Karnataka High Court
S.N. Vijayalakshmi vs State By Sanjay Nagar on 3 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.12452 OF 2023
BETWEEN:
1 . S.N. VIJAYALAKSHMI
W/O LATE K .V. SRINIVASA MURTHY,
AGED ABOUT 60 YEARS,
NO.80, SIDDI VINAYAKA LAYOUT,
SANJAYA NAGARA,
BENGALURU - 560 094.
2 . V.S. SRIDEVI
D/O LATE K.V. SRINIVASA MURTHY,
AGED ABOUT 35 YEARS,
NO.80, SIDDI VINAYAKA LAYOUT,
SANJAYA NAGARA,
BENGALURU - 560 094.
3 . V.S. SRILEKHA
D/O LATE K .V. SRINIVASA MURTHY,
AGED ABOUT 44 YEARS,
NO.1, 95TH CROSS,
KUMARAGIRI, 1ST STAGE,
KUMARASWAMY LAYOUT,
BENGALURU - 560 078.
4 . K.V. KRISHNAPRASAD
S/O LATE K.V SASTRY,
AGED ABOUT 55 YEARS,
NO.80, SIDDI VINAYAKA LAYOUT,
2
SANJAYA NAGARA,
BENGALURU - 560 094.
...PETITIONERS
(BY SRI. KIRAN S. JAVALI, SENIOR COUNSEL AND
SRI. B. K. SAMPATH KUMAR, SENIOR COUNSEL FOR
SRI. G. S. PRASANNA KUMAR, ADVOCATE)
AND:
1. STATE BY SANJAY NAGAR
POLICE STATION, BENGALURU,
REPRESENTED BY THE STATE
PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2. KEERTHITRAJ SHETTY
AGED ABOUT 38 YEARS,
S/O Y.K. SHETTY,
NO.58, 1ST MAIN,
1ST CROSS, A.E.C.S LAYOUT,
SANJAY NAGAR,
BENGALURU - 560 094.
...RESPONDENTS
(BY SMT. ANITHA GIRISH, HCGP FOR R1;
SRI. BIPIN HEGDE, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO
i) QUASH THE COMPLAINT REGISTERED AS
PCR.NO.12357/2022 BY THE ORIGINAL COMPLAINANT FOR
THE OFFENCE P/U/S 405, 406, 415, 417, 418, 420, 504,
506, 384 AND 120B R/W 34 OF IPC ON THE FILE OF III
ADDL.C.M.M., NRUPATHUNGA ROAD, BENGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 15.04.2024 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
3
RESERVED FOR ORDERS ON: 15.04.2024
PRONOUNCED ON : 03.06.2024
ORDER
This petition is filed by petitioners-accused Nos.2, 4, 5
and 6 under Section 482 of Cr.P.C. for quashing the FIR in
Crime No.260/2023 registered by Sanjay Nagar Police
Station, Bengaluru arising out of P.C.R.No.12357/2022 for
the offences punishable under Sections 405, 406, 415, 417,
418, 420, 504, 506, 384 and 120B read with Section 34 of
IPC.
2. Heard the arguments of learned Senior counsel
Sri Kiran S. Javali for the petitioners, learned High Court
Government Pleader for respondent No.1-State and learned
counsel for respondent No.2.
3. The case of the respondent No.2 is that he filed
a private complaint under Section 200 of Cr.P.C. before the
III Additional Chief Metropolitan Magistrate, Bengaluru. The
same was registered as P.C.R.No.12357/2022 and the same
was referred to the police under Section 156(3) of Cr.P.C.
and in turn, the police registered the FIR for the above said
offences. It is alleged by the complainant in his complaint
that the accused No.1-Jayalakshmamma along with one
Srinivasa Murthy and K.V.Prabhakar (since deceased) who is
the joint owner of the properties in Sy.No.20 measuring 3
acres 33 guntas and in Sy.No.21 to an extent of 3 acres in
Bhoopasandra Village, Bangalore North Taluk. The said land
in question was granted by way of tenancy rights to the
accused in the year 1975. Subsequently, the said properties
were acquired by BDA. In the year 1996, the accused
approached one Ravishankara Shetty and appraised their
inability, financial hardship and incapability to manage the
property and sought help to fight litigations and after
getting the clear title and conclusion of the litigation, they
would sell the property to him. Though Ravi Shankar Shetty
was reluctant in the beginning, they all persuaded Ravi
Shankar Shetty, K.V. Krishna Prasad persuaded and
pressurised Mr. Shetty and made all kind of false assurances
and he has agreed for the same. The Ravi Shankar Shetty is
in possession of both the properties from 1996. Ravi
Shankar Shetty was put in possession of the land and he
has spent lot of money, energy and time to see that the said
lands were free from all hurdles. After getting the record of
rights and making the title marketable, informed all the
accused about the status of their lands. Once the message
was communicated to all the accused, they started avoiding
Mr. Ravi Shankar Shetty. The conduct of the accused in
evading him created a sort of suspicion on the accused and
the Ravi Shankar Shetty having spent huge amount towards
litigation and other expenditure felt that the accused are
intentionally and deliberately with a malafide intention of
cheating him of his hard work and money were trying to
evade him and he was able to secure K.V.Krishna Prasad
and other accused. When insisted for some documentation
by Ravi Shankar Shetty, the accused were reluctant, but
later they agreed to execute an agreement of sale in the
name of the Ravi Shankar Shetty and Ravi Shankar Shetty
permitted his nominee, the complainant (Keerthiraj Shetty)
to enter into an agreement of sale on his behalf.
Accordingly, on 30.11.2015, the accused entered into a sale
agreement of sale for the sale consideration of
Rs.3,50,00,000/-. All the accused have signed the sale
agreement and K.V.Krishna Prasad has signed a consenting
witness. The Ravi Shankar Shetty nominated the
complainant on his behalf for entering into the agreement of
sale. All the accused have executed the GPA in favour of
Keerthiraj Shetty including power to sell the property.
4. It is further alleged that K.V.Krishna Prasad
requested the complainant not to include time stipulation
clause as they were not aware when they would get the
alienated title to the property. For this reason, the time
stipulation clause was avoided and at the time of executing
the agreement of sale, a sum of Rs.2,00,000/- was paid into
the hands of K.V.Krishna Prasad with the consent of the
other accused. Subsequently, a sum of Rs.2 crores have
been paid into the account of K.V. Prabhakar by Ravi
Shankar Shetty through his developers.
5. It is further alleged that K.V. Prabhakar in turn
has remitted sum of Rs.1,00,00,000/- into the account of
K.V.Krishna Prasad and as rest of the accused (women
accused) requested the complainant that they will receive
the amount from K.V.Krishna Prasad as he was staying with
the women accused and was only male person in the family.
6. It is further alleged that subsequently, the
complainant along with Ravishankar Shetty was able to
conclude the litigation part of the lands. The title of the
lands became marketable and as per the agreement and the
assurances given by the accused, the complainant was
making all necessary steps to get the property registered
and went to the accused for making further payment. At
that time, accused No.6-Krishna Prasad who was leading the
transaction and who was aware about the hike in the
property rates of the lands, started evading the
complainant, hence the complainant approached the
accused Nos.1 and 2. But both accused Nos.1 and 2 started
going back from their promises and assurances and said
that they have to review the sale consideration as told by
the accused No.6 and A6 colluded with other accused i.e.,
accused Nos.1 and 2 and refused to execute the agreement
of sale.
7. It is further alleged that the accused
knowingfully executed the agreement and GPA in favour of
the complainant and in order to make wrongful gain and
caused loss to the complainant. That on 12.05.2022, in the
afternoon, the complainant approached the accused and
accused No.6 did not allowed the other accused to speak to
him. He threatened the complainant that in case if he
entered their premises, it would be done to death. Hence,
the complainant approached jurisdiction Sanjay Nagar police
and lodged the complaint against all the accused. The Police
received the complaint and issued acknowledgement, but
not registered the FIR. Therefore, he approached the
Magistrate under Section 200 of Cr.P.C. He further alleged
that on 06.06.2022, the complainant came to know that the
accused cancelled the GPA executed by them. There is a
clear intention of the accused to cheat the complainant. On
11.07.2022, the complainant received reply to his legal
notice, since the accused have executed agreement of sale
and he has invested huge amount, but the accused cheated
him. Hence, he prayed for the Magistrate to refer the
complaint to the police under Section 156(3) of Cr.P.C.
Accordingly, the learned Magistrate after receiving the
complaint, referred the complaint to the police and in turn
the police received the copy of the complaint and issued the
FIR, which is under challenge.
8. Learned Senior counsel appearing for the
petitioners has seriously contended that the complaint came
to be filed for a civil dispute in respect of non-executing the
sale deed in respect of agreement of sale and it is purely
civil in nature. The complainant is trying to give the criminal
colour and pressurizing for executing the sale deed by filing
the criminal complaint and further contended that there is a
violation of the guidelines issued by Hon'ble Supreme Court
in the case of Priyanka Srivastava and Another vs.
State of Uttar Pradesh and Others reported in (2015)
6 SCC 287 as the complainant required to file complaint to
the police under Section 154(1) of Cr.P.C. and
subsequently, he has to approach the Higher Authorities of
police department under Section 154(3) of Cr.P.C. But here
in this case, after filing the complaint which was filed before
the Magistrate on 20.07.2022 and when the complaint was
in the court, the complainant filed complaint to the DCP on
19.12.2022 and copy of the acknowledgement was
produced before the Magistrate which is subsequent to the
filing the private complaint, thereafter, cognizance was
taken by the Magistrate on the ground that the complainant
followed the guidelines of Hon'ble Supreme Court which is
not correct. As per the guidelines of Hon'ble Supreme Court
in the case of Priyanka Srivastava, the complainant
should exhaust the remedy before the police as well as
Higher Authorities of police and thereafter, he should file the
complaint to the court, but not after the complaint filed
before the Court. Therefore, there is no compliance and
there is a violation of guidelines issued by Hon'ble Supreme
Court, therefore referring the matter to the police is not
sustainable. It is also contended that the affidavit
accompanying the complaint has not fulfilled the
requirement of the guidelines and this affidavit was filed
after filing the complaint before the court which is not
permissible. The alleged Prabhakar is not a complainant in
this case. The complainant is by the legal heirs and accused
persons not received any amount from the complainant. The
agreement itself is time barred and it is of the year 2015
agreement. Though time is not in essence of contract, but
the suit required to be filed within three years of the
agreement and for time barred suit, the private complaint
has been filed. Therefore, prayed for quashing the same.
9. Per contra, learned counsel for the respondent
has contended that the complainant filed first information to
the police and they have not received the complaint and
registered the FIR. Therefore, the private complaint has
been filed but cognizance was not taken. Thereafter, the
complainant approached the DCP and filed the complaint on
19.12.2022 and thereafter, affidavit was also filed. Based
upon the affidavit and compliance, the Magistrate referred
the matter to the police. Therefore, there is no violation of
guidelines of Priyanka Srivastava's case. The accused
No.6-K.V.Krishna Prasad was one of the witness to the
agreement of sale. A gift deed was executed after two days
of filing of complaint. The GPA was cancelled on 06.06.2022.
The respondent filed writ petition challenging the acquisition
proceedings in which he was succeeded and also filed writ
appeal and succeeded in the same. A civil suit was also filed
which is pending. The legal notice was issued to the
accused, but the accused No.2 executed the gift deed in
favour of accused No.6. A civil suit was compromised on
13.02.2023 and the matter is required for investigation and
hence, prayed for dismissing the petition.
10. The learned counsel for the petitioners have
relied upon the following judgments of Hon'ble Supreme
Court in the cases as below:-
(i) Mitesh Kumar J. Sha vs. State of Karnataka
and Others reported in (2022) 14 SCC 572;
(ii) Salib alias Shalu alias Salim vs. State of
U.P. and Others reported in 2023 SCC OnLine
SC 947;
(iii) Usha Chakraborty and Anr. vs. State of
West Bengal and Anr. reported in AIR 2023
SC 688;
(iv) Sarabjit Kaur vs. State of Punjab and
Another reported in (2023) 5 SCC 360;
(v) Priyanka Srivastava and Another vs. State
of U.P. and Others reported in (2015) 6 SCC
287;
(vi) Sushil Sethi and Another vs. State of
Arunachal Pradesh and Others reported in
(2020) 3 SCC 240;
(vii) M N G Bharateesh Reddy vs. Ramesh
Ranganathan and Another in
Crl.A.No.1273/2022 (Arising out of SLP
(Crl) No.9509 of 2019)
and the judgments of this Court in the case of Abhay
Kumar vs. The Superintendent of Police, ACB in
W.P.No.15139/2021 dated 18.05.2023 and in the case
of Manish K A Chauhan and others vs. State and
another in Crl.P.No.2392/2022 dated 03.01.2023.
11. On the other hand, the learned counsel for the
respondent also relied upon the following judgments of
Hon'ble Supreme Court and the Co-ordinate Benches of this
Court:
(i) Sau. Kamal Shivaji Pokarnekar vs. The
State of Maharashtra & Ors. in Crl.A.No.255
of 2019 (Arising out of SLP (Crl.) No.7513
of 2014);
(ii) Priti Saraf and Anr. vs. State of NCT of
Delhi and Anr. reported in AIR 2021 SC
1531;
(iii) Nanjammanni and Others vs. State and
Others in Crl.P.No.5301/2018 dated
25.01.2022;
(iv) Yusuf Shariff vs. State and another in
Crl.P.No.4736/2019 dated 5.09.2022;
12. I have gone through the principles relied on by
the Hon'ble Supreme Court in the above said cases and also
the judgments of this Court as well as the Co-ordinate
Benches of this Court.
13. Having heard the arguments and perused the
records. The main contention of the learned Senior counsel
for the petitioners is that the dispute is civil in nature and
the complainant was trying to give criminal colour. In this
regard, it is argued by the learned counsel for the
respondent that the accused persons undertaken to sell the
property to the complainant. He executed the agreement of
sale and also GPA in favour of the Ravishankar Shetty. Prior
to that, the land was notified for acquisition, the same was
challenged by the complainant and had spent lot of money
and got the favourable order. The notification was quashed,
subsequently writ appeal was also filed by the BDA, which
came to be dismissed. Thereby, the complainant made the
property marketable and the accused persons executed
agreement of sale, where the accused No.6 was the
signatory to the agreement of sale, but behind back of the
complainant, the accused Nos.1 and 2 alienated the
property in the name of the accused No.6. The accused
No.6 knowing fully that he is the witness to the agreement
of sale, but he has obtained the gift deed in his favour in
order to deceive the complainant. It cannot be said, it is
only a civil dispute and not criminal case. The respondent
also produced various documents in respect of the orders
obtained by him on behalf of the accused persons in the writ
petition and writ appeal. The learned counsel for the
respondent relied upon the judgment of the Hon'ble
Supreme Court in the case of Sau. Kamal Shivaji
Pokarnekar vs. The State of Maharashtra & Ors stated
supra where the Hon'ble Supreme Court has held at
paragraph No.9 that the Criminal complaints cannot be
quashed only on the ground that the allegations made
therein appears to be civil in nature. The Hon'ble Supreme
Court dismissed the appeal for quashing the complaint for
the offences under Sections 420, 465, 467, 468, 471 of IPC.
14. In similar judgment in the case of Priti Saraf
and Anr. vs. State of NCT of Delhi and Anr., stated
supra, the Hon'ble Supreme Court dismissed the appeal and
held at paragraph Nos.31 and 32 as under:
"31. Be it noted that in the matter of
exercise of inherent power by the High
Court, the only requirement is to see
whether continuance of the proceedings
would be a total abuse of the process of
the Court. The Criminal Procedure Code
contains a detailed procedure for
investigation, framing of charge and trial,
and in the event when the High Court is
desirous of putting a halt to the known
procedure of law, it must use proper
circumspection with great care and
caution to interfere in the
complaint/FIR/charge-sheet in exercise
of its inherent jurisdiction.
32. In the instant case, on a careful
reading of the complaint/FIR/charge-
sheet, in our view, it cannot be said that
the complaint does not disclose the
commission of an offence. The
ingredients of the offences under
Sections 406 and 420 IPC cannot be said
to be absent on the basis of the
allegations in the complaint/FIR/ charge-
sheet. We would like to add that whether
the allegations in the complaint are
otherwise correct or not, has to be
decided on the basis of the evidence to
be led during the course of trial. Simply
because there is a remedy provided for
breach of contract or arbitral proceedings
initiated at the instance of the
appellants, that does not by itself clothe
the court to come to a conclusion that
civil remedy is the only remedy, and the
initiation of criminal proceedings, in any
manner, will be an abuse of the process
of the court for exercising inherent
powers of the High Court under Section
482 CrPC for quashing such
proceedings."
15. The Co-ordinate Bench of this court in
Crl.P.No.5301/2018 dated 25.1.2022 in the case of
Nanjammanni and Others stated supra has taken similar
view and dismissed the petition under Section 482 of Cr.P.C.
In another case, the another Co-ordinate Bench of this
Court in the case of Yusuf Shariff vs. State and another
in Crl.P.No.4736/2019 dated 5.09.2022 in a similar
case, where the case is based upon the agreement of sale,
the Co-ordinate Bench has dismissed the petition on the
ground, that merely some of the ingredients were civil in
nature, that itself is not ground to quash the FIR. The
Hon'ble Supreme Court also held in the case of Neeharika
Infrastructure Pvt., Ltd. Vs. State of Maharashtra
reported in 2021 SCC Online SC 315 that the FIR cannot
be quashed.
16. Herein this case, the accused persons entered
into agreement of sale and the accused No.6 was witness to
the agreement, but he himself got gifted in his favour with
an intention to deceive the complainant. Therefore, there is
ingredient to attract Sections 415, 420 and 406 and other
offences of IPC against other accused persons.
17. Learned Senior counsel for the petitioners taken
another contention that a private complaint has been filed
before the Magistrate without approaching the police higher
authorities under Section 154(3) of Cr.P.C., and therefore
there is a violation of guidelines of the Hon'ble Supreme
Court stated in the Priyanka Srivastava's case. Also
contended that after filing the complaint before the
Magistrate, the respondent complainant filed a complaint to
the DCP and subsequently filed affidavit before the
Magistrate and later the Magistrate referred the complaint,
hence, which is not sustainable. In this regard, learned
Senior counsel placing reliance on the order passed by this
court and Hon'ble Supreme Court in Priyanka Srivastava's
stated supra and based upon the judgment of the Hon'ble
Supreme Court, this court also taken the similar view and
quashed the Criminal proceedings for violation of the
guidelines of Priyanka Srivastava's case.
18. Normally the complainant shall approach the
police under Section 154(1) of Cr.P.C., and shall file the first
information statement if the police refused to register the
FIR, the complainant required to approach the higher police
officials, either SP or Commissioner or Police/DCP and shall
file complaint as per Section 154(3) of Cr.P.C. Even if the
higher police authorities not considered the complaint, then
the complainant shall approach the Magistrate and file
private complaint under Section 200 of Cr.P.C., along with
the affidavit and thereafter the complainant can seek
reference of the complaint to the police under Section
156(3) of Cr.P.C.
19. Admittedly, in this case though the complainant
approached the Sanjaynagar Police and filed the complaint
but the police refused to register the FIR. The police have
given the acknowledgment for receipt of the complaint but
they have not registered the FIR. Hence, the petitioner
approached the Magistrate by filing the private complaint
However, learned Magistrate has not referred the complaint
to the police immediately by passing any order as per
Section 156(3) of Cr.P.C., but the complaint was kept
pending and later the complainant went to the DCP,
Bangalore and filed a complaint. Subsequently, the DCP,
Bangalore also given endorsement, but the DCP has not
taken any action. Subsequently, the copy of the complaint
given to DCP and affidavit has been filed before the
Magistrate and thereafter the learned Magistrate considering
the endorsement issued by the police and referred the
complaint to the police under Section 156(3) of Cr.P.C. only
on 21.7.2023.
20. The private complaint came to be filed on
20.7.2022. Subsequently, the complaint was kept pending.
Later the complainant approached the DCP and
subsequently filed the affidavit before the Magistrate and
thereafter the Magistrate referred the matter under Section
156(3) of Cr.P.C.
21. In my considered opinion, the respondent
complainant has complied the guidelines issued by the
Hon'ble Supreme Court in Priyanka Srivastava's case, by
approaching the higher police officials as per Section 154(3)
of Cr.P.C., and also filed affidavit before the Magistrate and
then Magistrate has referred the complaint to the police.
There is slight violation of the guidelines of the Hon'ble
Supreme Court, where the complainant required to
approach Magistrate only after exhausting the remedy
before the police higher authorities under Section 154(3) of
Cr.P.C. But after approaching the Magistrate, he has went
to the DCP and exhausted the remedy and thereafter he has
persuaded the matter before the Magistrate. It is only
curable defect as the complainant approached the DCP
after filing the complaint, but prior to taking an action by
the Magistrate for taking cognizance or referring the matter
to the police under Section 156(3) of Cr.P.C. Even if this
court quashed the complaint but liberty shall have to be
given to the complainant to approach DCP or higher police
officers to exhaust remedy and thereafter, the complainant
once again filed the private complaint, which remains as
only empty formalities, since the police already refused to
register the FIR and the complainant already exhausted
remedy under Section 154(1) and 154(3) of Cr.P.C.
22. Therefore by looking to the facts and
circumstances of the case, this court need not direct the
complainant once again to approach the higher police
officials under Section 154(3) of Cr.P.C., for exhausting the
remedy and then to file complaint once again. Therefore,
once the complainant already exhausted both the remedies
prior to referring the complaint to the police under Section
156(3) of Cr.P.C., once again complainant need not go to
the police, then to the Magistrate, which is nothing but
remanding the matter to the Magistrate.
23. Therefore, I am of the view, on this ground, the
FIR or the complaint cannot be quashed. There is
cognizance case made out in the FIR for investigating the
matter by the police and at this stage, the court cannot
quash the FIR as there is Criminal breach of trust as well as
cheating made by the accused persons in collusion with
each other. As already stated above, accused No.6 was a
signatory to the agreement who himself obtained the gift
deed in his favour from the other accused.
24. Though learned Senior counsel argued by filing
the criminal complaint, the complainant trying to pressurise
the petitioner for compromise etc., but the civil case is
already pending. In the meanwhile, the accused persons
colluded with each other to cheat the complainant and they
created documents. Such being the case, there is prima
facie case made against the accused for investigating the
matter for having committed cognizable offence. Therefore,
either complaint or FIR cannot be quashed.
25. Accordingly, the criminal petition filed by the
petitioners/accused Nos.2, 4, 5 and 6 is hereby dismissed.
Sd/-
JUDGE
GBB/AKV
CT:SK
