Smt Carobina Ferrao Guerin vs State Of Karnataka
2021 Latest Caselaw 6916 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 21 s t DAY OF DECEMBER, 2021

                          BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

     WRIT PETITION NO.5286 OF 2020(GM-R ES)

BETWEEN:

Smt. Carobina Ferrao Guerin
W/o John Christopher Guerin
Aged about 71 years,
Presently resid ing at No.7,
Marchsid e Close,
Middlesex, Hounslow TW5 9BX
U.K.(England)

Also residing at:
Door No.16/149
Murnad Road, Madikeri
Kod agu District-571201
                                         ...Petitioner
(By Smt. Akshtha Shetty, Advocate for
    Smt. Sanjanthi Sajan Poovayya, Advocate)

AND:

1.    State of Karnataka
      Through Bajp e Police
      Kaikamb a Road ,
      Near Pope Ground,
      Bajp e, Mang aluru,
      Karnataka-574142
      Represented by the
      Public Prosecutor,

2.    Smt. Daphny Gladys Lobo
      W/o Fred erick Lobo
      Aged about 47 years,
                           :: 2 ::


     Residing at:
     Door No.1-330,
     Near Holy Family School,
     Bajp e, Mang aluru Taluk,
     Dakshina Kannad a,
     Karnataka-574142.
                                          ...Respondents
(By Sri B.J.Rohith, HCGP for R1;
 R2-served, unrepresented)

     This Writ Petition is filed under Articles 226 and
227 of Constitution of India 1950 read with Section
482 of the Cod e of Criminal Proced ure-1973, praying
to quash the order dated 09.09.2019 passed by the
Judicial Mag istrate First Class VI Court, Mang aluru, in
C.C.No.2456/2019, taking cognizance of the offences
punishab le under Sections 323, 447 and 506 of the
India Penal Code, 1860 and issuing summons to the
petitioner, Annexure-B.


     This Writ Petition coming on for orders this d ay,
the Court mad e the following:


                          ORDER

Heard Smt. Akshatha Shetty for the petitioner

and the Government Pleader for respondent no.1.

Respondent no.2 has been served with notice, but

she has not entered appearance.

:: 3 ::

2. In this petition filed under Articles 226 and

227 of the Constitution of India, r/w section 482

Cr.P.C., the petitioner has sought quashing of the

order date 9.9.2019 and the proceedings in

C.C.No.2456/2019 on the file of VI Addl. JMFC,

Mangaluru.

3. The second respondent filed a complaint

against the petitioner under section 200 Cr.P.C.

and the same was referred to police for

investigation under section 156(3) of Cr.P.C.

Investigation came to be held and charge sheet

was filed against the petitioner. The second

respondent alleged in her complaint that the

petitioner married a British citizen and since she

has no issues, she provided financial assistance to

her for purchasing a house in Mangaluru City.

Though the second respondent was ready to re-

pay the money in instalments, but the petitioner

was not agreeable for that and she insisted on :: 4 ::

repayment of the entire amount at once.

Accordingly when the second respondent wanted to

repay Rs.19,94,000/-, the petitioner did not

receive it and asked her to remain in possession of

the same. But on 25.3.2015 at 3.00 p.m., the

petitioner entered the house and demanded to pay

her four times the purchase value, assaulted the

second respondent and put life threat to her

husband. Therefore in regard to this incident, she

made a complaint to the Magistrate on 11.6.2018.

4. Learned counsel for the petitioner submits

that there is no truth in the allegations made in

the complaint with regard to the incident said to

have taken place on 25.3.2015. Even otherwise

the complaint came to be lodged on 11.6.2018.

There is no explanation for delay. Moreover, the

second respondent is the niece of the petitioner

and since the petitioner is residing in England, she

executed a power of attorney in favour of the :: 5 ::

second respondent for purchasing a house in

Mangaluru and also allowed the second respondent

to live in that house. The petitioner came to know

that the second respondent forged some

documents to get the power supply transferred to

her name and at that time the petitioner asked the

second respondent to vacate the house. At that

time the second respondent filed a suit

O.S.No.1225/2015 for permanent injunction

against the petitioner. The said suit was decreed

and now regular appeal is pending. The petitioner

has also filed a suit O.S.No.439/2015 against the

second respondent for declaration of title and

possession. So referring to the suits, learned

counsel would argue that in order to wreak

vengeance against the petitioner, the second

respondent initiated criminal action under section

200 Cr.P.C. Purely a civil dispute has been given

colour of as criminal case and therefore the charge :: 6 ::

sheet filed in these circumstances does not sustain

and hence it is to be quashed.

5. Government Pleader submits that

investigation reveals offence being committed.

Charge sheet has already been filed and petitioner

has to face the trial.

6. After hearing both the sides, it is to be

stated that the second respondent does not

dispute the house being purchased by the

petitioner. The petitioner has produced the

general power of attorney executed by her in the

name of the second respondent and also the sale

deed. These documents are not disputed and

therefore it becomes clear that the petitioner

purchased the property through her GPA holder

i.e., the second respondent. Probably the

differences between the petitioner and the second

respondent arose when the latter made an attempt

to get the power supply transferred to her name :: 7 ::

and for this reason the petitioner asked the second

respondent to vacate the house. The possession

of the house being with the second respondent is

not disputed and this is evidenced by the suit filed

by the second respondent in O.S.No.1225/2015.

This is a suit for injunction to restrain the

petitioner from interfering with her possession.

Obviously the suit came to be decreed and it

appears that regular appeal filed by the petitioner

is still pending. At the same time the petitioner

has filed a suit in O.S.No.439/2015 against the

second respondent for declaration of title and

possession. Copy of the judgment in

O.S.No.1225/2015 and copy of plaint in

O.S.No.439/2015 are produced. All these

circumstances indicate existence of civil disputes

between the parties. If the allegations made in

the complaint are assessed in the background of

this civil disputes, it becomes very clear that

probably the second respondent may have resorted :: 8 ::

to initiating criminal action against the petitioner

to wreak vengeance. Moreover in para 5 of the

complaint, it is clearly stated that it was on

25.3.2015 at 3.00 p.m., the petitioner is said to

have entered the house, assaulted the second

respondent and put life threat to her husband. If

the incident has really taken place, it is not

understandable as to why the second respondent

did not immediately rush to police station to lodge

a complaint against the petitioner. It was on

11.6.2018, that she made a private complaint.

The learned Magistrate ought to have applied his

mind before referring the matter to police for

investigation. Very routinely reference is made to

the police under section 156(3) Cr.P.C. and the

police have also filed charge sheet in the same

manner. If the entire circumstances are analyzed,

it becomes very clear that the complaint is bereft

of truth and that the charge sheet filed pursuant

to such a compliant cannot be sustained. If the :: 9 ::

petitioner has to face trial in such a case, it

amounts to abuse of process of court. Therefore

writ petition is allowed. The proceedings against

the petitioner in C.C.No.2456/2019 on the file of

VI Addl. J.M.F.C., Mangaluru, D.K. are quashed.

Sd/-

JUDGE

sd