Allowed

Smt. S. N. Vinoda v. Naveen Kumar. K

Karnataka HC2 Aug 2021CRL.P/1177/2021

Case brief

AI extract

What is this about?

This Court allowed a criminal petition under Section 482 Cr.P.C. to quash proceedings in C.C.No.871/2018 arising from a property dispute. The judgment held the matter to be purely civil and noted the Magistrate erred in mechanically referring the complaint for investigation without ensuring compliance with Section 154 Cr.P.C. and the Priyanka Srivastava case rules.

What did the court decide?

The proceedings in C.C.No.871/2018 are quashed in its entirety.

Smt. S. N. Vinoda Vs Naveen Kumar. K — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 02^ND DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

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CRIMINAL PETITION No.1177 OF 2021

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BETWEEN

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Smt. S.N.Vinoda, W/o R.Satya @ Baddi Satya, Aged about 43 years, R/o near Railway Quarters, Gandinagar Extension, B.Katihalli Post, Hassan Town, Hassan-573201.

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R.Satya @ Baddi Satya, S/o Ramegowda, Aged about 46 years, R/o near Railway quarters, Gandinagar Extension, B.Katihalli Post, Hassan Town, Hassan-573201.

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…Petitioners

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(By Sri Girish B Baladare, Advocate)

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AND

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Naveen Kumar K., S/o. Krishnegowda, Aged about 34 years, Vivekanagara Extension,

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Kotte, Arkalgudu Town, Hassan District-573201.

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The State of Karnataka, Arkalgudu Police Station, Arkalgudu, Hassan District-573201.

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Represented by Public Prosecutor, High Court Building, Bengaluru-560001.

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…Respondents

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(By Smt. Haleema Ameen, Advocate for R1, Sri R.D.Renukaradhya, HCGP for R2)

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This Criminal Petition is filed under Section 482 of Cr.P.C., praying to quash the charge sheet filed against the petitioners in C.C.No.871/2018 (Cr.No.105/2017) registered by Arakalgudu Police Station as per annexure-A for the offence punishable under Sections 420, 406 read with 34 of IPC same is pending on the file of Principal Civil Judge (Jr.Dn.) and J.M.F.C., Arakalgudu.

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This Criminal Petition coming on for admission this day, the Court made the following:

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ORDER

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This is a petition under Section 482 of Cr.P.C., seeking to quash the proceedings in C.C.No.871/2018 pending on the file of the Principal Civil Judge and JMFC, Arakalagudu, Hassan District against the petitioners.

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Heard Sri Girish B Baladare, learned counsel for the petitioners and Smt. Haleema Ameen, learned counsel for the first respondent and Sri R.D.Rudraradhya, learned High Court Government

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Pleader for second respondent-State.

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The petitioners are accused Nos.1 and 2 in the private complaint, PCR No.12/2017, initiated by the first respondent in relation to offences punishable under Sections 107, 417, 418, 420, 405, 406, 465 and 468 of IPC.

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The case of the complainant i.e., the first

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respondent is that the first petitioner being the wife of

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the second petitioner falsely represented to the first respondent that she was the only daughter to her father and that her father had passed away and therefore she had become the absolute owner of a site bearing No.142, Assessment No.2973 measuring 30 x 40 feet situated at Arakalagudu town, Hassan District and entered into an agreement with the first respondent on 20.04.2016 for selling that property to him for a total consideration of Rs.16,50,000/-. She received advance amount of Rs.2,00,000/-. On 12.08.2016, the petitioners got issued a notice to the first respondent stating that they were ready to execute the sale deed in accordance with the terms of the agreement and in case he was not ready to purchase the property, they would forfeit the advance amount. Having issued this notice, it is alleged that the petitioners sold the property to one A.S.Renukaradhya, the fourth accused in the private complaint. The first respondent came to know that the

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first petitioner’s father was very much alive and that he had not executed any gift deed in favour of the first petitioner. The first respondent having felt cheated by these transactions presented a private complaint.

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Sri Girish B Baladare, learned counsel for the

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petitioners submits that the transaction stated in the private complaint is purely civil in nature. The first respondent has filed a suit for specific performance and it is still pending. Therefore no offence is constituted. He also submits that the learned Magistrate has failed to notice that the first respondent did not approach the police and then the Superintendent of Police as required under Section 154(1) and 154(3) of Cr.P.C. The mandate of the Supreme Court in the case of PRIYANKA SRIVASTAVA AND ANOTHER VS. STATE OF UTTAR PRADESH AND OTHERS [(2015)6 SCC 287] has not been followed, there is no affidavit

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showing compliance of Sections 154(1) and 154(3) of Cr.P.C., and therefore the complaint is bad.

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Smt. Haleema Ameen, learned counsel for

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the first respondent submits that the contents of the private complaint disclose that the first petitioner brought a false document of gift deed, she also misrepresented to the first respondent that she was the absolute owner of the property and received advance consideration of Rs.2,00,000/-. These transactions clearly amount to cheating the first respondent and therefore the private complaint cannot be quashed. It is also submitted that the police have also filed charge sheet after holding investigation. The investigation shows that the petitioners have committed fraud and cheating. Her further submission is that the case of Priyanka Srivastava cannot be applied to the facts and circumstances of the case.

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If the private complaint is read, it becomes clear that the transaction stated therein pertains to a property. In the background of the facts and circumstances it can be very well stated that the dispute is purely civil in nature. The first respondent has also filed a suit for specific performance. The civil Court can take a decision whether Sri A.S.Renukaradhya, the subsequent purchaser is a bonofide purchaser without notice of the agreement to sell dated 20.04.2016.

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Secondly it is to be stated that if the first petitioner misrepresented to the first respondent that she was the only daughter and that she had become absolute owner of the property by virtue of a Gift deed said to have been executed by her father, then the first respondent cannot be said to be an aggrieved party because he has not yet become the owner of the property to say that on the basis of a false representation and false gift deed, he was induced to

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buy the property. The sale deed between the parties has not yet come into existence. Pendency of the suit for specific performance itself shows that he has taken action to enforce the contract. The first respondent can also seek refund of earnest money paid by him to the petitioners. If the father of the first petitioner is alive and inspite of that the first petitioner made a misrepresentation that she has become the absolute owner of the property, the real aggrieved party is the father, who appears to have not taken any action. Therefore I do not think that the contents stated in the complaint do constitute offences under the provisions aforementioned.

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The learned Magistrate ought not to have mechanically referred the complaint for investigation by the police without ascertaining whether there is compliance of the directions issued by the Hon’ble Supreme Court in the case of Priyanka Srivastava. The

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direction is mandatory and not recommendatory.

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Already this Court has taken a view that wherever the complainant is to first approach the police for his grievance and then to Superintendent of Police, if the jurisdictional police fails to take any action, to that effect an affidavit has to be filed. The Magistrate has erred in not noticing this aspect of the matter, he has mechanically referred the matter to the police. In this view the investigation held pursuant to this reference cannot be sustained. From the above discussions, I come to conclusion that the petition deserves to be allowed. Hence the following:

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ORDER

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The petition is allowed.

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Proceedings in C.C.No.871/2018 on the file of the Principal Civil Judge and JMFC, Arakalagudu are quashed in its entirety.

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Though accused Nos.3 and 4 are not the parties in this petition, since they appear to be formally arrayed as accused, this order benefits them also.

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Sd/JUDGE

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Kmv/-

Smt. S. N. Vinoda v. Naveen Kumar. K

Case brief

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Smt. S. N. Vinoda v. Naveen Kumar. K

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