Karnataka High Court
Mrs Indira Poovaiah vs The State Of Karnataka on 28 September, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION Nos.29586-29587 OF 2018 (GM-RES)
BETWEEN:
1. Mrs. Indira Poovaiah
W/o. Mr. M.K. Poovaiah,
Aged about 70 years,
Residing at Jain Street,
Basavanagudi, Veerajapet,
Kodagu-571218.
2. Mr. Sanketh Poovaiah
S/o. Mr. M.K. Poovaiah,
Aged about 45 years,
Residing at
Appaiah Swamy Street,
Basavanagudi, Veerajapet,
Kodagu-571218. ...Petitioners
(By Sri. C.V. Nagesh Senior Advocate along with
Sri. Mrinal Shankar & Sri. Abhilash V, Advocates)
AND:
1. The State of Karnataka,
Through Seshadripuram Police,
198, S.C. Road,
1st Main Road,
Seshadripuram,
Bengaluru-560 020.
WP Nos.29586-29587/2018
2
2. Mr. K. Mageswaran
@ Mahesh K,
S/o. Late M. Kandaswamy,
No.63, Michael Palya,
2nd Stage, 1st Main, 1st Cross,
New Thippasandra Post,
Bengaluru-560 075. ...Respondents
(By Sri. Chetan Desai, HCGP for R-1;
Sri. K. Mageswaran, party-in-person/R-2)
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India read with Section 482 of
Cr.P.C praying to quash the First Information Report
dated:28.02.2018 in Crime No.22/2018 (Annexure-A
registered by R-1 P.S., which is pending on the file of the LVI
Additional Chief Metropolitan Magistrate, Bengaluru and all
further proceedings initiated in pursuance thereof and etc.,
These Writ Petitions having been heard and reserved
for orders on 20.09.2018, this day the Court made the
following:
ORDER
The petitioners in these writ petitions have sought for a writ of certiorari to quash the complaint dated 28.02.2018 filed by respondent No.2 with the first respondent - police (Annexure-B), the FIR filed in Crime No.22/2018 pursuant to the complaint at Annexure-B WP Nos.29586-29587/2018 3 (Annexure-A) and the police notice said to have issued by respondent No.1 (Annexure-J).
2. It is the case of the complainant - police that on 28.02.2018, the second respondent herein (complainant) appeared before the first respondent - police and lodged a complaint. The summary of the said complaint is that; the complainant is the owner of the landed property bearing site No.63, Sy.No.7/1, Khatha No.10 in B.M.Kaval, Krishnarajapura Taluk, Bengaluru South District. Even though the father of the complainant by name Late Sri.Kandaswamy had not sold the said property in anybody's favour, still the present petitioner Nos.1 and 2 joined by the other accused shown in the complaint as accused Nos.3, 4 and 5 have hatched a conspiracy with the intention to grab the said opportunity, in which direction, they created a fabricated document that the said property was sold by said Late WP Nos.29586-29587/2018 4 Kandaswamy, father of the complainant in favour of accused No.1 (Petitioner No.1) under a registered sale deed dated 16.11.1990 and thereafter, the said purchaser through his General Power of Attorney Holder (petitioner No.2 / accused No.2) registered a sale deed with respect to the same property in favour of accused No.3 - Puttaraju. Based upon those created documents, they got a loan of `25.00 lakhs sanctioned from Neharu Co-operative Bank, where accused No.5 was working. The said complaint was registered with the first respondent - police station against the present petitioners and three more accused in Crime No.22/2018 for the offences punishable under Sections 120B, 468, 471, 420 r/w Section 34 of IPC. The complainant - police also filed an FIR in that regard with the jurisdictional Court. The respondent - police also issued a police notice under Section 41 (a) of Cr.P.C to the first petitioner herein calling upon her to produce certain WP Nos.29586-29587/2018 5 documents. It is these compliant, FIR and the Police notice, that the petitioners who are accused Nos.1 and 2 respectively in the FIR have challenged in these writ petitions.
3. Learned Senior counsel for the petitioner in his argument while drawing the attention of the Court to the various annexures produced by the petitioner has submitted that the property in dispute has been sold by father of the second respondent to the petitioner No.1 herein under a registered sale deed dated 16.11.1990 which was subsequently sold by petitioner No.1 in favour of accused No.3 under another registered sale deed. The second respondent (complainant) had filed a suit for partition and for permanent injunction against his father M.Kandaswamy and others in which suit the present petitioner No.1 and accused No.3 were also the defendants. Both those suits came to be dismissed with WP Nos.29586-29587/2018 6 cost by the Court below. Challenging the said judgment and decree, respondent No.2 herein preferred a regular first appeal in RFA Nos.1253/2017 c/w 1282/2007 in this Court, which came to be allowed by the judgment dated 23.08.2016, wherein by setting-aside the judgment and decree passed by the trial Court, declared that the appellant before it (second respondent herein) was entitled for 1/4th share in the suit property. However, it was observed that there was no material to hold that the sale made in favour of defendant No.3 (Accused No.1) of part of the suit schedule property was fraudulent and therefore, not binding even on the share of defendant No.1 (father of the complainant - Kandaswamy) and was invalid as per Section 41 of the Transfer of Property Act.
4. Learned Senior counsel further submitted that aggrieved by the said judgment and decree passed WP Nos.29586-29587/2018 7 in RFA No.1253/2007, the second respondent herein preferred a special leave petition before the Hon'ble Supreme Court in SLP No.39504/2016. However, the same came to be dismissed. With these narrations learned counsel submitted that since the second respondent / complainant has totally failed in his attempt to secure the property sold to the present petitioner No.1 by his father through civil litigation, he with an intention only to put the accused into inconvenience and to harass them, has filed criminal complaint suppressing the entire details with respect to the civil litigation, as such, the initiation of the criminal proceedings itself is with some vengeance and requires to be quashed. In his support, he relied upon the judgment of the Hon'ble Supreme Court in the case of Kishan Singh (dead) through LRs. Vs. Gurpal Singh and Others reported in (2010) 8 SCC 775.
WP Nos.29586-29587/2018 8
5. Learned High Court Government Pleader appearing for the first respondent in his argument submitted that a serious allegations of committing a cognizable offences have been made in the complaint, in pursuance of which the police have only issued a notice to petitioner No.1 asking her to produce certain documents. After perusing the documents produced by her and in the process of investigation, if the police does not find any material to file the charge sheet, they may file a 'B' report, as such, at this stage, the petitioner cannot approach this Court by invoking writ jurisdiction.
6. Inspite of giving sufficient opportunities, the second respondent who is appearing in these petitions as a party-in-person did not address his argument.
7. A perusal of the writ petition accompanied by the annexures go to show that one Kandaswamy said to be the father of respondent No.2 / complainant is shown WP Nos.29586-29587/2018 9 to have executed a registered sale deed dated 16.11.1990 bearing document No.4008/1990-91 in Book-I of the office of the Sub Registrar, Krishnarajapuram, Bengaluru in favour of petitioner No.1 in respect of the landed property measuring 35 ft x 42 ft out of 60 ft x 42 ft. Said petitioner No.1 through petitioner No.2, as a GPA Holder, is shown to have executed a registered sale deed with respect to the very same property in favour of accused No.3 - Puttaraju on 22.03.2000 vide document No.10017/1999-2000. In the meantime, the present respondent No.2, who is son of the original vendor Mr.Kandaswamy filed a suit in OS No.1467/1992 before the learned Principal City Civil and Sessions Judge, Bengaluru for the relief of partition and OS No.350/1997 for the relief of permanent injunction, in which suit, present petitioner No.1 was also a defendant. In the suit for partition, the plaintiff (respondent No.2) has sought for partition and separate WP Nos.29586-29587/2018 10 possession of his share from his father and brother Ganesh Murthy in the property bearing House No.52 measuring 35 ft x 42 ft. The learned Principal Civil and Sessions Judge in his judgment dated 30.07.2007 passed in the said matter, interalia has held that the plaintiff in those suits has utterly failed to prove that the suit schedule property was either the joint family property or the ancestral property. He further held that the suit schedule property was the self acquired property of defendant No.1 (Kandaswamy, father of respondent No.2 herein). With the said observations, learned Judge dismissed both the suits with exemplary costs. This is evident from a perusal of the certified copy of the judgment and decree produced at Annexure-C.
8. Being aggrieved by the judgment and decree passed in OS No.1467/1992 with connected OS No.350/1997, the plaintiff therein - respondent No.2 WP Nos.29586-29587/2018 11 herein preferred two RFAs before this Court in RFA No.1253/2007 connected with RFA No.1282/2007. A Co-ordinate Bench of this Court in its considered judgment dated 23.08.2016 passed in the said appeals in Paragraph 31 was pleased to observe as below:
"31. Though it is contended by the plaintiff that family dwelling house cannot be divided with a stranger alienees,, this contention cannot be accepted because defendant No.1 who is the father of plaintiff during his life time sold the property even prior to filing of suit in favour of defendant No.3. Indeed, when the suit was originally filed, defendant No.3 was not impleaded and she has been subsequently impleaded. Defendant No.1
- D.W.1 has categorically stated that he sold the property by receiving the market value as its consideration. Therefore, documentary or oral to hold that sale made in favour of defendant No.3 of part WP Nos.29586-29587/2018 12 of the suit schedule property was fraudulent and therefore, not binding even on the share of defendant No.1 and was invalid as per Section 41 of the Transfer of Property Act. It is made clear that with regard to claim for possession of defendant No.4 which he has allegedly secured pursuant to the sale made by defendant No.3, parties will have to work out their remedies at the time of final decree proceedings and this judgment will not enable either the plaintiff or defendants to assert their rights regarding possession in respect of the said portion."
9. Thus, this Court observed that the father of the complainant had sold the property in question to an extent of 35" x 45" in favour of the present petitioner No.1, under a registered sale deed and petitioner No.1 inturn has sold the same through her GPA Holder respondent No.2 to accused No.3 - Puttaraju. The same is evident from the certified copy of the judgment WP Nos.29586-29587/2018 13 passed in the said RFA No.1253/2007 connected with 1282/2007 dated 23.08.2016 which is at Annexure-E.
10. Annexure-F which is a copy of the order dated 08.01.2018, passed by the Hon'ble Apex Court in SLP No.39504/2016 shows that the present respondent No.2 / complainant had preferred an SLP challenging the judgment and order dated 23.08.2016 passed by this Court in RFA No.1282/2007. Observing that the petitioner who appeared before it in person, after some arguments sought leave of the Court to withdraw the SLP as he wants to avail some other remedy, Hon'ble Apex Court granted permission and accordingly, dismissed the petitions as withdrawn. In view of the same, the finding given by this Court in the above said RFAs' in its judgment dated 23.08.2016 holding that father of the present respondent No.2 had sold the property in favour of petitioner No.1 under a registered WP Nos.29586-29587/2018 14 sale deed who inturns has sold the same in favour of accused No.3 - Puttaraju has reached its finality. When that being the case, the very same plaintiff as a complainant in the instant case (respondent No.2) filing a criminal complaint against the petitioners and other accused reiterating his original complaint averments and alleging that the sale deed executed by his father in favour of petitioner No.1 and subsequent sale deed in favour of accused No.3 by GPA holder of petitioner No.1 were all created and fabricated documents, is nothing, but a futile exercise of respondent upon the matter with respect to which a judicial finding given by this Court in its order in RFA Nos.1253/2007 c/w 1282/2007 dated 23.08.2016 has already reached its finality.
11. In Kishan Singh's case (supra) the facts of which case has got semblance with the facts of the case WP Nos.29586-29587/2018 15 on hand the Hon'ble Apex Court was pleased to observe in Paragraph Nos.21 to 25 of judgment as below:
"21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. (Vide Sahib Singh V. State of Haryana)
22. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured WP Nos.29586-29587/2018 16 version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (Vide Chandrpal Singh V. Maharaj Singh, State WP Nos.29586-29587/2018 17 of Haryana V. Bhajan Lal, G. Sagar Suri V. State of U.P., and Gorige Pentaigh V. State of A.P.)
23. The case before us relates to a question of the genuineness of the agreement to sell dated 4-1-1998. The said agreement was between Kishori Lal and the respondents and according to the terms of the said agreement, the sale deed was to be executed by 16-6-1989. As the sale deed was not executed within the said time, suit for specific performance was filed by the other party in 1989 which was decreed in 1996.
24. So far as the present appellants are concerned, agreement to sell dated 22-10- 1988 was executed in favour of their father and the sale deed was to be executed by 15-6-1989. No action was taken till 1996 for non-execution of the sale deed. The appellants father approached the court after 7 years by filing suit No.81 of 1996 WP Nos.29586-29587/2018 18 for specific performance. However, by that time, the suit filed by the present respondents stood decreed. The appellants father filed another Suit No.1075 of 1996 for setting aside the judgment and decree passed in favour of Respondents 1 to 4.
The said suit was dismissed by the Additional District Judge (Senior Division), Khanna on 10-6-2002. Subsequently, the appellants preferred RFA No.2488 of 2002 on 15-7-2002 against the aforesaid order, and the said appeal is still pending before the Punjab and Haryana High Court.
25. It is to be noted that the appellants father Kishan Singh lodged FIR No.144/02 on 23-7-2002 through his attorney Jaswant Singh Mann under Sections 420/323/467/468/471/120-B IPC, against the respondents. The allegations made in the FIR were substantially similar to the allegations made by the appellants in Civil Suit No.1075 of 1996, which has been decided against them. It is evident that WP Nos.29586-29587/2018 19 the aforesaid FIR was filed with inordinate delay and there has been no plausible explanation for the same. The appellants lodged the aforesaid FIR only after meeting their Waterloo in the civil court. Thus, it is evident that the FIR was lodged with the sole intention of harassing the respondents and enmeshing them in long and arduous criminal proceedings. We are of the view that such an action on the part of the appellants father would not be bona fide, and the criminal proceedings initiated by him against the respondents amount to an abuse of the process of law."
12. In the instant case also, according to the petitioner the father of the complainant late Kandaswamy had sold the subject matter of the property in favour of petitioner No.1 under a registered sale deed dated 16.11.1990. Admittedly, the respondent No.2 (Complainant) filed the original suit for partition and for permanent injunction on 04.03.1992 WP Nos.29586-29587/2018 20 and 10.01.1997 respectively. After his failure in his attempt upto the Hon'ble Apex Court, wherein his special leave petition was also dismissed, he has once again attempted to put the law into motion in the form of a criminal complaint against the petitioners by lodging a criminal complaint on 28.02.2018 ie., with a delay of 28 years from the date of the actual sale made by said Kandaswamy, father of the complainant in favour of petitioner No.1. Thus, it is nothing, but, an act of harassment by respondent No.2 / complainant on the other side. The Court proceeding ought not to be permitted to degenerate into weapon of persecution, as such, since it is convinced that the FIR lodged is with a view to harass the accused therein (petitioners herein) which amounts to abuse of the process of law in the facts and circumstances of the case. As such, it is a fit case where the complaint, FIR be quashed confining to the petitioners herein.
WP Nos.29586-29587/2018 21 Accordingly, the petitions are allowed in part. The complaint dated 28.02.2018 in Crime No.22/2018 and the FIR in Crime No.22/2018 before the First respondent
- police for the offences punishable under Sections 120B, 468, 471, 420 r/w Section 34 of IPC are quashed, confining to the petitioners herein.
Sd/-
JUDGE GH