Partly allowed

Smt Jayamma v. State of Karnataka

Karnataka HC5 Nov 2024WP/16561/2017

Case brief

AI extract

What is this about?

Petitioners summoned as additional accused under Section 319 CrPC in a cheating case sought quashing. The High Court held allegations must relate to the charge, which concerned only Yelahanka land; quashed summons against four petitioners and upheld summoning one who held power of attorney for accused No.1.

What did the court decide?

Summons against petitioner Nos.1, 2, 4 and 5 (accused Nos.2, 3, 5, 6) quashed; order adding petitioner No.3 as accused No.4 upheld.

Smt Jayamma Vs State of Karnataka — Quashing and FIR | Karnataka HC (2024)

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1 - NC: 2024:KHC:44458 WP No. 16561 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 16561 OF 2017 (GM-RES)

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BETWEEN:

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SMT. JAYAMMA, AGED ABOUT 64 YEARS, W/O CHANDRASEKHARAIAH S

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S.C. JAGADISH, AGED ABOUT 46 YEARS, S/O CHANDRASEKHARAIAH S

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NO.1 & 2 ARE R/AT #A305, SALARPURIA SATTVA LUXURIA TUMKUR MAIN ROAD, MALLESWARAM, BENGALURU - 560 012.

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Digitally signed by NANDINI B G Location: high court of karnataka

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S.C. KUMASWAMY, AGED ABOUT 53 YEARS, S/O CHANDRASEKHARAIAH S R/O 178, 4^TH B MAIN, 4^TH STAGE, 4^TH BLOCK, BASAVESWARA NAGAR, BENGALURU - 560 079.

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SUKUMARA SASTRY, AGED ABOUT 55 YEARS, SON-IN-LAW OF CHANDRASEKHARAIAH S

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SMT. KAVITHA, AGED ABOUT 47 YEARS, W/O SUKUMARA SASTRY, NO.4 AND 5 R/AT #39, 4^TH TEMPLE ROAD, MALLESWARAM, BENGALURU - 560 003 …PETITIONERS

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(BY SRI. RAJAT SUBRAMANYAM, HCGP FOR R1,

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SRI. J.T. GIREESHA, ADVOCATE FOR R2)

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AND:

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STATE OF KARNATAKA REPRESENTED BY STATION HOUSE OFFICER, YELAHANKA POLICE YELAHANKA, BENGALURU - 560 064

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BASAVARADHYA V.G. AGED ABOUT 57 YEARS, S/O GANGAIAH, # 29, 7^TH MAIN, N S PALYA, BTM 2^ND STAGE, BENGALURU - 560 076

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…RESPONDENTS

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(BY SRI. RAJAT SUBRAMANYAM, HCGP FOR R1

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SRI. J.T. GIREESHA, ADVOCATE FOR R2)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF CRIMINAL PROCEDURE CODE, PRAYING TO QUASH THE IMPUGNED ORDER PASSED IN C.C.NO.15405/2005 BY THE LEARNED CHIEF METROPOLITAN MAGISTRATE, BENGALURU, ON 5.12.2014 VIDE ANNEX-G AND AWARD COSTS.

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THIS W.P., COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA

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ORAL ORDER

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Petitioners who were arrayed as accused Nos.2 to 6 in CC No.15405/2005 as per the order dated 05.12.2014 passed by the learned Chief Metropolitan Magistrate, Bengaluru, are

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seeking to quash the criminal proceedings initiated against them.

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Brief facts of the case are that, respondent No.2 as complainant filed the private complaint in PCR No.3599/2004 against accused Nos.1 to 5 alleging commission of the offence punishable under Sections 420, 468, 471 and 506(2) R/w Section 34 of IPC. It is alleged by the complainant that accused No.1 was working as village accountant. He was having realestate dealings in the name of his wife, sons, son-in-law and daughter. Accused No.1 is the brother-in-law of the complainant and he induced the complainant and his colleagues to invest in the land in Sy.No.152 of Yelahanka village. He executed General Power of Attorney in favour of his sonaccused No.4. Accused Nos.1 to 4 took the complainant and his wife to the land in Yelahanka and induced the complainant to purchase a site. Accordingly, the complainant agreed to purchase the site and paid Rs.1,00,000/- to accused No.1 during May 1998. Later, the accused have shown a brochure pertaining to the land situated at Ramanagara, near Mysore road and promised to develop the same as a resort under the name of Aradhya Scientific Farms and Resorts International.

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They have shown the brochure, which was in the name of accused No.5, who is shown as Chairman M.D. and S.C.Kumaraswamy-accused No.4 as Director. Layout plan was also shown to the complainant.

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It is also contended by the complainant that the accused have also referred to the land situated at Kollegala and stated that they are developing it as Sahyadri Realtors and Developers Pvt.Ltd. They promised the complainant that they will gain huge profits by investing into the land. The brochure was standing in the name of accused No.3. It is the further contention of the complainant that all the accused took the complainant and his wife to the land in Mysore road and induced to invest in Yelahanka, Ramanagara and Kollegala property. They have given various options for investing the amount. Believing the words of accused, the complainant invested in the site and he in turn induced his colleges to invest the amount. Accordingly, his colleagues have also invested in the land. But later, accused No.1 who promised to register the sites in the name of the complainant and other investor started evading the complainant. In that regard a complaint was registered in Chikkajala police station. However, without

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registering the FIR a NCR was issued. It is stated that accused Nos.1 to 5 threatened the complainant with dire consequences. Accused Nos.1 to 4 have called the complainant over phone and criminally intimidated him. It is stated that accused No.5 is actively involved in commission of the offence. Therefore, the complainant requested the trial Court to take cognizance of the offence against all the accused and to initiate legal action.

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The trial Court referred the private complaint for investigation under Section 156(3) of Cr.PC. The police registered the FIR against accused Nos.1 to 5 for the above said offences and undertook investigation. After investigation, the charge sheet came to be filed against accused No.1 while dropping the names of other accused as there were no materials to substantiate their involvement. The trial Court took cognizance of the offence and registered CC No.15405/2005 against accused No.1. It is stated that the complainant is examined as PW1 and other witnesses as PWs.2 to 6. Thereafter, PW1 was recalled for further examination and an application under Section 319 of Cr.PC came to be filed by the learned Prosecutor. As per the impugned order dated 05.12.2014, accused Nos.2 to 6 are ordered to be impleaded

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and the said order is called in question by the petitioners who are arrayed as accused Nos.2 to 6.

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Heard Sri. G.Jairaj and Smt.Sanjeevini, learned counsels for the petitioners and Sri.Rajat Subramanyam, learned High Court Government Pleader for respondent No.1 and Sri. J.J.Gireesha, learned counsel for respondent No.2.

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Learned counsel for the petitioners contended that even though petitioner Nos.1 to 4 are arrayed as accused Nos.2 to 5 in the FIR, while filing the charge sheet, their names were dropped stating that no materials are found against them. PW1 was examined before the trial Court, even then he has not stated anything about the petitioners. However, after closing the evidence of all other witnesses, who have not spoken to about any of these petitioners, PW1 was again recalled, where he refers to the names of petitioner Nos.1 to 4. But still he has not referred to the name of petitioner No.5. But inspite of that the trial Court proceeded to pass the impugned order impleading all the accused without any basis.

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Learned counsel further submitted that the charge framed by the trial Court is only in respect of Sy.No.151/1-2 of

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Yelahanka village. But the allegations made by the complainant examined as PW1 is with regard to land situated at Ramanagara near Mysore and the land situated at Kollegala. Under such circumstances, the trial court could not have proceeded to summon these petitioners. The impugned order is passed without application of mind. Therefore, he prays for allowing the petition.

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Per contra, learned counsel for respondent No.2 opposing the petition submitted that specific allegations are made against all the accused in the private complaint. Even when PW1 was examined, he refers to the overt act committed by accused Nos.1 to 5. However, there is no reference to accused No.6, who is petitioner No.5. But since, there is reference to other accused, the impugned order is passed by the trial Court after considering the materials on record and it do not call for any interference. Accordingly, prays for dismissal of the petition.

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Learned HCGP for respondent No.1 submitted that

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the complainant has referred to the overt act committed by accused Nos.1 to 5. However, there is no reference to accused

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Nos.6 in the complaint. PW1 even though has not spoken to anything about the other accused when he was examined as PW1, he was recalled and further examined, where he has spoken to about the overt act committed by accused Nos.1 to 5. Learned HCGP concedes that as per charge the offence pertains to Sy.No.151/1-2 of Yelahanka village and not to the land situated at either Ramanagara or Kollegala. Since there is reference to accused No.4-S.C.Kumarasway as the Power of Attorney holder of accused No.1 in respect of land situated at Yelahanka, which is the subject matter of the petition, he should be arrayed as additional accused. Accordingly, he prays for passing the appropriate order.

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In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:

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“Whether the petitioners have made out any grounds to quash the criminal proceedings initiated against them?”

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My answer to the above point is 'Partly in the Affirmative’ for the following:

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R E A S O N S

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The complainant has filed the private complaint making allegations against accused Nos.1 to 5. Admittedly, there is no allegations against accused No.6, who is petitioner No.5 in the petition. The trial Court has also not given any reason to summon petitioner No.5 as accused No.6. Therefore, petition filed by petitioner No.5-accused No.6 is liable to be allowed.

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The complainant has made allegations against accused Nos.1 to 5 i.e., accused Nos.1 and petitioners Nos.1 to 4. The allegations pertain to land situated at Yelahanka, Ramangara and Kollegala. The copy of the charge framed by the trial Court is produced as Annexure-D. As per this document, there is reference only to the land situated at Yelahanka bearing Sy.No.152/1 and 151/2 and that accused No.1 induced CW1 and others to invest in the said property and to purchase the sites to be formed by accused No.1. Therefore, the charge never refers to the land situated at Ramanagara or Kollegala. The allegations in the complaint and the evidence of PW1 after recalling referred to the land situated at Ramanagara

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and Kollegala and also states that accused No.5 is the Chairman and accused No.4 is the Director to develop the land in Ramanagara. It is stated that accused No.3 is shown as the Director to develop the land in Kollegala. Since the charge framed by the trial Court do not refer either to the land in Ramanagara or Kollegala, such allegations cannot be considered to summon the additional accused by allowing the application under Section 319 of Cr.P.C.

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Regarding the land situated at Yelahanka bearing Sy.No.152/1-2, there is specific allegations against accused No.4, who is petitioner No.3 in the petition. The allegations are found both in the private complaint and in the evidence of PW1 when deposed before the Court. Since there is specific allegations against petitioner No.3/accused No.4, summoning him as additional accused No.4 cannot be termed as either illegal or perverse. The reasons assigned by the trial court to summon accused No.3 as petitioner No.4 will have to be upheld as it is supported by the allegations made against him in the private complaint and also the evidence of PW1. Hence, I am of the opinion that summoning petitioner No.3 as accused No.4 by the trial Court by passing the impugned order will have to be

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upheld while summoning the other petitioners as accused No.2, 3, 5 and 6 is to be set aside. Accordingly, I answer the above point partly in the affirmative and proceed to pass the following:

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ORDER

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Petition is allowed in-part .

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The impugned order dated 05.12.2024 passed in CC.No.15405/2005 on the file of the learned Chief Metropolitan Magistrate, Bengaluru, summoning petitioner Nos.1, 2, 4 and 5 as accused Nos.2, 3, 5 and 6 is quashed. However, the impugned order passed against accused No.3 arraying him as accused No.4 is upheld.

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Sd/(M G UMA) JUDGE

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List No.: 2 Sl No.: 17

Smt Jayamma v. State of Karnataka

Case brief

What is this about?

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Smt Jayamma v. State of Karnataka

Case brief

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