Bhimashi and Ors. Vs Muttappa

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C.(OLD)/UNDER SECTION 528 OF BNSS, 2023 (NEW), PRAYING TO, QUASH THE ENTIRE PROCEEDINGS PENDING IN C.C. NO.2851/2024 (PRIVATE COMPLAINT NO.75/2024) THE COURT BELOW HAS TAKEN THE COGNIZANCE OF OFFENCES PUNISHABLE UNDER SECTIONS 448, 323, 324, 504, 506 READ WITH SECTION 34 OF IPC, ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, VIJAYAPURA AT VIJAYAPURA.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S RACHAIAH

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE S RACHAIAH)

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The petitioners are before this Court seeking to

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quash the entire proceedings in C.C.No.2851/2024 (Private Complaint No.75/2024), pending before the II Additional Civil Judge and JMFC, Vijayapur.

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The factual matrix of the case are as under:

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The complainant, Muttappa S/o Yesu Tambe is the owner of VPC No.338 measuring 5300 square feet situated at Khilarhatti, Taluk. It is stated that the accused, who are the petitioners herein stated to have obstructed possession and enjoyment of the property of the

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complainant. Being aggrieved by the same, the complainant filed a suit against the petitioners in O.S.No.744/2019 and the said suit has been decreed in favour of the complainant on 05.08.2023. In spite of the Court decree, the petitioners colluding with other Goondas, trespassed into the property on 15.01.2024 at about 11-00 a.m. and threatened the complainant and tried to encroach the said property by putting up a temporary shed. The complainant objected the said construction. At that time, the petitioners have assaulted the complainant. Immediately, after the incident, the complainant approached the Bableshwar Police Station and lodged a complaint. However, the authorities of the said Police Station have refused to take the complaint. Therefore, a private complaint came to be filed before the learned Magistrate. The Trial Court after registering the complaint, took cognizance and issued summons to the petitioners. Being aggrieved by the same, they are before this Court seeking to quash the proceedings in C.C.No.2851/2024.

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Heard Sri Bapugouda Siddappa, learned counsel

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for the petitioners and Sri Inamdar Mehboob Pasha Jeelani Pasha, learned counsel for the respondent.

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It is the submission of the learned counsel for the petitioners that the complainant deliberately with an ulterior motive and also to take vengeance against the petitioners, converted the civil dispute into a criminal case and also trying to coerce the petitioners to get the civil suit resolved. It is further submitted that the petitioners are the innocent of the alleged offences. Though the complainant filed a private complaint stating that he had been assaulted, no wound certificate is produced to demonstrate that he sustained injuries. The cognizance taken by the Trial Court against the petitioners for the offences punishable under Sections 323 and 324 of IPC is contrary to the material. Therefore, at this stage, it is appropriate to quash the proceeding.

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Per contra, learned counsel for the respondent

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submitted that it is an admitted fact, that there is a civil dispute between the petitioners and respondent. It is also an admitted fact that the respondent had obtained decree in his favour as against the petitioners. However, the petitioners tried to encroach the land of the respondent by putting up construction and when it was questioned, the complainant had been assaulted. Therefore, he lodged a private complaint. Since the Trial Court has taken cognizance and proceeding with the case, interference with the said proceedings at this stage is not proper and the matter requires full fledged trial. Making such submissions, he prays to dismiss the petition.

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Having heard the learned counsel for the respective parties and also perused the averments of the complaint, now, it is relevant to refer the dictum of the Hon’ble Supreme Court in the case of Mitesh Kumar J.

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Sha Vs. The State of Karnataka and others reported in

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(2022) 14 SCC 572. The relevant paragraphs of the said case read as under:

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“38. The dispute between the parties, could at best be termed as one involving a mere breach of contract. Now, whether and what, is the difference between a mere breach of contract and an offence of cheating has been discussed in the ensuing paragraphs.

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Whether sale of excess flats even if made amounts to a mere breach of contract?

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This Court in the case of Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr.6, has observed:-

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“15. ….that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the

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intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise…”

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(2000) 4 SCC 168

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Applying this dictum to the instant factual matrix where the key ingredient of having a dishonest or fraudulent intent under sections 405, 419 and 420 is not made out, the case at hand, in our considered opinion is a suitable case necessitating intervention of this Court.

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Whether the dispute is one of entirely civil nature and therefore liable to be quashed?

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Having considered the relevant arguments of the parties and decisions of this court we are of the considered view that existence of dishonest or fraudulent intention has not been made out against the Appellants. Though the instant dispute certainly involves determination of issues which are of civil nature, pursuant to which Respondent No. 2 has even instituted multiple civil suits, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour. As has been rightly emphasised upon by this court, by way of an observation rendered in the case of M/s Indian Oil

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Corporation Vs. M/s. NEPC India Ltd & Ors.7, as under :-

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“14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such

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(2006) 6 SCC 736 misconceived criminal proceedings, in accordance with law.”

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It was also observed:-

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“13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors….There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though

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criminal prosecution should be deprecated and discouraged.”

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On careful reading of the dictum of the Hon’ble

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Supreme Court, makes it clear that ‘criminal proceedings are not a shortcut of other remedies available in law’. In

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the present case, it is an admitted fact that, the complainant had obtained a decree. Though the complainant had filed a private complaint, the fact remains that he had not produced any documents to show that the incident had occurred as on the alleged date. Even though

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it is stated that he had been assaulted, no wound certificate is produced to substantiate the provisions of Sections 323 and 324 of IPC. Even on reading of the entire complaint, prima facie it appears that the said complaint had been filed by the complainant with a malafide intention to take vengeance against the petitioners. Therefore, it is appropriate to exercise inherent jurisdiction to quash the proceedings. Hence, I proceed to pass the following:

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ORDER

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(i) The Criminal Petition is allowed.

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(ii) The entire proceedings in C.C.No.2851/2024 (Private Complaint No.75/2024), for the offences punishable under Sections 448, 323, 324, 504, 506 read with Section 34 of IPC, pending on the file of the II Additional Civil Judge and JMFC, Vijayapur as against the petitioners is quashed.

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Sd/(S RACHAIAH) JUDGE

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RSP List No.: 1 Sl No.: 36 CT:PK

Bhimashi and Ors. v. Muttappa

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Bhimashi and Ors. v. Muttappa

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