in my opinion, the Petitioners have placed enough material to show that the proceedings are liable to be quashed. In this case, the decision of the Madras High Court is squarely applicable without any second thought. Hence in my opinion, the Petitioners have placed enough material to show that the proceedings are liable to be quashed. In the light of these observations made by me, the following order is passed: 8. In the result, the petitions are allowed. Consequently the initiation of the proceedings on the file of the Additional CMM, Bangalore in CC Nos. 3200 of 1999, 2299 of 1999, 2330 of 1999, 2323 of 1999 and 2324 of 1999 against Petitioners 1 and 2 stand quashed.