Karnataka High Court
Sri B Prabhakara Kedilaya vs Cavale Mohan Kumar on 8 May, 2020
Author: G.Narendar
Bench: G.Narendar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF MAY, 2020
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
CRIMINAL PETITION NO.1253 OF 2016
BETWEEN:
1. SRI. B. PRABHAKARA KEDILAYA,
A/A ABOUT 78 YEARS,
S/O B. RAMAKRISHNA KEDILAYA,
R/A # 102, BRIGADE VINTAGE,
#64, KANAKAPURA ROAD,
BENGALORE - 560 019.
2. SMT. VATSALA KEDILAYA,
A/A 70 YEARS,
W/O PRABHAKARA KEDILAYA,
R/A NO.102, BRIGADE VINTAGE,
#64, KANAKAPURA ROAD,
BENGALORE - 560 019.
... PETITIONERS
(BY SRI M.R.BALAKRISHNA, ADVOCATE)
AND:
CAVALE MOHAN KUMAR
S/O LATE DR. C. MADHUKAR,
A/A 56 YEARS,
R/AT NO.406, 5TH FLOOR,
BRINDAVAN MANSIONS,
NO.100, BULL TEMPLE ROAD,
BENGALURU - 560 019.
... RESPONDENT
(BY SRI ABHINAV R, ADVOCATE)
Crl.P.No.1253/2016
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH ORDER DATED
30.08.2013 IN C.C.NO.14851/2013 PASSED BY THE I
ADDL. C.M.M. BANGALORE VIDE ANNEXURE-A ON THE
FILE OF THE SAID COURT FOR THE ALLEGED OFFENCE
PUNISHABLE UNDER SECTION 107, 120(B), 339, 340, 415,
420, 506(C) R/W 34 OF IPC AND ALL FURTHER
PROCEEDINGS PURSUANT THERETO, INSOFAR AS
PETITIONERS ARE CONCERNED.
THIS CRIMINAL PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 21.10.2019, COMING
ON FOR 'PRONOUNCEMENT OF ORDERS', THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
Heard the learned counsel for petitioners and the learned counsel for respondent.
2. The petitioners are aged 78 years and 70 years respectively and have been arrayed as accused Nos.2 and 3 in C.C.No.14851/2013 pending on the file of I Additional Chief Metropolitan Magistrate, Bengaluru and are aggrieved by the registering of the case for offences punishable under Sections 107, 120B, 339, 340, 415, 420 and 506 read with Section 34 of the IPC and taking cognizance and issuing processes to the Crl.P.No.1253/2016 3 petitioners. The sole respondent is the complainant before the trial court.
3. The petition is resisted by the respondent on the grounds of maintainability. It is contended by the learned counsel for respondent that the petition is not maintainable and reliance is placed on a judgment of the Hon'ble Apex Court (non-reportable) rendered in Criminal Appeal No.255/2019 arising out of SLP (Crl) No.7513/2014 and reliance is placed on the observations of the Hon'ble Apex Court in paragraph Nos.4, 5 and 6.
'4. The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the Crl.P.No.1253/2016 4 complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not.
5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere.
6. Defences that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At that stage, the only question relevant is whether the averments in the complaint spell out the ingredients of a criminal offence or not.'
4. Per contra, the learned counsel for petitioners places reliance on the ruling of the Hon'ble Apex Court rendered in the case of Urmila Devi vs. Crl.P.No.1253/2016 5 Yudhvir Singh reported in (2013) 15 SCC 624 and would invite the attention of this Court to paragraph Nos.21, 22 and 23.
5. This Court has adverted to both the rulings of the Hon'ble Apex Court. In the ruling relied upon by the respondent, the Hon'ble Apex Court in paragraph Nos.5 and 9 has clearly not barred the exercise of the powers vested in the High Court under Section 482 of Cr.P.C for the purpose of quashing the complaint or the order of the Magistrate taking cognizance and summoning the accused. On the other hand, the Hon'ble Apex Court has in fact upheld the exercise of the jurisdiction invested in the High Court under Section 482 of Cr.P.C in the event the criminal proceedings called in question, does not disclose any offence, or is frivolous, vexatious or oppressive. On the other hand, the Hon'ble Apex Court in the ruling relied Crl.P.No.1253/2016 6 upon by the petitioners has in paragraph Nos.21.1 to 21.3 has held and observed as under:
'21.1 The order issued by the Magistrate deciding to summon an accused in exercise of his power under Sections 200 to 204 CrPC would be an order of intermediatory or quasi-final in nature and not interlocutory in nature.
21.2 Since the said position viz. such an order is intermediatory order or quasi-final order, the revisionary jurisdiction provided under Section 397, either with the District Court or with the High Court can be worked out by the aggrieved party.
21.3 Such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power under Sections 200 to 204 CrPC, can always be subject-matter of challenge under the inherent jurisdiction of the High Court under Section 482 CrPC.'
6. In view of the law laid down by the Hon'ble Apex Court in Urmila Devi's case, it is held that the instant petition preferred under Section 482 of Cr.P.C calling in question the order dated 30.08.2013 is maintainable.Crl.P.No.1253/2016 7
7. The outline of the commercial transaction entered into between accused No.1 and the complainant is set out in paragraph No.3 of the compliant. The gist of the transaction or alleged payments made to accused Nos.2 and 3, the petitioners herein is briefly set out in paragraph No.5 of the complaint. The details of the alleged occurrence on 02.02.2012 and the allegations against the accused Nos.2 and 3 is set out in paragraph No.10 of the compliant. For the sake of brevity and convenience, the allegations against the petitioners set out in paragraph No.10 of the complaint is culled out and is as below:-
'10....Accused no.2 came on-line (phone) immediately and threatened the Complainant that the Accused persons have good privity with supari killers and hired guns and at various points in time they has made use of their good offices to finish off the persons like complainant and it is better for the Complainant to come forward for settlement and execute a cancellation deed and also enlarge the receipt acknowledging the return of the loan agreement for which the Accused persons would enlarge a sum of Crl.P.No.1253/2016 8 Rs.50,00,000/- (Rupees Fifty Lakhs only) unto his hands and also at that point in time the things did not mellow down as the Accused no. 1 and 2 took turns to abuse and threaten the Complainant with dire consequences including putting an end to his life. The Complainant despite being a brave heart apprehends threat to his life and limb. At that point in time the Accused no. 3, despite being a woman came on-line and candidly informed the Complainant that it is better to come forward and settle the disputes between him and the Accused no. 1 in relation to properties and also the loan amount in question by coming for a full and final settlement as canvassed by the Accused no. 1 and that she is holding Accused no. 1 and 2 from not going ahead with their threats of finishing off the Complainant and in case the Complainant and in case the Complainant does not relent in such a case she would support the other Accused persons to finish him off for good. It is pertinent to mention that the Accused no. 1 and 2 are NRIs and they are likely to leave the country fearing legal consequences.'
8. From the above, the sum and substance of the allegations against the petitioners is that the persons, who had accosted the complainant had received a call on their handheld device and the device was handed over to the complainant and the Crl.P.No.1253/2016 9 complainant on speaking to the person at the other end realized it was accused No.1 (who is not present before the Court) and that he threatened him in the following manner "you are an old man having no one to support you and in case you do not come forward for a settlement in relation to the flat as well as the loan amount in question, I'll break your bones and disfigure you and you will have to live rest of your life begging"
and further informed the complainant that three persons, who had accosted him were supari killers hired by accused No.1 and accused No.2 came online immediately and threatened the complainant stating that he has good privity with supari killers and hired guns and at various points they have made good use of such persons to finish off people like the complainant and threatened to him to arrive at a settlement by executing a Cancellation Deed. That accused Nos.1 and 2 took turns to abuse him and thereafter, accused No.3 came online and spoke to him and accused No.3 also Crl.P.No.1253/2016 10 threatened him to agree to the settlement failing which, she is said to have stated that, she would support the other accused to finish off the complainant. Thus, the allegations in a nutshell against the petitioners is that they had received a sum of Rs.33.5 lakhs in 2009 and have failed to repay the same and are demanding that the complainant execute a Cancellation Deed and cancel the agreement relating to the apartment developed and sold to the complainant.
9. This Court, at the outset, queried the learned counsel for respondent as to whether the apartment agreed to be sold to the complainant- respondent had been handed over to the complainant to which the learned counsel fairly replied stating that the apartment has been handed over and is in the possession of the complainant and that the complainant is residing in the said apartment but that no Crl.P.No.1253/2016 11 Occupation Certificate has been issued by the concerned authorities.
10. The learned counsel for petitioners would contend that there is absolutely no truth in the complaint and that the instant complaint is nothing but an attempt by the complainant to leverage a position of strength and extract money from the accused- petitioners. He would contend that the complaint is a patently false complaint as on the relevant date, the petitioners were not even residing in the country much less in Bengaluru.
11. He would contend that the first petitioner is a citizen of the United States of America and is the holder of the Passport issued by the United States Department. He would submit that the second petitioner is the wife of the first petitioner and is residing in the United States of America along with the first petitioner. The learned counsel would invite the Crl.P.No.1253/2016 12 attention of the Court to Annexures-G and H, the extracts of the Passports and in particular, would invite the attention of the Court to the entries by the Immigration Department to buttress his contention that the complaint is a patently false complaint. On perusal of the entries, it is seen that both the petitioners have entered the country through Bengaluru International Airport only on 23.02.2012 i.e., nearly 20 days after the alleged incident. There is no dispute with regard to the fact that the first accused is the son of the petitioners and is a resident of India, which fact is demonstrated by the complainant's own documents.
12. On a query to the learned counsel for respondent as to whether the complainant is in possession of any material to even prima facie controvert the case canvassed, he would submit that the complainant has no other material to controvert the entries made by the Bureau of Immigration in the Crl.P.No.1253/2016 13 Passports and the specific case of the petitioners that they were not residing in India between 23.08.2011 to 23.02.2012. If this be the admitted position, then the petition has to be considered in the above background. The said contention virtually renders improbable the case alleged by the complainant.
13. The learned counsel for petitioners would contend that the instant complaint is a vexatious proceeding and is instituted with an intention of wreaking vengeance on the aged petitioners on account of the civil disputes pending between the first accused, the land owners and the respondent. He would submit that the respondent has filed a complaint before the National Consumer Disputes Redressal Commission at New Delhi, which is registered as Consumer Complaint No.15/2013, a copy of which is produced as Annexure- D and would submit that neither of the petitioners are a Crl.P.No.1253/2016 14 party to the said proceedings and the complainant has sought for the following reliefs:-
'A. Direct the Opposite Parties to execute and register a sale deed conveying the Apartment bearing No. 406, on the 4th Floor of Brindavan Mansions, No.100, Bull Temple Road, Bangalore - 560 019, admeasuring about 1900 sq. ft. along with undivided interest of 780 sq. ft. in the underlying property, free of all encumbrances, in favour of the Complainant.
B. Direct the First Opposite Party to pay the Complainant interest at 24% p.a. on Rs.66,50,000/- from 30th June 2009 until the date of execution and registration of the sale deed in favour of the Complainant.
C. Direct the Opposite Parties to pay costs to the Complainant; and D. Pass such other and further orders which this Hon'ble Commission may deem fit and proper in the circumstances in favour of the appellant and against the respondent.'
14. He would submit that there is not even a whisper about the allegations set out in the complaint and in particular, he would invite the attention of the Court to the pleadings at paragraph No.10 to demonstrate the admission by the complainant Crl.P.No.1253/2016 15 regarding the handing over of possession of the apartment to the complainant on 04.10.2010. He would contend that the said admission categorically negates the finding of the learned Magistrate that possession of the apartment has not been delivered to the complainant and would contend that this singular fact is suffice to demonstrate non-application of mind by the learned Magistrate and that the same vitiates the satisfaction found by the learned Magistrate enabling the issuance of summons. He would further invite the attention of the Court to Annexure-F - the legal notice dated 24.03.2012, to buttress his arguments that the order of the learned Magistrate taking cognizance and issuing summons is vitiated by non-application of mind.
15. He would contend that even as per the legal notice caused on behalf of the complainant, the place of residence of the complainant is detailed as the apartment, the possession of which has been handed Crl.P.No.1253/2016 16 over and delivered to the complainant. That despite the said admitted fact, the learned Magistrate has erred in holding that the possession of the apartment has not been delivered to the complainant. He would further contend that the further observation of the learned Magistrate that accused has refused to refund the sale consideration is patently erroneous as even as per the complaint pleadings, the accused were ready to refund the sale consideration but wanted the property value in crores.
16. He would further contend that the learned Magistrate even failed to consider the fact that the present petitioners-accused Nos.2 and 3 are not even noticees and no notice has even been issued to the petitioners. He would also place reliance on the contents of Annexure-F/legal notice to contend that the allegations leveled against the petitioners is a cock and bull story as there is not even a whisper about the Crl.P.No.1253/2016 17 alleged incident. He would contend that any prudent person approaching a legal counsel, for asserting his rights, in the normal course would have revealed the commission of any acts constituting a criminal offence, but the legal notice is conspicuously silent about the alleged incident said to have taken place on 02.02.2012. He would invite the attention of the Court to the date of the legal notice - Annexure-F which is dated 24.03.2012. The above contention merits consideration.
17. The learned counsel for petitioners elucidating further would contend that even the alleged incident dated 23.03.2011 does not find a place in the legal notice though the same is alleged in the pleadings in the plaint instituted by the complainant and registered as O.S.No.6387/2013. He would contend that the legal notice being the earliest document and issued at the instance of the complainant, clearly falsifies the allegations set out against the petitioners. He would Crl.P.No.1253/2016 18 contend that the complaint does not disclose any pleading as to why the alleged criminal acts have not been disclosed in the legal notice. He would contend that such a pleading was imperative in the light of the fact that the complaint is lodged after a delay of more than one year.
18. He would contend that the plaint and copy of the complaint preferred before the National Consumer Disputes Redressal Commission have been deliberately screened and not produced by the complainant.
19. Even as per the order, it is apparent that the legal notice has been perused by the learned Magistrate and if the same had been properly appreciated, the learned Magistrate would not have taken cognizance as the said legal notice itself clearly demonstrates that it is a dispute of a civil nature and that even under the said notice, there is not even a claim against the instant petitioners and that the legal notice is not even Crl.P.No.1253/2016 19 addressed to the petitioners. He would contend that the act of taking cognizance is vitiated by non application of mind as the learned Magistrate has recorded certain findings which are contradicted by the materials on record and hence, on this ground also, the order dated 30.08.2013 is liable to be set aside.
20. The learned counsel for petitioners would place reliance on two rulings of the Hon'ble Apex Court in support of his contention, that intervention of the High Court is warranted, where the dispute alleged is in the nature of a civil dispute and in such cases, the order taking cognizance and issuance of process are required to be set aside. He would place reliance on the ruling of the Hon'ble Apex Court reported in 2005 AIR SCW 989 and would invite the attention of the Court to paragraph Nos.10 to 13 extracted hereunder:-
'10. It is pertinent to notice that the alleged agreement to sell was xecuted on 25.12.1988. A legal notice was issued to the appellant Crl.P.No.1253/2016 20 herein on 11.07.1996 calling upon the appellant to execute the sale deed in respect of the premises in question. Thus the complaint was submitted after 7 1/2 years of splendid silence from the date of the alleged agreement to sell i.e. 25.12.1988. It is further to be noticed that the appellant herein responded to the legal notice dated 11.07.1996 by his reply dated 18.07.1996 through his lawyer specifically denying the alleged agreement and the payment of Rs.1,25,000/- as advance. Nothing was heard thereafter and the complainant after keeping quiet for nearly 3 years filed private complaint under Section 200, Cr.P.C before the IV Addl. CMM, Bangalore on 17.05.1999.
The learned Magistrate on the same date directed his office to register the case as PCR and referred the same to the local police for investigation and to submit a report as per Section 156(3), Cr.P.C. A charge sheet was filed on 04.08.2000 by the police against the appellant/accused No.1 only for offence under Section 420, IPC. The learned Magistrate took cognizance of the alleged offence under Section 190 (1) (b), Cr.PC and issued summons to the accused/appellant herein. Aggrieved by the aforesaid process order dated 04.08.2000 passed by the Magistrate, the appellant accused preferred the above criminal revision which was dismissed by the High Court for the reasons stated therein.
11. We have also perused the Annexures P1-P3 which are copies of the pleadings/documents which form part of the Crl.P.No.1253/2016 21 records of the case in the High Court against whose order leave to appeal was sought for in this appeal. We have carefully perused the order passed by the High Court. The High Court, in our opinion, has passed the order in a mechanical way without applying its mind. A perusal of the complaint would show that the entire dispute raised by the complainant is based on the alleged agreement to sell dated 25.12.1988 nearly 11 years prior to the filing of the private complaint on 17.05.1999. The existence of any such agreement or any advance taken has been specifically denied by the appellant by way of his reply dated 06.07.1996 in response to the legal notice dated 11.07.1996 sent by the complainant through his lawyer. For nearly 3 years from the date of reply, the complainant kept quiet before filing his complaint on 17.05.1999 before the Magistrate. It is stated that even as per the police report, no offence is made out against accused Nos. 2-4. Despite this, the Magistrate issued process against accused Nos. 2-4 as well which clearly shows the non- application of mind by the Magistrate. A perusal of the complaint would only reveal that the allegations as contained in the complaint are of civil nature and do not prima facie disclose commission of alleged criminal offence under Section 420, IPC. The Magistrate, in our opinion, has not considered the report filed by the police under Section 156(3), Cr.P.C judicially. Irrespective of the opinion of the police, the Magistrate may or may not take cognizance under Section 190(1) of Cr.P.C. In the instant case, as could be seen from the records, that the police has Crl.P.No.1253/2016 22 given a clean chit to accused Nos. 2-4. In our opinion, the Magistrate ought not to have taken cognizance of the alleged offence against the accused No.1, the appellant herein and that the complaint has been made to harass the accused No.1 to come to terms by resorting to criminal process.
12. As already noticed, the complaint was filed on 17.05.1999 after a lapse of 11-1/2 years and, therefore, the very private complaint filed by the respondent No.1 is not at all maintainable at this distance of time. It is the specific case of accused No.1 that he has not executed any agreement to sell or received any advance payment. In our view, the complaint does not disclose the ingredients of Section 415 of Cr.P.C and, therefore, we have no hesitation to set aside the order passed by the Magistrate taking cognizance of the offence alleged. It is also not clearly proved that to hold a person guilty of cheating, it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. The order of the Magistrate and of the High Court requiring the accused No.1 appellant herein to face trial would not be in the interest of justice. On the other hand, in our considered opinion, this is a fit case for setting aside the order of the Magistrate as confirmed by the High Court of issuance of process and the proceedings itself.
13. We, therefore, set aside the impugned order of the High Court and of the Magistrate. The complaint is liable to be dismissed on the Crl.P.No.1253/2016 23 question of inordinate latches on the part of the complainant himself. Viewed from any angle, we do not find any good reasons to maintain the order passed by the learned single Judge of the High Court confirming the orders of the Magistrate. Accordingly, this appeal stands allowed and the judgment and order dated 17.02.2004 in Criminal Revision Petition No. 932/2000 of the High Court of Karnataka at Bangalore is set aside.'
21. He would also place reliance on other ruling of the Hon'ble Apex Court reported in 2007 AIR SCW 1816 and would take this Court through the observations and conclusion of the Hon'ble Apex Court at paragraph Nos.18 and 19 of the said judgment, which reads as under:-
'18. We have carefully gone through the complaint made by the petitioner, and are convinced that the same primarily makes out a civil dispute relating to measurement, though an attempt has been made to give the same a criminal flavour. The High Court rightly held that the entire reading of the complaint does not disclose any offence except a civil dispute between the parties.
19. We, therefore, see no reason to interfere with the order of the High Court impugned in Crl.P.No.1253/2016 24 this Special Leave Petition, though the High Court after noticing its earlier order dated 7th October, 2005, in Writ Petition No. 21594 of 2005, could have stayed its hands till the Final Report was filed in connection with F.I.R. 83 of 2005 of Kovur Police Station.'
22. Learned counsel for the petitioners would further contend that, the delay in filing the complaint, if viewed conjunctively, in the absence of any narration about the alleged incident, either in the notice or the complaint before the National Consumer Disputes Redressal Commission or before the Civil Court, is a clear pointer that the alleged incident is a make believe story and the complaint is a vexatious complaint solely made with the purpose of coercing the parties to part with huge sums.
23. The learned counsel for petitioners would further submit that the learned Magistrate erred in taking cognizance for the offence punishable under Sections 107, 120B, 339, 340, 415, 420, 506 read with Crl.P.No.1253/2016 25 Section 34 of the IPC. He would contend that the very pleadings would reveal that there has been no act of inducement attributed to these petitioners. Even as per the complaint pleadings, the complainant is said to have interacted with the first accused only, pursuant to the paper advertisements. He would submit that the complainant had not interacted with the petitioners at any point of time as they were largely living outside the country and that the petitioners are name lenders in the firm and the activities of the firm were overseen by the first accused only. He would submit that the said fact is borne out by the complaint pleadings itself and the relationship between the parties is a pure and simple business relation relating to the sale and purchase of the apartment.
24. He would submit that a pure and simple contractual transaction is now sought to be given a different colour by falsely alleging an incident, which is Crl.P.No.1253/2016 26 apparently a make believe incident and concocted for the purpose of filing the complaint. He would submit that, the complainant being worldly wise and a highly educated person would have definitely approached the jurisdictional police if the incident, as alleged had indeed taken place. The contention merits consideration.
25. Per contra, the learned counsel for the respondent would submit that mere delay in initiating proceedings or lodging a complaint cannot be a ground to quash the complaint. He would place reliance of the observations of the Hon'ble Apex Court reported in AIR 2011 SC 2112. He would take the Court through paragraph No.18 which reads under:-
'18. Thus, it is evident that question of delay in launching criminal prosecution may be a circumstance to be taken into consideration in arriving at a final decision, but it cannot itself be a ground for dismissing the complaint. More so, the issue of limitation has to be examined in the light of the gravity of the charge.' Crl.P.No.1253/2016 27
26. He would contend that in the light of the grave charges alleged against the accused, the delay ought not to adversely affect the prosecution of the accused. He would submit that on account of the threats given to the life and limbs of the complainant, the complainant was in a state of shock and hence, the delay. He would submit that the complainant had in fact after the incident in 2011 had got himself admitted for anti-depression treatment. He would contend that the question of calling upon the learned Magistrate to look into the merits of the allegations is impermissible in the light of the law laid down by the Hon'ble Apex Court. In this regard, he would place reliance on the ruling of the Hon'ble Apex Court reported in (2015) 3 SCC 424. He would invite the attention of the Court to paragraph Nos.8 and 9, which read as under:-
'8. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the Crl.P.No.1253/2016 28 appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not.
9. It is also well settled that cognizance is taken of the offence and not the offender.
Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of the charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when Crl.P.No.1253/2016 29 there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.'
27. There can be no dispute with the law as laid down by the Hon'ble Apex Court. The said proposition as set out by the Hon'ble Apex Court is one of the well settled principles of criminal jurisprudence. He would further contend that the petitioners ought not to be heard as they are evading the jurisdiction of the Court.
28. Per contra, learned counsel for the petitioners would submit that the learned Magistrate erred in issuing a proclamation on the mere asking of the complainant. He would further contend that no attempt has been made to have the summons served on the accused in a manner known to law. In the absence of such service of summons, the learned Magistrate Crl.P.No.1253/2016 30 could not have taken recourse to the provisions of Section 82 and 83 of Cr.P.C. The learned counsel would take this Court through the record of proceedings and would submit that there is not a single observation by the learned Magistrate that the petitioners have been evading the service of summons nor is there a finding that the summons cannot be served in the normal course as stipulated in law and on the above ground, he prays for the petition to be allowed.
29. This Court has given its anxious consideration to the various contentions and adverted to the materials on record, more particularly, to the legal notice and the materials perused by the learned Magistrate before arriving at a satisfaction to take cognizance and issue process to the accused/petitioners.
30. The contention that the complaint is highly belated cannot be brushed aside. The complaint Crl.P.No.1253/2016 31 discloses that the amounts have been paid in the year 2009. Admittedly, the amount appears to be related to the same transaction relating to an apartment, namely, Flat No.406, Brindavan Mansion at No.100, Bull Temple Road, Bengaluru.
31. That the possession of the apartment having been handed over to the complainant is an admitted fact, the receipt of consideration by the first accused is also an admitted fact. That the negotiation and transaction in respect of the property proposed for sale, even as per the complaint pleadings, has been between the first accused and the complainant. Admittedly, the first accused is the son of the petitioners, who are arrayed as accused Nos.2 and 3. The issuance of the legal notice dated 24.03.2012 is also an admitted fact.
32. In this background and in the light of the fact that the petitioners are senior citizens and that they Crl.P.No.1253/2016 32 are residents of foreign nation, this Court is constrained to do a closer scrutiny of the matter.
33. As contended by the learned counsel, the case of the petitioners that they were not in India between November, 2011 and 23rd February 2012 has not been controverted. The said fact is prima facie borne out by the stamps affixed by the Immigration Bureau in the Passports. In fact the first petitioner is the holder of a Passport issued by the United States of America and if such persons are permitted to be prosecuted, it would cast on them, not only a monetory burden but would result in virtual displacement from their ordinary place of residence in a foreign nation, as constant travel is neither feasible nor would be physically possible for the petitioners to undertake at such an advanced age.
34. As rightly contended by the learned counsel for petitioners and even as per the respondent's own statements in the complaint, he is a highly literate and Crl.P.No.1253/2016 33 worldly wise person. The said fact can also be inferred from the numerous proceedings instituted.
35. The fact remains that the amounts have been paid in 2009 and the alleged incident of threat is said to have occurred in February, 2012 to be more particular, on 02.02.2012. Three weeks thereafter, the petitioner deemed it necessary to initiate steps to seek legal redressal of his grievance, which took the form of a legal notice, caused by the counsel of the respondent. It is interesting to note the array of the parties to the notice. The first noticee is the first accused and the noticees No.2 to 4 are the owners of the property on which the first noticee therein had developed the property and constructed apartments of which one such apartment was purchased by the respondent - complainant.
36. A bare perusal of the notice is quite enlightening. It admits the handing over of possession of Crl.P.No.1253/2016 34 the apartment to the complainant, the various contractual rights and duties cast upon the noticees i.e., the builder and the land owners. It admits the agreed sale consideration, the payment and receipt of the same and thereafter, it records the omissions said to have been committed by the first accused (who is not before the Court). The notice further admits that the handing over of the possession of the property is in part performance of the agreement to sell. It further alleges that mere handing over of possession without compliance of the statutory requirements, more particularly, obtaining Occupancy Certificate, does not amount to delivery of possession in the eye of law. Further, the notice records that the complainant has performed his part of the contract and that the noticees have failed to perform their part of the contract and that there is a delay in the execution of the Sale Deed and on account of the delay in terms of the contract, the complainant is entitled to compensation of Crl.P.No.1253/2016 35 Rs.42,56,000/-. The notice is a seven pages notice. Though being a detailed notice, there is not even a whisper about the present petitioners having cheated the complainant or they having threatened and thereby committed the alleged offence. It cannot be gainfully argued by the respondent that it had inadvertently slipped his mind and he had omitted to mention it to his counsel. Keeping the proximity between the dates of the alleged occurrence and the legal notice, it can be safely presumed that any prudent person, who has been given threats to both life and limb, would have certainly narrated the same to his counsel and would have sought for immediate action against the culprits.
37. As rightly contended by the learned counsel for the petitioners, the respondent could have approached the jurisdictional police, if such an incident had really occurred. The very fact that the complainant has not approached the jurisdictional police even Crl.P.No.1253/2016 36 though he being a person, well aware of his rights and being a learned citizen, he would have definitely set in motion the criminal law. The fact that he has failed to report the incident to the jurisdictional police coupled with the delay, weighs with this Court to adversely infer and conclude that the alleged incident is a make believe story merely to enable the criminal Court to take cognizance and issue process. This Court can safely conclude as above in the light of the various rounds of litigation commenced by the complainant.
38. About there being amounts owed by the petitioners, the petitioners are not even recipients of the said legal notice. That apart, the pleadings before the various forums and Court and the claim made in the detailed legal notice, it is apparent that the dispute is in the nature of civil dispute. In fact a civil suit has also been instituted as against these petitioners claiming that the sum was extended to them as a loan facility. Crl.P.No.1253/2016 37 But in the pleadings before the Civil Court, it is contended that the said amount was paid to the accused on their request in order to facilitate the issuance of the Occupancy Certificate.
39. It is not the case of the complainant that the transaction is independent of the contract he has entered into with the first accused. The amounts paid are admittedly in lieu of the transaction relating to the sale of the apartment.
40. In that view, assuming it is a dispute arising out of contractual terms and by no stretch of imagination can that be termed as a criminal offence.
41. Even otherwise, the complaint does not disclose any ingredients of Sections 107, 120 B, 339, 340, 415, 420, 506 read with Section 34 of IPC. The only allegation of substance is issuing of threats which Crl.P.No.1253/2016 38 this Court has tended to disbelieve in the light of the facts and circumstances narrated above.
42. Even as per the complaint, the petitioners are non resident Indians and if such persons are coerced to submit themselves to trial, it would be a travesty of justice. Apparently, the instant petition appears to be a measure to wreak vengeance on the first accused, whose parents are the present petitioners. The materials placed renders improbable the occurrence of the incident in the manner narrated. It is also apparent that the complainant has not approached the trial Court with clean hands. In the opinion of this Court, the complaint is an abuse of the process of the Court and vexatious litigation by a vexed soul, seeking leverage to settle the subsisting dispute with the first accused in an advantageous manner.
43. The learned Magistrate appears to have passed the order in a mechanical fashion. The learned Crl.P.No.1253/2016 39 Magistrate records that the accused have assaulted the complainant and threatened him, which is not even the case of the complainant. There is no allegation in the complaint that the complainant was ever assaulted by the petitioners/accused. The only allegation is that they had threatened him over phone. The learned Magistrate further erred in recording that the accused has not handed over the apartment. Even as per the notice and the statement before the various forum, the possession of the apartment had already been delivered to the complainant on 04.10.2010. The complaint appears to be littered with deliberate omission and inconsistencies. As rightly argued by the learned counsel for petitioners, the trial Court erred in issuance of a proclamation without ensuring as to whether the summons has been forwarded to the proper address.
44. In that view of the matter, this Court has no hesitation to set aside the order passed by the learned Crl.P.No.1253/2016 40 Magistrate taking cognizance of the offences alleged. It would be a travesty of justice if petitioners are required to stand trial.
45. Accordingly, the petition is allowed. The order dated 30.08.2013 passed in C.C.No.14851/2013 pending on the file of I Additional Chief Metropolitan Magistrate, Bengaluru is set aside and the complaint is dismissed insofar as it relates to the petitioners.
Ordered accordingly.
Sd/-
JUDGE dn/-
CT-HR