Sri S C Dhanya Kumar vs The State Of Karnataka By
2022 Latest Caselaw 8329 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 08TH DAY OF JUNE, 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.8370 OF 2021

BETWEEN:

1.     SRI S.C.DHANYA KUMAR
       S/O LATE S.K.VHIKKULLAIAH
       AGED ABOUT 54 YEARS
       R/AT NO.33, 60 FEET ROAD
       KEB LAYOUT, SANJAYANAGAR,
       BENGALURU - 560 094.

2.     SRI B.S.CHANNAPPA
       S/O B.C. SHIVANNA,
       AGED ABOUT 48 YEARS,
       R/AT NO.356, 6TH MAIN,
       9TH BLOCK,
       NAGARABHAVI 2ND STAGE,
       BENGALURU - 560 072.
                                              ... PETITIONERS

(BY SRI SHIVSHANKER, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA BY
       SHO, RAMAMURTHY NAGARA
       POLICE STATION,
       BENGALURU - 01
       REPTD. BY ITS
       STATE PUBLIC PROSECUTOR
       HIGH COURT BUILDING BENGALURU.
                           2



2.   SMT.R.VIJAYALAKSHMI
     W/O LATE K.RAJAGOPAL,
     AGED ABOUT 68 YEARS,
     NO.171, 3RD CROSS,
     BEHIND SWAMY VIVEKANANDA
     METRO STATION, NEW BAIYYAPPANAHALLI,
     INDIRANGAR,
     BENGALURU - 560 038.

3.   SRI R.MAHESH KUMAR
     S/O LATE K.RAJAGOPAL,
     AGED ABOUT 48 YEARS,
     NO.171, 3RD CROSS,
     BEHIND SWAMY VIVEKANANDA
     METRO STATION
     NEW BAIYYAPPANAHALLI,
     INDIRANAGAR,
     BENGALURU - 560 038.

4.   SRI R.THILAK KUMAR
     S/O LATE K.RAJAGOPAL,
     AGED ABOUT 42 YEARS,
     NO.171, 3RD CROSS,
     BEHIND SWAMY VIVEKANANDA
     METRO STATION
     NEW BAIYYAPPANAHALLI,
     INDIRANGAR,
     BENGALURU - 560 038.

5.   SMT.N.VIJAYALAKSHMI
     D/O LATE V.KRISHNAPPA @
     KRISHNAPPA MUDALIYAR
     AGED ABOUT 65 YEARS
     R/AT NO.39/A, KUMARA KRUPA
     ROYAL PALMS LAYOUT
     GUBBALALA, NEXT TO MANTRI TRANQUIL,
     SUBRAMANYAPURA,
     BENGALURU - 560 061.
                                            ... RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1;
                                 3



   SRI H.J.ANAND, ADVOCATE FOR R2 TO R5)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.20/2021 OF
RAMAMURTHY NAGAR POLICE STATION, BENGALURU FOR THE
ALLEGED OFFENCES P/U/S 423, 506, 504, 120B, 467, 420, 463,
471 OF IPC AGAINST THE PETITIONER NO.1 AND 2 PENDING
BEFORE THE X ADDL.C.M.M., BENGALURU.


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

                               ORDER

The petitioners are before this Court calling in question the

proceedings in Crime No.20/2021 registered for offences

punishable under Sections 423, 506, 504, 120B, 467, 420, 463

and 471 of the IPC pending before the X Additional Chief

Metropolitan Magistrate Court, Mayohall, Bangalore. Petitioners

are accused Nos.7 and 8.

2. Heard Sri.Shivshanker, learned counsel appearing for

petitioners, Smt.Yashoda.K.P, learned High Court Government

Pleader for respondent No.1 and Sri.H.J.Anand, learned counsel

for respondent Nos.2 to 5.

3. Both learned counsel for the petitioners and the learned

High Court Government Pleader appearing for respondent No.1 -

State in unison would submit that this Court in

Crl.P.No.1903/2022 by its order dated 08.04.2022, has quashed

the proceedings against accused Nos.1 and 3 to 6, the present

petitioners being the purchasers of the property and in the teeth

of the quashment of the proceedings as against accused Nos.1,

and 3 to 6, nothing further survives for consideration in the

present petition. Therefore, the petitioners would be entitled to

the benefit of the order passed by this Court in

Crl.P.No.1903/2022.

4. The order passed by this Court in Crl.P.No.1903/2022,

has held as follows:

"8. The afore-narrated facts are not in dispute. The complaint is registered by the complainants alleging offences of cheating and criminal breach of trust. The reason for registering the complaint is clearly seen in the narration of the complaint and as defended in the statement of objections filed.

"13. The Power of Attorney is also created one to grab the joint family property with limited members of family. Admittedly, at no point of time the petitioners have brought to the notice of execution of GPA and never obtained consent of

this respondent No.2 to 5. This goes to show that they are having malafide, fraudulent intention to cheat the respondent No.2 to 5. Such is the fact, the GPA may be registered one but, it is incomplete for the reason that all the family members have not consented either to get the sale deed registered in favour of first petitioner or to sell the property in question. On this ground the petition is liable to be dismissed and petitioners are to be subjected to detailed enquiry before the learned magistrate.

14. It is respectfully submitted that, the respondent No.2 to 5 being innocent persons were having lot of faith and trust on the petitioner No.1. Unfortunately he has not acted reasonably and now stating that the family members are entitle for share and safely deposited the share of respondents No.2 to

5. This itself shows that the petitioners having malafide intention. The petitioners have already received maximum market value and intentionally the petitioners have deposited only the sub registrar value instead of depositing market value and suppressed the real market value of the property. This intention itself is the motive to commit fraud on the respondent No.2 to 5 and deposited meager amount to escape from the clutches of law and have filed this petition before this Hon'ble Court. The respondent No.2 to 5 crave the leave of this Hon'ble Court to urge additional grounds at the time of arguments.

15. The petitioners never ever approached and whispered about the share of the respondent No.2 to 5 and even the recitals of the GPA or registered Sale Deed never disclosed about the share or interest of the respondent No.2 to 5. If really the petitioners are having fair intention to share equally, they would have mention the same either in the GPA or in the registered sale

deed. On this ground also the petition is to be dismissed."

(Emphasis added)

In the light of what is narrated in the statement of objections, it becomes unmistakably clear that the matter is purely civil in nature. The complainants have also filed a civil suit in O.S.No. 5570/2020 and have narrated about how the petitioners are trying to evade notice in the civil suit. What is ultimately narrated is that the complainants are also entitled to a share in the property and the money or the sale that is executed by the BDA in favour of the petitioners.

9. There can be no doubt that the entire proceeding instituted by the complainants are in the realm of a civil dispute and admittedly and rightly so, have initiated proceedings before the civil Court. Having initiated proceedings before the civil Court, for the very same remedy, have sought to set the criminal law in motion by registering the impugned proceedings. On the sheer narration in the complaint and the objections filed by the complainants, it can be unmistakably gathered that the complainants are seeking a share in the alternate property offered by the BDA or money equivalent to the said share. Therefore, the case becomes one which is predominantly civil in nature, permitting further proceedings in the subject crime would amount to permitting criminal proceedings in a predominantly civil case and would fall foul of the judgment of the Apex Court in the case of RANDHEER SINGH VS. STATE OF U.P. AND OTHERS [2021 SCC OnLine SC 942] wherein it is held as follows:

"27. In Mohd. Ibrahim (supra), this Court held as under:--

"19. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived

(i) to deliver any property to any person, or

(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).

20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused.

21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.

22. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code.

A clarification

23. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is, the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint.

24. The term "fraud" is not defined in the Code. The dictionary definition of "fraud" is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines "fraud" with reference to a party to a contract.

27. The term "fraudulently" is mostly used with the term "dishonestly" which is defined in Section 24 as follows:

"24. 'Dishonestly'.--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing 'dishonestly'." 28 [Ed. : Para 28 corrected vide Official Corrigendum No. F.3/Ed.B.J./149/2009 dated 6-10- 2009.]. To "defraud" or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include:

(i) Fraudulent removal or concealment of property (Sections 206, 421 and 424).

(ii) Fraudulent claim to property to prevent seizure (Section 207).

(iii) Fraudulent suffering or obtaining a decree (Sections 208 and 210).

(iv) Fraudulent possession/delivery of counterfeit coin (Sections 239, 240, 242 and 243).

(v) Fraudulent alteration/diminishing weight of coin (Sections 246 to 253).

(vi) Fraudulent acts relating to stamps (Sections 255 to 261).

(vii) Fraudulent use of false instrument/weight/measure (Sections 264 to 266).

(viii) Cheating (Sections 415 to 420).

(ix) Fraudulent prevention of debt being available to creditors (Section 422).

(x) Fraudulent execution of deed of transfer containing false statement of consideration (Section

423).

(xi) Forgery making or executing a false document (Sections 463 to 471 and 474).

(xii) Fraudulent cancellation/destruction of valuable security, etc. (Section 477).

(xiii) Fraudulently going through marriage ceremony (Section 496).

It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law.

Section 504 of the Penal Code

29. The allegations in the complaint do not also make out the ingredients of an offence under Section 504 of the Penal Code. Section 504 refers to intentional insult with intent to provoke breach of peace.

The allegation of the complainant is that when he enquired with Accused 1 and 2 about the sale deeds, they asserted that they will obtain possession of land under the sale deeds and he can do whatever he wants. The statement attributed to Appellants 1 and 2, it cannot be said to amount to an "insult with intent to provoke breach of peace". The statement attributed to the accused, even if it was true, was merely a statement referring to the consequence of execution of the sale deeds by the first appellant in favour of the second appellant.

Conclusion

30. The averments in the complaint if assumed to be true, do not make out any offence under Sections 420, 467, 471 and 504 of the Code, but may technically show the ingredients of offences of wrongful restraint under Section 341 and causing hurt under Section 323 IPC."

28. In Paramjeet Batra (supra), this Court held that:-- "12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court."

29. In Uma Shankar Gopalika (supra), this Court found that the complaint, in that case, did not disclose any criminal offence at all, much less any offence under Section 420 or Section 120B IPC. The case was purely a civil dispute between the parties for which remedy lay before the civil Court.

30. In Vesa Holdings Private Limited (supra), this Court held:--

"13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings."

31. In Robert John D'Souza (supra), this Court held: "12. As far as the offence of cheating is concerned, the same is defined in Section 415 IPC, for which the

punishment is provided under Section 420 IPC. Section 415 reads as under:

"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'. Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.

Illustrations ***"

From the above language of the section, one of the essential ingredients for the offence of cheating is deception, but in the present case, from the contents of the complaint it nowhere reflects that the complainant was deceived or he or anyone else was induced to deliver the property by deception. What was done, was so reflected in the resolutions, and sale deeds.

13. In Madhavrao Jiwajirao Scindia v. Sambhajirao ChandrojiraoAngre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] a three-Judge Bench of this Court has laid down the law as to quashment of proceedings under Section 482 CrPC as follows : (SCC p. 695, para 7) "7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to

continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."

15. In Inder Mohan Goswami v. State of Uttaranchal [(2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259], this Court in paras 25 and 46 has observed as under : (SCC pp. 10-11 & 16) "25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions [[1964] A.C. 1254 : [1964] 2 WLR 1145 : (1964) 2 All ER 401 (HL)] Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys [[1977] A.C. 1 : [1976] 2 WLR 857 : (1976) 2 All ER 497 (HL)] stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the Judge has the power to intervene. He further mentioned that the court's power to prevent such abuse is of great constitutional importance and should be jealously preserved.

******

46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained."

16. In view of the above discussion and the facts and circumstances of the case, we are of the view that none of the offences for which the appellants are summoned, is made out from the complaint and material on record. We further find that it is nothing but abuse of process of law on the part of the complainant to implicate the appellants in a criminal case after a period of twelve years of execution of registered sale deeds in question, who is neither party to the sale deeds nor a member of the Society. Therefore, we allow the appeal and set aside the orders passed by the High Court and that of the courts below. Accordingly, the order passed by the Magistrate summoning the appellants in the criminal complaint filed by Respondent 1, in respect of the offences punishable under Sections 406, 409 and 420 IPC, also stands quashed."

32. In Kapil Agarwal (supra), this Court observed that Section 482 is designed to achieve the purpose of ensuring that criminal proceedings are not permitted to generate into weapons of harassment.

33. In this case, it appears that criminal proceedings are being taken recourse to as a weapon

of harassment against a purchaser. It is reiterated at the cost of repetition that the FIR does not disclose any offence so far as the Appellant is concerned. There is no whisper of how and in what manner, this Appellant is involved in any criminal offence and the charge sheet, the relevant part whereof has been extracted above, is absolutely vague. There can be no doubt that jurisdiction under Section 482 of the Cr.P.C. should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above.

34. The given set of facts may make out a civil wrong as also a criminal offence. Only because a civil remedy is available may not be a ground to quash criminal proceedings. But as observed above, in this case, no criminal offence has been made out in the FIR read with the Charge-Sheet so far as this Appellant is concerned. The other accused Rajan Kumar has died.

35. The appeal is, thus, allowed. The impugned judgment and order of the High Court is set aside and the proceedings in Crime Case No. 5973/2020 are quashed as against the Appellant."

(Emphasis supplied)

The Apex Court in the aforesaid judgment considers the entire spectrum of law where criminal proceedings are initiated in cases which are predominantly civil in nature and have annulled such cases as they would become an abuse of the process of the law.

10. In the light of the facts obtaining in the case at hand and the judgment rendered by the Apex Court, permitting further proceedings to continue would become an abuse of the process of the law and would result in miscarriage of justice. However, it is open to the complainants to initiate such proceedings in a manner known to law, if the Civil Court would decide upon any issue that would touch upon the criminality of the petitioners.

11. For the aforesaid reasons, the following:

ORDER

(i) Criminal Petition is allowed.

(ii) The impugned proceedings in Crime No.20/2021 pending before the X Additional Chief Metropolitan Magistrate Court, Mayohall, Bangalore stand quashed qua the petitioners.

(iii) It is made clear that observations made in the course of this order are only for the purpose of considering the case of the petitioners under Section 482 of the Cr.P.C. This would not bind or influence further proceedings in any other case in the matter or any civil proceedings pending thereto concerning the very transaction.

(iv) However, the complainants shall have the liberty as observed in paragraph No.9 of the order."

In the light of the afore-quoted order of this Court as the

proceedings against accused Nos.1, 3 to 6 is quashed, the

petitioners would also be entitled to the same relief as that of

accused Nos.1, 3 to 6.

5. For the aforesaid reasons, the following:

ORDER

(i) The Criminal Petition is allowed.

(ii) The impugned proceedings in Crime No.20/2021 pending before the X Additional Chief Metropolitan Magistrate Court, Mayohall, Bangalore stand quashed.

(iii) It is made clear that observations made in the course of this order are only for the purpose of considering the case of the petitioners under Section 482 of the Cr.P.C. This would not bind or influence further proceedings in any other case in the matter or any civil proceedings pending thereto concerning the very transaction.

(iv) However, the complainant shall have the liberty as observed in paragraph No.9 of the order."

Sd/-

JUDGE

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