Karnataka High Court
Smt Dakshaynini vs State Of Karnataka on 7 February, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 17.12.2024
Pronounced on : 07.02.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.3100 OF 2022
C/W
CRIMINAL PETITION No.3087 OF 2022
CRIMINAL PETITION No.3110 OF 2022
CRIMINAL PETITION No.3133 OF 2022
IN CRIMINAL PETITION No.3100 OF 2022
BETWEEN:
MRS.PRAGNA
PONNAMMA K.A., @ POORNA
PONNAMMA K.A.,
W/O SACHIN SUHAS V.,
AGED ABOUT 25 YEARS,
OCCUPATION: HOUSEWIFE
RESIDING AT NO.164
1ST MAIN ROAD
RAMAKRISHNA BLOCK
TYAGARAJANAGARA
BENGALURU - 560 028.
Digitally signed by
VISHAL
NINGAPPA
PATTIHAL
... PETITIONER
Location: High
Court of Karnataka,
(BY SMT.IRFANA NAZEER, ADVOCATE)
Dharwad Bench
2
AND:
1 . STATE OF KARNATAKA
BY JAYANAGARA P.S.,
BENGALURU - 560 011
REPRESENTED BY SPP.
2 . SMT. Y. SANDHYA
W/O MADHUKAR YADAV.B.R.,
AGED ABOUT 66 YEARS,
OCCUPATION: HOUSEWIFE
RESIDENT OF NO.353
10TH 'B' MAIN
3RD BLOCK, JAYANAGAR
BENGALURU - 560 011.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI VINEET SHAM BHAT, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLAINT DATED 31.12.2021
FILED BY THE RESPONDENT NO.2 AND REGISTERED BY THE
RESPONDENT NO.1 AS FIR DATED 31.12.2021 JAYANAGAR P.S., IN
CR.NO.302/2021 BEFORE THE HON'BLE 4TH A.C.M.M COURT AT
BENGALURU, AGAINST THE PETITIONER FOR THE ALLEGED
OFFENCES P/U/S 406, 468, 471, 420, 120B R/W 34 OF IPC, WHICH
IS PRODUCED AT ANNEXURE-A.
IN CRIMINAL PETITION No.3087 OF 2022
BETWEEN:
SRI N.VENKATESH
S/O NARAYANAPPA M.,
AGED ABOUT 47 YEARS,
OCCUPATION: HIGH COURT EMPLOYEE
3
RESIDING AT NO.114
GOVINDAPPA ROAD
GANDHI BAZAAR
BASAVANAGUDI
BENGALURU - 560 004.
... PETITIONER
(BY SMT.IRFANA NAZEER, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY JAYANAGARA P.S.,
BENGALURU -560 011
REPRESENTED BY SPP.
2 . SMT.Y.SANDHYA
W/O B.R.MADHUKAR YADAV
AGED ABOUT 66 YEARS,
OCCUPATION: HOUSEWIFE
R/O NO.353, 10TH 'B' MAIN
3RD BLOCK, JAYANAGAR
BENGALURU - 560 011.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI VINEET SHAM BHAT, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLAINT DATED 31.12.2021
FILED BY THE RESPONDENT NO.2 AND REGISTERED BY THE
RESPONDENT NO.1 AS FIR IN JAYANAGAR P.S., DATED 31.12.2021
IN CR.NO.302/2021 BEFORE THE HON'BLE 4TH A.C.M.M COURT
NRUPATHUNGA ROAD, BENGALURU, AGAINST THE PETITIONER
FOR THE ALLEGED OFFENCES P/U/S 406, 468, 471, 420 AND 120B
R/W 34 OF IPC WHICH IS PRODUCED AT ANNEXURE-A.
4
IN CRIMINAL PETITION No.3110 OF 2022
BETWEEN:
MR.SACHIN SUHAS V.,
S/O N.VENKATESH
AGED ABOUT 25 YEARS,
OCCUPATION: CIVIL ENGINEER
RESIDING AT NO.164
1ST MAIN ROAD
RAMAKRISHNA BLOCK
TYAGARAJANAGAR
BENGALURU - 560 028.
... PETITIONER
(BY SMT.IRFANA NAZEER, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY JAYANAGARA P.S.,
BENGALURU - 560 011
REPRESENTED BY SPP.
2 . SMT. Y. SANDHYA
W/O MADHUKAR YADAV B.R.,
AGED ABOUT 66 YEARS,
OCCUPATION: HOUSEWIFE
RESIDENT OF NO.352, 10TH B MAIN
3RD BLOCK, JAYANAGAR
BENGALURU - 560 011.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI VINEET SHAM BHAT, ADVOCATE FOR R-2)
5
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLAINT DATED 31.12.2021
FILED BY THE RESPONDENT NO. 2 AND REGISTERED BY THE
RESPONDENT NO. 1 AS FIR DATED 31.12.2021 IN CRIME NO.
302/2021 JAYAYANAGAR P.S. BEFORE THE HONBLE 4TH A.C.M.M,
AT BENGALURU, AGAINST THE PETITIONER FOR ALLEGED
OFFENCES PUNISHABLE U/S 406, 468, 471, 420 AND 120B R/W 34
OF THE INDIAN PENAL CODE, 1860 WHICH IS PRODUCED AT
ANNEXURE A.
IN CRIMINAL PETITION No.3133 OF 2022
BETWEEN:
SMT. DAKSHAYINI
W/O SRI N.VENKATESH
AGED ABOUT 42 YEARS
OCCUPATION:
BUSINESS/HOUSE WIFE
RESIDING AT NO.114
GOVINDAPPA ROAD
GANDHI BAZAAR
BASAVANAGUDI
BENGALURU - 560 004.
... PETITIONER
(BY SMT.IRFANA NAZEER, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY JAYANAGAR P.S.,
BENGALURU - 560 011
REPRESENTED BY SPP
6
2 . SMT. Y. SANDHYA
W/O MADHUKAR YADAV.B.R.,
AGED ABOUT 66 YEARS
OCCUPATION: HOUSEWIFE
RESIDENT OF NO.353, 10TH B MAIN
3RD BLOCK, JAYANAGAR
BENGALURU - 560 011.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI VINEET SHAM BHAT, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLAINT DATED 31.12.2021
IN CR.NO.302/2021 JAYANAGAR P.S., BEFORE THE IV ACMM,
BANGALORE AGAINST THE PETITIONER FOR ALLEGED OFFENCE
P/U/S.406, 468, 471, 420, 120-B R/W SEC.34 OF IPC 1860 WHICH
IS PRODUCED AT ANNEXURE A.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 17.12.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
7
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioners, in all these cases, are members of the same
family and the complainant is common. All these petitions call in
question registration of a crime in Crime No.302 of 2021 registered
for offences punishable under Sections 406, 468, 471, 420, 120-B
r/w Section 34 of the IPC.
2. Heard Smt Irfana Nazeer, learned counsel appearing for
petitioners, Sri B. N. Jagadeesha, learned Additional State Public
Prosecutor for respondent No.1 and Sri Vineet Sham Bhat, learned
counsel appearing for respondent No.2, in all these cases.
3. Facts in brief germane are as follows:
The petitioner in Crl.P.3087 of 2022 is said to be an employee
of this Court. He and his family get acquainted to the family of the
complainant. It is the case of the complainant that on certain
assurances of the accused and their family, several crores of money
8
transaction happens between the two, wherein the accused is said
to have borrowed Rs.1.5 crores from the complainant and also got
a sale deed executed in their favour in respect of the property of
the complainant situate at Jayanagar, which according to the
complaint is about Rs.4.5 crores. The further allegation is that the
sale deed registered in favour of the accused is without any money
coming into the coffers of the complainant, who is the owner of the
property. This is the crux of the complaint which leads to
registration of a crime in Crime No.302 of 2021 for the afore-
quoted offences. Registration of the crime has driven the
petitioners to this Court in the subject petition.
4. Learned counsel for petitioners would vehemently contend
that the transaction between the petitioners and the 2nd
respondent/complainant is purely civil in nature. Criminal law is set
into motion only to arm-twist the petitioners in getting a higher
value for the property that the petitioners purchased. All contents
of the complaint are completely false. If there is any registration of
a document is done, it is always open to the complainant to
9
institute a civil suit and seek appropriate relief at the hands of the
civil Court.
5. Per-contra, the learned counsel representing the 2nd
respondent submits that the complainant has been cheated. The
cheating is on the score that the petitioner in one of the petitions is
an employee of the High Court and he has lured the complainant on
him being a Court official. The learned counsel would submit that
initially Rs.1.5 crores was taken as loan and the employee of the
High Court had projected that since he is an employee, the amount
should not be transferred to his account and therefore, the amount
was transferred to the account of the family members. Thereafter,
the property of the complainant was purchased on a forged
document. Today the complainants neither have the property nor
the money of the property. He would submit that it is not a civil
transaction, but cheating and forgery by the petitioners.
6. I have given my anxious consideration to the submissions
made by the learned counsel for the respective parties and have
perused the material on record.
10
7. The afore-narrated facts are not in dispute. The
acquaintance between the family of the accused and the family of
the complainant is a matter of record. The transaction between the
two, at the first blush, would seem to be a money transaction and
thereafter, it is for the purpose of purchase of a site which was
valued at Rs.4.5 crores belonging to the complainant. The
transaction goes wrong and the complaint emerges. Complaint is
registered on the score that the complainant was lured into selling
the property and today she neither has property nor the money, as
the registration documents are allegedly forged. Since the entire
issue has now sprung from the complaint, I deem it appropriate to
notice the complainant and it reads as follows:
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ಇಂ ತಮ; 9lಾrN
Sandhya Y."
The complaint is in vivid detail, as to how the employee of the Court
got in touch with the complainant and indulged in a transaction.
The matter is still at the stage of investigation. If the complaint is
noticed, it depicts maze of facts. The allegations are, criminal
breach of trust, cheating, forgery and conspiracy. The investigation
may lead to affirmation of the crime so registered or may vary. In
the light of the vivid complaint, it cannot be said that the issue is
purely civil in nature.
8. The submission of the learned counsel for the petitioners
that a civil transaction is given a colour of crime would sound
acceptance in its first blush, but on a deeper delving into the
complaint, it is prima facie indicative of the fact that the
complainant has been hoodwinked. This would require an
investigation in the least. Since the investigation is stalled, I deem
it appropriate to permit investigation into the case at hand, as it is
no law that merely because an issue brought before the Court
answering a petition under Section 482 of the Cr.P.C. projects the
dispute being civil in nature, it is not that such crime, at the stage
of investigation, should be obliterated.
9. There are scores and scores of cases where a civil
ingredient is paraphrased to be the ingredient of crime and a crime
is registered. An agreement between the parties is projected to
become crime. Arm-twisting tactics are used by setting the
criminal law into motion. Crimes are registered to wreak
vengeance. Those are cases where crimes have been obliterated at
the stage of investigation itself. Therefore, it is on a case to case
basis that this Court would examine, interdict or quash the crimes.
In a given case, the facts may have flair and flavour of both civil
and criminal acts. In such circumstances, it becomes apposite to
refer to the judgment of the Apex Court in the case of K.
JAGADISH V. UDAYA KUMAR G.S.1, wherein the Apex Court
holds as follows:
"6. One of the striking features of the matter is that on
the day when the sale deed was executed, not a single paisa
was actually received by way of consideration. Three
postdated cheques were handed over to the appellant and one
(2020)14 SCC 552
of those three cheques was deposited in the bank for
encashment on the next date. It is a matter of record that
subsequent cheques were not even sought to be encashed and
the appellant showed his willingness to deposit even the sum
of Rs 15 lakhs received by encashment of first cheque.
Further, neither the conveyance deed was preceded by any
agreement of sale nor any advertisement was issued by the
appellant showing his inclination to dispose of the property in
question.
7. It is true that civil proceedings have been
subsequently initiated to get the registered sale deed
set aside but that has nothing to do with the present
criminal proceedings.
8. It is thus well settled that in certain cases the
very same set of facts may give rise to remedies in civil
as well as in criminal proceedings and even if a civil
remedy is availed by a party, he is not precluded from
setting in motion the proceedings in criminal law.
9. In Pratibha Rani v. Suraj Kumar [Pratibha
Rani v. Suraj Kumar, (1985) 2 SCC 370 : 1985 SCC (Cri) 180]
this Court summed up the distinction between the two
remedies as under : (SCC pp. 382-83, para 21)
"21. ... There are a large number of cases where
criminal law and civil law can run side by side. The two
remedies are not mutually exclusive but clearly coextensive
and essentially differ in their content and consequence. The
object of the criminal law is to punish an offender who
commits an offence against a person, property or the State
for which the accused, on proof of the offence, is deprived of
his liberty and in some cases even his life. This does not,
however, affect the civil remedies at all for suing the
wrongdoer in cases like arson, accidents, etc. It is an
anathema to suppose that when a civil remedy is available, a
criminal prosecution is completely barred. The two types of
actions are quite different in content, scope and import. It is
not at all intelligible to us to take the stand that if the
husband dishonestly misappropriates the stridhan property of
his wife, though kept in his custody, that would bar
prosecution under Section 406 IPC or render the ingredients
of Section 405 IPC nugatory or abortive. To say that because
the stridhan of a married woman is kept in the custody of her
husband, no action against him can be taken as no offence is
committed is to override and distort the real intent of the
law."
10. In Rajesh Bajaj v. State (NCT of Delhi) [Rajesh
Bajaj v. State (NCT of Delhi), (1999) 3 SCC 259 : 1999 SCC
(Cri) 401] this Court observed : (SCC p. 263, paras 10-12)
"10. It may be that the facts narrated in the present
complaint would as well reveal a commercial transaction or
money transaction. But that is hardly a reason for holding
that the offence of cheating would elude from such a
transaction. In fact, many a cheatings were committed in the
course of commercial and also money transactions. One of
the illustrations set out under Section 415 of the Penal Code,
1860 [Illustration f] is worthy of notice now:
'(f) A intentionally deceives Z into a belief
that A means to repay any money that Z may lend to him and
thereby dishonestly induces Z to lend him money, A not
intending to repay it. A cheats.'
11. The crux of the postulate is the intention of the
person who induces the victim of his representation and not
the nature of the transaction which would become decisive in
discerning whether there was commission of offence or not.
The complainant has stated in the body of the complaint that
he was induced to believe that the respondent would honour
payment on receipt of invoices, and that the complainant
realised later that the intentions of the respondent were not
clear. He also mentioned that the respondent after receiving
the goods had sold them to others and still he did not pay the
money. Such averments would prima facie make out a case
for investigation by the authorities.
12. The High Court [Gagan Kishore
Srivastava v. State, 1998 SCC OnLine Del 625 : (1998)
47 DRJ 438] seems to have adopted a strictly
hypertechnical approach and sieved the complaint
through a colander of finest gauzes for testing the
ingredients under Section 415 IPC. Such an endeavour
may be justified during trial, but certainly not during
the stage of investigation. At any rate, it is too
premature a stage for the High Court to step in and
stall the investigation by declaring that it is a
commercial transaction simpliciter wherein no
semblance of criminal offence is involved."
11. The aforesaid view was reiterated in Kamaladevi
Agarwal v. State of W.B. [Kamaladevi Agarwal v. State of
W.B., (2002) 1 SCC 555 : 2002 SCC (Cri) 200] as under :
(SCC p. 561, para 9)
"9. Criminal prosecution cannot be thwarted at the
initial stage merely because civil proceedings are also
pending. After referring to judgments in State of
Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426] and Rajesh
Bajaj v. State (NCT of Delhi) [Rajesh Bajaj v. State (NCT of
Delhi), (1999) 3 SCC 259 : 1999 SCC (Cri) 401] this Court
in Trisuns Chemical Industry v. Rajesh Agarwal [Trisuns
Chemical Industry v. Rajesh Agarwal, (1999) 8 SCC 686 :
2000 SCC (Cri) 47] held : (SCC p. 690, paras 7-8)
'7. Time and again this Court has been pointing
out that quashing of FIR or a complaint in exercise of
the inherent powers of the High Court should be
limited to very extreme exceptions [vide State of
Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal,
1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426]
and Rajesh Bajaj v. State (NCT of Delhi) [Rajesh
Bajaj v. State (NCT of Delhi), (1999) 3 SCC 259 :
1999 SCC (Cri) 401] ].
8. In the last referred case this Court also
pointed out that merely because an act has a civil
profile is not sufficient to denude it of its criminal
outfit. We quote the following observations : (Rajesh
Bajaj case [Rajesh Bajaj v. State (NCT of Delhi),
(1999) 3 SCC 259 : 1999 SCC (Cri) 401] , SCC p. 263,
para 10)
"10. It may be that the facts narrated in the present
complaint would as well reveal a commercial transaction or
money transaction. But that is hardly a reason for holding
that the offence of cheating would elude from such a
transaction. In fact, many a cheatings were committed in the
course of commercial and also money transactions." ' "
12. After referring to various decisions it was finally
concluded as under : (Kamaladevi Agarwal case [Kamaladevi
Agarwal v. State of W.B., (2002) 1 SCC 555 : 2002 SCC (Cri)
200] , SCC p. 566, para 17)
"17. In view of the preponderance of authorities to the
contrary, we are satisfied that the High Court was not
justified in quashing the proceedings initiated by the appellant
against the respondents. We are also not impressed by the
argument that as the civil suit was pending in the High Court,
the Magistrate was not justified to proceed with the criminal
case either in law or on the basis of propriety. Criminal cases
have to be proceeded with in accordance with the procedure
as prescribed under the Code of Criminal Procedure and the
pendency of a civil action in a different court even though
higher in status and authority, cannot be made a basis for
quashing of the proceedings."
13. In R. Kalyani v. Janak C. Mehta [R. Kalyani v. Janak
C. Mehta, (2009) 1 SCC 516 : (2009) 1 SCC (Cri) 567] this
Court culled out propositions concerning interference under
Section 482 of the Code as under : (SCC p. 523, para 15)
"15. Propositions of law which emerge from the said decisions
are:
(1) The High Court ordinarily would not exercise its inherent
jurisdiction to quash a criminal proceeding and, in particular,
a first information report unless the allegations contained
therein, even if given face value and taken to be correct in
their entirety, disclosed no cognizable offence.
(2) For the said purpose the Court, save and except in very
exceptional circumstances, would not look to any document
relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the
allegations made in the FIR disclose commission of an
offence, the Court shall not go beyond the same and pass an
order in favour of the accused to hold absence of any mens
rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by
itself may not be a ground to hold that the criminal
proceedings should not be allowed to continue."
14. In the light of the principles as mentioned
hereinabove, we have no hesitation in concluding that the High
Court erred in quashing the criminal proceedings. We,
therefore, allow this appeal, set aside the decision rendered by
the High Court and direct that criminal proceedings shall be
taken to logical conclusion in accordance with law."
(Emphasis supplied)
The Apex Court holds that in cases where both the civil and criminal
acts are found, the Court should not quash the proceedings holding
that it is purely civil in nature.
10. It would further become apposite to refer to the judgment
of the Apex Court in the case of KAPTAN SINGH v. STATE OF
UTTAR PRADESH2 wherein the Apex Court holds that when the
complaint projects maze of facts or even a case after filing the
charge sheet projects maze of facts, the High Court in its
jurisdiction under Section 482 of the Cr.P.C. should not interfere. It
is held as follows:
"9.1. At the outset, it is required to be noted that
in the present case the High Court in exercise of powers
under Section 482 CrPC has quashed the criminal
proceedings for the offences under Sections 147, 148,
149, 406, 329 and 386 IPC. It is required to be noted
that when the High Court in exercise of powers under
Section 482 CrPC quashed the criminal proceedings, by
the time the investigating officer after recording the
statement of the witnesses, statement of the
complainant and collecting the evidence from the
incident place and after taking statement of the
independent witnesses and even statement of the
accused persons, has filed the charge-sheet before the
learned Magistrate for the offences under Sections 147,
148, 149, 406, 329 and 386 IPC and even the learned
Magistrate also took the cognizance. From the impugned
(2021) 9 SCC 35
judgment and order [Radhey Shyam Gupta v. State of U.P.,
2020 SCC OnLine All 914] passed by the High Court, it does
not appear that the High Court took into consideration the
material collected during the investigation/inquiry and even
the statements recorded. If the petition under Section 482
CrPC was at the stage of FIR in that case the allegations
in the FIR/complaint only are required to be considered
and whether a cognizable offence is disclosed or not is
required to be considered. However, thereafter when
the statements are recorded, evidence is collected and
the charge-sheet is filed after conclusion of the
investigation/inquiry the matter stands on different
footing and the Court is required to consider the
material/evidence collected during the investigation.
Even at this stage also, as observed and held by this Court in
a catena of decisions, the High Court is not required to go into
the merits of the allegations and/or enter into the merits of
the case as if the High Court is exercising the appellate
jurisdiction and/or conducting the trial. As held by this Court
in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai
Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC
(Cri) 683] in order to examine as to whether factual contents
of FIR disclose any cognizable offence or not, the High Court
cannot act like the investigating agency nor can exercise the
powers like an appellate court. It is further observed and held
that that question is required to be examined keeping in view,
the contents of FIR and prima facie material, if any, requiring
no proof. At such stage, the High Court cannot appreciate
evidence nor can it draw its own inferences from
contents of FIR and material relied on. It is further
observed it is more so, when the material relied on is
disputed. It is further observed that in such a situation,
it becomes the job of the investigating authority at such
stage to probe and then of the court to examine
questions once the charge-sheet is filed along with such
material as to how far and to what extent reliance can
be placed on such material.
9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram
Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 :
(2020) 3 SCC (Cri) 672] after considering the decisions of this
Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this
Court that exercise of powers under Section 482 CrPC to
quash the proceedings is an exception and not a rule. It is
further observed that inherent jurisdiction under
Section 482 CrPC though wide is to be exercised
sparingly, carefully and with caution, only when such
exercise is justified by tests specifically laid down in the
section itself. It is further observed that appreciation of
evidence is not permissible at the stage of quashing of
proceedings in exercise of powers under Section 482
CrPC. Similar view has been expressed by this Court in Arvind
Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1
SCC (Cri) 94] , Managipet [State of Telangana v. Managipet,
(2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and
in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1
SCC (Cri) 173] , referred to hereinabove.
9.3. Applying the law laid down by this Court in the
aforesaid decisions to the facts of the case on hand, we are of
the opinion that the High Court has exceeded its jurisdiction in
quashing the criminal proceedings in exercise of powers under
Section 482 CrPC.
10. The High Court has failed to appreciate and consider
the fact that there are very serious triable issues/allegations
which are required to be gone into and considered at the time
of trial. The High Court has lost sight of crucial aspects which
have emerged during the course of the investigation. The High
Court has failed to appreciate and consider the fact that the
document i.e. a joint notarised affidavit of Mamta Gupta
Accused 2 and Munni Devi under which according to Accused 2
Ms Mamta Gupta, Rs 25 lakhs was paid and the possession
was transferred to her itself is seriously disputed. It is required
to be noted that in the registered agreement to sell dated 27-
10-2010, the sale consideration is stated to be Rs 25 lakhs
and with no reference to payment of Rs 25 lakhs to Ms Munni
Devi and no reference to handing over the possession.
However, in the joint notarised affidavit of the same date i.e.
27-10-2010 sale consideration is stated to be Rs 35 lakhs out
of which Rs 25 lakhs is alleged to have been paid and there is
a reference to transfer of possession to Accused 2. Whether Rs
25 lakhs has been paid or not the accused have to establish
during the trial, because the accused are relying upon the said
document and payment of Rs 25 lakhs as mentioned in the
joint notarised affidavit dated 27-10-2010. It is also required
to be considered that the first agreement to sell in which Rs 25
lakhs is stated to be sale consideration and there is reference
to the payment of Rs 10 lakhs by cheques. It is a registered
document. The aforesaid are all triable issues/allegations
which are required to be considered at the time of trial. The
High Court has failed to notice and/or consider the material
collected during the investigation.
11. Now so far as the finding recorded by the High Court
that no case is made out for the offence under Section 406 IPC
is concerned, it is to be noted that the High Court itself has
noted that the joint notarised affidavit dated 27-10-2010 is
seriously disputed, however as per the High Court the same is
required to be considered in the civil proceedings. There the
High Court has committed an error. Even the High Court has
failed to notice that another FIR has been lodged against the
accused for the offences under Sections 467, 468, 471 IPC
with respect to the said alleged joint notarised affidavit. Even
according to the accused the possession was handed over to
them. However, when the payment of Rs 25 lakhs as
mentioned in the joint notarised affidavit is seriously disputed
and even one of the cheques out of 5 cheques each of Rs 2
lakhs was dishonoured and according to the accused they were
handed over the possession (which is seriously disputed) it can
be said to be entrustment of property. Therefore, at this stage
to opine that no case is made out for the offence under
Section 406 IPC is premature and the aforesaid aspect is to be
considered during trial. It is also required to be noted that the
first suit was filed by Munni Devi and thereafter subsequent
suit came to be filed by the accused and that too for
permanent injunction only. Nothing is on record that any suit
for specific performance has been filed. Be that as it may, all
the aforesaid aspects are required to be considered at the time
of trial only.
12. Therefore, the High Court has grossly erred in
quashing the criminal proceedings by entering into the
merits of the allegations as if the High Court was
exercising the appellate jurisdiction and/or conducting
the trial. The High Court has exceeded its jurisdiction in
quashing the criminal proceedings in exercise of powers
under Section 482 CrPC.
13. Even the High Court has erred in observing that
original complaint has no locus. The aforesaid observation is
made on the premise that the complainant has not placed on
record the power of attorney along with the counter filed
before the High Court. However, when it is specifically stated
in the FIR that Munni Devi has executed the power of attorney
and thereafter the investigating officer has conducted the
investigation and has recorded the statement of the
complainant, accused and the independent witnesses,
thereafter whether the complainant is having the power of
attorney or not is to be considered during trial.
14. In view of the above and for the reasons stated
above, the impugned judgment and order [Radhey Shyam
Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by
the High Court quashing the criminal proceedings in exercise
of powers under Section 482 CrPC is unsustainable and the
same deserves to be quashed and set aside and is accordingly
quashed and set aside. Now, the trial is to be conducted and
proceeded further in accordance with law and on its own
merits. It is made clear that the observations made by this
Court in the present proceedings are to be treated to be
confined to the proceedings under Section 482 CrPC only and
the trial court to decide the case in accordance with law and
on its own merits and on the basis of the evidence to be laid
and without being influenced by any of the observations made
by us hereinabove. The present appeal is accordingly allowed."
(Emphasis supplied)
The complaint in the case at hand, as observed hereinabove,
narrates vivid details of the transaction and prima facie projects
wrong doing. Therefore, investigation in the least, is necessary in
the case at hand.
11. Leaving open all the remedies available in law to the
petitioners to avail of, finding no merit in these petitions, the
petitions stand rejected.
Interim order of any kind operating shall stand dissolved.
_________SD/-________
JUSTICE M.NAGAPRASANNA
Bkp
CT:MJ
