Dr.M.A.Khader vs The State And Anr
2021 Latest Caselaw 2081 Kant

                          1

           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

         DATED THIS THE 2ND DAY OF JUNE, 2021

                       BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

        CRIMINAL PETITION NO. 200323/2019


BETWEEN:

DR. M.A. KHADER
S/O. M.A. RAZAQ,
AGED ABOUT 45 YEARS,
OCC: MEDICAL PRACTITIONER
AT GOVERNMENT HOSPITAL, BHALKI,
R/O. BADRODDIN COLONY,
BIDAR - 584 101.
                                        ... PETITIONER

(BY SRI. BABURAO MANGANE AND
    SRI. ASHOK B.MULAGE, ADVOCATE)

AND:

1.     THE STATE THROUGH
       NEW TOWN P.S., BIDAR,
       REP. BY ADDL. S.P.P.,
       HIGH COURT OF KARNATAKA
       KALABURAGI BENCH -585 107

2.     SYED SHAHA MURTAJA ALVI
       S/O. LATE SHAHA FARIDULLAH ALVI
       AGE: 45 YEARS, OCC: LAB TECHNICIAN
       R/O. NOOR KHAN TALEEMU,
       BIDAR - 584 101.
                                      ... RESPONDENTS

(BY SRI. SHARANABAAPPA M. PATIL, HCGP FOR R1,
     SRI. M. SUDHAKAR RAO, ADVOCATE FOR R2)
                               2

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.PC. PRAYING TO SET ASIDE THE ORDER OF
TAKING COGNIZANCE DATED 04.11.2015 AGAINST THE
PETITIONER AND QUASH THE FIR, COMPLAINT, AND
ENTIRE CHARGE SHEET IN CRIME NO.233/2014 OF NEW
TOWN POLICE STATION, BIDAR, IN C.C. NO.395/2015
PENDING ON THE FILE OF PRINCIPAL CHIEF JUDICIAL
MAGISTRATE, BIDAR, FOR THE OFFENCES UNDER
SECTIONS 447, 427, 504, 506 READ WITH SECTION 34 OF
IPC.

      THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 26.05.2021, COMING ON
FOR 'PRONOUNCEMENT OF ORDERS' THIS DAY, THE COURT
MADE THE FOLLOWING:

                         ORDER

The petitioner has filed this petition under Section

482 of Cr.P.C. for setting aside the order of taking

cognizance against him dated 04.11.2015 and for

quashing the FIR and complaint including the charge

sheet in Crime No.233/2014 of New Town Police Station,

Bidar, registered in CC No.395/2015 pending on the file

of the Principal Chief Judicial Magistrate at Bidar for the

offence punishable under Sections 447, 427, 504, 506

read with 34 of IPC.

2. The facts leading to this case are that, the

complainant-Sri. Syed Shaha Murthuja Alvi has lodged a

complaint alleging that, petitioner-M.A.Khadar and one

Khadir Vakila have committed criminal trespass into his

open Plot bearing No. 27 in the Sy. Nos.31/A and 32/B

situated in Jyothi Colony, Gullar Haveli, Bidar and

demolished the compound wall surrounding the said

open plot. When the same was questioned by the

complainant, he was abused in filthy language and life

threat was given to him by the accused. In that regard,

he lodged a complaint before the New Town Police

Station, Bidar. On the basis of the said complaint, the

police registered a case in Crime No. 233/2014 for the

offence punishable under Sections 447, 427, 504, 506

read with 34 of IPC and undertook investigation. After

completing investigation, the Investigating Officer/

Respondent No.1 has submitted the charge sheet against

the present petitioner and another before the Court of

Principal Chief Judicial Magistrate and the same is

registered in CC No.395/2015. The learned Magistrate,

then took the cognizance of the offences by registering

the case. Being aggrieved of taking cognizance, the

petitioner/Accused No.1 has filed this Criminal Petition for

quashing the entire proceedings.

3. Heard the learned counsel appearing for the

petitioner and the learned High Court Government

Pleader appearing for the Respondent No.1-State.

Respondent No.2 though appeared through his counsel,

did not choose to appear before the Court so as to

advance any arguments in this regard. I have perused

the records.

4. Learned counsel for the petitioner/Accused

No.1 contended that, registration of the case is illegal,

perverse and against the principles of law; that contents

of the complaint do not make out any case as alleged;

that the Investigating Officer has filed scene of offence

panchanama dated 26.07.2014 and statement of CWs. 4

and 5 along with gist of charge sheet and there is no

material to prove the offence as alleged under Section

447 and 427 of IPC; that the full name of Accused No.2

is not disclosed and he is shown to be absconding; that

the present petitioner has purchased a portion of Plot

No.27 in 1980 under an agreement and in 2013 sale

deed was executed by the present Respondent

No.2/complainant as a Power of Attorney holder of the

original owners; that the remaining portion of the said

Plot which was in possession of Respondent No.2, was

also sold to the present petitioner as per sale deed dated

22.05.2017 by receiving sale consideration and on

24.01.2017 there was an agreement of sale pertaining

to property of Respondent No.2/complainant with a

specific clause that all pending cases shall be withdrawn.

The present petitioner has also filed a complaint against

Respondent No.2 herein on 16.10.2016 for the offence

under Section 447, 504 and 506 r/w. 34 of IPC and

charge sheet was submitted to the jurisdictional

Magistrate on 02.11.2016. But, as per agreement,

Respondent No.2 (complainant herein) ought to have

withdrawn the pending cases against the petitioner. But,

he did not do so. Hence, the present petitioner has

sought for quashing the entire proceedings.

5. Learned HCGP appearing for Respondent

No.1-State contended that the sale transaction in respect

of the disputed property was subsequent to the incident

and as on the date of the incident, Respondent No.2 was

owner, wherein the present petitioner/Accused No.1

trespassed in the property and demolished the wall

surrounding the property, and when the same was

questioned by the complainant, he abused as well as

threatened him and hence, he contended that there is

prima facie case and if the parties are interested, they

could have compounded the offences before the trial

Court and hence, he contended that, now that cannot be

a ground for quashing the proceedings and sought for

rejection of the petition.

6. It is to be noted here that the dispute

between parties is in respect of a part of Plot No.27 of

Sy. No. 31/A and 32/B situated at Jyothi Colony, Gullar

Haveli, Bidar. The allegations were that on 24.06.2014

the compound wall constructed by the present

Respondent No.2 was demolished by the

petitioner/Accused No.1. Hence, when complainant

enquired about the same, he was abused and threatened

by petitioner/Accused No.1 and as such, in this regard, a

complaint came to be lodged. The incident has taken

place on 24.07.2014 and complaint was lodged on

25.07.2014. The Investigating Officer after investigation

has submitted charge sheet on 08.10.2015.

7. It is important to note here that, as on the

date of incident ie., 24.07.2014 the Plot No.27 was

owned by both petitioner and Respondent No.2. The

petitioner is the owner of the Eastern portion, while

Western portion is owned by Respondent No.2.

Respondent No.2 has purchased the Western portion of

the Plot on 20.12.2012 by way of Gift, which is evident

from the records. On the contrary, Petitioner No.1 has

purchased the Eastern portion on 28.04.2003 under a

Registered Sale Deed and there is a reference that, since

1980 he is in possession and he made an agreement in

1980 itself. Admittedly, the sale deed was executed by

Respondent No.2 as a Power of Attorney holder.

8. In the meanwhile, certain dispute regarding

demolition of compound wall has taken place and a

complaint came to be lodged. Petitioner No.1 had also

lodged a complaint against Respondent No.2 on

21.10.2016 regarding trespass into his land and

subsequently on 24.01.2017, there was an agreement.

As per the case of Petitioner No.1, Western portion of

the Plot No.27 was owned by Respondent No.2 and the

petitioner has agreed to purchase the same for a total

consideration of Rs.18,00,000/- and Rs.1,50,000/- was

paid as an earnest amount. A copy of the sale deed in

this regard is produced at Ink Page 47 for reference and

clause (3) of the said agreement at Page No.3, indicates

that, both petitioner and Respondent No.2 have agreed

to withdraw the court cases after registration of final sale

deed in respect of Plot No.27, which reads as under:

"Clause (3): That both the parties have agreed to withdraw court cases after registration of final sale deed of the above Western portion of plot No.27."

9. Subsequently, on 22.05.2017, the sale deed

also came to be executed and it is available on page

No.54. By virtue of the sale deed, Respondent

No.2/complainant has transferred Western portion of Plot

No.27 in favour of Petitioner No.1. Hence, from

22.05.2017, Petitioner No.1 has become an exclusive

owner of the entire plot No.27.

10. The offence alleged under Sections 447, 427,

504, 506 read with 34 of IPC are all compoundable

offences. It is important to note here that Respondent

No.2 though executed sale deed as per agreement, did

not bother to appear before this Court. Even he has not

appeared before the concerned trial Court to get the

matter compounded. He has received entire

consideration as there is a clear reference in the sale

deed in respect of transfer of the amount by RTGS.

Respondent No.2 has not at all disputed the execution of

the sale deed and agreement. No doubt, the agreement

cannot be enforced as it was in respect of sale agreement

with possession and executed only on a stamp paper

worth Rs.200/-. In view of an amendment to Stamp Act,

when the sale agreement coupled with the possession is

executed, the Stamp Duty equivalent to the sale deed is

required to be paid. Hence, to enforce this agreement,

Stamp Duty and penalty is required to be paid. However,

it is equally important that subsequently sale deed itself

was executed and now the petitioner has become the

owner of entire property bearing Plot No.27. Regarding

his title, it is also not challenged and execution of the

sale deed is also not in dispute. The main dispute is

regarding dismantling the compound wall constructed by

Respondent No.2 in Western portion of Plot No.27.

However, the petitioner himself has purchased the same

subsequently for a total consideration of Rs.18,00,000/-.

This fact is not disputed by Respondent No.2. When

Respondent No.2 has entered into an agreement for sale,

it is evident that a criminal case was pending and they

have settled the dispute amicably and received sale

consideration fully. There was also an agreement for

withdrawal of the matter. But, Respondent No.2 neither

appeared before this Court nor before the trial Court to

compound the offences. This clearly discloses that

Respondent No.2 is dodging the matter. Even if the

matter goes for trial, no purpose will be served, as now

petitioner has become absolute owner of Plot No.27 as

per unchallenged records and Respondent No.2 has

received entire sale consideration in this regard from the

petitioner.

11. The contention of the petitioner/Accused No.1

is that, the complaint filed by him was withdrawn by him

as per agreement. But, this criminal case is still

continuing without any purpose being served from 2015.

The offences alleged are compoundable and subsequently

sale deed was executed between the parties. But, the

parties are not prepared to report the same before the

Court. All these facts and circumstances disclose that no

purpose will be served in continuing this criminal

proceedings and it is a mockery of judicial system and

wastage of court's time. Even the allegations in the

complaint disclose that, abusive words and threat were

given through telephone. But, the details of the phone

record were also not produced.

12. Looking to all the above aspects, no purpose

will be served by continuing this criminal proceedings, as

respondent No.2 has now lost interest in the disputed

property and he has alienated the property to the

petitioner herein. Hence, considering the settlement

between the parties, this petition requires to be allowed

and accordingly, I proceed to pass the following:-

ORDER

The petition is allowed. The entire proceedings in CC No.395/2015 pending on the file of the Principal Chief Judicial Magistrate's Court at Bidar, arising out of Crime No. 233/2014 of New Town Police Station, Bidar, for the offences punishable under Sections 447, 427 504, 506 read with Section 34 of IPC, are hereby quashed, so far it relates to petitioner.

Sd/-

JUDGE

KGR*