Rev Fr T Kuriakose vs State Of Karnataka
2023 Latest Caselaw 532 Kant

                              1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 09TH DAY OF JANUARY 2023

                         BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

           CRIMINAL PETITION NO.3939 OF 2021

BETWEEN

1.    REV. FR. T. KURIAKOSE
      AGED ABOUT 76 YEARS
      S/O V T KURIAKOSE
      R/AT MULLUR GRAMA
      EAST TALUK
      BENGALURU-560087

      PRESENTLY RESIDING AT
      CLARETIAN PROVINCIAL HOUSE
      KARUKUTTY P.O.
      ANGAMALY
      ERNAKULAM (DIST.)
      KERALA-683 576

2.    REV FR MATTHEW
      AGED 71 YEARS
      S/O JOSEPH
      CLARETIAN SEMINARY
      28/12, 18TH CROSS ROAD
      MALLESHWARAM WEST
      BENGALURU-560055

3.    REV KAVIER EMMANUEL MANAVATH
      AGED 64 YEARS
      S/O MATHEW XAVIER
      CLARET NIVAS
      CARMELARAM POST
      BENGALURU-560035
                          2


4.   REV FATHER SABU GEORGE
     AGE 52
     SON OF GEORGE
     CLARETIAN PROVINCIAL HOUSE
     28/12
     MALLESHWARAM WEST
     BENGALURU-560055

5.   REV FATHER ANTONY BHYJU VINCENT
     AGED ABOUT 48 EYARS
     SON OF MR VINCENT
     13-114/1
     MEDAVILAGAM
     KOLLEMCODE
     VILAVANCODE
     KANNIYAKUMARI
     TAMIL NADU-629160
     PRESENTLY AT
     CLARET BHAVAN
     CARMELARAM POST
     BENGALURU-560035

6.   REV FR MATHEW PAUL VATTAMATTAM
     SUPERIOR GENERALIS OF CLARETIAN CONGREGATION
     VIA SACRO CURORE DI MARIA 5
     ROMA
     ITALY

     (THE PETITIONER NOS.2 TO 5 ARE PRESENTLY ACTING
     AS THE FUNCTIONARIES OF CLARET BHAVAN-
     NOVITIATE HOUSE OF CLARETIAN CONGREGATION
     AND THE CONGREGATION OF THE SONS OF THE
     IMMACULATE HEART OF MARY (CLARETIAN FATHERS)

                                      ... PETITIONERS
(BY SRI H.S. CHANDRAMOULI, SENIOR COUNSEL
 FOR SMT KEERTHANA NAGARAJ, ADVOCATE)
                                3


AND

1.    STATE OF KARNATAKA
      BY THE POLICE OF VARTHUR POLICE STATION
      REPRESEBTED BY THE
      STATE PUBLIC PROSECUTOR
      HIGH COURT OF KARNATAKA
      BENGALURU-560001

2.    SRI SANTHOSH THAZHATHU
      AGED ABOUT 50 YEARS
      R/AT NO.18/1 A1
      DODDAKANNAHALLI
      CARMELARAM
      SARJAPURA ROAD
      BENGALURU-560035
                                     ... RESPONDENTS
(BY SRI R.D. RENUKARADHYA, HCGP FOR R1
 SRI V. SUDHINDRA MURTHY, ADVOCATE FOR R2)


      THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C PRAYING TO QUASH THE CHARGE SHEET AND
THE        ENTIRE    PROCEEDINGS       IN   C.C.NO.1691/2021
(CR.NO.27/2021 REGISTERED BY THE VARTHUR POLICE
STATION)       FOR   THE    OFFENCES    PUNISHABLE    UNDER
SECTIONS 420, 120B AND 506 OF IPC PENDING ON THE FILE
OF    II     ADDL.C.J.M.,   BENGALURU       RURAL   DISTRICT,
BENGALURU.


      THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 04.01.2023, THIS DAY, THE
COURT MADE THE FOLLOWING:
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                            ORDER

This petition is filed by the petitioner-accused Nos.1

to 6 under Section 482 of Cr.P.C. for quashing the criminal

proceedings in C.C.No.1691/2021 registered by the

Varthur police station in Crime No.27/2021 for the offences

punishable under Sections 420, 120B, 506 of IPC pending

on the file of II Additional Chief Judicial Magistrate,

Bengaluru, Rural District

2. Heard the arguments of learned senior counsel

for the petitioner, learned High Court Government Pleader

for respondent No.1-State and learned counsel for the

respondent No.2.

3. The case of the prosecutions is that on the

complaint of respondent No.2, one Sathosh Thazhathu filed

first information to the police on 01.02.2021 alleging that

the land in Sy.No.49/11 (New SyNo.114) measuring 4

acres 2 guntas of Mullur vilalge has been purchased by him

from the accused No.1 who is the owner of the land vide

sale deed dated 04.12.2019 by paying valuable

consideration of Rs.15,85,75,000/- which was duly

registered before the Sub-Registrar Basavanagudi,

Bangalore since then he is in possession of the property

and all the documents stands in his name. Inspite of

selling the said property by the accused No.1. The

accused No.1 in collusion with accused Nos.2 to 6 executed

a GPA in favour of the accused No.3 in respect of the same

property, in order to deprive the rights of respondent No.2

in enjoying the property and further alleged in the charge

sheet that after selling the property the very accused No.1

on behalf of the other accused filed complaint to the

Regional Commissioner for taking action against the

respondent/complainant in respect of the said property.

Later, enquiry was held on the same day and case was

registered against the Revenue Officials at Wilson Garden

police, thereby the accused persons trying to knock over

the property and thereby cheated the complainant with

more than 16 crores of rupees and the same was

questioned with the petitioner, they have threatened him

with dire consequences. Hence, the complaint came to be

registered. The police after investigation filed the charge

sheet, which is under challenge.

4. The learned senior counsel appearing for

petitioner has vehemently contended that the petitioners

are the father, they are all running the Claretain Seminary

and they have lot of properties. The portion of the

property has been alienated to respondent No.2, but there

is no intention of the petitioners to cheat the complainant.

The ingredients of the Section 420 of IPC would not attract

and there is no proper investigation made by the police.

The police have not interrogated any of the accused, but

they have filed simple charge sheet against the accused,

without collecting any material evidence against the

petitioners. Therefore, conducting the proceedings against

the petitioners are abuse of process of law, hence prayed

for quashing the criminal proceedings.

5. The learned senior counsel further contended that

a complaint has been filed before Regional Commissioner

where some persons are trying to knock out the properties

belonging to the petitioner, therefore a GPA has been

given to accused No.3 for looking after litigations and

therefore there is no question of cheating the complainant

and further contended that previously petitioner No.1

executed the agreement of sale in favour of the accused

No.1. There are litigations pending before the High Court

and a complaint filed before the Wilson Garden police by

the Assistant Commissioner which are all pending.

Therefore, conducting case against the petitioners, is

nothing but abuse of process of law, hence prayed for

quashing the same. In support of the argument relied

upon the judgment of Hon'ble High Supreme Court as

below:-

1. (2000) 2 SCC 636 in case of G Sagar Suri and Anr. Vs State of UP & Ors.,

2. (2009) 8 SCC 751, Mohd, Ibrahim & Ors V State of Bihar & Anr.,

3. (2009) 14 SCC 696 in case of Dalip Kaur & Ors. V Jagnar Sing & Anr.,

4. (2013) 6 SCC 740 Chandran Ratnaswami Vs KC Palanisamy & Ors.

5. (2014) 13 SCC 553 Rashmi Jain V State of UP and Anr.,

6. (2018) 15 SCC 273, in case of M Suresh & Ors V State of Andhra Pradesh & Anr.,

7. 2021 SCC OnLine Kar 12440 Brij Mohan Arora & Anr Vs State of Karnataka,

8. 2019 11 SCC 706 in case of Anand Kumar Mahotta & Anr Vs State (NCT of Delhi)

9. Crl.P.No.256/2021 Sri.Shahid Akbar & Anr Vs State of Karnataka & Anr

6. Per contra, learned counsel appearing for

respondent No.2, seriously objected the petition and

contended that despite of selling the property by the

accused No.1 by receiving more than 16 crores from the

complainant which was transferred through online Bank

Transfer within 5 days, the petitioner No.1 filed complaint

to the Regional Commissioner stating that there were

manipulations in the Revenue records and the Regional

commissioner of Revenue department has made an

enquiry within 24 hours and ordered to take action against

the Revenue officials and also directed to file the complaint

to the Wilson Garden police which clearly goes to show

that the petitioner No.1 with intention to cheat the

complainant by receiving more than Rs.15,85,75,000/- is

trying to knockout the property which is clear case of

cheating which attracts 420 of IPC. Learned counsel for

the respondent No.2 further contended that inspite of

receiving the 16 crores of rupees the accused executed the

GPA in favour of the accused No.3 in order to knockout the

property with intention to cheat the complainant. All the

accused persons are colluded together and they conspired

together to cheat complainant, therefore the complainant

forced to file the complaint. Learned counsel further

contended the petitioner has not disputed the selling of the

property by execution of sale deed. Merely some defect in

the investigation, that is not a ground to quash the

criminal proceedings. The petitioner is required to face the

trial, hence prayed for dismissing the petition and in

support of his argument, he has relied upon the judgment

of Hon'ble Supreme Court reported as below:-

1. 2011 (14) SCC 709 in case of State of Tamilnadu Vs N Suresh & Ors.,

2. 2014 (16) SCC 285 in case of Union of India Vs T. Nathamuni,

3. 2021 (2) SCC 525 in case of Fertico Marketing & Investment Vs CBI, and

4. 2019 (9) SCC 549 in case of Fainul Khan Vs State of Jharkhand & Ors.,

7. Learned HCGP also objected the petition and

contended that the accused in collusion with each other,

are trying to knock off the property of the complainant. If

at all any defense available they can plead the same

before the trial court. Hence prayed for dismissing the

petition.

8. Having heard the arguments of parties and

perused the records, as well as the judgment relied by the

both counsels in respect of quashing the criminal

proceedings as well as the judgment of Hon'ble Supreme

Court in catena of decisions while exercising the powers

under Section 482 of Cr.P.C by keeping the principle laid

down by the Hon'ble Supreme Court in all the above said

cases and perused the records. It is an admitted fact that

the accused No.1 said to be Claretian father and on behalf

of the Claret-Bhavan-Novitiate House of Claretian

Congregation and sold the property in Sy.No.49/11 New

Sy.No.114 measuring 4 acres 2 guntas of land in favour of

the respondent No.2 by receiving the valuable

consideration of Rs.15,85,75,000/- and executed the

registered sale deed on 04.12.2019. It is also an admitted

fact that within 4 days, the very same accused No.1 filed a

complaint to the Regional Commissioner on 09.12.2019

stating that there was manipulation of revenue documents

including the conversion order etc., in respect of property

Sy.No.49/1 New Sy.No.114. The petitioner No.1 also

stated and making various allegation against the Tahzildar

and other revenue officials in respect of the same

property, but he has not stated in the said complaint that

he has sold 4 acres of land in respect of same survey

number to the complainant and the said complainant field

by him on behalf of the accused No.6 and other accused

persons. It is also an admitted fact that after receipt of

the said complaint, the Regional Commissioner made an

enquiry and passed an order on the very next day that is

on 10.12.2019 by order to suspend some of the revenue

officials and take action against the revenue officials by

filing complaint. It is also an admitted fact, subsequently

the Assistant Commissioner said to have filed police

complaint before the Wilson Garden police. Also, it is an

admitted fact the very accused No.1 filed Writ petition

before the High Court with WP No.11258/2020 (KLR)

where the respondent No.2 wants to implead as

respondent in the writ petition on the ground, there was

some allegation made against him later those allegations

are withdrawn and accordingly interlocutory application

under Order 1 rule 10(2) of CPC came to be rejected, now

the matter is pending before the Division bench in a Writ

Appeal. It is also an admitted fact, the petitioner No.1 had

executed a GPA in favour of the accused No.3 on

06.10.2020 in respect of same land Sy.no.49/11 new

Sy.No.114 measuring 4 acre and 2 guntas of land to look

after the same including the litigations and maintaining the

said lands, even inspite of selling the property to

respondent No.2, the accused No.1 on behalf of the other

accused executed the GPA in favour of accused No.3

stating that the fraud has been played in respect of

conversion of land and sale deed executed in favour of the

respondent No.2 which is referred in para 3 of the GPA.

9. On perusal of these documents which clearly

reveals, on one hand the accused No.1 sold the property

on appeal of accused No.6 and other accused by receiving

nearly 16 crores from the respondent No.2 and executed

sale deed. On the other hand he files complaint against

respondent No.2 indirectly in respect of the same property

and executed GPA in favour of accused No.3 stating that a

fraud has been played in respect of sale deed executed in

respect of respondent No.2 which clearly attracts section

420 of IPC for the purpose of convenience section 420 of

IPC defined as under:-

"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is

signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

and the provisions of Section 415 of IPC is referred as

under

"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".

On bare reading of the provisions 415 of IPC and to the

fact of the case where the accused No.1 received

Rs.15,85,75,000/- from the complainant and executed a

sale deed by selling the 4 acres 2 guntas of land in

Sy.No.49/11 New Sy.No.114 of Mullur village on 4.12.2019

and immediately after 5 days he lodged complaint to the

Regional Commissioner stating that the Revenue officials

colluded with the some private persons manipulated

revenue records in turn the Assistant Commissioner files

complaint to the Wilson Garden police for registering the

case against the revenue officials and also some other

accused persons. On the other hand the very accused

No.1 executes the GPA in favour of the accused no.3 in

respect of the same property which was sold to the

respondent No.2. The complainant herein stating that

there was fraudulent transactions and sale deed and

accused no.3 was appointed to litigate the dispute in

respect of the sold property which clearly reveals the

intention of the accused persons deceiving the complainant

after receiving more than Rs.15,85,75,000/- from

respondent No.2 and executed sale deed. On the other

hand the accused persons wants to continue to be owner

of the said land by executing the GPA. That apart, if at all

they are not the owners of the property the documents

were manipulated by the revenue officials and if they have

no right over the property the question of selling same

property to the complainant does not arise. The legal

maxim Nemo dat quod non habet, apply in this case, that

means no one can given what they do not have.

Therefore, executing the sale deed itself is the fraudulent

act of accused persons and receiving money is nothing, but

their intention to cheat the complainant.

10. That apart the learned senior counsel while

arguing for the petitioner has contended the petitioner is

ready to repay the sale consideration to the respondent

No.2 of course the section 420 of IPC is a compoundable

offence but he fact remains there was manipulation of

public documents by the revenue officials and case was

registered at Wilson Garden police, therefore Wilson

Garden police are required to re-investigate the matter in

detail in order to know whether this petitioner also

involved in manipulating the documents and selling the

property of the government to third parties or much less to

the respondent No.2 the complainant herein. Even if the

investigation not properly conducted by respondent No.1

police, it is always open to the Investigation Officer to

further investigate the matter and file additional charge

sheet against the petitioner and other accused persons, if

anybody involved as per section 173 (8) of Cr.P.C.

Therefore the argument addressed by the learned counsel

appearing for petitioner not acceptable as there is clear

case against the petitioner, therefore the petition is devoid

of merits and liable to be dismissed.

Accordingly, the petition is hereby dismissed.

Sd/-

JUDGE AKV