Karnataka High Court
Rev Fr T Kuriakose vs State Of Karnataka on 9 January, 2023
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF JANUARY 2023
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.3939 OF 2021
BETWEEN
1. REV. FR. T. KURIAKOSE
AGED ABOUT 76 YEARS
S/O V T KURIAKOSE
R/AT MULLUR GRAMA
EAST TALUK
BENGALURU-560087
PRESENTLY RESIDING AT
CLARETIAN PROVINCIAL HOUSE
KARUKUTTY P.O.
ANGAMALY
ERNAKULAM (DIST.)
KERALA-683 576
2. REV FR MATTHEW
AGED 71 YEARS
S/O JOSEPH
CLARETIAN SEMINARY
28/12, 18TH CROSS ROAD
MALLESHWARAM WEST
BENGALURU-560055
3. REV KAVIER EMMANUEL MANAVATH
AGED 64 YEARS
S/O MATHEW XAVIER
CLARET NIVAS
CARMELARAM POST
BENGALURU-560035
2
4. REV FATHER SABU GEORGE
AGE 52
SON OF GEORGE
CLARETIAN PROVINCIAL HOUSE
28/12
MALLESHWARAM WEST
BENGALURU-560055
5. REV FATHER ANTONY BHYJU VINCENT
AGED ABOUT 48 EYARS
SON OF MR VINCENT
13-114/1
MEDAVILAGAM
KOLLEMCODE
VILAVANCODE
KANNIYAKUMARI
TAMIL NADU-629160
PRESENTLY AT
CLARET BHAVAN
CARMELARAM POST
BENGALURU-560035
6. REV FR MATHEW PAUL VATTAMATTAM
SUPERIOR GENERALIS OF CLARETIAN CONGREGATION
VIA SACRO CURORE DI MARIA 5
ROMA
ITALY
(THE PETITIONER NOS.2 TO 5 ARE PRESENTLY ACTING
AS THE FUNCTIONARIES OF CLARET BHAVAN-
NOVITIATE HOUSE OF CLARETIAN CONGREGATION
AND THE CONGREGATION OF THE SONS OF THE
IMMACULATE HEART OF MARY (CLARETIAN FATHERS)
... PETITIONERS
(BY SRI H.S. CHANDRAMOULI, SENIOR COUNSEL
FOR SMT KEERTHANA NAGARAJ, ADVOCATE)
3
AND
1. STATE OF KARNATAKA
BY THE POLICE OF VARTHUR POLICE STATION
REPRESEBTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560001
2. SRI SANTHOSH THAZHATHU
AGED ABOUT 50 YEARS
R/AT NO.18/1 A1
DODDAKANNAHALLI
CARMELARAM
SARJAPURA ROAD
BENGALURU-560035
... RESPONDENTS
(BY SRI R.D. RENUKARADHYA, HCGP FOR R1
SRI V. SUDHINDRA MURTHY, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C PRAYING TO QUASH THE CHARGE SHEET AND
THE ENTIRE PROCEEDINGS IN C.C.NO.1691/2021
(CR.NO.27/2021 REGISTERED BY THE VARTHUR POLICE
STATION) FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 420, 120B AND 506 OF IPC PENDING ON THE FILE
OF II ADDL.C.J.M., BENGALURU RURAL DISTRICT,
BENGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 04.01.2023, THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
This petition is filed by the petitioner-accused Nos.1 to 6 under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C.No.1691/2021 registered by the Varthur police station in Crime No.27/2021 for the offences punishable under Sections 420, 120B, 506 of IPC pending on the file of II Additional Chief Judicial Magistrate, Bengaluru, Rural District
2. Heard the arguments of learned senior counsel for the petitioner, learned High Court Government Pleader for respondent No.1-State and learned counsel for the respondent No.2.
3. The case of the prosecutions is that on the complaint of respondent No.2, one Sathosh Thazhathu filed first information to the police on 01.02.2021 alleging that the land in Sy.No.49/11 (New SyNo.114) measuring 4 acres 2 guntas of Mullur vilalge has been purchased by him from the accused No.1 who is the owner of the land vide sale deed dated 04.12.2019 by paying valuable 5 consideration of Rs.15,85,75,000/- which was duly registered before the Sub-Registrar Basavanagudi, Bangalore since then he is in possession of the property and all the documents stands in his name. Inspite of selling the said property by the accused No.1. The accused No.1 in collusion with accused Nos.2 to 6 executed a GPA in favour of the accused No.3 in respect of the same property, in order to deprive the rights of respondent No.2 in enjoying the property and further alleged in the charge sheet that after selling the property the very accused No.1 on behalf of the other accused filed complaint to the Regional Commissioner for taking action against the respondent/complainant in respect of the said property. Later, enquiry was held on the same day and case was registered against the Revenue Officials at Wilson Garden police, thereby the accused persons trying to knock over the property and thereby cheated the complainant with more than 16 crores of rupees and the same was questioned with the petitioner, they have threatened him with dire consequences. Hence, the complaint came to be 6 registered. The police after investigation filed the charge sheet, which is under challenge.
4. The learned senior counsel appearing for petitioner has vehemently contended that the petitioners are the father, they are all running the Claretain Seminary and they have lot of properties. The portion of the property has been alienated to respondent No.2, but there is no intention of the petitioners to cheat the complainant. The ingredients of the Section 420 of IPC would not attract and there is no proper investigation made by the police. The police have not interrogated any of the accused, but they have filed simple charge sheet against the accused, without collecting any material evidence against the petitioners. Therefore, conducting the proceedings against the petitioners are abuse of process of law, hence prayed for quashing the criminal proceedings.
5. The learned senior counsel further contended that a complaint has been filed before Regional Commissioner where some persons are trying to knock out the properties 7 belonging to the petitioner, therefore a GPA has been given to accused No.3 for looking after litigations and therefore there is no question of cheating the complainant and further contended that previously petitioner No.1 executed the agreement of sale in favour of the accused No.1. There are litigations pending before the High Court and a complaint filed before the Wilson Garden police by the Assistant Commissioner which are all pending. Therefore, conducting case against the petitioners, is nothing but abuse of process of law, hence prayed for quashing the same. In support of the argument relied upon the judgment of Hon'ble High Supreme Court as below:-
1. (2000) 2 SCC 636 in case of G Sagar Suri and Anr. Vs State of UP & Ors.,
2. (2009) 8 SCC 751, Mohd, Ibrahim & Ors V State of Bihar & Anr.,
3. (2009) 14 SCC 696 in case of Dalip Kaur & Ors.
V Jagnar Sing & Anr.,
4. (2013) 6 SCC 740 Chandran Ratnaswami Vs KC Palanisamy & Ors.
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5. (2014) 13 SCC 553 Rashmi Jain V State of UP and Anr.,
6. (2018) 15 SCC 273, in case of M Suresh & Ors V State of Andhra Pradesh & Anr.,
7. 2021 SCC OnLine Kar 12440 Brij Mohan Arora & Anr Vs State of Karnataka,
8. 2019 11 SCC 706 in case of Anand Kumar Mahotta & Anr Vs State (NCT of Delhi)
9. Crl.P.No.256/2021 Sri.Shahid Akbar & Anr Vs State of Karnataka & Anr
6. Per contra, learned counsel appearing for respondent No.2, seriously objected the petition and contended that despite of selling the property by the accused No.1 by receiving more than 16 crores from the complainant which was transferred through online Bank Transfer within 5 days, the petitioner No.1 filed complaint to the Regional Commissioner stating that there were manipulations in the Revenue records and the Regional commissioner of Revenue department has made an enquiry within 24 hours and ordered to take action against the Revenue officials and also directed to file the complaint to the Wilson Garden police which clearly goes to show 9 that the petitioner No.1 with intention to cheat the complainant by receiving more than Rs.15,85,75,000/- is trying to knockout the property which is clear case of cheating which attracts 420 of IPC. Learned counsel for the respondent No.2 further contended that inspite of receiving the 16 crores of rupees the accused executed the GPA in favour of the accused No.3 in order to knockout the property with intention to cheat the complainant. All the accused persons are colluded together and they conspired together to cheat complainant, therefore the complainant forced to file the complaint. Learned counsel further contended the petitioner has not disputed the selling of the property by execution of sale deed. Merely some defect in the investigation, that is not a ground to quash the criminal proceedings. The petitioner is required to face the trial, hence prayed for dismissing the petition and in support of his argument, he has relied upon the judgment of Hon'ble Supreme Court reported as below:- 10
1. 2011 (14) SCC 709 in case of State of Tamilnadu Vs N Suresh & Ors.,
2. 2014 (16) SCC 285 in case of Union of India Vs T. Nathamuni,
3. 2021 (2) SCC 525 in case of Fertico Marketing & Investment Vs CBI, and
4. 2019 (9) SCC 549 in case of Fainul Khan Vs State of Jharkhand & Ors.,
7. Learned HCGP also objected the petition and contended that the accused in collusion with each other, are trying to knock off the property of the complainant. If at all any defense available they can plead the same before the trial court. Hence prayed for dismissing the petition.
8. Having heard the arguments of parties and perused the records, as well as the judgment relied by the both counsels in respect of quashing the criminal proceedings as well as the judgment of Hon'ble Supreme Court in catena of decisions while exercising the powers under Section 482 of Cr.P.C by keeping the principle laid down by the Hon'ble Supreme Court in all the above said 11 cases and perused the records. It is an admitted fact that the accused No.1 said to be Claretian father and on behalf of the Claret-Bhavan-Novitiate House of Claretian Congregation and sold the property in Sy.No.49/11 New Sy.No.114 measuring 4 acres 2 guntas of land in favour of the respondent No.2 by receiving the valuable consideration of Rs.15,85,75,000/- and executed the registered sale deed on 04.12.2019. It is also an admitted fact that within 4 days, the very same accused No.1 filed a complaint to the Regional Commissioner on 09.12.2019 stating that there was manipulation of revenue documents including the conversion order etc., in respect of property Sy.No.49/1 New Sy.No.114. The petitioner No.1 also stated and making various allegation against the Tahzildar and other revenue officials in respect of the same property, but he has not stated in the said complaint that he has sold 4 acres of land in respect of same survey number to the complainant and the said complainant field by him on behalf of the accused No.6 and other accused persons. It is also an admitted fact that after receipt of 12 the said complaint, the Regional Commissioner made an enquiry and passed an order on the very next day that is on 10.12.2019 by order to suspend some of the revenue officials and take action against the revenue officials by filing complaint. It is also an admitted fact, subsequently the Assistant Commissioner said to have filed police complaint before the Wilson Garden police. Also, it is an admitted fact the very accused No.1 filed Writ petition before the High Court with WP No.11258/2020 (KLR) where the respondent No.2 wants to implead as respondent in the writ petition on the ground, there was some allegation made against him later those allegations are withdrawn and accordingly interlocutory application under Order 1 rule 10(2) of CPC came to be rejected, now the matter is pending before the Division bench in a Writ Appeal. It is also an admitted fact, the petitioner No.1 had executed a GPA in favour of the accused No.3 on 06.10.2020 in respect of same land Sy.no.49/11 new Sy.No.114 measuring 4 acre and 2 guntas of land to look after the same including the litigations and maintaining the 13 said lands, even inspite of selling the property to respondent No.2, the accused No.1 on behalf of the other accused executed the GPA in favour of accused No.3 stating that the fraud has been played in respect of conversion of land and sale deed executed in favour of the respondent No.2 which is referred in para 3 of the GPA.
9. On perusal of these documents which clearly reveals, on one hand the accused No.1 sold the property on appeal of accused No.6 and other accused by receiving nearly 16 crores from the respondent No.2 and executed sale deed. On the other hand he files complaint against respondent No.2 indirectly in respect of the same property and executed GPA in favour of accused No.3 stating that a fraud has been played in respect of sale deed executed in respect of respondent No.2 which clearly attracts section 420 of IPC for the purpose of convenience section 420 of IPC defined as under:-
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is 14 signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
and the provisions of Section 415 of IPC is referred as under "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". On bare reading of the provisions 415 of IPC and to the fact of the case where the accused No.1 received Rs.15,85,75,000/- from the complainant and executed a sale deed by selling the 4 acres 2 guntas of land in Sy.No.49/11 New Sy.No.114 of Mullur village on 4.12.2019 and immediately after 5 days he lodged complaint to the Regional Commissioner stating that the Revenue officials colluded with the some private persons manipulated revenue records in turn the Assistant Commissioner files complaint to the Wilson Garden police for registering the 15 case against the revenue officials and also some other accused persons. On the other hand the very accused No.1 executes the GPA in favour of the accused no.3 in respect of the same property which was sold to the respondent No.2. The complainant herein stating that there was fraudulent transactions and sale deed and accused no.3 was appointed to litigate the dispute in respect of the sold property which clearly reveals the intention of the accused persons deceiving the complainant after receiving more than Rs.15,85,75,000/- from respondent No.2 and executed sale deed. On the other hand the accused persons wants to continue to be owner of the said land by executing the GPA. That apart, if at all they are not the owners of the property the documents were manipulated by the revenue officials and if they have no right over the property the question of selling same property to the complainant does not arise. The legal maxim Nemo dat quod non habet, apply in this case, that means no one can given what they do not have. Therefore, executing the sale deed itself is the fraudulent 16 act of accused persons and receiving money is nothing, but their intention to cheat the complainant.
10. That apart the learned senior counsel while arguing for the petitioner has contended the petitioner is ready to repay the sale consideration to the respondent No.2 of course the section 420 of IPC is a compoundable offence but he fact remains there was manipulation of public documents by the revenue officials and case was registered at Wilson Garden police, therefore Wilson Garden police are required to re-investigate the matter in detail in order to know whether this petitioner also involved in manipulating the documents and selling the property of the government to third parties or much less to the respondent No.2 the complainant herein. Even if the investigation not properly conducted by respondent No.1 police, it is always open to the Investigation Officer to further investigate the matter and file additional charge sheet against the petitioner and other accused persons, if anybody involved as per section 173 (8) of Cr.P.C. 17 Therefore the argument addressed by the learned counsel appearing for petitioner not acceptable as there is clear case against the petitioner, therefore the petition is devoid of merits and liable to be dismissed.
Accordingly, the petition is hereby dismissed.
Sd/-
JUDGE AKV