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2021 DIGILAW 882 (KAR)

Rudra Swamy v. State Of Karnataka

2021-09-24

K.SOMASHEKAR

body2021
JUDGMENT : 1. In this petition, the petitioner is seeking to set-aside the order passed by Court of first Additional Chief Judicial Magistrate, Bangalore Rural District in C.C No.5007/2016 arising out of Cr.No.370/2014 dtd. 13/9/2016 for the offences punishable under Ss. 434, 427, 465, 468, 443 R/w 34 IPC vide annexure-A and also seeking quashment of the criminal proceedings initiated against accused No.3 who is the petitioner before this Court in C.C.No.5007/2016 registered by White Field Police Station, Bengaluru City vide Annexure-A, B, B1 and C. 2. Heard, learned counsel Sri. Amar Correa for the petitioner and so also, learned HCGP for respondent No.1 who are also present before the Court physically. But counsel for respondent No.2 Sri.Supreeth.S is appearing through video conferencing and heard his arguments by referring the materials relating to the case in Cr.No.370/2014 and so also, the materials which collected by investigating officer during the course of investigation in order to laying of charge sheet against the accused in C.C.No.5007/2015, and so also, the role made by the accused Nos.4 and 5 who are the owners of the properties relating to "Victorian View Layout Owners Welfare Association " and whereby accused Nos.1 and 2 have been purchasing the properties in order to formation of lay out. But this petitioner who is arraigned as accused No.3 namely Sri. Rudra Swamy which is subsequent purchaser. 3. It is transpired in the case of prosecution relating to the initiation of criminal prosecution by registering the case in Cr.No.370/2014 vide annexure-A. Based upon the complaint filed by the complainant, the White Field Police Station registered the case in Cr.No.370/2014 by recording the FIR for the aforesaid offences. But this petitioner is arraigned as accused No.3 vide Annexures-B and B1. Subsequent to registration of crime, by White Field Police Station having jurisdiction, the case has been taken up for investigation by the Investigating agency and thoroughly investigation has been done and laid the charge sheet against the accused before the Court having jurisdiction. But charge sheet consisting in respect of power of attorney relating to land measuring 1 Acre 35 guntas in Sy.No.55/2 of Nallurahalli Village belonging to Accused Nos.4 and 5 was executed in favour of Accused No.1. But charge sheet consisting in respect of power of attorney relating to land measuring 1 Acre 35 guntas in Sy.No.55/2 of Nallurahalli Village belonging to Accused Nos.4 and 5 was executed in favour of Accused No.1. Subsequently, accused No.1 in collusion with accused No.2 had made plots in the said site and with an intention to cheat CW.2 and CW.3, got registered the plot bearing No.F-109, Khata No.180/3 measuring 4153 sq.ft in their name. These are all the materials that have placed on record and also facilitated by the learned counsel for petitioner for seeking intervention under Sec. 482 of Cr.P.C for quashment of the case registered against the petitioner. 4. Learned counsel Sri. Supreeth.S for respondent No.2 who is appearing through video conferencing and he has in conformity with the charge sheet materials laid by the investigating officer against the accused. Even though it is civil in nature of issue emerged in between complainant and the accused but the role of the petitioner being arraigned as accused as whereby in collusion with the co-accused is required to be facing of trial in a charge sheet laid by the investigating officer against the accused in C.C.No.5007/2016 and each one of the offences are required to be tested by the prosecution by placing evidence and it is only to be subjected to examination or cross-examination on the part of the defence side. But accused Nos.4 and 5 despite of knowing that the site has been sold through General Power of Attorney to accused No.1 but sold the same to C.W.2 and 3 with an intention to cheat them and without considering the General Power of Attorney executed in favour of accused No.1. But all the accused have been were hand in glouse relating to selling of property to petitioner/accused No.3 who is before this Court for seeking intervention for quashment of the charge sheet laid against him in C.C.No.5007/2016. 5. Whereas, learned counsel for the petitioner has taken me through the criminal revision petition that has been initiated by the petitioner in Crl.R.P.No.s46/2015 to 48/2015 respectively. Petitioner Sri.Rudraswamy is the petitioner in all these criminal revision petitions and common order has been rendered by Court of the Prl.Sessions Judge, Bengaluru Rural District, Bengaluru vide order dtd. 31/12/2015. The criminal law was set into motion on receipt of complaint given by the complainant namely Sri. Petitioner Sri.Rudraswamy is the petitioner in all these criminal revision petitions and common order has been rendered by Court of the Prl.Sessions Judge, Bengaluru Rural District, Bengaluru vide order dtd. 31/12/2015. The criminal law was set into motion on receipt of complaint given by the complainant namely Sri. Rajiv Kaul and based upon his complaint the case in Cr.No.216/2014 came to registered by the Whitefield Police Station. Accused No.1 namely Syed Fareed Ahmed and his brother had formed layout in the name "Victorian View' and they had formed a partnership firm also. The said firm had acquired lands from farmers and thereafter executed a sale deed and also a general power of attorney. This aspect also to be considered by the revisional Court while rendering common order, the copy of the same has been facilitated by the counsel for the petitioner for the purpose of perusal. But the case in Cr.No.216/2014 relating to the case in C.C.No.7418/2014 for the offences punishable under Ss. 465, 471 and 420 of IPC, 1860. But allegations made in the aforesaid crime registered by Whitefield Police Station having jurisdiction and allegation made in the charge sheet leveled against the accused and so also, the allegation made in the present charge sheeted case in C.C.No. 5007/2016 arising out of Cr.No.370/2014 are similar in nature. Moreover, the civil in nature of a dispute emerged in between complainant and accused has turned into criminal in nature. Therefore, Sec. 482 of Cr.P.C shall be exercised with stricto sensu relating to the scope and object of the said provision, if not, gravamen of accused No.2 would be the sufferer relating to the charges leveled against him. These are all contentions as taken by the learned counsel for the petitioner for seeking intervention under Sec. 482 of Cr.P.C for quashment of charges leveled against the accused and so also initiation of criminal proceedings in C.C.No.5007/2016 arising out of Cr.No. 370/2014. 6. The second limb of the argument that has been advanced by the learned counsel for the petitioner by referring the order passed by a Co-ordinate bench of this Court vide Annexure-E in Crl.R.P.No.863/2015 dtd. 11/9/2017 and whereby the case in CC.No. 217/2014 registered by the Whitefield PS under Ss. 465, 471 and 420 R/w 34 of IPC against accused namely Sri. Syed Fareed Ahmed and others and whereby the petitioner herein namely Sri. 11/9/2017 and whereby the case in CC.No. 217/2014 registered by the Whitefield PS under Ss. 465, 471 and 420 R/w 34 of IPC against accused namely Sri. Syed Fareed Ahmed and others and whereby the petitioner herein namely Sri. Rudraswamy is also has been arraigned as accused in Cr.No. 217/2014. But the investigating officer had taken up the case for investigation and after thorough investigation, laid the charge sheet against the accused in C.C.No. 7423/2014 before the Court having jurisdiction. But the said revision petition filed by the State came to dismissed as devoid of merits. Further, the Co-ordinate Bench of this Court rendered the order in Crl.R.P.No.864/2016 dtd. 11/9/2017 vide Annexure-F. This revision petition was also filed by the State against respondent Rudraswamy relating to the initiation of criminal prosecution against the accused in Cr.No.216/2014 by the Whitefield PS, Bengaluru city for the offences punishable under Ss. 465, 471 and 420 R/w 34 of IPC whereby the petitioner Rudraswamy is also one of the accused in the aforesaid criminal prosecution initiated by complainant against the accused by approaching the Whitefield Police Station, Bengaluru City. The case in CC.No. 7418/2014 has been filed before the court having jurisdiction and whereby the investigating officer has laid the charge sheet against the accused by collecting so much of material documents relating to the aforesaid offences. But the revision petition filed by the State came to be dismissed of being devoid of merits. Further, the Co-ordinate Bench of this Court in Crl.R.P.No.865/2016 vide order dtd. 11/9/2017 as per Annexure-G has disposed of the said petition filed by the State against Rudra Swamy, respondent therein relating to Crime No.76/2014 registered by the Whitefield Police Station, Bengaluru City for the offences punishable under Ss. 465, 471, 420 r/w 34 of IPC, 1860 whereby the accused persons were namely Syed Naveed Ahmed and others including Rudra Swamy the petitioner herein. Subsequent to registration of case by Whitefield PS having jurisdiction, the investigation has been done thoroughly and charge sheet came to be laid against the accused in CC.No.7414/2014. But the revision petition filed by the State was dismissed being devoid of merits. These are all documents that have been produced by the learned counsel for the petitioner in conformity with the grounds urged in this petition for seeking intervention and quashment of the criminal proceedings initiated against the petitioner namely Sri. But the revision petition filed by the State was dismissed being devoid of merits. These are all documents that have been produced by the learned counsel for the petitioner in conformity with the grounds urged in this petition for seeking intervention and quashment of the criminal proceedings initiated against the petitioner namely Sri. Rudraswamy in C.C.No.5007/2016 arising out Cr.No.370/2014 vide Annexure-A which is pending before the Court of Additional Chief Judicial Magistrate Rural Court, Bengaluru. On all these premises, learned counsel for the petitioner seeking for consideration of the grounds urged in this petition, if not considered, the petitioner being arraigned as Accused No.3 would be the sufferer and also being the gravamen of the charges leveled against him. 7. Learned HCGP for State who is present before the Court physically referred the substance of the FIR said to have been recorded by the Whitefield PS by registering the case in Cr.No.370/2014 relating to case in C.C.No.5007/2016 for the offences punishable under Ss. 434, 427, 465, 468, 443 R/w 34 of IPC, 1860 and submits that each one of the offences are having its own ingredients to constitute the offences. Therefore, the investigating officer has investigated the case thoroughly and during the course of investigation he has collected the material documents by following the mandatory provision of Code of Criminal Procedure and laid the charge sheet against the accused. The charge sheet consisting statements of CWs.1 to 34. But CW.34 being the PSI who is the investigating officer and he has investigated the case thoroughly by recording the statement of witnesses and so also, conducted the mahazar in the presence of panch witnesses. But column - 7 of the charge sheet laid by the investigating officer discloses the site number and other site numbers relating to cheating made to CWs.2 and 3 by the petitioner who is arraigned as Accused No.3 and also in relation with co-accused Nos.1 and 2. These are all the materials that have been secured by the investigating officer during the course of investigation and thoroughly investigation has been done and laid the charge sheet against the accused. These are all the materials that have been secured by the investigating officer during the course of investigation and thoroughly investigation has been done and laid the charge sheet against the accused. When once the charge sheet has been laid by the investigating officer, the domain it is vested with the prosecution to establish the case against the accused by facilitating the worthwhile evidence either oral or documentary evidence and further, the domain it is always vested with the trial Court to appreciate the evidence under the relevant provisions of the Indian Evidence Act, 1872. But at this stage, it can't be arrival for each and every offence relating to the ingredients to constitute the offence. Therefore, it can't be dwelling into detail the charge sheet materials by exercising the power under Sec. 482 of Cr.P.C. seeking quashment of the charge sheet laid against petitioner/accused No.3 in Crime No.370/2014. These are all the contentions as taken by the learned HCGP for the State and seeking for dismissal of this petition being devoid of merits. 8. As already stated that the role of learned counsel Sri Supreeth for respondent No.2 who is appearing through video conferencing and submitting that the civil in nature of the dispute in between the complainant and the accused, it cannot be taken into consideration which is contra to the criminal prosecution initiated by the complainant who is a gravamen of the incident as narrated in the complaint by approaching the Whitefield Police Station, Bengaluru City. Based upon his complaint the criminal law was set into motion by registering the case in Crime No.370/2014 for the offences which disclosed in the FIR said to have been recorded by the police. Accused No.1 who is in relation with accused No.2 and this petitioner who is arraigned as Accused No.3 and the role of each of the accused is required to be established by subjected to examination of the witnesses and also subjected to marking of material documents. But at this stage, it can't be arrival that the charges leveled against the accused whether it is converted as criminal in nature by initiation of civil in nature of the case in between the plaintiff and defendants insofar as the case in O.S.No.1160/2011 and O.S.No.1020/2011. But at this stage, it can't be arrival that the charges leveled against the accused whether it is converted as criminal in nature by initiation of civil in nature of the case in between the plaintiff and defendants insofar as the case in O.S.No.1160/2011 and O.S.No.1020/2011. Merely because the Victorian View layout has been formed and also involvement of civil in nature of a case in between the plaintiff and defendant, but the criminal prosecution has been launched by the complainant against the accused by approaching the Whitefield Police Station to register the case in Crime No.370/2014 and whereby the IO has laid the charge sheet against the accused persons. But the petitioner who is also arraigned as accused No.3 in collusion as well as in connivance with co-accused Nos.1 and 2 and accused Nos.4 and 5 had sold the property to accused Nos. 1 and 2 and also changed the identity of the property by removal of stones which were fixed by the authorities. These are all the contentions as taken by the learned counsel for respondent No.2 and further in conformity with the submission made by learned HCGP for State and seeking for dismissal of this petition being devoid of merits. 9. It is in this context of the contention as taken by learned counsel for the petitioner by referring to the substance of charges made against the accused in C.C.No.5007/2015 arising out of Crime No.370/2014 registered by Whitefield Police Station by recording the FIR dtd. 18/11/2014. The criminal law set into motion by filing of a complaint by one R.R.Patel who approached the Whitefield Police Station by narrating the complaint in the detail of an allegation made against each one of the accused. That Victorian View Layout Owners' Welfare Association vide Annexure - B1 which has been produced by the counsel for the purpose of reference and also consideration of the grounds as urged in this petition seeking intervention. 10. In clause-10 of the FIR recorded by the Whitefield Police Station vide Annexure-B that one Jagadish Gordhandas Kachhela who is the GPA holder that one Sri Lakshmaiah and Smt.Yashodamma who had executed the General Power of Attorney in the name of Syed Waheed Ahmed relating to formation of Victorian View Layout. 10. In clause-10 of the FIR recorded by the Whitefield Police Station vide Annexure-B that one Jagadish Gordhandas Kachhela who is the GPA holder that one Sri Lakshmaiah and Smt.Yashodamma who had executed the General Power of Attorney in the name of Syed Waheed Ahmed relating to formation of Victorian View Layout. That Layout is constituted in the limit of Nallurhalli Village bearing Sy.No.55/2 Plot bearing No.F109, Khata Nos.180/3 measuring 4153.15 sq.ft and that site has been sold to Jagadeesh Gordhandas Kachhela on 8/2/1996 through registration. That subsequent to execution of the document, the aforesaid site is maintained in the office of aforesaid Jagdeesh Gordhandas Kachhela. Subsequently, that Syed Waheed Ahmed and Sayed Javeed Ahmed both of them in order to cheat the said Jagadeesh Gordhandas Kachhela wherein the Victorian View Layout, the entire properties was sold to one Rudraswamy with an intention of cheating the aggrieved persons. Based upon his complaint, the criminal law was set into motion by registering the case in Crime No.370/2014. Subsequently, the investigating officer took up the case for investigation and investigation has been done thoroughly and during the course of investigation collected the material documents and also recording of the statement of witnesses which is cited as CWs.1 to 34. But CW.34 being an IO who laid the charge sheet against the accused persons for the offences which disclosed in the charge sheet itself. 11. Keeping in view the allegations made in the complaint and so also, the materials which secured by the investigating officer during the course of investigation where the accused are required to be facing of trial but Sec. 482 of Cr.P.C. it should be exercised sparingly, judicially, judicially and cautiously. 12. Therefore, it is relevant to refer the judgment rendered by Hon'ble Supreme Court of India reported in AIR 2019 SC 210 (Anand Kumar Mohatta and another Vs. State (Govt. of NCT of Delhi) Department of Home and another wherein it is held that: "Quashing of FIR - Inherent powers - Nothing in words of Sec. 482 restricting exercise of power of Court to prevent abuse of process of Court or miscarriage of justice only to stage of FIR - High Court can exercise jurisdiction under Sec. 482 even if charge-sheet is filed during pendency of application ". In the judgment referred supra, the Hon'ble Supreme Court has referred the cases chronologically - i) AIR 1977 SC 1489 : 1977 Cri LJ 1125. ii) AIR 1992 SC 604 : 1992 AIR SCW 237 iii) AIR 2000 SC 754 : 2000 AIR SCW 296; iv) AIR 2006 SC 2780 : 2006 AIR SCW 3830 v) 2008 AIR SCW 6459; vi) AIR 2014 SC 1106 ; 2013 AIR SCW 6062 vii) AIR SCW 6062; viii) (2011) 7 SCC 59 ; In this judgment, the decision rendered in Indian Oil Corporation vs. NEPC India Ltd., and others reported in 2006(6) SCC 736 , the court observed that: "13. Xx any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged ".. " Further, he court noticed a growing trend in business circles to convert purely civil dispute into criminal cases. In the said judgment, the Hon'ble Supreme Court has also referred the judgment reported in 1977 (2) SC 699 : AIR 1977 SC 1489 in the case of State of Karnataka Vs. L.Muniswamy and others has observed as under: "7 " "In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice ".. ". 13. In the instant case, the civil in nature of the case has been converted into criminal in nature as where the Victorian View Layout has been formed by executing the sale deed in respect of the properties as depicted even in the substance of the FIR or in the charge sheet material. ". 13. In the instant case, the civil in nature of the case has been converted into criminal in nature as where the Victorian View Layout has been formed by executing the sale deed in respect of the properties as depicted even in the substance of the FIR or in the charge sheet material. Therefore, it is not appropriate for dwelling into detail of factum of charges relating to each one of the count of the offence lugged against the accused in the charge sheet. When once the charge sheet has been laid by the investigating officer against the accused, it is the domain vested with the prosecution to prove the guilt of the accused by facilitating worthwhile evidence and even the witnesses have been subjected to cross-examination on the part of the defense. Even the closure of the evidence on the part of the prosecution or even on the part of the defense but the domain it is always vested with the trial Court for appreciating the evidence under the relevant provisions of Indian Evidence Act, 1872. Therefore, in this petition it is required to look into the scope and object of Sec. 482 of Cr.P.C. for seeking intervention, if not, certainly there shall be a miscarriage of justice as where the petitioner is arraigned as accused No.3 who is a gravamen of the allegation made against him in the charge sheet laid by the IO before the Court having jurisdiction. In terms of the aforesaid reasons, I am of considered opinion that petition deserves to be allowed. Accordingly, I proceed to pass the following: ORDER This criminal petition filed by the petitioner/accused No.3 under Sec. 482 of Cr.P.C. is hereby allowed. Consequently, the entire proceedings in C.C.No.5007/2016 arising out of Crime No.370/2014 registered by the Whitefield Police Station, Bengaluru for the offences punishable under Ss. 434, 427, 420, 465, 468,443 r/w 34 of IPC is hereby quashed. Upon disposal of the main petition that I.A.1/2019 does not survive for consideration and accordingly, it stands disposed of.