Dismissed

Sri Venkatesh G v. Amruthahalli Police Station

Karnataka HC13 Jul 2021CRL.P/2792/2017

Case brief

AI extract

What is this about?

The court dismissed a criminal petition seeking quashing of criminal proceedings before the Chief Metropolitan Magistrate. The judge held that the proceedings did not amount to an abuse of process, citing evidence of cheque dishonour and distinguishing the Priyanka Srivastava precedent.

What did the court decide?

The criminal petition under Section 482 Cr.P.C. was dismissed, upholding the continuation of the criminal proceedings.

Sri Venkatesh G Vs Amruthahalli Police Station — Quashing and FIR | Karnataka HC (2021)

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Crl.P.No.2792/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JULY 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL PETITION No.2792/2017

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BETWEEN :

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SRI VENKATESH G S/O SRI GANGAPPA AGED 38 YEARS

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SMT LAKSHMAMMA W/O SRI GANGAPPA AGED 40 YEARS,

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PETITIONERS ARE R/O SRIRAMPURA YELAHANKA HOBLI, BANGALORE NORTH TALUK BANGALORE – 560 064 … PETITIONERS

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(by SRI.MADHUKAR NADIG, ADV.)

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AND :

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AMRUTHAHALLI POLICE STATION BANGALORE CITY REPRESENTED BY STATE PUBLIC PROSECUTOR

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SRI SUBRAMANI @ SUBBANNA S/O LATE RAMAIAH @ RAMANNA AGED 58 YEARS, R/O SRIRAMPURA VILLAGE NEAR GOVERNMENT SCHOOL YELAHANKA HOBLI BANGALORE NORTH TALUK BANGALORE – 560 064 … RESPONDENTS

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(BY SMT.NAMITHA MAHESH, B.G. HCGP FOR R1; SRI.S.JAYPRAKASH NARAYAN, ADV. FOR R2)

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Crl.P.No.2792/2017

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE IMPUGNED ORDER DATED 02.02.2017 PASSED BY THE IV A.C.M.M., BENGALURU IN C.C.NO.5296/2017, WHEREBY THE LEARNED MAGISTRATE HAS TAKEN COGNIZANCE OF THE OFFENCE P/U/S 406,420,504,506 R/W 34 OF IPC AGAINST THE PETITIONER NO.1 AND 2 BY ALLOWING THE CRL.P.

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THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT THROUGH VIDEO CONFERENCE MADE THE FOLLOWING:

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O R D E R

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“Whether the proceedings against the petitioner in C.C.No.5296/2017 on the file of IV Addl. Chief Metropolitan Magistrate, Bengaluru amount to abuse of the process of the Court ?” is the question involved in this case.

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Petitioner No.1 is the son of second petitioner. Accused Nos.1 and 2 are being prosecuted in C.C.No.5296/2017 for the offences punishable under Sections 406, 420, 504, 506 read with Section 34 of IPC on the basis of the complaint filed by the second respondent before the trial Court.

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The second respondent filed complaint in PCR No.4582/2015 against the petitioners seeking their

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Crl.P.No.2792/2017

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prosecution for the offences punishable under Sections 448, 504, 506, 323 420 read with Section 34 IPC. The learned Magistrate acting under Section 156(3) Cr.P.C. referred the said complaint to the first respondent Police for investigation.

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On the basis of such order and the complaint the first respondent registered the FIR in Crime No.116/2015 against the petitioner. After investigation, they submitted the charge sheet against the petitioners on 08.03.2016.

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The case of the prosecution in brief is as

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follows:

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The land bearing Sy.No.45/1 of Srirampura village measuring 30 guntas was inherited by CWs.1 to 4. On 03.03.2014 the first accused took CWs.1 to 4 to the Sub-Registrar’s office for the purpose of purchasing the said land. The agreed sale consideration was Rs.1,68,75,000/-. The first accused mentioned in the sale deed that the said amount is paid by cheques bearing Nos.744977 to 744980 each drawn for a sum of

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Crl.P.No.2792/2017

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Rs.25,00,000/-. After registration of the sale deed, the first accused took back those cheques and cheated CWs.1 to 4 without paying the said consideration. Then he has gifted the said property to the second accused to defeat the rights of CW.1. Further when Cws.1 to 4 asked accused to deliver the possession of the property, the accused threatened CWs.1 to 4 of their lives and abused them in foul language.

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On the basis of such charge sheet the learned Magistrate took cognizance of the aforesaid offences, registered the case in C.C.No.5296/2017 and summoned the petitioners to face the trial. The petitioners seek quashing of the said proceedings on the following grounds:

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i) The sale deed itself clearly states that the consideration is paid. Only to harass the petitioners, false criminal case is filed;

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ii) CWs.1 to 4 have filed O.S.No.2041/2015 against the petitioners before the City Civil Court, Bengaluru for setting aside the sale deed dated

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Crl.P.No.2792/2017

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03.03.2014/04.03.2014 on the same ground of fraud. Therefore, the dispute is purely civil in nature;

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iii) In referring the complaint to the police the

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Magistrate has acted contrary to the guidelines laid down by the Hon'ble Supreme Court in Priyanka Srivastava’s case.

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Reiterating the grounds of petition, learned counsel for the petitioner relies the following

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judgments:

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i) Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead through LRs and others¹

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ii) Priyanka Srivastava and another vs. State of Uttar Pradesh and others²

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iii) Vidhyadhar vs. Manikrao and another³

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Per contra, learned HCGP opposes the petition on the following grounds:

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i) Since the charge sheet is already filed Priyanka Srivastava’ s case is not applicable;

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1 (2020)7 SCC 366

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2 (2015) 6 SCC 287

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3 1999)3 SCC 573

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Crl.P.No.2792/2017

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ii) Pendency of civil proceedings does not bar the criminal prosecution, if there are grounds to proceed against the accused;

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iii) Though the accused claimed that sale consideration was paid under cheques, nothing was produced during investigation to show the realisation of the cheques;

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iv) The statements of the witnesses, the evidence collected from the bank and the charge sheet show that the cheques mentioned in the sale deed were not realized and debited to the account of the petitioner.

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The second respondent though served is unrepresented.

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It is settled proposition of law that the investigation or trial cannot be scuttled at the inception unless it is manifest abuse of the process of the Court or failure of justice. It is also settled proposition of law that the powers under Section 482 Cr.P.C. shall be sparingly exercised in rare cases. Whether such grounds are made out in this case has to be examined.

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Crl.P.No.2792/2017

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Regarding bar of criminal proceedings pending civil proceedings:

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The petitioners do not dispute that CWs.1 to 4 were the owners of the land bearing Sy.No.45/1 measuring 30 guntas of Srirampura village. They themselves admit that they purchased the said land under the registered sale deed dated 04.03.2014. As per the said documents itself, the sale consideration was Rs.1,68,75,000/-.

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Learned HCGP made available the charge sheet records for the perusal of the Court. In the sale deed, it is stated that out of Rs.1,68,75,000/-, Rs.68,75,000/- was paid by cash and towards payment of Rupees one crore, Cheque Nos.744977 to 744980 for Rs.25 lakhs each drawn on State Bank of Mysore, Byatarayanapura branch were issued to the vendor.

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According to the complaint and the statements of CWs.1 to 4, taking advantage of the illiteracy of CWs.1 to 4, accused took their signatures on

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Crl.P.No.2792/2017

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the sale deed promising to pay the consideration as mentioned in the sale deed and cheated them without paying any consideration either in cash or cheque.

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The charge sheet contains the

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communication dated 02.02.2016 issued by the Branch Manager of SBI, Byatarayanapura Branch to the effect that till that date the cheques in question were not debited to the account of the first petitioner - account holder. It was open to the petitioners either to appear before the Investigating Officer to submit the proof of realisation of the cheques or at least before this Court.

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15. The judgments in Vidyadhar’ s case and

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Dahiben ’s case were relied on to contend that once there is recital in the sale deed that the sale consideration is received, the burden is on the vender to prove that the same was not received. It was contended that the remedy of the complainant was to approach the Civil Court. In the sale deed there is no recital that the entire sale consideration was received in cash. That was allegedly paid by cheques. CWs.1 to 4

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Crl.P.No.2792/2017

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claim that without paying the cheques they were cheated.

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16. In Indian Oil Corporation vs. NEPC⁴ , the

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Hon'ble Supreme Court held that a given set of facts may make out a) purely a civil wrong; or b) purely a criminal offence; or c) a civil wrong as also a criminal offence. It was further held that though there is rising tendency of turning the civil cases into criminal cases the mere fact that complaint relates to a commercial transaction or breach of contract for which a civil remedy is available or has been filed is not by itself, a ground to quash the criminal proceedings. It was held that the test is whether the allegation in the complaint disclose a criminal offence or not. Having regard to the aforesaid judgment, the contention that filing of civil suit by CWs.1 to 4 bars the criminal remedy is unsustainable.

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4 (2006)6 SCC 736

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Crl.P.No.2792/2017

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Reg: Lack of material constituting the offence :

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As already pointed out, the statement of

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witnesses and the communication of the bank at this stage prima-facie show that the cheques mentioned in the sale deed were not realised and there are grounds to proceed against the petitioner. Under the above facts and circumstances, the judgments relied on by the learned counsel for the petitioners are not applicable to the facts of the case.

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Regarding Compliance of Sections 154 and 156 Cr.P.C.

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Relying on the judgment of Hon'ble Supreme Court in Priyanka Srivastava ’s case, it was argued that to invoke the power of reference under Section 156(3) Cr.P.C. there should be averments in the complaint that the jurisdictional Police declined to register the complaint and then he sent the complaint to the Superintendent of Police by post and the documents to that effect shall be produced.

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Crl.P.No.2792/2017

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Distinguishing the said judgment, this Court in Dr.Padmapriya vs. State of Karnataka (Crl.P.No.8321/2016 D.D.11.07.2018) held that Priyanka Srivastava’s case was rendered in the context of the accused seeking quashing of the FIR. It was further held that when FIR merged into the charge sheet, the said judgment cannot be justifiably applied. The same analogy applies to this case also.

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In the light of the facts and circumstances and the law discussed above, this Court does not find any abuse of the process of the Court in continuation of the impugned proceedings. Therefore the petition is dismissed.

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Sd/JUDGE

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akc

Sri Venkatesh G v. Amruthahalli Police Station

Case brief

What is this about?

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Sri Venkatesh G v. Amruthahalli Police Station

Case brief

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