Bhagamandala Plantation Limited vs The State Of Karnataka
2021 Latest Caselaw 1584 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 18TH DAY OF FEBRUARY, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

             CRIMINAL PETITION No.6965/2020

BETWEEN:

1.   BHAGAMANDALA PLANTATION LIMITED,
     V-401, PANATHADY GRAMA PANCHAYATH,
     PANATHUR, KASARGOD,
     KERALA-671532.

2.   CLIFF WOOD AGRO PLANTATIONS LIMITED,
     NO.09, PARAMOUNT APARTMENTS,
     NORTH PARADE,
     ST. THOMAS MOUNT CHENNAI,
     TAMILNADU-670016.

3.   AGATE JOSEPH EASOW,
     S/O EASOW,
     AGED 33 YEARS,
     R/AT PANDARAKUNNEL,
     NARAKATHODE,
     PUTHUPALLY P O. KOTTAYAM,
     KERALA-686011.

4.   SURENDRA M.K.,
     S/O M T KUNHAMBU,
     AGED 50 YEARS,
     R/AT E-4, WEST END PALACE,
     VELLIYANNUR, THRISSUR,
     KERALA-680021.

5.   LYNN AJITH JOHN,
     D/O AJITH JOHN,
     AGED 24 YEARS.
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6.    GEORGE P.V.,
      S/O VARGHESE,
      AGED 64 YEARS.

7.    ACHAMMA JOHN,
      W/O JOHN,
      AGED 65 YEARS.

8.    RAJI POTHAN,
      S/O JOHN,
      AGED 56 YEARS.

      PETITIONER NOS.5 TO 8 ARE
      RESIDING AT V-401,
      PANATHADY GRAMA PANCHAYATH,
      PANTHUR, KASARGOD,
      KERALA-671532.

9.    DINESH BABU,
      S/O M.T. KUNJHAMBU,
      AGED 48 YEARS,
      R/AT MEETHALE KUNNATH,
      THOTTADA P.O. KANNUR,
      KERALA-670007.

10.   SUSAN GEORGE,
      W/O GEORGE,
      AGED 58 YEARS,
      RESIDING AT V-401,
      PANATHADY GRAMA PANCHAYATH,
      PANTHUR KASARGOD,
      KERALA-671532.

11.   KUNHI MOHAMMED,
      S/O HAMSA,
      AGED 58 YEARS,
      R/AT URTHODY HOUSE,
      CHERUKLAMMA P.O.,
      VATTALOOR, MALAPPURAM,
      KERALA-676507.

12.   DERICK RAPHEEL,
      S/O RAPHEEL,
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       AGED 48 YEARS,
       R/AT 2ND FLOOR,
       SUN TOWER EAST FORT,
       PALEIKKULAM, THRISSUR,
       KERALA-68005.

13.    VIVEK KUMAR,
       S/O GOPI,
       AGED 38 YEARS,
       THUNDIPARAMBIL HOUSE,
       ELAN KUNNAPUZHA,
       OCHANTHURUTH,
       NEAR PUTHUVYPE,
       SCHS GROUND, ERNAKULAM CITY,
       KERALA-682508.                           ... PETITIONERS

             (BY SRI T.A. KARUMBAIAH, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA,
       BY SESHADRIPURAM POLICE STATION,
       SESHADRIPURAM,
       BENGALURU-560020.

2.     S. VIGNESH SHISHIR,
       S/O G. ANITHA,
       AGED 30 YEARS,
       COFFEE PLANTER,
       SY.NO.444/1, KARIKE VILLAGE,
       BHAGAMANDALA HOBLI,
       MADIKERI TALUK,
       KODAGU DISTRICT-571201.

       ALSO AT NO.4, I MAIN, I CROSS,
       NEHRU NAGAR, SESHADRIPURAM,
       BENGALURU CITY,
       KARNATAKA-560020.                      ... RESPONDENTS

              (BY SRI K.S. ABHIJITH, HCGP FOR R-1;
               SRI T. PRAKASH, ADVOCATE FOR R-2)
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      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
CR.NO.49/2020 REGISTERED BY THE RESPONDENT POLICE
AGAINST THE PETITIONERS FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 406, 417, 418, 420, 425, 120B, 149 OF IPC
WHICH IS NOW ON THE FILE OF THE IV AMM, BENGLURU.

      THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

This petition is filed under Section 482 of Cr.P.C. praying

this Court to quash the FIR in Crime No.49/2020 registered for

the offences punishable under Sections 406, 417, 418, 420, 425,

120B and 149 of IPC, pending on the file of the IV ACMM,

Bengaluru.

2. The factual matrix of the case is that respondent

No.2 had filed a complaint stating that the petitioners herein had

entered into an agreement of sale in the year 2016 agreeing to

sell the property for a tune of Rs.19 Crores to the extent of

516.95 acres and received an amount of Rs.5 Crores in all on

different dates. Inspite of receiving the amount of Rs.5 Crores,

the petitioners herein have not come forward to execute the sale

deed and instead of executed the registered sale agreement in

the month of August 2020 in favour of someone else. It is

alleged that the petitioners with a dishonest intention entered

into an agreement and received part of sale consideration and

fraudulent act of executing the sale agreement during the

subsistence of the earlier sale agreement agreed to sell the

property. Based on the complaint, the police have registered the

case. Hence, the petitioners are before the Court.

3. The learned counsel for the petitioners would submit

that petitioner Nos.1 and 2 are the Company and petitioner

Nos.3 to 13 are the share holders of the Company. The learned

counsel would submit that respondent No.2 has already filed a

civil suit seeking relief of specific performance and it is the

matter of dispute which is civil in nature and there are no

criminal culpability to initiate the proceedings against the

petitioners herein. The learned counsel would submit that the

sale agreement was entered into only by accused No.4 i.e.,

petitioner No.4 herein and there is no allegation against the

other petitioners in the complaint and only received an amount

of Rs.50 lakhs on the date of the agreement. Hence, there

cannot be any proceedings against the other petitioners. When

a civil suit is pending before the Court, there cannot be any

criminal proceedings and hence it requires interference of this

Court.

4. Per contra, the learned counsel for respondent No.2

would submit that the complaint averments is specific against all

the petitioners herein. An allegation is made that the petitioners

with a dishonest intention entered into agreement and having

received substantial amount of Rs.5 Crores, the petitioners have

cheated and committed the fraud in executing the sale

agreement during the subsistence of the sale agreement in

favour of respondent No.2. In the complaint, specific allegations

are made with regard to that the petitioners have hatched a

criminal conspiracy to sell the land to a third party by accepting

an amount of Rs.18 Crores. The learned counsel brought to the

notice of this Court the subsequent sale agreement entered into

in August 2020. The learned counsel also brought to the notice

of this Court that payments are made in favour of all the

petitioners and not only in favour of petitioner Nos.1 and 2 and

also produced the documents along with I.A. for vacating the

interim order. The very contention of the learned counsel for the

petitioners that other petitioners are not part of the agreement

and also they have not joined hands with accused No.4, cannot

be accepted. The learned counsel would also submit that the

petitioners in the petition have pleaded that they are ready to

execute the sale deed and suppressed the fact that they have

entered into sale agreement in August 2020 and obtained an

interim order.

5. The learned counsel for respondent No.2 relied upon

the judgment of the Apex Court in the case of K. JAGADISH v.

UDAYA KUMAR G.S. AND ANOTHER reported in AIR 2020 SC

936, wherein it is held that that mere pendency of civil suit is

not a ground to quash the proceedings and criminal cases have

to be proceeded with in accordance with the procedure as

prescribed under the Cr.P.C.

6. Having heard the learned counsel for the petitioners

and the learned counsel for respondent No.2 and also on perusal

of the order dated 18.12.2020, while obtaining the interim order,

the learned counsel for the petitioners made a submission that

they are ready to execute the sale deed. Paragraph No.3 of the

order discloses the same. Having perused the records, it is not

in dispute that an agreement was entered into between the

petitioners and respondent No.2 in 2016. The learned counsel

for the petitioners would submit that only payment of Rs.50

lakhs was made. The learned counsel for respondent No.2

submits that an amount of Rs.5 Crores was paid on different

occasion in favour of all the petitioners. In support of his

contentions, he placed the documents before the Court. It is

important to note that when a suit is pending before the Court

and also during subsistence of the agreement, petitioner No.4

herein entered into sale transaction for selling the very same

property in the month of August 2020. But before this Court,

made the submission and also pleaded that the petitioners are

ready to execute the sale deed. Having perused the material on

record, it is clear that the petitioners with a dishonest intention

entered into an agreement and received the amount. When the

specific allegations are made in the complaint with regard to

fraud and cheating, the Court has to look into the contents of the

complaint when the FIR is registered.

7. The Apex Court in the judgment in the case of

DINESHBHAI CHANDUBHAI PATEL v. THE STATE OF

GUJARAT reported in 2018 (3) SCC 104, summarized the

principles in context of challenge to FIR. The Apex Court held

that when the complaint prima facie discloses cognizable offence

is invoked, the Court has to look into the contents of the

complaint and the High Court should not venture to play the role

of Investigating Officer and allow the Investigating Officer to

probe the matter and unearth the crime as procedure

established in law in terms of Cr.P.C. In the case on hand, FIR is

registered based on the complaint. When the complaint

discloses specific allegation of fraud and cheating and also

conspiracy and the facts disclose subsequently an agreement

was also entered and when the payments are made against all

these petitioners in terms of the agreement of the year 2016,

the matter has to be probed by the Investigating Officer. Hence,

it is not a fit case to exercise the power under Section 482 of

Cr.P.C. to quash the FIR. The Investigating Officer has to

investigate the matter and file the final report.

8. In view of the discussions made above, I pass the

following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

MD