Karnataka High Court
Sri. Ganesh D S vs State Of Karnataka on 23 July, 2021
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF JULY 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL PETITION NO.102080/2018
BETWEEN
SRI GANESH D.S.,
S/O. LATE SRI D.N.SUBBUKRISHNA,
AGED ABOUT 46 YEARS, DOOR NO.202,
BRIGADE GATEWAY,
DR.RAJKUMAR ROAD, BENGALURU.
...PETITIONER
(BY SRI S.S.SRINIVAS RAO, ADVOCATE FOR
SRI SHIVARAJ C.BELLAKKI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY HOSPET TOWN POLICE STATION,
HOSPET, BALLARI DISTRICT,
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA, AT-DHARWAD.
2. SRI A.SURESH BABU
S/O. LATE SRI. SHESHAGIRI RAO,
AGED ABOUT 60 YEARS,
R/AT 1ST MAIN ROAD, BEHIND, KEB OFFICE,
M.J.NAGAR, HOSPET, BALLARI DISTRICT.
.....RESPONDENTS
(BY SRI VINAYAK S.KULKARNI, AGA FOR R-1)
(NOTICE TO RESPONDENT NO.2-SERVED)
2
Crl.P.No.102080/18
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE CHARGE SHEET LODGED BY THE 1ST
RESPONDENT POLICE IN CRIME NO.2/2018 REGISTERED FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 120B, 406, 417,
418, 468, 471, 420 READ WITH SECTION 34 OF THE IPC AND
ALL FURTHER PROCEEDINGS PENDING ON THE FILE OF THE
LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, HOSPET ON HIS
FILE C.C.NO.1068/2018 AS AGAINST THIS PETITIONER, IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCES.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS, THIS DAY THE COURT PRONOUNCED THE FOLLOWING
:
ORDER
Petitioner/accused No.3 is before this Court seeking to quash the criminal proceedings initiated against him in Crime No.2/2008 of Hospet Town Police Station for the offences punishable under Sections 120B, 406, 417, 418, 468, 471 and 420 read with Section 34 of IPC, which is now registered in Criminal Case No.1068/2018 on the file of learned Principal Civil Judge and JMFC, Hospet (for short, 'trial Court').
2. Brief facts of the case are that respondent No.2 as the informant filed the first information 3 Crl.P.No.102080/18 against accused Nos.1 to 6, alleging commission of the offences as stated above. It is stated by the informant that accused No.1 being the partnership firm, accused Nos.2 and 3 being partners along with accused Nos.4 to 6, with the common object of cheating the informant, accused Nos.2 and 3 projected themselves as they are in real estate business offered to sell 10 sites developed by them in Sy.No.75 of Boilahalli village, Jala Hobali, Bengaluru for a total consideration amount of Rs.3,19,53,700/-. Believing the words of accused Nos.2 and 3, the informant paid a sum of Rs.99,53,700/- in cash, as advance on 07.10.2015. Accused No.3 got executed an agreement for sale on 07.10.2015, which was notarized on 09.10.2015. Further, a cheque for Rs.1,35,00,000/- and another cheque for Rs.85,00,000/- were issued by the 4 Crl.P.No.102080/18 informant. An agreement for sale was executed by the accused on 15.12.2015.
3. Accused Nos.2 and 3 with an evil intention to grab money from the informant, accused No.2 projected himself as Managing Partner of the firm and that he is the GPA holder for the owners of the lands, who are desirous of selling the lands situated in prime location i.e., Sy.No.118 measuring 2 acres situated at Bandikodeganahalli village of Jala Hobali, Bengaluru instigated the informant to purchase the same. When the informant pleaded his inability to invest huge amount, accused No.3 has projected to be interested in the land along with the informant. The said land was agreed to be purchased by the informant along with accused No.3 for a total consideration amount of Rs.7 crores. Accordingly, the informant paid Rs.1 crore in cash, as advance. On 16.12.2015, accused No.2 informed 5 Crl.P.No.102080/18 that accused No.3 also paid Rs.1 crore in cash, and executed a registered agreement for sale on 17.12.2015. The informant issued a cheque for Rs.1.44 crores on 16.12.2015 and issued a cheque for Rs.56 lakhs. On the same day in favour of the firm i.e., accused No.1. Thus, he has paid the entire amount of Rs.3 crores, of his share. Accused No.2 represented that similar amount was already paid by accused No.3 as his share and the same is mentioned in the agreement for sale.
4. It is stated that after receipt of Rs.3 crores from the informant, accused Nos.2 and 3 with an intention to commit mischief, again approached the informant and induced him to pay a sum of Rs.90 lakhs instead of Rs.50 lakhs, being his part of balance sale consideration in respect of the agreement dated 16.12.2015. They offered to sell 12 plots, instead of 10 plots, in respect of earlier 6 Crl.P.No.102080/18 agreement dated 07.10.2015 on receipt of additional sum of Rs.40 lakhs. Accordingly, the informant issued two cheques for Rs.20 lakhs each and another cheque for Rs.14 lakhs on 21.12.2015, 23.12.2015 and 25.01.2016 respectively and 2 more cheques for Rs.25,00,000/- and Rs.11,00,000/- on 11.01.2016 and 25.01.2016 respectively, in the name of the firm/accused No.1. All these cheques were encashed by accused Nos.2 and 3, as per the ledger extract pertaining to the Bank account of the informant.
5. It is stated that accused Nos.2 and 3 again approached the informant with a proposal inviting the informant to join the Company by name Landson Infra India Private Limited, under the false promise of getting good returns. Accordingly, informant joined the Company as Additional Director, on 08.01.2016. During the tenure as an 7 Crl.P.No.102080/18 Additional Director for a period of one year, the Company had not transacted with any business. Therefore, informant started suspecting accused Nos.2 and 3 and resigned from the Company on 04.01.2017.
6. It is stated that accused No.2 failed to register the property, which was agreed to be registered in the name of the informant and accused No.3. Thereafter, the informant came to know that accused No.3 never paid any amount as shown to have paid, as his share. It is learnt by the informant that both accused Nos.2 and 3, colluding with each other conspired to defraud the informant, played tricks and obtained the cash and cheques from him, by gaining his confidence.
7. It is stated that the informant after coming to know about the misdeeds committed by 8 Crl.P.No.102080/18 accused Nos.2 and 3 demanded for registration of 12 sites in his name and also in respect of 2 acres of landed property. Accused Nos.2 and 3 were not ready and willing to register those properties in the name of the informant. Finally, both the accused disclosed that they have already sold those plots infavour of the 3 r d parties and agreed to repay the advance amount paid by the informant. It was agreed that a sum of Rs.3,45,00,000/- is to be returned to the informant i.e., the amount already paid by the informant along with nominal interest. Accordingly, accused Nos.1 and 2 paid Rs.1,02,50,000/- on different dates to the account of wife of the informant and a sum of Rs.1,42,50,000/- on different dates to the account of the informant. The accused have also issued a cheqe for Rs.1 crore, on behalf of the firm. When the cheque was presented for encashment, the 9 Crl.P.No.102080/18 same was dishonoured, as there was no insufficient funds in the account of the accused. At the instance of accused Nos.2 and 3, the cheque was again presented for encashment, but the cheque was dishonoured again for insufficient funds. The accused fully knowing that they do not have sufficient funds in the account, issued the cheque in question to deceive the informant. After issuing the legal notice, the informant lodged the complaint against accused Nos.1 to 3 for the offences punishable under Sections 138 of the N.I.Act, which is pending in Criminal Case No.1855/2017 before the learned II Additional Civil Judge and JMFC, Hospet.
8. It is stated that on 16.10.2017, the informant received the notice issued on behalf of the firm. Wherein, false allegations were made against the informant. Accused Nos.2 and 3 10 Crl.P.No.102080/18 contended that the agreement for sale was only for the purpose of security for lending the amount and instructed to cancel the agreement dated 16.12.2015.
9. It is stated that from the very conduct of these accused, it is clear that they were having the intention to commit mischief and cheating and they made the informant to invest huge amount under the false promise to sell the landed properties. But without doing so, they utilized the said amount for their real estate business and thereby they intentionally cheated, committed criminal breach of trust and misappropriated the huge amount of the informant. The conduct of accused Nos.2 and 3 discloses that they were having the animus to cheat, committed breach of trust and misappropriated the amount. Even at the time of executing the documents and receiving the huge 11 Crl.P.No.102080/18 amounts from the informant, the accused have induced the informant to pay the cash and the cheques for the purpose of misappropriating. Therefore, he requested the Police to register the case and to initiate legal action. Police registered the case and took up investigation.
10. The charge sheet was came to be filed against accused Nos.1 to 4 for the above said offences. Learned Magistrate took cognizance of the offence after satisfying the materials available on record. Being aggrieved by the registration of the criminal case, accused No.3 is before this Court seeking to quash the criminal proceedings initiated against him.
11. Heard Sri S.S.Srinivas Rao learned counsel for Sri Shivaraj C.Bellakki, the learned counsel for 12 Crl.P.No.102080/18 the petitioner and Sri Vinayak S. Kulkarni learned AGA for respondent-State.
12. Learned counsel for the petitioner submitted that it is purely a civil transaction between the parties. With regard to sale of the landed properties, multiple agreements were entered into between the parties and then informant said to have paid the amount as agreed under the agreement. Regarding dishonour of the cheque issued by the petitioner, separate criminal case alleging commission of the offence punishable under Section 138 of N.I.Act is already filed and the same is pending. Under such circumstances, no offence under Sections 120B, 406, 417, 418, 468, 471 and 420 of IPC are made out against the petitioner.
13. Learned counsel for the petitioner further submitted that complainant is only an investor in 13 Crl.P.No.102080/18 the real estate business and he wanted to get high returns. This is made clear in the mail dated 05.11.2016 sent by the complainant to a 3 r d party, copy of which is marked to the petitioner. In the said mail, it is specifically stated that an amount of Rs.99,53,700/- was not paid in cash, as recited in the agreement dated 07.10.2015. But on the other hand, it was adjusted towards the old balance. Therefore, the contention of the complainant in this regard cannot be accepted. Learned counsel further submitted that the present petitioner has filed an application in COM.A.A.No.20/2020 before the learned LXXXIII Additional City Civil and Sessions Judge, Bengaluru City to (CCH-84), to secure the property which is the subject matter of the second agreement dated 16.12.2015, where he is also the co-purchaser along with the complainant. If the petitioner had an evil intention in entering into an 14 Crl.P.No.102080/18 agreement or in inducing the petitioner entering into such agreement, the petitioner would not have filed such an application and got the order under Section 9 of the Arbitration and Conciliation Act, 1996 restraining the respondent therein, from alienating, encumbering or parting with possession of the scheduled properties. These documents unmistakenly go to show that the petitioner who is arrayed as accused No.3 is making his earnest efforts to act in accordance with the agreement and secure the property which is the subject matter of the agreement and in the meantime, to safeguard the interest of the complainant. Thus, allegations made against the petitioner cannot be accepted. Thus, he prays for allowing the petition and to quash the criminal proceedings initiated against him.
15Crl.P.No.102080/18
14. Per Contra, the learned AGA opposing the submissions made by the learned counsel for the petitioner submitted that specific and serious allegations are made against the petitioner for having committed the offence at the initial stage. After due investigation, the Investigating Officer filed the charge sheet, producing clinching materials to constitute the offence. Under such circumstances, the petition cannot be allowed to quash the criminal proceedings initiated against him. Therefore, he prays for dismissal of the petition.
15. Perused the materials on record. In view of the rival submissions, the point that would arise for my consideration is , "Whether the criminal proceedings initiated against the petitioner is liable to be quashed?"
16Crl.P.No.102080/18
My answer to the above point is in the
'Negative' for the following:
R E A S O N S
16. As per the allegations made in the first information, supported by the charge sheet materials disclose that accused Nos.2 and 3 induced the informant to purchase 10 sites, initially and again they induced him to purchase two more sites and obtained full sale consideration, either through cash or through cheques. It is specifically alleged by the complainant that accused Nos.2 and 3 have sold the very same sites infavour of 3 r d parties under the registered Sale Deeds. Specific allegations are made against the present petitioner that he induced the informant to purchase various sites and the land, only to extract money.
17. Learned counsel for the petitioner placed his reliance on the decision in Sunil Bharti Mittal 17 Crl.P.No.102080/18 1 vs. Central Bureau of Investigation to contend that learned Magistrate should have applied his mind before taking cognizance of the offence and satisfy with the sufficiency of the materials to constitute the offence. But in the present case, the informant made specific allegations while filing detailed first information with the Police, wherein it is stated by the informant that from the inception when accused Nos.2 and 3 induced him to purchase 10 sites and thereafter 2 acres of land and subsequently induced to purchase two more sites and getting the consideration amount, either by way of cash or through cheque, these accused were having the criminal intention to defraud and cheat the informant. They have induced the informant to part with the huge amount of money and misappropriated the same. Even though the cheque was issued towards repayment of a portion of the 1 (2015) 4 SCC 609 18 Crl.P.No.102080/18 amount, same was came to be dishonoured and separate complaint for the offence punishable under Section 138 of the N.I.Act is filed.
18. If the specific averments made in the first information and the charge sheet submitted by the Investigating Officer are considered in the light of the documents that are relied on by the informant, it cannot be said that there are absolutely no materials to constitute the offence alleged against the accused. Whether such allegations made by the informant are true or not? is to be considered by the trial Court after full fledged trial. When the informant narrated various transactions and specifically stated that accused were having required animus to defraud and cheat the informant and to commit criminal breach of trust by misappropriating huge amount received by them, the same cannot be ignored at this stage. It is 19 Crl.P.No.102080/18 settled position of law that when there are sufficient materials to proceed against the accused, criminal proceedings against the accused cannot be quashed by invoking the inherent powers under Section 482 of Cr.P.C.
19. Learned counsel for the petitioner produced the copy of the mail said to have been sent by the complainant to one Mr Rajesh with a copy to the petitioner, which is dated 05.11.2016. In the said mail, it is stated that there was a meeting of the complainant with Mr.Rajesh and petitioner herein, on 07.10.2015 and it was decided to purchase 10 plots. The informant states in the mail that he paid full amount i.e, Rs.2,20,00,000/- through cheques and Rs.99,53,700/- as there was old balance receivable by the informant in respect of Brindavan Layout. On the basis of this reference in the mail, the learned counsel for the petitioner 20 Crl.P.No.102080/18 submitted that the recitals found in the agreement are contrary to the version of the complainant in the mail and therefore, contention taken by the complainant cannot be believed. First of all, the mail copy which is produced before this Court is to be proved by the petitioner and the attention of the complainant is to be drawn towards the same to seek his explanation. Merely on the basis of this document, the contention of the informant regarding the agreement dated 07.10.2015 cannot be rejected out rightly.
20. Admittedly, the complainant paid the entire amount of consideration i.e., Rs.3,19,53,700/-. The present petitioner is a signatory to the said agreement representing accused Nos.1 and 2, as their Power of Attorney Holder. In respect of second agreement dated 16.12.2015, the petitioner is a co-purchaser along 21 Crl.P.No.102080/18 with the informant and it was agreed to purchase 04 acres of land for Rs.7,00,00,000/-. It is the submission of the petitioner that even if the contention of the complainant is to be accepted that the petitioner is not interested in purchasing the property, the complainant could proceed to seek specific performance of contract for execution of the Sale Deed in respect of his share in the land. But no such recitals are found in the agreement dated 16.12.2015 to enable informant alone to seek part performance of the contract in respect of his half share in the land. The grievance of the complainant as made out in the complaint is that he was made to pay Rs.3,50,00,000/- under the said agreement under a false information that the petitioner is also contributing similar amount. But the complainant came to know that no such amount was paid by the petitioner under the said agreement and it is only 22 Crl.P.No.102080/18 to induce him to enter into such an agreement and to pay huge amount, such an agreement was brought into effect.
21. Learned counsel for the petitioner produced additional documents to contend that he filed an application in COM.A.A.No.20/2020 to secure the property in question, which is the subject matter of the second agreement dated 16.12.2015. The order dated 6 t h March, 2020 is produced before this Court to show that the application under Section 9 of the Arbitration and Conciliation Act, 1996 is allowed in part and the respondents who are prospective vendors are restrained from alienating, encumbering and parting with the possession of any part of the properties in question. As per the order, the subject matters of the application are Sy.Nos.33, 118, 74/p1, 143 and 74/306. The subject matter of the second 23 Crl.P.No.102080/18 agreement dated 16.12.2015 is 02 acres of land in Sy.No.118 situated at Bandikodigehalli village Jala Hobali, Bengaluru. Interestingly, the application was filed by the present petitioner as Managing Partner of M/s.Landson Infrastructure, against accused No.1, which is also a partnership firm represented by accused No.1. It is pertinent to note that the petitioner had represented accused No.1/firm as its Power of Attorney Holder while executing the agreement infavour of the informant. Now he is representing M/s.Landson Infrastructure which is also a partnership firm, who is not a party either in the first agreement dated 07.10.2015 or in the second agreement dated 16.12.2015.
22. Learned counsel for the petitioner submits that there is a Memorandum of Understanding (for short 'the MOU') between M/s.Landson Infrastructure and M/s.Vinayaka Projects i.e., 24 Crl.P.No.102080/18 accused No.1, for the purpose of procuring the lands or developing the same for real estate business. Admittedly, the complainant is not a party to the said MOU. Moreover, the copy of the said MOU is not produced before this Court. When the petitioner entered into the second agreement dated 16.12.2015 along with complainant with the vendors for purchase of 04 acres of land in his individual capacity, there is no explanation as to why he has to file the application as a Managing Partner of M/s.Landson Infrastructure, to secure the property in question. All these facts and circumstances further complicate the issue and throw some light about allegations made by the informant regarding commission of the offence.
23. Learned counsel for the petitioner submitted that since it is a civil dispute, the complainant could have approach the Civil Court 25 Crl.P.No.102080/18 seeking specific performance of contract. Of course, to enforce the terms of the contract, complainant could have approach the Civil Court. But the complainant is apprehending commission of the criminal offence by the accused as narrated in detail in the first information.
24. When specific allegations are made to constitute the offence alleged against the accused, the criminal proceedings cannot be quashed by holding a rowing enquiry by this Court, at this stage of the proceedings. It is trait law that when the allegations made in the first information, coupled with other materials made available to the Court makes out sufficient grounds for proceeding against the accused, same is sufficient to proceed with the criminal proceedings against the accused. Under such circumstances, the criminal proceedings cannot be quashed merely on the ground that the 26 Crl.P.No.102080/18 accused contend that the complainant had made false allegations in the complaint. Even though several documents were produced by the learned counsel for the petitioner to contend that the complainant has made false allegations, those documents are not helpful to prima-facie show that the allegations are baseless and the complainant is taking advantage of the agreements in question by filing false complaint, by roping all the accused under various penal provisions.
25. On going through the materials produced along with the charge sheet, in the light of the specific averments made in the first information, I am satisfied that there are sufficient materials which prima-facie invoke the penal provisions against the petitioner. I do not find any reason to entertain the petition for quashing the criminal proceedings instituted against the petitioner. 27 Crl.P.No.102080/18 Hence, I answer the above point in the negative. Accordingly, the petition is dismissed.
Sd/-
JUDGE ckk