Dismissed

Sri N H Bhaskar Reddy v. State of Karnataka

Karnataka HC9 Oct 2019CRL.P/9713/2018

Case brief

AI extract

What is this about?

A property-sale prosecution alleged fabricated documents, conspiracy and dishonest inducement from inception. The court dismissed both quashing petitions, affirmed cognizance and issuance of process, and directed expedited trial. It held that the allegations disclosed a prima facie case and factual defences required trial.

What did the court decide?

The Magistrate was directed to expedite the trial.

Sri N H Bhaskar Reddy Vs State of Karnataka — Quashing and FIR | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF OCTOBER, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE ARAVIND KUMAR

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CRIMINAL PETITION NO. 9369/2018 C/W CRIMINAL PETITION NO.9713/2018

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IN CRL.P. NO.9369/2018:

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BETWEEN:

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N.H. PRASAD REDDY S/O N.H. PEDDA SHIVA REDDY AGED ABOUT 51 YEARS

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#51, 9^TH MAIN, 1^ST CROSS NEAR BSNL TELEPHONE EXCHANGE, HAL 3^RD STAGE INDRIANAGAR

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BANGALORE – 560 075.

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N.H. SARABHA REDDY S/O N.H. PEDDA SHIVA REDDY AGED ABOUT 46 YEAR

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#2, UKN ESPERANZA VENKATESWARA TEMPLE TUBARAHALLI

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BANGALORE – 560 066.

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SAILAJA REDDY W/O N.H. BHASKAR REDDY AGED ABOUT 48 YEARS #25/684-52, PADMAVATHI NAGAR, OPP. RAO’S DEGREE COLLEGE, NANDYAL – 518 501 KURNOOL DIST.

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VINAY S/O YERRA SWAMY AGED ABOUT 45 YEARS

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#499, 9^TH MAIN, 12^TH CROSS

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ISRO LAYOUT BANGALORE – 560 078.

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RAMESH REDDY S/O RANGA REDDY AGED ABOUT 52 YEARS SRI. RAM SPANDANA APTS B-1-401, NEAR EMBASSY GOLF LINKS, CHALLAGHATTA MARATHHALLI COLONY BANGALORE – 560 037.

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... PETITIONERS

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(BY SRI. RAJESH RAI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY KADUGODI PS BENGALURU RURAL DISTRICT REP. BY STATE PUBLIC PROSECUTOR, ANNEXED TO HIGH COURT BUILDING BENGALURU – 560 001.

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D.R. GOPINATH S/O LATE RAMAKRISHNA REDDY R/O 442, 10^TH CROSS GIRI NAGARA 2^ND STAGE BENGALURU – 560 085.

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... RESPONDENTS

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(BY SRI. B.V. MALLAREDDY, ADVOCATE FOR R-2 BY SRI RACHAIAH, HCGP FOR R-1)

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THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER OF LEARNED MAGISTRATE OF 1st C.J.M., COURT, BANGALORE RURAL DISTRICT TAKING COGNIZANCE AGAINST THE PETITIONERS DATED 14.08.2018 IN C.C.NO.6189/2018 AND THEREBY QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS IN C.C.NO.6189/2018 OF KADUGODI P.S., BANGALORE RURAL DISTRICT ON THE FILE OF THE I A.C.J.M., BANGALORE RURAL DISTRICT, BANGALORE.

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IN CRL.P. NO. 9713/2018:

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BETWEEN:

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SRI. N.H. BHASKAR REDDY S/O N.H. PEDDA SHIVA REDDY AGED ABOUT 49 YEARS R/AT NO.25/684-52 PADMAVATHI NAGAR OPP:RAO’S DEGREE COLLEGE, NANDYAL KURNOOL DISTRICT ANDHRA PRADESH - 518 501.

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SRI. SRINIVAS REDDY S/O VEMA REDDY AGED ABOUT 51 YEARS R/AT NO.1348, 8^TH A CROSS SARAKKI 1^ST STAGE, J.P. NAGAR BENGALURU - 560 078.

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SRI. PRABHAKAR NAIDU S/O YERRA SWAMY AGED ABOUT 49 YEARS R/AT NO.499, 9^TH MAIN 12^TH CROSS, ISRO LAYOUT BENGALURU - 560 078.

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... PETITIONERS

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(BY SRI. MUNIYAPPA, ADVOCATE)

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AND:

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STATE OF KARNATAKA THROUGH STATION HOUSE OFFICER, KADUGODI POLICE STATION, BENGALURU - 560 030 REPRESENTED BY ITS STATE PUBLIC PROSECUTOR HIHG COURT OF KARNATAKA BENGALURU - 560 001.

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DR. GOPINATH S/O LATE D.P. RAMAKRISHNA REDDY AGED ABOUT MAJOR R/AT NO.593, SAJJAN RAO

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ROAD, V.V. PURAM BENGALURU - 560 004.

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... RESPONDENTS

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(BY SRI. S. RACHIAH, HCGP FOR R-1; SRI. B.V. MALLAREDDY, ADVOCATE FOR R-2)

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THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH THE FIR BEARING CR.NO.63/2017 DATED 22.02.2017 REGISTERED BY THE RESPONDENT NO.1 KADUGODI POLICE ALONG WITH COMPLAINT DATED 22.02.2017 AGAINST THE PETITIONERS WHO ARE ACCUSED NO.1,5 AND 6 FOR THE OFFENCE P/U/S 420,468,406,471 AND 506 R/W 34 OF IPC PENDING ON THE FILE OF ADDL.C.J.M., BENGALURU RURAL DISTRICT IS PRODUCED HEREWITH AND MARKED AS ANNEXURE-A AND B.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Petitioners who are arraigned as accused Nos.2 to

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4, 7, 8 (in Crl.P.No.9369/2018) and 1, 5 & 6 (in Crl.P.No.9713/2018) in C.C.No.6189/2018 (arising out of Crime No.63/2017) registered by Kadugodi police station for the offence punishable under Section 120B, 406, 420, 468, 471, 506 read with Section 34 IPC now pending on the file of I CJM Court, Bengaluru Rural District, Bengaluru are before this court for quashing of the order dated 14.08.2018 taking cognizance for the

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said offences and have prayed for quashing of the proceedings by filing these two petitions. Since the facts as well as grounds urged are same and identical, these two petitions are taken up together for consideration, heard and disposed of by this common order.

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Second respondent herein lodged a complaint with Kadugodi police station on 22.02.2017 (Annexure-C) alleging that one of his friend Sri Srinivasalu Reddy had introduced Sri N.H.Bhaskar Reddy, Sri N.H.Sarabha Reddy and Smt.Sailaja Reddy (accused Nos.2 to 4) by informing the complainant that said persons are owning and possessing immovable property bearing Sy.No.69/6 measuring 29 guntas situated at Sadaramangala village and they are intending to sell the said property as they are in financial crisis. The complainant further alleged that Sri Srinivasulu Reddy had informed that said property though worth Rs.5 crores, the vendors are ready to sell for Rs.3.5 crores and all the accused persons with a

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common intention to cheat the complainant had created fake documents and had sold the said property to complainant and C.Ws.2 to 5. It is further alleged in the complaint that C.W.1 to C.W.5 came to know about said property being in litigation which was informed to the accused persons and in turn, the accused persons called C.W.1 to C.W.10 to their office for settlement and despite talks being held, they refused to return the amount and also threatened the complainant and others of dire consequences. The said complaint came to be registered in Crime No.63/2017 by Kadugodi Police against the accused persons for the offences punishable under Sections 406, 420, 468, 406, 471 read with Section 34 IPC. The jurisdictional police after investigation had filed the charge sheet.

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The jurisdictional Magistrate on perusal of the charge sheet material, by order dated 14.08.2018 has taken cognizance against the accused for the offence punishable under Sections 120B, 420, 468, 471, 506 read with Section 34 IPC and issued summons to

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accused. Subsequently, NBW came to be issued against accused persons. Petitioners are granted anticipatory bail by the VIII Additional District & Sessions Judge, Bengaluru.

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Being aggrieved by the order dated

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14.08.2018 i.e., order taking cognizance of the offence as well as continuation of the proceedings before the jurisdictional Magistrate and now pending in C.C.No.6189/2018, petitioners are before this court with a prayer to quash the order taking cognizance and the entire proceedings.

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I have heard the arguments of Sri Rajesh Rai and Sri Muniyappa, learned Advocates appearing for the petitioners in respective petitions and Sri Rachaiah, learned HCGP appearing for respondent-State and Sri B.V.Mallareddy, learned Advocate appearing for second respondent.

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It is the contention of Sri Muniyappa, learned Advocate appearing for petitioners that

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complaint in question has been filed to coerce the petitioners to come to terms with the respondent and the dispute in question is purely of civil nature and there being no existence of mens rea at the time of petitioners executing the sale deeds in favour of C.W.1 to C.W.5, continuation of the criminal proceedings would not only be an abuse of process of law but also would cause the petitioners great injustice as they will have to undergo the ordeal of trial.

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6.1) He would further contend that there is no criminal conspiracy on the part of petitioners and conveying defective title would not give rise to initiation of criminal prosecution. He would submit that the alleged sale deeds have been executed in the year 2011 and the complaint in question has been filed in the year 2017 and this fact itself would indicate that the dispute is of purely civil nature and none of the provisions of Indian Penal Code would get attracted for continuation of the proceedings against the petitioners.

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6.2) He would also contend that allegation made

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in the complaint against accused persons (A2 to A4 and

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A7, A8) is to the effect that they have produced duplicate encumbrance certificate as also other documents being duplicate. Whereas, the charge sheet material would indicate that the said documents are issued by the office of the Sub-Registrar and thereby there is no essential requirement to constitute the offence of forgery and in the absence of it, the ingredient of Section 420 IPC is not attracted. He would also contend that having regard to the entire prosecution case, the element of deception and inducement to fraudulent intention as per Section 415 IPC is not made out. They would also contend that there is no explanation whatsoever offered for delay of 7 years in filing the complaint.

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6.3) It is further contended that sale deed executed by accused No.1 is not at all challenged by any of the parties and the prosecution initiated against petitioner is to apply pressure in order to coerce the petitioner to come to terms. Hence, they prayed for quashing of the proceedings.

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In support of their submissions, they have

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relied upon the following judgments:

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(i) 2018 SCC ONLINE SC 2447 ANAND KUMAR MOHATTA vs STATE (GOVT. OF NCT OF DELHI)

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(ii) COMMISSIONER OF POLICE & OTHERS vs. DEVENDER ANAND & OTHERS (CRIMINAL APPEAL NO.834 OF 2017, DECIDED ON 08.08.2019)

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Sri Rachaiah, learned HCGP appearing for first respondent by relying upon the charge sheet material would submit that at the initial stage, the inherent jurisdiction to quash the proceedings pending before the trial Judge should not be invoked unless it appears from the said material that even if they were to remain unrebutted, it would not lead to conviction of the accused and only in such circumstances, the prosecution can be quashed as continuation of it may perforce the accused to undergo the ordeal of trial. He would submit that in the instant case, the Investigation Officer has collected sufficient material which would establish that said material will have to be proved by

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the prosecution during trial and at this stage, the proceedings are not to be scuttled. Hence, he prays for dismissal of the petitions.

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Per contra, Sri B V Mallareddy, learned

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Advocate appearing for second respondent would support the case of prosecution and contend that the accused persons are not only facing the prosecution initiated against them in the instant case but also other criminal cases registered with Madivala Police Station for similar offences and at later stages, have compromised the matter, which would clearly indicate their intent to cheat and defraud the complainant and C.Ws.2 to 5. It is further contended that the petitioners herein have been evading the arrest and process of law and as such, in the charge sheet filed by the jurisdictional Police Station, they have been shown as absconding. He would further contend that petitioners are habitual offenders, fraudsters and have cheated many other persons like the complainant. He would contend that accused persons in the garb of carrying on

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the real estate business and land development are indulging in floating different companies with different names and lure the potential investors to invest in the lands depicting forged and fabricated documents as genuine and use the same for registration of the deeds and thereby induce the potential buyers to part with the money by cheating and defrauding them.

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9.1) He would further elaborate his submission by contending that statement of witnesses have been recorded and the Investigating Officer has collected relevant material which would prove the guilt of offence committed by accused and the very fact that unregistered firms have been formed would indicate the intention of the accused persons is to commit illegal acts. Hence, by reiterating the pleas put forward in the statement of objections as well as grounds urged therein, he prays for dismissal of the petitions.

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In support of his submissions, he has relied upon the following judgments :

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(i) MD.ALLAUDDIN KHAN vs THE STATE OF BIHAR & OTHERS (CRIMINAL APPEAL NO.675/2019 DECIDED ON 15.04.2019.)

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(ii) CHILAKAMARTHI VENKATESWARLU & ANOTHER vs STATE OF ANDHRA PRADESH & ANOTHER (CRIMINAL APPEAL NO.1082/2019 DECIDED ON 31.07.2O19).

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Having heard the learned Advocates

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appearing for parties and on perusal of the charge sheet material and bestowing my careful and anxious consideration to the rival contentions raised at the bar, it would emerge therefrom that accused No.5 was the friend of complainant and he had introduced accused Nos.1 to 4 and intimated the complainant that accused Nos.1 to 4 were owning the property measuring 29 guntas situated at Sy.No.69/6 of Sadaramangala village and as they were in need of money, they are willing to sell the said property for Rs.3.5 crores though it is valued Rs.5 crores and in this regard had conspired with a common intention to cheat C.W.1 to C.W.5 and had executed sale deeds in their favour by receiving a

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total sum of Rs.3,45,12,290/- in the form of cash and cheque.

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11. Based on the said charge sheet material, the

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learned Magistrate has taken cognizance for the offences alleged by the prosecution. The order of summoning the accused need not be a speaking order and a detailed one. The Magistrate, while issuing process, is not required to meticulously examine and evaluate the material available on record. If the application of judicious mind to take cognizance and issue process can be discerned from the said order, it would suffice. The material placed by the prosecution on record is not required to be examined and such scrutiny is to be depicted in the order taking cognizance for the offence. Thus, in conclusion, it can be said order taking cognizance and summoning the accused should reflect application of judicious mind. In the instant case, the learned Magistrate while taking cognizance has perused the record and thereby a presumption arises that material placed before him has

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been examined, scrutinized and on being satisfied, cognizance has been taken. As such, contention raised by learned Advocate appearing for petitioners cannot be entertained and it stands rejected.

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In the light of petitioners having invoked the extraordinary jurisdiction of this Court i.e., Section 482 Cr.P.C. with a prayer to quash the proceedings, which prayer has been stoutly opposed by the respondents, let me examine as to whether such power can be exercised or not and under what circumstances.

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There cannot be any dispute to the proposition that jurisdiction of this Court under Section 482 of the Code has to be exercised with great care, circumspection and in exceptional cases. This court in exercise of the jurisdiction vested under Section 482 Cr.P.C. would neither function as a court of appeal or revision. In fact, said provision saves the inherent power and it may be exercised to give effect to an order under the code; to prevent abuse of the process of the court and to otherwise secure the ends of justice. There

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cannot be any straight jacket formula prescribed in this regard. Such power is to be exercised ex debito justitiae to do real and substantial justice. Any attempt made to abuse the process of the court which would result in injustice and prevent promotion of justice would call for exercise of inherent jurisdiction. Where no offence is made out by a plain reading of the complaint and even in such circumstances directing the accused to undergo the ordeal of trial would definitely be an abuse of process of law and in such circumstances, exercise of inherent jurisdiction would be called for.

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It is also to be further noticed that where the probable defence sought to be put forth by the accused during the course of trial is urged as a ground for quashing of the criminal proceedings, in such circumstances, prayer would not be acceded to even if such defence may be of high value and may be susceptible to acceptance at a later stage. At the stage of consideration of the prayer of quashing of the proceedings, this court exercising the jurisdiction under

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Section 482 Cr.P.C. would not evaluate the charge sheet material or express any opinion in that regard as it is likely to prejudice the rights of the parties. If the charge sheet material is sufficient to proceed for trial, it would suffice to allow the proceedings to continue. On the other hand, if the material on record, even it were to remain unrebutted, would not end in conviction. Then, calling upon accused to face the trial would be abuse of process of law and it would not be in the interest of justice. In such circumstances, the prayer for quashing of the proceedings cannot be granted.

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Hon’ble Apex Court in the case of CBI vs A.RAVISHANKAR PRASAD reported in (2009) 6 SCC

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351 while examining the plea of CBI to set aside the order of quashing has opined that allegations against the accused for having committed serious offences such as forgery, fabrication of documents and use of those documents as genuine in the facts obtained did not call for quashing of proceedings and as such, allowed the appeal filed by the CBI by concluding as under:

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“38. Let us consider the facts of this case and apply the ratio of Goswami's case (2004)12 SCC 1 where facts are as follows:-

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(I) The allegations are that accused have committed serious offences such as forgery, fabrication of documents and used those documents as genuine;

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(II) allegations are that accusedrespondent herein, A. Ravishankar Prasad and A. Manohar Prasad have entered into a conspiracy with the Chairman and Managing Director and other officials of the Indian Bank, Chennai with the object of cheating the Indian Bank in the matter of recommending, sanctioning, disbursing huge credit facilities running over hundreds of crores.

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(III) Trial of all four cases are at an advanced stage in which 92 witnesses have already been examined.

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While applying the ratio of Goswami's case, how can any court in its legitimate exercise of power under Section 482 Cr.P.C. quash the proceedings against accused A. Ravishankar Prasad and A. Manohar Prasad in the face of aforesaid allegations?. In the instant case, wrong application of the ratio of the said judgment has led to grave miscarriage of justice.

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Careful analysis of all these judgments clearly reveals that the exercise of inherent powers would entirely depend on the facts and circumstances of the each case. The object of incorporating inherent powers

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in the Code is to prevent abuse of the process of the court or to secure ends of justice.

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Both English and the Indian courts have consistently taken the view that the inherent powers can be exercised in those exceptional cases where the allegations made in the first information report or the complaint, even if are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. When we apply the settled legal position to the facts of this case it is not possible to conclude that the complaint and charge-sheet prima facie do not constitute any offence against the respondents.”

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16. Hon’ble Apex Court in SURYALAKSHMI

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COTTON MILLS LIMTIED vs RAJVIR INDUSTRIES

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LIMITED & OTHERS reported in (2008)13 SCC 678 has made the following observations explaining the parameters of exercising jurisdiction under Section 482 Cr.P.C. as under:

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“ 17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well known legal principles involved in the matter.

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22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of the process of Court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal namely to force the accused to pay the amount due to the complainant immediately. The Courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The Courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.”

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As already observed herein above, factual defences which would be in the domain of consideration by the Magistrate after recording evidence or proceeding with the trial would not be a ground available while considering the plea for quashing of proceedings.

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Whether the accused persons had conspired to cheat the complainant and how such conspiracy took place would be in the province of the learned Magistrate and no definite conclusion can be arrived at that offence is not made out.

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It is to be further noticed that where a civil dispute is sought to be depicted as a criminal offence, in such circumstances, this court exercising the power under Section 482 Cr.P.C. would be empowered to quash the proceedings. The authority of the court under Section 482 Cr.P.C. exists for advancement of justice and if attempt is made to abuse that authority so as to produce injustice, this court would exercise its power to prevent such abuse.

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Hon’ble Apex Court in the case of STATE OF KARNATAKA vs M.DEVENDRAPPA AND ANOTHER

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reported in AIR 2002 SC 671 has held that meticulous analysis of the case would not be necessary before trial to find out whether the case would end in conviction or

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acquittal and complaint has to be read as a whole. It is

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held:

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“9. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See: The Janata Dal etc. vs. H.S. Chowdhary and Ors. etc. (AIR 1993 SC 892), Dr. Raghubir Saran vs. State of Bihar & Anr. (AIR 1964 SC 1)]. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not

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disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding. [See: Mrs. Dhanalakshmi vs. R. Prassnna Kumar and Ors. (AIR 1990 SC 494), State of Bihar & Anr. vs. P.P. Sharma I.A.S. & Anr. (1992 Suppl. (1) SCC 222), Rupan Deo Bajaj (Mrs.) & Anr. vs. Kanwar Pal Singh Gill & Anr. (1995 [6] SCC 194), State of Kerala & Ors. vs. O.C. Kuttan & Ors. (1999 [2] SCC 651), State of U.P. vs. O.P. Sharma (1996 [7] SCC 705), Rashmi Kumar (Smt.) vs. Mahesh Kumar Bhada (1997 [2] SCC 397),Satvinder Kaur vs. State (Govt. of NCT of Delhi) and Anr. (1999 [8] SCC

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728), Rajesh Bajaj vs. State NCT of Delhi and Ors. (AIR 1999 SC 1216)].”

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In a judgment rendered by the Hon’ble Apex

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Court in the matter of MD.ALLAUDDIN KHAN vs STATE OF BIHAR in Criminal Appeal No.675/2019 rendered on 15.04.2019, it came to be held that “High Court has no jurisdiction to appreciate the evidence of the proceedings under Section 482 Cr.P.C. as the contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and same can be gone into by the judicial Magistrate during the trial when the entire evidence is adduced by the parties”.

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Yet again, in the matter of

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CHILAKAMARTHI VENKATESWARLU & ANOTHER vs STATE OF ANDHRA PRADESH & ANOTHER in

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Criminal Appeal No.1082/2019 decided on 31.07.2019, Hon’ble Apex Court has held that High Court should not in exercise of jurisdiction under Section 482 Cr.P.C. embark upon on an enquiry into whether evidence is

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reliable or not, or whether on a reasonable appreciation of evidence, the allegations are not sustainable, for this is the function of a trial Judge and after referring to plethora of judgments, it is held that “power to quash the proceedings is generally exercised when there is no material to proceed against petitioners even if the allegations in the complaint are prima-facie accepted as true”.

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In the background of the aforestated case law analysis, when the facts on hand are examined, it would clearly indicate that in the complaint lodged by second respondent, he has specifically alleged that accused No.5 had introduced accused Nos.1 to 3 to him and C.W.2 to C.W.5 for purchasing the subject property and had induced them to purchase said property and had made them to believe the representations as true and honest with a dishonest intention or mens rea being present from the inception, which resulted in C.W.1 to C.W.5 parting with Rs.3.5 crores and thereby accused No.1 having executed two sale deeds, one in

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favour of C.Ws.1 to 3 for 14 ½ guntas and another sale deed in favour of C.W.4 and 5 for remaining 14 ½ guntas in Sy.No.69/6 of Sadaramangala village. Based on the said complaint, the Commissioner of Police had directed investigation through Central Crime Branch. The then Joint Commissioner of Police referred the said complaint for investigation and on account of the destruction of said complaint by the Police Inspector, it resulted in subsequent registration of FIR in Crime No.63/2017 against accused persons.

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It is to be noticed that accused Nos.1 to 3 are brothers and accused No.4 is the wife of accused No.1. accused Nos.8 is the Co-Director along with accused Nos.1 to 3 of the Companies floated by accused Nos.1 to 3. The charge sheet material based on investigation would disclose the money received by accused No.1 has been diverted and invested by the wife of accused No.1 namely, Smt.Sailaja Reddy and she has purchased the property which is standing in her name. It is the case of the prosecution that accused No.5 had

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introduced accused Nos.1 to 4 to the complainant and C.W.2 to C.W.5 with an intention of defrauding and cheating and he being the witness to the sale deed, the statements of witnesses recorded under Section 161 Cr.P.C. would prima-facie indicate the involvement of accused no.5. Further charge sheet material against accused No.6 would indicate that he had conspired along with accused Nos.1 to 4 to cheat complainant and C.W.2 to C.W.5 and as special power of attorney holder of accused No.1 had represented him by affixing his signature to the sale deed dated 19.08.2004 (subject property purchased by accused No.1) . It is also further case of the prosecution that accused No.6 had accompanied accused Nos.1 to 3 and accused No.5 for identifying the land in question by complainant and C.W.2 to C.W.5. It is further stated that accused No.6 had also affixed his signature to the registered sale deed executed by accused No.1 in favour of complainant, C.W.2 to C.W.5.

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Case of the prosecution against accused No.7 is that he had conspired to cheat complainant and C.W.2 to C.W.5 and with the intention of defrauding and cheating them, have applied for and supplied the fabricated encumbrance certificate in respect of the property in question. It is also contended by the prosecution that there is no such application available in the Sub-Registrar’s office. In fact, accused No.8 is the Co-Director of the companies floated by accused Nos.1 to 3 and the statements of witnesses would prima-facie indicate the involvement of accused Nos.1 to 8 in the alleged hatching of criminal conspiracy. Thus, at this stage, it cannot be construed or held that there is no prima-facie case made out against accused persons for trial being proceeded with.

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In the matter of Criminal Appeal No. 834/2017 disposed of on 08.04.2019 (COMMISSIONER OF POLICE AND OTHERS vs DEVENDER ANAND & OTHERS) , the Hon’ble Apex Court while examining as to whether agreement of sale entered into by the

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complainant with the accused persons was by

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suppression of fact and amounted to cheating, held that it was a matter of civil dispute and the execution of the sale deed suppressing the mortgage having been created in respect of the said property by accused persons does not constitute an offence under Section 420/34 IPC. Thus, in the facts obtained, conclusion has been arrived at by Hon’ble Apex Court that earlier opinion on preliminary enquiry was never placed before Deputy Commissioner of Police and as such, the issuance of directions by the High Court was not called for. Hence, initiation of proceedings was held to be an abuse of process of law and thereby proceedings came to be quashed. In the said case, the High Court having observed that the dispute between the parties is of a civil nature, yet, had issued certain directions to the jurisdictional police which was held by the Apex Court was not called for. In this background, it was held that continuation of proceedings was not called for. The said authority would not come to the rescue of petitioners in the instant case inasmuch as, on registering the

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complaint, investigation has been done, material evidence has been collected to drive home the guilt of the accused of the offences alleged and the witnesses examined has also supported the case of the prosecution.

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26. In the matter of ANAND KUMAR MOHATTA

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vs. STATE (GOVT. OF NCT OF DELHI) referred to herein supra, reliance of which has been placed by petitioners would not come to their assistance, inasmuch as, in the said case, the dispute related to development agreement entered into by the accused persons with the developer 23 years prior to the date of filing of the complaint and in this background, it came to be held that contract had been terminated and amount paid as security by the purchaser had been retained and complainant having failed to get the property vacated from the tenant’s possession and complainant having not made attempt for recovery of the money from the accused persons and as such, it came to be held that action of the complainant in

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lodging the complaint is malafide and unsustainable. It

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was further held that a growing trend is emerging in business circles to convert purely civil dispute into criminal cases. Whereas, in the instant case, the complainant has specifically alleged that accused persons knowing fully well that they did not possess title, yet, fabricated the documents by creating it and misrepresenting the same to be the genuine documents, had induced the complainant as well as C.W.2 to C.W.5 to part with Rs.3.42 crores with a dishonest intention from the inception. The witnesses examined on behalf of the prosecution has also supported the case of the prosecution and several criminal cases filed against accused persons under similar circumstances would lend credence to the case of the prosecution prima-facie. There being truth or otherwise in the said allegation would definitely be in the domain of learned Magistrate to be examined after trial. Hence, at this stage, it cannot be held or construed that prosecution initiated against petitioners is liable to be quashed in exercise of extraordinary jurisdiction vested in this court under

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Section 482 Cr.P.C. I do not find any other good ground to entertain these criminal petitions.

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For the reasons aforestated, I proceed to pass the following:

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ORDER

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(i) Criminal Petition Nos. 9369/2018 and 9713/2018 are hereby dismissed.

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(ii) Order dated 14.08.2018 passed by I CJM, Bengaluru Rural District, Bengaluru in C.C.No.6189/2018 taking cognizance of the offences for issuance of process to accused Nos.1 to 8 is hereby affirmed. (iii) The learned Magistrate is directed to expedite the trial.

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*sp

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SD/JUDGE

Sri N H Bhaskar Reddy v. State of Karnataka

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Sri N H Bhaskar Reddy v. State of Karnataka

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