Bangalore District Court
Manish Rao vs Raghavareddy And Associates And Others on 18 April, 2024
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C.C.No.18065/2012
KABC030182562012
Presented on : 13082012
Registered on : 13082012
Decided on : 18042024
Duration: 11 years, 8 months, 5 days
IN THE COURT OF III ADDL. CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
Dated this Monday the 18th day of April, 2024
Present : Shreyansh Doddamani
III ADDL. C.M.M., BENGALURU.
C.C.No.18065/2012
State by : Sri.Manish Rao
S/o Late Dr.N.S.Bharath Kumar,
R/at No.102, Block II,
Royal Residency,
No.8, Brunton Road,
Bangalore - 560 025.
(Represented by Mahesh & Co,)
V/s
Accused 1. M/s.Raghava Reddy & Associates
Represented by its Managing Partner
Sri.K.Raghava Reddy.
2. Sri.K.Raghava Reddy
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C.C.No.18065/2012
Partner
M/s.Raghava Reddy & Associates
3. Sri.K.R.Kumara Reddy
S/o Sri.K.Raghava Reddy,
Partner
M/s.Raghava Reddy & Associates
4. Sri.K.R.Jayachandra Reddy
Partner
M/s.Raghava Reddy & Associates
R/at GF1, Block No.1,
(Royal Residency Apartments)
No.8, Brunton Road,
Bangalore560 025.
(Represented by H.R. Adv,)
Complainant Name : Sri.Manish Rao
Offences punishable 403, 506, 415, 417, 420, 423, 465,
under Section 468, 471, 120(B) of IPC
Date of Evidence 01.03.2014
Commencing
Date of Evidence Ending 11.03.2024
Charge Accused are pleaded not guilty
Final Order Accused are acquitted.
Judgment Date 18.04.2024
(Shreyansh Doddamani)
III Addl., Chief Metropolitan Magistrate.,
Bengaluru.
:: J U D G M E N T ::
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C.C.No.18065/2012 This case is arising out of private complaint bearing No.12849/2008 filed by the complainant by name Sri.Manish Rao S/o Late Dr.N.S.Bharath Kumar against the accused persons for their alleged commission of offences punishable under section 403, 406, 415, 417, 420, 423, 465, 468, 471 Read with section 120(B) of Indian Penal Code (Herein after called as IPC).
2. The prosecution case in nutshell is that one Dr.N.S.Jayanthi is the mother of complainant and one Late.N.Ramabi is the grand mother of the complainant. The grand father of complainant justice Sri. Late N.D.Krishna Rao purchased the site property bearing Municipal No.8/1 at Vasanthnagar Main Road, Bengaluru in the name of his wife Smt.Late N.Ramabai and his minor daughter Late.Dr.N.S.Jayanthi. Initially the said property was purchased by one Quadit Ali in the year 1961 from the Maharaja of Mysuru. It was bifurcated as 8/1 measuring 11120 sq. feet in favour of Late.N.Ramabai and property No.8/2 measuring 18676 Sq. feet in favour of Late.Dr.N.S.Jayanthi. The accused No.2 to 4 had approached 4 C.C.No.18065/2012 the complainant's mother and grand mother and family members and requesting for selling the property or enter into agreement for construction of commercial complex. Accordingly, the mother and grand mother and other family members of the complainant entered into two separate agreements dated 12.08.1987 individually in respect of said property. The accused persons were agreed to develop the property by putting up residential complex and to provide the part of it to the complainant's family. Accordingly, they agreed to complete the construction within 31.03.1990. At the same time separate power of attorney also executed in favour of accused No.2 and 3 on 12.08.1987. Thereafter, the complainant's grand mother died on 29.03.1992 and complainant's mother expired on 22.11.2003. The said fact was very well within the knowledge of the accused persons, but without any permission or consent of the legal representatives of deceased Smt.Dr.N.S.Jayanthi and Smt.N.Ramabai, without any right, title or interest, got executed sale deed on 28.09.1987 in favour of themselves i.e., accused No.1 firm by the accused No.2 to 4 on the basis 5 C.C.No.18065/2012 of GPA executed by deceased complainant's grand mother and mother. When it came to know to the complainant he issued legal notice on 11.10.2007 to the accused persons. The grand mother and mother of complainant had never given authority to sell the entire property. They had given power to construct the apartment and to obtain necessary permission to construct the apartment from concerned authorities. But the accused persons never performed their promise and never commenced the project as promised by them, but illegally got transferred the said property themselves and thereby committed above offences.
3. After registration of PCR this Court referred this matter to the Station House Officer of High Grounds Police Station for investigation under section 156(3) of Criminal Procedure Code. On the basis of intimation the Station House Officer of High Grounds Police Station registered FIR in Crime No.107/2008 and investigated the matter and submitted 'B' report by stating that the case is civil nature.
4. After submitting the 'B' report by the investigating officer, the complainant had filed protest petition to the 'B' 6 C.C.No.18065/2012 report and after hearing of both side after examination of complainant this court rejected the 'B' report and ordered to register the present case against the accused No.1 to 4 for the offence punishable under section 403, 406, 415, 417, 420, 423, 465, 468, 471 read with section 120(B) of IPC. Accordingly, this case has been registered.
5. The accused No.1 is the Firm M/s.Raghava Reddy & Associates represented by its Managing Partner and accused No.2 to 4 are the partners of the accused No.1 company. On the service of summons the accused No.2 to 4 appeared before the Court and obtained bail.
6. The copies of the complaint and other documents supplied to the accused persons as per section 207 of Criminal Procedure Code. This Court registered the evidence of complainant before charge. The complainant was examined as PW1 and got marked Ex.P1 to Ex.P15 documents. Thereafter, having heard both sides this Court had framed charges for the offence punishable under section 403, 406, 415, 417,420, 423, 465, 468, 471 read with section 120(B) of IPC. Having understood the charges read over and 7 C.C.No.18065/2012 explained by this Court the accused persons pleaded not guilty and claimed to be tried. Thereafter, on the basis of the application filed under section 259 and 216 of Criminal Procedure Code by the complainant this Court altered the charges for the offence punishable under section 406, 420, 423, 465, 468, 471 read with section 120(B) of IPC. Thereafter, the complainant has submitted the evidence before charge may be considered as a evidence after charge. Accordingly, evidence and cross examination of PW1 has been continued. Thereafter, the advocate for accused further cross examined PW1.
7. Incriminating circumstance has appeared against the accused persons in the prosecution evidence read over and explained to them. Having understood the same they have given their statement under section 313 of Cr.PC and same has been duly recorded by this court. The accused No.2 examined as DW1 and got marked Ex.D1 to Ex.D11 documents.
8. The Court heard the arguments on both side. The advocate for accused has filed list of authorities and 8 C.C.No.18065/2012 additional list of authorities. This Court perused the materials and list of authorities furnished by the accused.
9. The following points arise for court's consideration, POINTS
1. Whether the prosecution beyond reasonable doubts proves that, the accused persons made a criminal conspiracy to commit an offence punishable under sections 406, 420, 423,465, 468, 471 of IPC by entering into an agreement of sale with mother of complainant namely Late. Smt. N.S.Jayanthi and grand mother of complainant Late.Smt.Ramabai in respect of property bearing Sy.No.8/1 and 8/2 and after their death created the sale deeds on the basis of General Power of Attorney executed by deceased persons and thereby committed an offence punishable under section 120(B) of IPC?
2. Whether the prosecution, beyond reasonable doubt, proves that the accused persons entered into an 9 C.C.No.18065/2012 agreement of sale with mother of complainant namely Late.Smt.N.S.Jayanthi and grand mother of complainant Late.Smt.Ramabai in respect of immovable property bearing Sy.No.8/1 and 8/2 situated at Vasanthanagar and thereby agreed to construct the apartment and handed over to flats on or before 31.03.1990. But till today not complied as per agreement and not constructed any complex and after death of mother and grand mother of complainant by using General Power of Attorney executed on 12.08.1987 created the forged sale deeds and misused for their personal use and thereby committed an offence punishable under section 406 of IPC?
3. Whether the prosecution, beyond reasonable doubt, proves that the accused persons with an intention to cheat the mother and grandmother of complainant without constructing any commercial shop till their death and after their death by using the Power of Attorney dated 12.08.1987 created the false sale deeds and thereby cheated the 10 C.C.No.18065/2012 complainant and their family members and thereby committed an offence punishable under section 420 of IPC?
4. Whether the prosecution, beyond reasonable doubt, proves that the accused persons dishonestly or fraudulently signed on the sale deed on the basis of Power of Attorney dated 12.08.1987 after death of executants and created sale deed in their names in respect of immovable property bearing Sy.No.8/1 and 8/2 and thereby committed an offence punishable under section 423 of IPC?
5. Whether the prosecution, beyond reasonable doubt, proves that the accused persons even knowingly about death of grand mother of complainant namely Ramabai who died on 29.03.1992 and Smt.N.S.Jayanthi who died on 22.11.2003 by misusing the Power of Attorney executed by them on 12.08.1987 created the false sale deed on 28.09.2007 in favour of themselves and thereby committed an offence punishable under section 465 of IPC?
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C.C.No.18065/2012
6. Whether the prosecution, beyond reasonable doubt, proves that the accused persons with an intention to cheat the complainant and family members of the complainant even having knowledge of death of executants namely Smt.Ramabai and Smt.N.S.Jayanthi who died on 29.03.1992 and 22.11.2003 respectively, by using Power of Attorney executed by them on 12.08.1987, and created sale deed in their names and thereby committed an offence punishable under section 468 of IPC?
7. Whether the prosecution, beyond reasonable doubt, proves that the accused persons created sale deed dated 28.09.2007 and used the said sale deed as genuine and thereby committed an offence punishable under section 471 of IPC?
8. What order?
10. The court's answer to the above points is as follows;
Point No.1 : In the Negative.
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C.C.No.18065/2012 Point No.2 : In the Negative.
Point No.3 : In the Negative.
Point No.4 : In the Negative.
Point No.5 : In the Negative.
Point No.6 : In the Negative.
Point No.7 : In the Negative.
Point No.8 : As per final order.
REASONS
11. Point No.1 to 7: This case is arising out of the other than police report. It is the case of the prosecution that the grand mother and mother of the Complainant were the owners of the property bearing plot no.8/1 and 8/2 situated at Vasanthnagar Bengaluru. The accused persons had approached them for development. Accordingly, they entered into an agreement of sale dated 12.08.1987 and the grandmother and mother of complainant had executed two separate agreement of sale in favour of accused persons. On same day they had also executed General Power of attorney. But the accused had failed to perform as per agreement of sale. Meanwhile the Grand mother of complainant died on 13 C.C.No.18065/2012 29.03.1992 and the mother of complainant died on 22.11.2003. It was well within the knowledge of accused persons. But they have got executed sale deed in their favour on 29.08.2007 on the bases of General Power of attorney even after death of executants. The general power of attorney have no value after death of executants. Thereby the accused had dishonestly got transferred the valuable property and thereby committed above offences.
12. The accused have admitted the execution of power of attorney by the Late N.Ramabai W/o Krishnarao and Dr.N.S.Jayanthi D/o N.D.Krishna Rao dated 12.08.1987 in favour of accused No.1 M/s. Raghava Reddy and Associates. They have also admitted the execution of power of attorney by the Late.N.Ramabi and Dr.N.S.Jayanthi in favour of accused No.2 and 3 separately on 12.08.1987. But they have contended that after execution of said two separate agreement of sale by mother and grand mother of complainant dated 12.08.1987, the income tax authority was initiated proceedings, during the pendency of the income tax proceedings the said Smt.N.Ramabai and Dr.N.S.Jayanthi 14 C.C.No.18065/2012 executed supplementary agreements, wherein they had agreed to cooperate to close the proceedings initiated by income tax department. Accordingly, the said proceedings initiated by income tax department was closed. Thereafter, the said executants namely Late.N.Ramabi and Dr.N.S.Jayanthi were expired in the year 1992 and 2003. They admitted that they have knowledge about the death of said executants. But the Power of Attorney executed by them was not revocable and it was coupled with interest as per section 202 of Contract Act. Accordingly, on the basis of the said Power of Attorney they have got executed sale deed on 28.09.2007 in respect of the said property legally. There was no illegality in execution of sale deeds. There was no creation of illegal sale deeds. If any illegality it must be decided by Civil Court. The above offences not at all attracted.
13. The complainant was examined as PW1 and got marked Ex.P1 to 15 documents. The PW1 in his evidence reproduced the complaint averments. Ex.P1 is the certified copy of the agreement of sale dated 12.08.1987 executed by Ramabai and others in respect of property bearing Sy.No.8/1 15 C.C.No.18065/2012 situated at Vasanth Nagar Main Road in favour of accused. Ex.P2 is the certified copy of the agreement of sale dated 12.08.1987 executed by Dr.N.S.Jayanthi in respect of property bearing Sy.No.8/2 situated at Vasanth Nagar Main Road in favour of accused. Ex.P3 is the certified copy of sale deed dated 28.09.2007 executed by accused persons on the basis of Power of Attorney in favour of themselves in respect of property bearing plot No.8/1, the present property number is plot No.A extension in Sy.No.1 of Bengaluru North. Ex.P4 is the certified copy of sale deed executed by Power of Attorney holder of Dr.N.S.Jayanthi in favour of accused persons in respect of property bearing Sy.No.8/2. Ex.P5 and 6 are the certified copies of encumbrance certificates in respect of above properties. Ex.P7 is the certified copy of plaint in OS No.5905/2009 filed by present complainant against the accused persons in respect of the above said disputed properties. Ex.P8 is the certified copy of application Under Order 39 Rule 1 and 2 in OS No.5905/2009 filed by present complainant against the accused persons. Ex.P9 is the written statement in OS 16 C.C.No.18065/2012 No.5905/2009 filed by accused persons who are defendants. Ex.P10 is the certified copy of Plaint in OS No.5906/2009 filed by complainant and other family members against the accused persons for declaration of title and cancellation of sale deed dated 28.09.2007 before Hon'ble City Civil Court, Bengaluru. Ex.P11 is the certified copy of application Under Order 39 Rule 1 and 2 of Civil Procedure Code filed by the plaintiffs against the present accused persons/ defendants in the said suit in OS No.5906/2009. Ex.P12 is the certified copy of written statement in OS No.5906/2009 filed by the present accused persons who are defendants in the said suit. Ex.P13 is the certified copy of Power of Attorney executed by Smt.N.Ramabai Krishna Rao and others in favour of accused persons dated 12.08.1987. Ex.P14 is the certified copy of Power of Attorney executed by Dr.Smt.N.S.Jayanthi D/o Late.N.D.Krishna Rao in favour of accused persons dated 12.08.1987. Ex.P15 is the certified copy of sale deed dated 31.03.1990 executed by Smt.Sufiya Bee @ Sufiya Begum in favour of Dr.N.S.Jayanthi.
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C.C.No.18065/2012
14. On the contrary the accused No.2 examined as DW1 and got marked the Ex.D1 to Ex.D15 documents. The DW1 in his evidence reproduced his defence. He is stated that they have paid entire consideration. They have got executed sale deed as per accordance with law. There was no illegality. Ex.D1 is the copy of Agreement of Sale dated 12.08.1987, Ex.D2 is the certified copy of WP No.6201 6204/2015 (LBBMP), Ex.D3 is the certified True Copy of the Extract of the Minutes of Meeting of the Partners dated 02.11.2023, Ex.D4 is the certified copy of WA No.1100/2000 in WP No.5025 of 1993, Ex.D5 is the certified Copy of WP NO.4943/93 C/W 5023/93, 507278/93 and 5104/93, Ex.D6 is the certified copy of WP Nos.62046204/2015 (LB BMP), Ex.D7 is the certified Copy of WP No.1100/2000, 110107/2000 C/w 11081109/2000 In (WA No.1100/2000 (WP No.5025/1993), Ex.D8 and 9 are the Original Order of Income Tax Department dated 18.03.2004, Ex.D10 is the certified copy of WA No.6105/2017 (LBBMP) in WP Nos.62016204 of 2015 (LBBMP), Ex.D11 is the Original Supplemental Agreement dated 24.08.1992. 18
C.C.No.18065/2012 Arguments
15. The learned advocate for complainant argued that the complainant is the son of Dr.N.S.Jayanthi and grand son of N.Ramabai. The disputed property was originally belongs to Justice N.D.Krishnarao. The said property is situated at Vasanthnagar Main Road, Bengaluru and till today it is a open site. The accused persons had approached grand mother and mother of complainant for construction and joint development of the open site. At that time there was no concept of joint development and it was new concept to the complainant's mothers and grand mother of complainant. So, they were agreed an entered into agreement of sale. Accordingly, there were two agreements executed and also they had executed Power of Attorney on 12.08.1987 in favour of accused persons. All documents are registered documents. Accordingly, to the agreement construction should be complete on or before 31.03.1990. The grand mother of the complainant N.Ramabai was died on 29.03.1992. Thereafter, legal representatives of N.Ramabai executed supplementary agreement in respect of the said 19 C.C.No.18065/2012 property in favour of accused persons on 24.08.1982. Wherein, the accused agreed to deliver 2000 sq. feet super built up area in the proposed building to be built by the accused persons at concessional rate of 100 per sq. feet to the executants i.e., Legal representatives of N.Ramabai. Thereafter, on 22.11.2003 mother of complainant i.e., Dr.N.S.Jayanthi died. During the period income tax department initiated the proceedings about heavy transactions. Thereafter, the accused agreed to given 2000 sq. feet builtup area at Rs.100 per sq. feet to the executants i.e., Dr.N.S.Jayanthi and N.Ramabai. In the year 2004 case filed by the income tax department was closed and permitted the accused to construct the apartments. Even today admittedly construction never came up. The accused persons have not filed specific performance of contract against the executants. However, without any absolute right, title or interest over the property, even the well aware of death of N.Ramabai and Dr.N.S.Jayanathi the accused on the basis of General Power of Attorney executed on 12.08.1987 got executed the sale deed in favour of themselves. So, 20 C.C.No.18065/2012 question arises if the death of executrix whether the Power of Attorney surviving? And whether the Power of Attorney contain right to sell? , after death of executrix the Power of Attorney holder no power. The accused using Power of Attorney after the death of executrix, so sale deed in their favour is illegal. The complainant being the legal heir of N.Ramabai and Dr.N.S.Jayanthi has locus standi to file this complaint, hence he filed this complaint. In the agreement dated 12.08.1987 the agreed to pay interest at the rate of 18% for delayed payment. Therefore, the sale deed came to be executed by Attorney holder after death of executrix to avoid interest and full payment of consideration. This criminal plan only after the death of executrix. The DW1 i.e., accused No.2 admitted that General Power of Attorney is in his custody and he will produce before the court. But till today he has not produced the said document before the court. The accused have suppressed the documents. If they were legally, they would have complied the conditions during the lifetime of Dr.N.S,Jayanthi and N.Ramabai but they did not to do so. The act of the accused clearly attracted the 21 C.C.No.18065/2012 offences punishable under section 406, 420, 417, 423, 465, 471, 120(B) of IPC. Therefore, he sought for conviction.
16. The learned advocate for accused Sri.S.R.K argued that all agreement of sale and Power of Attorney executed by mother and grand mother of complainant are admitted. Once the purchaser got executed General Power of Attorney and got rights it continued even after death of executants. It is civil nature case ingredients of section 406, 417, 420 of IPC are not at all attracted to the case on hand. If General Power of Attorney is invalid the above criminal offences not attracted. Whether General Power of Attorney is valid or not valid is to be decided by the Civil Court. In order to prove an offence under section 406 of IPC, he has to prove ingredients of section 405 of IPC. In the present case there is no entrustment and misappropriation of property. So, said section 406 IPC is not attracted. In order to prove offence punishable under sections 417 and 420 of IPC the complainant has to established requirements of Section 415 of IPC. In the present case which discloses that intention beginning of the transaction dated 12.08.1987 not proved. 22
C.C.No.18065/2012 Therefore, section 417 and 420 of IPC also not attracted. There is no misappropriation or there is no forged or making false documents. On the basis of General Power of Attorney executed by the mother and grand mother of complainant which were coupled with interest, the accused got executed the sale deed in the year 2007 in their behalf which is not illegally. Even it is illegal it is be decided by the Civil Court not Criminal Court. Apart from that no specific allegations of forged documents. Hence section 465, 468, 471 of IPC are also not attracted. As per section 202 of Indian Contract Act the transaction made by the accused persons on the basis of General Power of Attorney which coupled with interest which was irrecoverable by the executants is also continued even after the death of executants. Further there is no fiduciary relationship. Everything is in accordance with law. It is civil nature case and no offences attracted. Hence, sought for acquittal and he relied the following citations.
1. Asoke Basak V. State of Maharshtra - (2010) 10 SCC 660 - Paragraph 21.
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C.C.No.18065/2012
2. Satishchandra Ratanlal Shah V. State of Gujarat, (2019) 9 SCC 148 - Paragraph 11.
3. State of Gujarat V. Jaswantlal Nathalal, 1967 SCC Online SC 58 - Paragraph 8.
4. Punjab National Bank V. Surendra Prasad Sinha 1993 Supp (1) SCC 499 - Paragraph 5.
5. Prof.R.K.Vijayasarathy and Anr. V. Sudha Seetharam and Anr. (2019) 16 SCC 739 -
Paragraph 16, 19 and 20.
6. Hridaya Ranjan Prasad Verma V. State of Bihar, (2000) 4 SCC 168 - Paragraph 15 and
16.
7. Sheila Sebastian Vs. R.Jawaharaj and Another (2018) 7 SCC 581 - Head Note c and Paragraph
25.
8. Sardar Ali Khan Vs. State of Uttar Pradesh and Anr. (2020) 12 SCC 51 - Paragraph 9.
The Advocate for accused relied Additional citations as mentioned below.
1. State of Rajasthan V. Basant Nahata, (2005) 12 SCC 77 - Paragraph 13.
2. Hardip Kaur V. Kailash & Anr. 2012 SCC Online DEL 2937: (2012) 193 DLT 168 - Paragraph 18 and
19. 24 C.C.No.18065/2012
3. Mohammed V. Assistant Commissioner - ILR 1993 KAR 2306 - Paragraph 5.
4. Meenaxi and Ors. V. Pandurang Bhimrao Laxmeshwar - M.F.A.No.22850/2013 - Paragraph
20.
5. Mohd. Ibrahim V. State of Bihar, (2009) 8 SCC 751 -
Paragraph 14 and 16.
Appreciation of Evidence
17. On perusal of the materials on record and hearing of arguments both side, it is an undisputed fact that the grand mother of the complainant Smt.N.Ramabai and mother of complainant Dr.N.S.Jayanthi had executed agreement of sale dated 12.08.1987 as per Ex.P1 and Ex.P2 respectively in favour of accused persons. On the same day they had also executed General Power of Attorney in favour of accused persons and same are registered as per Ex.P13 and 14. It is also undisputed fact. According to the complainant the executants never given power to sell the property i.e., open site. As per the agreement as well as Power of Attorney the accused persons had power to obtained permission for construction from concerned authority, and payment of 25 C.C.No.18065/2012 concerned fees for consideration and construct the apartment. According to the accused persons the General Power of Attorney dated 12.08.1987 coupled with interest and entire consideration was paid and as per General Power of Attorney the accused have right to sell the disputed property in favour of any person.
18. On careful reading of the agreements dated 12.08.1987 and General Power of Attorney dated 12.08.1987 executed by deceased N.Ramabai and Dr.N.S.Jayanthi it clears that they had only given power to obtained the necessary documents for construction of apartment, they had to obtained permission for construction plan, estimation from the concerned authority and construct the apartment. As per the agreements and supplementary agreements the accused persons have to construct apartment and out of which they have to execute sale deed in respect of 2000 sq. feet super built up area in favour of executants for consideration of Rs.100 per sq. feet. Admittedly, till today the accused have not taken up the construction as per the agreement and as per General Power of Attorney. There is no evidence to show that 26 C.C.No.18065/2012 entire consideration was paid as per Ex.P1 and 2 agreements. On careful perusal of the both General Power of Attorney the executants never given power to the accused persons to sell open land to any person. It clearly reveals that the accused have violated the conditions of agreement of sale and General Power of Attorney. Admittedly the accused persons never filed suit for Specific Performance of Contract to comply the sale. During the arguments learned advocate for accused vehemently argued that as per section 202 of Indian Contract Act, if the power of attorney coupled with interest even after death of executants the accused have power to act as per General Power of Attorney. Section 202 of Indian Contract Act, deals with termination of agency, where agent has interest in the subject matter. According to the said provision, where the agent has himself an interest in the property which forms the subjectmatter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. It means a power of attorney executed in favour of an agent recording or recognizing an interest of the Agent/Attorney in the property which is the subjectmatter of 27 C.C.No.18065/2012 the Agency, cannot be revoked or terminated, even if the instrument does not state specifically that it is irrevocable, as then it would be a power coupled with an interest but a power of attorney simplicitor which merely authorized an agent to do certain acts in the name of or on behalf of the executant at any time in spite of the instrument that power of attorney be revoked or instrument stating that the Power of Attorney is irrevocable. It clears that the power of attorney coupled with interest even after death of executants the power of attorney can be used. The term coupled with interest used to describe the type of power of attorney that gives the agent authority to handle intentionally the principals' property but also an interest which may result from such authority. In such cases the Power of Attorney become irrevocable i.e., it cannot be revoked at the sole discretion of the principal. It clears that if the agent himself has interest in the subject matter of the agency cannot be terminated even death of executants. The term coupled with interest has not yet been defined by any statute. To understand what the term would mean, the illustrations provided under section 202 of Indian Contract Act 28 C.C.No.18065/2012 may be referred to. On perusal of the illustrations, both the illustrations shows that the authority of the agent to sell the principals' property has been coupled with right of the agent to recover the amounts due to him from the principal out of the proceeds from the such sale. An interest of the agent with respect of the amounts owned to him is created on the principals' property i.e., subject matter of the agency. Themselves has been considered as an agent coupled with interest.
19. In the Black's Law Dictionary defines into that agency coupled with interest or as an agency in which the agent is granted not only the power to act behalf of principal but also as on legal interest in the estate or property involved. It is power to do same and, conveyed along with and interest in the subject matter of the power of attorney. But in the present case on hand on careful perusal of the agreement as well as dated 12.08.1987 and General Power of Attorney dated 12.08.1987 and supplementary agreements the accused have no interest in the property. The accused admittedly have not complied the conditions. They have not 29 C.C.No.18065/2012 till today taken up the constructions as agreed and not executed sale deed in respect of 2000 sq. feet super built up area for Rs.100 per sq. feet in favour of executants. They had not paid entire balance consideration. Therefore, section 202 is not attracted to the case on hand. However, this court has no power to decide because this is a civil nature. It should be decided by Civil Court only, already suits have been pending before the Civil Court in OS NO.5905/2009 and 5906/2009. But the question arises whether the act of the accused persons attracted above offences.
20. In order to prove Section 406 of IPC the prosecution has to prove ingredients explained in Section 405 of IPC.
The ingredients in order to constitute a criminal breach of trust are:(i) entrusting a person with property or with any dominion over property,
(ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or willfully suffering any other 30 C.C.No.18065/2012 person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.
21. In view of the above provision it clears that to attract section 406 of IPC i.e., criminal breach of trust would, interalia meaning using or disposing of her property by person who is entrusted that or otherwise as dominion. Such an act means not only dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out trust. However, in the instant case, materials on record failed to satisfy the ingredients of Section 405 of IPC. In the absence of evidence establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law or legal contract.
22. In view of the above provision, to attract the section 406 of IPC, entrustment and misappropriation are very important. In the present case on hand there is no entrustment and misappropriation of property for personal use dishonestly. The act of the accused was breach of 31 C.C.No.18065/2012 contract not a breach of trust. The breach of contract is not attracted any criminal offence. Therefore, the execution of General Power of Attorney does not coming under the entrustment and after the death of executants the accused by using the said General Power of Attorney executed sale deed themselves is not coming under the meaning of misappropriation. Hence, the section 406 or 403 are not at all attracted to the case on hand.
23. In order to attract section 417 and 420 of IPC the complainant has to establish following ingredients of section 415 of IPC which reads thus.
(i) Fraudulent or dishonest inducement by the person deceiving and to deliver the property.
(ii) Decide to cause the inducement some one.
(iii) The inducement so caused was intentional.
(iv) The person induced, committed or omitted to do something that they would not have done otherwise.
(v) The act or omission either caused or was likely to cause damage or harm to the person 32 C.C.No.18065/2012 induced in their body, mind, reputation or property.
24. In order to attract Section 420 of IPC, namely cheating and dishonestly inducing delivery of property, ingredients of Section 415 of IPC have to be satisfied. To constitute an offence of cheating under section 415 of IPC, a person should be induced, either in fraudulently or dishonestly, to delivery any property to any person, or concerned that any person shall retain any property. Thus, the sign quo non of Section 415 of IPC is "Fraudulent", "Dishonestly", or "Intentionally Inducement", and absence of these elements would debase the offence of cheating.
25. In view of the above provision the fraudulent or dishonest inducement and intention of the accused to cheat the complainant from the beginning is to be established. In the present case the intention of the accused persons from the beginning i.e., 12.08.1987 or before be established.
26. The learned advocate for complainant argued that after the death of executrix the ill intention of the accused persons is proved. But it is not coming under purview of 33 C.C.No.18065/2012 section 415 and 420 of IPC. To attract the said offences the intention should be beginning prior to the date i.e., 12.08.1987. In this regard no evidence. Hence the section 417 or 420 are not attracted to the case on hand.
27. In order to attract the section 465 of IPC the complainant has to establish ingredients of section 464 of IPC which reads thus.
An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories.
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a 34 C.C.No.18065/2012 document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mine; or (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
28. In view of the above provision there must be making of document or forged of any document or signature must be 35 C.C.No.18065/2012 proved. In the present case on hand the accused have executed sale deed on the basis of General Power of Attorney after death of executants. Therefore, there is difference between forged the documents and executed sale deed on the basis of General Power of Attorney. The said act of the accused is not coming under the purview of the section 464 of IPC. At this stage it cannot be say that documents are forged documents. It must be decide by the Civil Court. The question arises, whether the General Power of Attorney is valid after the death of executants?, As per my opinion on perusal of the Ex.P13 and Ex.P14 it has never coupled with interest of accused persons. The accused have never fulfilled the conditions as per supplementary agreements. The General Power of Attorney have not confirmed the Power of agent to execute the sale of entire property. But it is not attracted any offences. It must be decided by the Civil Court only. Hence, section 465 of IPC is not at all attracted. When there is no forgery then section 471 of IPC does not attracted . Therefore, the complainant failed to prove that the accused have committed the offences punishable under section 406, 419, 36 C.C.No.18065/2012 420, 465, 468, 471, 120 (B) of IPC.
29. I have gone through the citations relied by the accused persons. In view of the above decisions and on discussed above, in over all consideration even though the accused have violated the conditions of agreement of sale as well as General Power of Attorney and got executed sale deed in their behalf without any right or interest, the above act is not attracted the above offences. It is purely civil nature case and it should be decided by Civil Court only. The complainant has a good case in a Civil Court. But the offences are not attracted. The complainant failed to prove the commission of offences as alleged. Therefore, the accused are entitled for acquittal. Hence, I answered Point No.1 to 7 in the Negative.
30. Point No.8: In the result, I proceed to pass the following:
::ORDER::
In exercising the powers conferred under Section 248(1) of the Cr.P.C., the 37 C.C.No.18065/2012 accused No.1 to 4 are hereby acquitted for the offences punishable under section 406, 420, 423, 465, 468, 471 read with section 120(B) of IPC.
The accused No.1 to 4 are directed to comply the section 437(A) of Cr.PC.
Their bail bonds stand cancelled. (Dictated to the stenographer, transcribed by him on computer, corrected, then signed and pronounced by me in the open court on this the 18 th Day of April, 2024) (Shreyansh Doddamani) III Addl., Chief Metropolitan Magistrate., Bengaluru.
::ANNEXURE::
1. List of witnesses examined for the prosecution:
PW1 : Manish Rao.
2. List of documents marked for the prosecution:
Ex.P1: Certified copy of the agreement of sale dated 12.08.1987 executed by Ramabai and others. Ex.P2 : Certified copy of the agreement of sale dated 12.08.1987 executed by Dr.N.S.Jayanthi and others.
Ex.P3: Copy of sale deed dated 28.09.2007; Ex.P4: Copy of sale deed dated 28.09.2007; 38
C.C.No.18065/2012 Exs.P5 and 6: Copy of Form15 Ex.P7: Copy of Plaint dated 31.08.2009 Ex.P8: Copy of Application U/O 39 Rules 1 and 2 R/w Section 151 of CPC.
Ex.P9: Copy of Written Statements cum Objections in OS No.5905/2009 Ex.P10: Copy of Plaint in OS No.5906/2009 Ex.P11: Copy of Application in OS No.5906/2009 U/O 39 Rules 1 and 2 R/w Section 151 of CPC.
Ex.P12: Copy of Written Statements cum Objections in OS No.5906/2009 Ex.P13: Copy of Power of Attorney Ex.P14: Copy of Power of Attorney Ex.P15: Copy of Sale Deed
3. List of witnesses examined for the defence:
DW1: K.R.Kumara Reddy.
4. List of witnesses examined for the defence:
Ex.D1: Copy of Agreement of Sale dated 12.08.1987, Ex.D2: Certified copy of WP No.62016204/2015 (LBBMP), Ex.D3: Certified True Copy of the Extract of the Minutes of Meeting of the Partners dated 02.11.2023, Ex.D4: Certified copy of WA No.1100/2000 in WP No.5025 of 1993, Ex.D5: Certified Copy of WP NO.4943/93 C/W 5023/93, 507278/93 and 5104/93, Ex.D6: Certified of WP Nos.62046204/2015 (LBBMP), 39 C.C.No.18065/2012 Ex.D7: Certified Copy of WP No.1100/2000, 1101 07/2000 C/w 11081109/2000 In (WA No.1100/2000 (WP No.5025/1993), Ex.D8 and 9: Original Order of Income Tax Department dated 18.03.2004, Ex.D10: Certified copy of WA No.6105/2017 (LB BMP) in WP Nos.62016204 of 2015 (LBBMP), Ex.D11: Original Supplemental Agreement dated 24.08.1992.
5. List of Material Objects on the side of the defence:
Nil (Shreyansh Doddamani) III Addl., Chief Metropolitan Magistrate., Bengaluru.