C Moideen Farhad @ Moideen Farhad Chunge Vs Mr Abdulla Udyavar Bellikunhi

C MOIDEEN FARHAD @ MOIDEEN FARHAD CHUNGE S/O LATE ABDUL RAHIMAN AGED ABOUT 51 YEARS ADDRESS-FATHIMAH MANZIL UDYAVARA VILLAGE AND POST MANJESHWAR TALUK KASARGOD DISTRICT-574241

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…PETITIONER

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Digitally signed by REKHA R Location: High Court of Karnataka

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(BY SRI. AAMIR AFIF MEHEFOOZ., ADVOCATE)

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AND:

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MR ABDULLA UDYAVAR BELLIKUNHI S/O LATE U BELLIKUNHI AGED ABOUT 65 YEARS ADDRESS-NO.1010 IVORY TOWERS, S L MATHIAS ROAD MANGALURU-574241

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THE STATE OF KARNATAKA REP BY STATION HOUSE OFFICER CYBER, ECONOMIC & NARCORTICS CRIME POLICE STATION, KULOOR FERRY ROAD, URWA, MANGALURU-575006.

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NC: 2025:KHC:24619 WP No. 9800 of 2023 C/W CRL.P No. 2116 of 2023

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HC-KAR

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…RESPONDENTS

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(BY SRI. NISHIT KUMAR SHETTY., ADVOCATE FOR R-1; SRI. VENKAT SATYANARAYAN.A., HCGP FOR R-2)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUITON OF INDIA., PRAYING TO CALL FOR RECORDS AND QUASH OF THE FIR IN CRIME NO 98/2022 FOR AN ALLEGED OFFENSES UNDER SECTION 406,409,420 AND 34 OF IPC 1860(ANNX-C) WITHALL THE SUBSEQUENT AND CONSEQUENTIAL ORDER PROCEEDING ARISING THERE FROM PEDING ON THE FILES OF THE II ADDL SENIOR CIVIL JUDGE AND CJM MANGALURU CITY (ANNX-C) IN SO FAR AS PETITIONER IS CONCERNED ONLY, ETC.

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IN CRL.P NO. 2116/2023:

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BETWEEN:

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SRI. MOHAMMED ABDUL MAJEED AGED ABOUT 49 YEARS, S/O MOHAMMAD SALIH, R/AT FATHIMAS, PACHAKKAD, ANANGOOR, KASARSGOD TALUK AND DIST. PRESENTLY R/AT EXOTIC APARTMENTS, COLLECTOR GATE JUNCTION, BENDOORWELL, MANGALURU 575002

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...PETITIONER

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(BY SRI. HAREESH BHANDARY T., ADVOCATE)

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AND:

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STATE BY CEN (CYBER, ECONOMIC AND NARCOTICS) CRIME POLICE STATION MANGALURU REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA, BENGALURU 560001

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MR ABDULLA UDYAVAR BELLIKUNHI AGED ABOUT 65 YEARS,

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NC: 2025:KHC:24619 WP No. 9800 of 2023 C/W CRL.P No. 2116 of 2023

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HC-KAR

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S/O LATE U BELLIKUNHI, R/AT NO 101, IVORY TOWERS, S.L MATHIAS ROAD, MANGALURU 575001

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...RESPONDENTS

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(BY SRI. VENKAT SATYANARAYAN.A., HCGP FOR R-1; SRI. NISHIT KUMAR SHETTY., ADVOCATE FOR R-2)

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THIS CRL.P IS FILED UNDER SECTION 482 CR.PC BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO QUASH THE FIR IN CRIME NO.98/2022 REGISTERED FOR THE OFFENCE PUNISHABLE UNDER SECTION 406, 409, 420 READ WITH SECTION 34 OF IPC PENDING ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND CJM MANGALURU, D.K, ETC.

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THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MS. JUSTICE J.M.KHAZI

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ORAL ORDER

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These petitions are filed under Section 482 of Cr.P.C to

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quash the criminal proceedings in Cr.No.98/2022 of CEN crime police station, Mangaluru for the offences punishable and Sections 406, 409, 420 and 34 of IPC.

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While Crl.P.No.2216/2023 is filed by accused No.1, W.P.No.9800/2023 is filed by accused No.2.

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For the sake of convenience, parties are referred to by their ranks before the trial Court.

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HC-KAR

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Based on the complaint filed by the complainant, the CEN police, Mangaluru have registered the case in Cr.No.98/2022, for the offences punishable under Sections 406, 409, 420 r/w 34 of IPC. The complaint reveal that accused No.1 is no other than the son-in-law of sister of complainant. He was residing in the flat belonging to the complainant at Retreat Apartments, Mangaluru. Since he is a close relative, complainant used to rely on him whenever his help was needed. Complainant and all the accused are hailing from Kerala. Accused Nos.1, 3 and 4 are known to the complainant. In fact, complainant and accused No.2 are residing at Dubai in connection with their work and as such knowing each other. Complainant wanted to settle in Kerala after his retirement and wanted to purchase a property in Udyavara Village of Manjeshwara Taluk and accused No.1 was aware of it.

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4.1 During June/July, accused No.1 informed the complainant that accused No.2 is intending to sell 1.01 acres of agriculture land in Udyavar village. In this regard, complainant and accused No.2 met each other at the

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complainant residence and accused No.2 offered to sell the said land for ₹2,84,82,000/- and requested for payment of advance as he was in need of funds to get his equipments released from the custom authorities and that the agreement would be prepared as soon as he reach his hometown. Accordingly, complainant paid ₹25 lakhs through cheque and accused No.2 encashed the same.

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4.2. Since complainant could not go to India due to personal inconvenience, accused No.1 suggested that an agreement could be executed in his name and sale deed could be executed in the name of complainant. Since accused No.1 is his close relative, complainant agreed for the same and accordingly agreement dated 30.07.2014 came to be executed. Later, at the request of accused No.2, complainant paid ₹2,00,000/-. On 09.08.2014 at Mangaluru in his residence, complainant paid ₹25 lakhs in cash to accused No.2 as part of the sale consideration. However, accused No.2 failed to handover original documents for verification and avoided meeting. complainant till he returned to UAE.

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4.3. Complainant also made further payments of ₹50 lakhs through cheques and in cash withdrawn from his account as well as from the account of his wife. On the request of accused No.2, complainant deposited ₹15 lakhs into the account of accused No.2 and these payments are confirmed through WhatsApp messages. Further complainant deposited ₹50,000/and on 30.10.2014 deposited ₹3,26,200/-, on 27.12.2014 ₹6,07,950/- and on 29.12.2014 ₹3,23,280/-.

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4.4. By 22.01.2015, the complainant had made total payment of ₹1,45,75,770/- which is more than 50% of the sale price. In the last week of January 2014, when complainant visited India, through accused No.1, he conveyed to accused No.2 that he is ready to pay the balance and get the sale deed registered. However, accused No.2 did not cooperate by giving trivial and filmy reasons. He avoided communicating with the complainant. Therefore, complainant had to go back to Dubai on 09.02.2015 without meeting accused No.2. Thereafter, accused No.2 avoided the calls from complainant. Even accused No.1 was also not

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cooperating. Due to all these, complainant suffered ill health due to stress and strain.

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4.5. During June 2017, accused No.2 met the complainant and his wife at Dubai and demanded ₹4,00,00,000/- as the price for the sale. Complainant did not agree for the unreasonable demand of accused No.2. After sometime accused No.2 agreed to renew the agreement and accordingly on 05.08.2017, a further agreement was made and complainant made payment of ₹50 lakhs through accused No.1. Complainant made payment of AED ₹35,000/each on 25.10.2017 and 26.10.2017 and amount of ₹12,36,200/- by depositing into the account of accused No.2. On the urgent request of accused No.2, he deposited AED ₹50,000/- equivalent of ₹8,84,500/- into the account of accused No.2 through cheque. Thus, in all complainant has paid ₹2,40,00,000/-.

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4.6. However, when complainant requested accused Nos.1 and 2 to execute the sale deed by receiving the balance consideration, they did not co-operate. On the other hand

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accused No.1 in whom complainant reposed trust and faith colluded and ganged up with accused No.2 and started behaving in a hostile manner. Complainant came to know that accused No.2 was looking for other prospective buyers and openly started canvassing for the same. In this regard he issued notice in the Kannada and Malayalam version of Karavali Daily Newspapers, cautioning general public from entering any deal with accused Nos.1 and 2 with regard to the said property.

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4.7. However, on 29.01.2021 accused No.2 with the help of accused No.1 has fraudulently transferred the property in question in favour of accused Nos.3 and 4 for Rs.16,00,000/- and duped and defrauded the complainant. Now they are actively marketing to sell the property at a substantially higher price to third parties. Later complainant came to know that accused Nos.1 to 3 are having criminal antecedents. Accused Nos.2 and 3 are having criminal cases registered against them and hence the complaint.

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NC: 2025:KHC:24619 WP No. 9800 of 2023 C/W CRL.P No. 2116 of 2023

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Accused No.1 is seeking quashing of criminal proceedings on the grounds that the initiation of criminal proceedings is highly illegal, arbitrary and liable to be quashed. It amount abuse of process of Court. The CEN police station is not having the jurisdiction to investigate the complaint. Complainant has filed O.S.No.27/2021 for specific performance. It is a civil dispute trying to be given a colour of criminal case. Even if the entire compliant is taken into consideration, no prima facie case is made out.

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Accused No.2 is seeking quashing of criminal proceedings contending that the registering of the case is in violation of the directions given by Hon'ble Supreme Court in Lalitha Kumari 's case. A civil dispute is given the colour of criminal complaint. There is no connection between accused No.1 and the other accused and pray to quash the criminal proceedings initiated against him.

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In support of his arguments, learned counsel representing accused has relied upon the following decisions:

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(i) Mithesh Kumar J Vs. State of Karnataka ( Mithesh Kumar J )¹

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(ii) R.Nagender Yadav Vs. The State of Telangana and Anr. ( R.Nagender Yadav )²

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(iii) Vijay Kumar Ghai and Ors. Vs. State of West Bengal and Ors.³

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(iv) Sarabjith Kaur Vs. The State of Punjab and Anr. ( Sarabjith Kaur )⁴

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(iv) Naresh Kumar and Anr. Vs. State of Karnataka and Anr. ( Naresh Kumar J )⁵

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On the other hand learned counsel representing complainant and learned High Court Government Pleader representing State would submit that accused No.1 is no other than the son-in-law of sister of complainant. Both complainant and accused No.2 are working in Dubai. Complainant want to settle in his native place in Kerala. Through accused No.1 he came to know that property belonging to accused No.2 situated in Udyavara Village of Manjeshwara Taluk, Kerala is available for sale. Since accused No.2 was proceeding to India and complainant was not immediately going to India, they entered into an agreement

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1 AIR 2021 SC (Crl)1485

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2 2022 Live Law (SC) 1030

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3 (2022) 7 SCC 124

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4 2023 Live Law (SC) 157

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5 (2024) 3 SCR 740: 2024 INSC 196

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in the name of accused No.1 with an understanding that sale deed would be executed in the name of complainant. With this understanding, complainant has made various payments in a total sum of Rs.2,40,00,000/- in installments.

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However, after receipt of these payments, both accused Nos.1 and 2 did not co-operate with the complainant to execute the sale deed and in the meanwhile complainant came to know about the attempts made by accused No.2 to sell the property to other persons. Hence he issued notices in the newspaper. Despite the same, accused Nos.1 to 4 have colluded together and the property is sold for paltry sum of Rs.16 lakhs. However, when complainant confronted accused No.3 and 4 and came to know that even though the sale is made in their favour for Rs.3.5 Crores, in the sale deed, the sale consideration is shown as Rs.16 lakhs. In the light of these developments, the complainant filed the complaint. In fact this Court refused to grant anticipatory bail to accused No.1 with an observation that a detailed investigation is required. Even though the complainant has filed suit for specific performance of contract, the conduct of accused

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persons also amount to criminal offence. A prima facie case is made out against all the accused persons, including the petitioners. A thorough investigation is required to unearth the truth and pray to dismiss the petitions.

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In support of his arguments learned counsel for

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complainant has relied upon the following decisions:

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(i) Union of India and Ors. Vs. B.R.Bajaj and Ors. ( B.R.Bajaj )⁶

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(ii) Dineshbai Chandubai Patel Vs. State of Gujarath and Anr. ( Dineshbai Chandubai Patel )⁷

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(iii) Skoda Auto Volkswagen Vs. State of Uttar Pradesh ( Skoda Auto Volkswagen )⁸

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(iv) Punith and Anr. Vs. State of Karnataka ( Punith )⁹

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Heard arguments and perused the record.

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12. In Dineshbhai Chadubai Patel , referred to

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supra, the Hon'ble Supreme Court held the circumstances in

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which the inherent power of the High Court are required to be

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6 (1994) 2 SCC 277

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7 (2018) 3 SCC 104

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8 (2021) 5 SCC 795

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9 Crl.P.No.7585/2021

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exercised, wherein it is held that the High Court may examine whether FIR disclose any prima facie case and it cannot act like a investigating agency nor can exercise powers like an Appellate Court.

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In B.R.Bajaj , referred to supra, when the allegations in the FIR disclose prima facie commission of a cognizable offence and where several aspects of FIR still to be investigated by the police, the High Court erred in quashing the FIR.

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In Skoda Auto Volkswagen, referred to supra, criminal complaint by a purchaser and NGT related proceedings are independent and distinct actions and both can be pursued.

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In the light of the ratio of the above decisions, this Court is required to examine whether a prima facie case is made out requiring investigation or it is a case of civil dispute being given a colour of criminal proceedings.

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From the material placed on record, it is evident that accused No.2 being the owner of property measuring 1 acre 1 gunta in Sy.No.R.A.20/8B situated at Udyavara offered to sell it to complainant. Since complainant was working at Dubai and was not able to come to India, the sale agreement dated 30.07.2014 was entered into between accused Nos.1 and 2 with an understanding that sale deed would be executed in favour of complainant. The complainant has paid in all a sum of Rs.2,40,00,000/-, in cash, through bank transfer and also through accused No.1. The sale agreement dated 30.07.2014 was renewed on 05.08.2017 in the form of further agreement. However, after collecting exorbitant sum of Rs.2,40,00,000/-, accused No.2 has sold the same in favour of accused Nos.3 and 4. Though according to accused Nos.3 and 4 the said sale was made for a total sum of Rs.3,50,00,000/-, in the sale deed the sale consideration is shown as Rs.16 lakhs.

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There are specific allegations that despite receiving Rs.2,40,00,000/- and complainant was ready to pay the balance and get sale deed, the accused persons have cheated

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him by entering into sale transaction. The serious allegations made in the complaint are required to be investigated. Since the part of transaction took place at Mangaluru and complainant and accused Nos.1 and 2 are residents of Mangaluru, the CEN police have jurisdiction to investigate the matter. Having regard to the facts and circumstances of the case, decisions relied upon accused are not applicable to the case on hand.

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In the above facts and circumstances, this is not a case for quashing the criminal proceedings in a petition under Section 482 Cr.P.C.

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In the result petitions fail and accordingly, the following:

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ORDER

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(i) Crl.P.No.2116/2023 filed by accused No.1 under Section 482 of Cr.P.C and W.P.No.9800/2023 filed by accused No.2 under Articles 226 and 227 r/w Section 482 of Cr.P.C are hereby rejected.

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