Karnataka High Court
Shri Krishna Prakash Kamat vs The State Of Karnataka on 13 April, 2023
1 CRL.P.No.100651/2017
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 13TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL PETITION No.100651/2017
BETWEEN:
1. SHRI KRISHNA PRAKASH KAMAT,
AGE: 33 YEARS,
OCC: CHARTERED ACCOUNTANT,
R/O: "AASHARAYA EMPIRE"
RPD CROSS, TILAKAWADI,
BELAGAVI.
2. SHRI KIRAN RAIBAGI,
AGE: 42 YEARS,
OCC: BUSINESS,
R/O: "AASHARAYA EMPIRE"
RPD CROSS, TILAKAWADI,
Digitally signed by
BELAGAVI.
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: HIGH
COURT OF
KARNATAKA
DHARWAD
3. SHRI VENKATESH HISHABAKAR,
AGE: 60 YEARS,
OCC: BUSINESS,
R/O: "AASHARAYA EMPIRE"
RPD CROSS, TILAKAWADI,
BELAGAVI.
4. SHRI VIJAY ANGOLKAR,
AGE: 51 YEARS,
OCC: BUSINESS,
2 CRL.P.No.100651/2017
R/O. "AASHARAYA EMPIRE"
RPD CROSS, TILAKAWADI,
BELAGAVI.
...PETITIONERS
(BY SRI SOURABH HEGDE AND
SRI SHREEVATSA HEGDE, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY THE HIGH COURT,
BUILDINGS, DHARWAD BENCH.
2. THE INSPECTOR OF POLICE,
TILKAWADI POLICE STATION,
BELAGAVI.
3. SHRI SUSHILKUMAR KHOKATE,
AGE: 46 YEARS, OCC: BUSINESS,
R/O. 3 F1 ANDF3, "AASHARAYA EMPIRE"
RPD CROSS, TILAKAWADI,
BELAGAVI.
...RESPONDENTS
(BY SMT.GIRIJA S HIREMATH, HCGP FOR R1 AND R2
SRI K.S.PATIL, ADVOCATE FOR R3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO QUASH THE COMPLAINT AND
FIR IN TILAKAWADI P.S. CRIME NO.47/2017 REGISTERED BY
THE TILAKAWADI POLICE, BELAGAVI FOR OFFENCE 341,
420, 426, 506 R/W 34 OF INDIAN PENAL CODE.
THIS PETITION HAVING BEEN HEARD AND RESERVED
ON 24.03.2023, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
3 CRL.P.No.100651/2017
ORDER
The petitioners who are arraigned as accused Nos.1 to 4 are before this Court in petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') with a prayer to quash further proceedings in Crime No.47/2017 of Tilakwadi, Police Station for the offences punishable under Sections 341, 420, 426, 506 R/w Section 34 of Indian Penal Code (for short, 'IPC').
2. It is the case of the petitioners that they are the office bearers of the Associations of Owners/Occupiers of "Aasharaya Empire" apartments. There are 67 tenements (flats). Respondent No.3 and his father owns three flats in the said apartment. Respondent No.3 runs an institute in the name of Sikkim Manipal University. Respondent No.3 always making trouble and failed to pay the minimum maintenance amount and the electricity consumption charges to the associations. On account of his refusal to pay the 4 CRL.P.No.100651/2017 maintenance and electrical charges, the owner and occupiers of other tenements are forced to share the said expenses. Respondent No.3 has not paid maintenance charges since 2012 and electricity charges since January-2016.
2.1 Consequently, a resolution was passed by the association of the owners to withhold the electric supply to his flats. The electricity consumed by each apartment would be calculated as per the separate meters. They would be collected by the apartment's owners and deposited to the HESCOM. Since respondent No.3 failed to pay the electricity charges and maintenance charges, the electricity supplied to his apartments was withheld on 20.01.2017.
2.2 Infuriated by the same, high handedly he brought the police and got the same reconnected in an unsafe manner. He has also filed a false complaint against the petitioners. In order to oblige respondent 5 CRL.P.No.100651/2017 No.3, the concerned police have registered the case and issued notices to the petitioners. The petitioners have offered their explanations by submitting several documents. Despite the same, the concerned police are continuing with the investigation. Aggrieved by the same, petitioners have filed this petition on the following among other grounds.
i) The action of Respondent Nos.1 and 2 in entertaining a complaint without substance and registering a FIR on the basis of a baseless complaint is contrary to the principles enunciated and the directives issued by the Hon'ble Apex Court in the case of Lalita Kumari.
ii) The 2nd Respondent ought not to have registered FIR on the basis of the complaint as the complaint does not disclose any information with regard to any commission of cognizable offence and therefore there is failure on the part of the 2nd 6 CRL.P.No.100651/2017 Respondent in not adhering to provisions of Section-154 of Cr.P.C.
iii) The complaint contains only grievances with respect to the inconvenience suffered by the complainant on account of the action initiated by the petitioners in the capacity of the office bearers of the association of owners and does not qualify as a complaint for want of any offence having been committed against him.
iv) The petitioners in response to the notices dated 21.03.2017 and 25.03.2017 appeared before the 2nd Respondent along with all the owners/occupiers of various tenements in the said apartment and submitted a written clarification/reply to the queries raised by the 2nd Respondent with the support of documents on two dates 26.03.2017 and 27.03.2017 respectively. 7 CRL.P.No.100651/2017
3. The action of Respondent Nos.1 and 2 in entertaining the complaint without substances and registering the FIR is contrary to the court and judgment of the Hon'ble Apex Court in the case of Lalita Kumari vs. State of Uttar Pradesh & Others1 (Lalita Kumari). The allegations made in the complaint does not disclose any cognizable offences. Complaint is a deliberate attempt on the part of respondent No.3 to convert a plausible civil action into criminal action to exhort unlawful pressure on the petitioners to submit to his will. It is nothing but victimization. It is a classic case of abuse of process of the Court and deserves to be interfered by this Hon'ble Court. In fact, a common explanation given by all the owners/occupiers by various tenements. The allegations made in the complaint does not constitute any of the offences and prays to allow the petition.
1 (2014) 2 SCC 1 8 CRL.P.No.100651/2017
4. Respondent No.3 has appeared through the counsel and filed objections stating that the petition is not maintainable. Petitioner No.3 is a builder and he has developed "Aasharaya Empire" building. Now calling himself as a secretary of the "Aasharaya Empire" owners associations, Petitioner No.1 initially he did not allow an association to be formed. Only after respondent No.3 issued notice of legal course, association was formed. Petitioner No.2 does not own any apartment in the said building and as such he cannot even be a member of the society.
4.1 Petitioner No.3 started encroaching the common passage by constructing shops and rented them out. It is illegal and dangerous in the event of emergency. He has continued to construct public toilet in the common passage creating nuisance to the apartment owners. The inmates are forced to walk on the toilet leakage to approach the parking. Petitioner 9 CRL.P.No.100651/2017 No.2 has completely blocked the access to the terrace as a result of which, none of the apartments owners/occupiers are able to use the common terrace. Petitioners have also installed a mobile tower on the terrace and blocked the entrance. From 10 illegal shops constructed in the common place, petitioner No.3 is pocketing lakhs of rupees.
4.2 This was resisted by respondent No.3. He has approached the Commissioner City Municipal Corporation. The Commissioner has passed order for demolition of the illegal construction as per the provision of Section 321 (3) of the Karnataka Municipal Corporation Act, 1976. The Miscellaneous Appeal filed by petitioner No.3 against the said order before the learned II Additional District Judge, Belagavi is dismissed upholding the demolition order. Petitioner No.3 has not challenged the same. However, due to political influence, the order is not allowed to be executed. 10 CRL.P.No.100651/2017
5. Respondent No.3 has also resisted petitioner No.3 being proclaimed as secretary. In order to get rid of respondent No.3, petitioners hatched a plan and stopped issuing electricity bill from January-2016. Ultimately, the association has issued notice to respondent No.3 to pay arrears of electricity bill. When he issued a cheque towards payment of the amount, it was refused to be received. Therefore, he has sent it by post. In the meanwhile, petitioners have also disconnected electricity on 17.02.2017 without any authority. The petitioners gave threat to the life of respondent No.3. Therefore, without any alternative he filed the complaint. Based on the complaint, though case is registered, the investigation is not continued on account of the stay order. The allegations made in the complaint requires to be investigated. Disputed fact cannot be decided in a petition under Section 482 of Cr.P.C. and prays to dismiss the petition. 11 CRL.P.No.100651/2017
6. Heard the arguments and perused the records.
7. From the material placed on record, it is evident that petitioners and respondent No.3 are the owners/occupiers of apartments in "Aasharaya Empire"
apartment. Petitioners claimed to be the office bearers of the association, which respondent No.3 dispute. He has alleged that some of the petitioners have made constructions of shops in the common area and rented out to various persons, a mobile tower is also installed in the terrace and entrance to the terrace is blocked and thereby preventing respondent No.3 and other owners/occupiers of the apartment from using the terrace. Based on these allegations, respondent No.3 has approached the Belagavi Municipal Corporation and in fact a demolition order is passed by the Commissioner. The Miscellaneous Appeal No.37/2006 filed against the said order by the association is 12 CRL.P.No.100651/2017 dismissed by the learned II Additional District Judge, Belagavi.
8. On the other hand, the material placed on record by the petitioners also indicate that respondent No.3 and his father are owners of three apartments in the said complex and they are running an institution by name Sikkim Manipal University. It is alleged that, respondent No.3 failed to pay the maintenance and electricity charges every month or one or the other pretext and it forced to owners/occupiers of other apartment to share the said expenses. Ultimately, when the owners/occupiers started protesting and threatening not to pay maintenance charges and electricity charges, notices were issued to respondent No.3 calling upon him to pay the arrears due towards maintenance and electricity charges.
9. On the other hand, respondent No.3 alleges that intentionally petitioners failed to collect electric 13 CRL.P.No.100651/2017 charges and maintenance charges every month and ultimately under the said pretext, they disconnected the electric connection to his apartments. The petitioners have alleged that though the disconnection was made in accordance with the by-laws, respondent No.3 who is having connection with the higher police officers has managed to get the electricity reconnected illegally, which may cause threat to the safety of the entire building. The notices issued to respondent No.3 reveal that he was due in sum of Rs.33,900/- towards maintenance and Rs.13,697/- towards electric charges as on 20.01.2017. Respondent No.3 has sent reply to the notice on 01.02.2017 and has enclosed a cheque for Rs.29,853/- under protest.
10. Perusal of the exchange of notice between the parties makes it evident that respondent No.3 has failed to pay the maintenance charges and electricity charges. He has also initiated action against the 14 CRL.P.No.100651/2017 association for demolition of the illegal constructions made in the common area and a demolition order has been passed by the Belagavi Corporation. Thus, the dispute between petitioners and respondent No.3 is clearly a civil in nature. It appears to pressurise the petitioners, he has chosen to file a criminal complaint. Instead of taking action under the Karnataka Apartment Owners Act, 1972, he has chosen to file the complaint. Despite issuing notice and getting the reply from the petitioners, the concerned police have registered the case and initiated criminal action against the petitioners. Since, the dispute between the parties is purely civil in nature, the continuation of criminal proceedings would amount to abuse of the process of the Court.
11. Learned counsel for respondent No.3 has relied upon the decision of the Hon'ble Supreme Court in the case of State of Bihar vs. Murad Ali Khan and 15 CRL.P.No.100651/2017 Others2 (Murad Ali Khan) wherein the Hon'ble Supreme Court has held that Act may attract both criminal as well as civil liability. It is not in dispute that a single act may be both civil and criminal such as in a cheque bounce case, it may be a criminal liability under Section 138 of the Negotiable Instruments Act, 1881 as well as may give right to the complainant to recover the amount due under the said cheque in a suit. However, the facts of the present case does not attract any criminal liability. Complainant is at liberty to proceed against the petitioners under the civil liability and also under the provisions of the Karnataka Apartments Owners Act, 1972. He may also seek execution of the order passed by the Commissioner Belagavi, Municipal Corporation for demolition of the illegal construction made by the petitioners.
12. In support of his arguments, learned counsel for the petitioners has relied upon the order passed by 2 (1988) 4 SCC 655 16 CRL.P.No.100651/2017 the Co-Ordinate Bench of this Court in Sri Vilas Deore vs. State of Karnataka and Another3 (Vilas Deore) wherein the criminal proceedings were quashed on the ground that it is a civil dispute and does not attract the criminal liability. It is aptly applicable on the case on hand.
13. Thus, from the above discussions, I hold that the continuation of the criminal proceedings against the petitioners would amount to abuse of the process of the Court and as such it is liable to be quashed and accordingly, I proceed to pass the following:
ORDER Petition is allowed.
The impugned proceedings in Crime No.47/2017 of Tilakwadi, Police Station for the offences punishable under Sections 341, 3 Crl.P.No.4346/2022 dated 15.07.2022 17 CRL.P.No.100651/2017 420, 426, 506 R/w Section 34 of IPC, insofar as petitioner is concerned, is hereby quashed.
In view of disposal of the matter, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.
SD/-
JUDGE SSP CT-AK