Karnataka High Court
Shankar M vs State Of Karnataka on 5 March, 2022
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.4122/2020
BETWEEN
1. SHANKAR M.,
AGE 64 YEARS,
S/O LATE S. MARIGOWDA,
RESIDENT OF NO.33, 3RD BLOCK,
JAYALAKSHMIPURAM, 7TH MAIN,
V. V. MOHALLA,
DEVARAJ MOHALLA,
MYSORE CITY - 570 002.
PRESENTLY AT NO.1094,
4TH CROSS, BOGADI, 2ND STAGE SOUTH,
MYSORE - 570 026.
2. CHANDRASHEKAR,
AGE 58 YEARS,
S/O LATE S. MARIGOWDA,
RESIDENT OF NO.33, 3RD BLOCK,
JAYALAKSHMIPURAM, 7TH MAIN,
V. V. MOHALLA,
DEVARAJ MOHALLA,
MYSORE CITY - 570 002.
PRESENTLY AT NO. 689,
2ND FLOOR, 10TH MAIN,
VIJAYANAGAR, 1ST STAGE,
MYSORE - 570 017.
3. NANJAMMA,
AGE 85 YEARS,
2
W/O LATE S MARIGOWDA,
RESIDENT OF NO.33, 3RD BLOCK,
JAYALAKSHMIPURAM, 7TH MAIN,
V. V. MOHALLA,
DEVARAJ MOHALLA,
MYSORE CITY - 570 002.
PRESENTLY AT NO.689,
2ND FLOOR, 10TH MAIN,
VIJAYANAGAR, 1ST STAGE,
MYSORE - 570 017.
4. UMA PUTTARAJU,
AGE 61 YEARS,
D/O LATE S.MARIGOWDA,
R/AT NO.1973, 15TH MAIN,
VIJAYANAGAR, 2ND STAGE,
MYSORE CITY - 570 017.
5. HEMALATHA M.,
AGE 54 YEARS,
D/O LATE S. MARIGOWDA,
R/AT NO.208,
THAMMADAGERI, HINKAL,
MYSORE CITY - 570 017.
... PETITIONERS
[BY SRI.SHARATH S GOWDA, ADVOCATE]
AND
1. STATE OF KARNATAKA,
BY JAYALAKSHMIPURAM
POLICE STATION,
MYSORE - 570 002.
2. DR. SHIVASHANKAR,
S/O G R NANJUNDASWAMY,
AGE 58 YEARS,
NO.657, 14TH MAIN,
3
39TH CROSS, 4TH T BLOCK,
JAYANAGAR,
MYSURU CITY - 570 014.
3. USHA SHIVASHANKAR,
W/O DR. SHIVASHANKAR,
AGE 53 YEARS,
NO.657, 14TH MAIN,
39TH CROSS, 4TH T BLOCK,
JAYANAGAR,
MYSURU CITY - 570 014.
... RESPONDENTS
[BY SMT.YASHODA P.K., HCGP FOR R1 ;
SRI.M.S.RAJENDRA PRASAD, SENIOR ADVOCATE FOR
SMT.SAVITHA Y.S., ADVOCATE FOR R2 AND R3]
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO 1.QUASH THE ORDER DATED 08.05.2018 IN
PCR NO.2618/2017 PASSED BY THE IV ADDITIONAL CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS AT MYSORE IN
DIRECTING TO RESPONDENT POLICE TO REGISTER FIR UNDER
SECTION 156(3) OF CR.PC VIDE ANNEXURE - A; 2.QUASH THE
PRIVATE COMPLAINT, FIR IN CR.NO.64/2018 CHARGE SHEET
FILED IN C.C.NO.4978/2018 PENDING ON THE FILE OF THE IV
ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, AT MYSORE VIDE ANNEXURE B,C AND D RESPECTIVELY
FOR THE OFFENCE P/U/S 417, 418, 423, 149 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court calling in question
proceedings in C.C.No.4978/2015 registered for offences
punishable under Sections 417, 418, 423 and 149 of IPC.
2. Heard Sri. Sharath S. Gowda, learned counsel
appearing for the petitioners, Smt. Yashoda P.K., learned HCGP
appearing for respondent No.1, Sri. M.S.Rajendra Prasad,
learned Senior counsel for respondent Nos.2 and 3.
3. Brief facts, leading to filing of the present petition, as
borne out from the pleadings, are as follows:-
A sale transaction takes place with regard to the property
involved in the lis on 14.02.2007. The sale transaction is
between the petitioners and respondent Nos.2 and 3. Ten years
later i.e., on 27.08.2017, respondent Nos.2 and 3 register a
private complaint against the petitioners on the allegation that
they have cheated them by selling the property that was the
subject matter of a civil suit at the time when they purchased
the property. The police after investigation have filed a charge
sheet for offences punishable under Sections 423, 417, 418 read
with Section 149 of IPC. It is at that juncture, the petitioners
have knocked the doors of this Court.
4. Learned counsel, Sri. Sharath S. Gowda appearing
for the petitioners would submit that though civil proceedings
were admittedly pending at the time when the sale transaction
took place between respondent Nos.2 and 3 and the petitioners,
respondent Nos.2 and 3 were very well aware of the fact of the
civil suit which was pending, as legal opinion was sought on the
documents that were furnished by the petitioners to respondent
Nos.2 and 3 at the time of sale. He would submit that the
offence of cheating cannot even be imagined to be made out in
the case at hand.
5. On the other hand, Sri. M. S. Rajendra Prasad,
learned Senior counsel for respondent Nos.2 and 3 would
vehemently refute the submissions and contend that the civil
suit was pending at the time when sale took place in the year
2007. Respondent Nos.2 and 3 came to know of the pendency
only in the year 2017, it is only they have registered the
complaint and would submit that it is a matter of trial for the
petitioners to come out clean as they have admittedly cheated
the respondents.
6. I have given my anxious consideration to the
respective submissions made by the learned counsel and have
perused the material on record.
7. The afore-narrated facts, dates and events are not in
dispute and are therefore not reiterated. The petitioners sold the
property to respondent Nos.2 and 3 on 14.02.2007. At that
point in time, the property that was sold was a subject matter of
O.S.No.177/1996, which was pending in a Regular Appeal
No.154/2003. A notice, when issued in the final decree
proceedings triggered the registration of the complaint by
respondent Nos.2 and 3 as the suit had been decreed and such
decree had been affirmed by the First Appellate Court.
8. Against the judgment and decree of both the trial
Court and the first Appellate Court, a Regular Second appeal in
R.S.A.No.521/2013 is pending consideration at the hands of this
Court. The respondents have purchased the property after due
diligence can be gathered from the fact that they have kept quiet
for 10 years after the sale. Therefore, offence of cheating,
ingredients of which are found in Section 415 of the IPC or
criminal breach of trust, ingredients of which are found in 405 of
the IPC cannot be laid on the petitioners. In the light of the afore
pending civil proceedings, the petitioners who are bonafide
purchasers in the year 2007 which was amidst the pendency of
the suit would be protected by law. Apart from this, the learned
counsel for the petitioners would also submit that the interest of
the purchasers-respondent Nos.2 and 3 would be protected in
the share of the property that they would get in the civil
proceedings afore-quoted.
9. In the light of the facts obtaining as narrated
hereinabove and the pendency of the civil suit between the
parties, further proceedings for offences punishable under
Sections 417, 419 or 420 of the IPC for the offence of cheating
cannot be permitted to continue, as it would become an abuse of
the process of the law and result in miscarriage of justice.
10. For the aforesaid reasons, the following:
ORDER
i. Criminal Petition is allowed.
ii. Proceedings pending in C.C.No.4978/2015 before the
IV Additional Civil Judge and Judicial Magistrate
First Class, Mysore, stands quashed.
iii. The right of respondent Nos.2 and 3 would stand
protected in the share of the petitioners that would
be subject to the final decree proceedings and the
Regular Second Appeal in R.S.A.No.521/2013.
Sd/-
JUDGE
SJK
