Allowed

T Shantharaju v. State of Karnataka

Karnataka HC15 Feb 2023CRL.P/4843/2018

Case brief

AI extract

What is this about?

This criminal petition sought quashing of criminal proceedings initiated against petitioners for alleged breach of a Memorandum of Understanding. The Court held the dispute was civil in nature, the Magistrate erred in taking cognizance without rejecting the police report first, and the joint complaint was impermissible. The proceedings were quashed.

What did the court decide?

Impugned proceedings in CC No. 6037/2018 pending before VII Additional Chief Metropolitan Magistrate, Bengaluru Rural District, quashed.

T Shantharaju Vs State of Karnataka — Writ and Judicial Review | Karnataka HC (2023)

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1 - CRL.P No. 4843 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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CRIMINAL PETITION NO. 4843 OF 2018

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BETWEEN:

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T. SHANTHARAJU

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S/O LATE T.DASAPPA, AGED ABOUT 59 YEARS, NO.35, 3RD CROSS, BYRASANDRA, JAYANAGAR, 1ST BLOCK EAST, BANGALORE - 560 011.

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Digitally signed by R HEMALATHA Location: High Court of Karnataka

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S. PRADEEP S/O T.SHANTARAJU, AGED ABOUT 34 YEARS, NO.142, TSR COURT, 4TH MAIN, 100 FT RING ROAD, KEB LAYOUT, BTM 1ST STAGE, BENGALURU - 560 076. BOTH ARE RESIDING AT NO.16/7 MEENAKSHI LAYOUT, KAALENA AGRAHARA, BANGALORE - 560 083.

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…PETITIONERS

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(BY SRI. SHANKARAPPA, ADVOCATE)

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AND:

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STATE OF KARNATAKA REPRESENTED BY SUB-INSPECTOR OF POLICE, JALAHALLI POLICE, BANGALORE CITY, BANGALORE, REPRESENTED BY SPP HIGH COURT OF KARNTAKA, BANGALORE - 560 001.

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CRL.P No. 4843 of 2018

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CHAMAPAKARAM K.S. S/O LATE K. SHAMANNA AGED ABOUT 61 YEARS,

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VENKATALAKSHMAMMA W/O LATE SHAMANNA, AGED ABOUT 83 YEARS,

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BOTH R-2 AND R-3 ARE RESIDING AT NO.J-193, SECTOR-1, HMT COLONY, JALAHALLI, BANGALORE - 560 013.

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…RESPONDENTS

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(BY SRI. VINAYAKA V.S., HCGP FOR R1, SRI. NANDISH R, ADVOCATE FOR SRI. GANAPATH. S. SHASTRI, ADVOCATE FOR R2 V/O DATED 02.01.2003 SERVICE OF NOTICE TO R3 IS D/W)

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THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER OF ISSUE OF SUMMONS DATED 01.03.2018 PASSED BY THE VII ADDL.C.M.M., BENGALURU RURAL DISTRICT, BENGALURU IN C.C.NO.6037/2018.

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THIS CRIMINAL PETITION COMING ON FOR FURTHER DICTATION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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A private complaint under Section 200 of Cr.PC was filed by the 2nd and 3rd respondents jointly alleging that they are the absolute owners in possession of the land bearing Sy.No.55/22 measuring 2.00 acres 10 guntas. On 22.2.2004, an extent of 20 guntas was conveyed to one Ramachandra and the accused by threatening that the remaining extent of land will be acquired by the BBMP forced the complainant to convey the remaining extent of land in favour of Smt.Shantha Bai for lesser sale consideration.

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CRL.P No. 4843 of 2018

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A memorandum of understanding was executed between the complainants and the accused herein, wherein the accused had agreed to convey 20 guntas of land in Sy.No.204/4 in favour of the complainant - 1 and three sites to the complainant No.2 in lieu of the complainant No.1 conveying 34 guntas in Sy.No.257. However, the three sites which was promised to be given to complainant No.2 is standing in the name of accused No.3 and the cheque which was issued by the petitioner - accused No.1 to the first complainant for a sum of Rs.10,00,000/-, when presented, for realisation was dishonoured for want of funds.

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The learned Magistrate referred the complaint to the jurisdictional police station for investigation under Section 156(3) of the Cr.PC. The police after the investigation submitted the `B' report with the learned Magistrate stating that the dispute between the parties is purely civil in nature.

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The respondents No.2 and 3 filed a protest petition to the `B' report submitted by the police. The learned Magistrate after recording the sworn statement has taken cognizance of the offences punishable under Sections 415, 418, 420, 425 and 506(b) of IPC and issued summons. Taking exception to the same, the petitioners-accused Nos.1 & 2 are before this Court.

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Learned counsel appearing for the petitioners submits that the dispute between the parties is purely civil in nature and even if the allegation made in the complaint are accepted, on the face of it, utmost amounts to breach of

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CRL.P No. 4843 of 2018

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Memorandum for Understanding between the parties. He further submits that the learned Magistrate without passing an order rejecting the 'B' Report at the the first instance has taken cognizance, which is impermissible in view of the decision of the Coordinate Bench of this Court in the case of Ravikumar (Dr.) v. K.M.C. Vasantha, [2017 SCC OnLine Kar 4731]

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He further submits that the joint private complaint filed under Section 200 of Cr.P.C., is not maintainable. In support he places reliance on the decision of this Court in the case of Parijanashram Swamiji v. Kailaje, [1985 SCC OnLine Kar 421] .

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On the other hand, learned counsel for respondent No.2 submits that the petitioners-accused herein by not paying Rs.20,00,000/- as per terms of Memorandum of Understanding and also by not conveying three sites in favour of the complainant No.2, as promised under the Memorandum of Understanding have committed the aforesaid offences, and cognizance taken by the learned Magistrate does not warrant any indulgence.

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The police after the investigation submitted the 'B' Report to the learned Magistrate to which the complainant filed the protest petition. This Court in the case of Ravikumar (Dr.) supra has held that the learned Magistrate would require to pass an order rejecting the 'B' Report at the first instance and then, record the sworn statement and take cognizance. In the

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CRL.P No. 4843 of 2018

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instant case, the learned Magistrate without passing an order rejected the 'B' Report at the first instance has recorded sworn statement and taken cognizance of the same, which is impermissible.

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The allegations made in the complaint, even accepted on the face of it, utmost amounts to breach of terms and conditions contained in the Memorandum of Understanding, which is purely civil in nature, however, given a criminal texture, so as to pressurize the petitioners-accused herein to arrive at a settlement.

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The petitioners have produced copies of the absolute Sale Deed dated 13.03.2009, which reflect that three sites have been conveyed in favour of the complainant No.2. The petitioners have also produced the receipt issued by complainant No.1 for having received a sum of Rs.20,00,000/under the Memorandum of Understanding, and whether the complainant No.1 has received the said amount or not, is a disputed question of law and the same can be agitated only before the jurisdictional Civil Court.

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The privy council in the case of Sashadhar Acharjya v. Sir Charles Tegart, [1931 SCC OnLine Cal 34] has held as follows:

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" 2. XXX The first and most prominent fault is that it is a joint complaint which so far as we know is not contemplated by the Code of Criminal Procedure. The duties of a Magistrate under Section 200 of the Cr PC make this clear, because in taking cognizance of an offence on complaint he must at once examine the

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CRL.P No. 4843 of 2018

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complainant upon oath and it is obvious that if there are two or more complainants on the same complaint it is physically impossible to fulfil the provisions of that section."

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Similarly the Co-ordinate Bench of this Court in the case of Parijanashram Swamiji supra has held that a joint complaint is not envisaged in the code of criminal procedure. In the instant case, the complaint was filed jointly arising out of different cause of action. Hence, the joint complaint filed was not maintainable.

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In view of the preceding analysis, the dispute between the parties being civil in nature, continuation of the criminal proceedings will be an abuse of process of law, since the conviction of the petitioners is remote and bleak. Accordingly, I pass the following

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ORDER

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a. Criminal petition allowed.

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b. The impugned proceedings in CC.No.6037/2018 pending on the file of VII Additional Chief Metropolitan Magistrate, Bengaluru Rural District, Bengaluru, hereby is quashed.

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Sd/JUDGE

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BKM/DS

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List No.: 1 Sl No.: 6

T Shantharaju v. State of Karnataka

Case brief

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T Shantharaju v. State of Karnataka

Case brief

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