Karnataka High Court
Papaiah Anjaneyareddy vs State Of Karnataka on 16 June, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.1372 OF 2023
BETWEEN:
1 . PAPAIAH ANJANEYAREDDY,
S/O LATE PAPAIAH,
AGED ABOUT 67 YEARS,
R/AT NO.83, 1ST MAIN ROAD,
VARSOVA LAYOUT,
C.V.RAMAN NAGAR,
BENGALURU - 560 093.
2 . ARJUN ANJANEYAREDDY
S/O P.ANJANEYAREDDY,
AGED ABOUT 33 YEARS,
R/AT NO.83, 1ST MAIN ROAD,
VARSOVA LAYOUT,
C.V.RAMAN NAGAR,
BENGALURU - 560 093.
3 . HARSHAVARDHAN ANJANEYA
S/O P.ANJANEYAREDDY,
AGED ABOUT 36 YEARS,
R/AT NO.83, 1ST MAIN ROAD,
VARSOVA LAYOUT,
C.V.RAMAN NAGAR,
BENGALURU - 560 093.
4 . PAPAIAH SRINIVASA REDDY
S/O LATE PAPAIAH,
2
AGED ABOUT 69 YEARS,
R/AT NO.37-5/3, KEMPAPURA,
YAMALURU POST,
BENGALURU - 560 037.
5 . SUNDAR MURTHY,
S/O LATE MUNISWAMY,
AGED ABOUT 55 YEARS,
R/AT NO.2, 1ST CROSS,
MUDALIAR COMPOUND RESIDENCE
ASSOCIATION ROAD, EJIPURA,
BENGALURU - 560 047.
6 . MUNIRAJU,
S/O LATE VENKATAPPA,
AGED ABOUT 66 YEARS,
R/AT NO.4444,
APPA AMMA NILAYA,
MES COLONY,
KONENA AGRAHARA, HAL,
BENGALURU - 560 017.
7 . POOVAYYA T. M,
S/O LATE T.P.MANICHA,
AGED ABOUT 62 YEARS,
R/AT NO.39A, JAL VAYU VIHAR,
KAMMANAHALLI MAIN ROAD,
BENGALURU - 560 043.
... PETITIONERS
(BY SRI PAVANA CHANDRA SHETTY H, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY ANEKAL POLICE STATION,
BENGALURU DISTRICT,
REPRESENTED BY
HIGH COURT SPP,
3
BENGALURU - 560 001.
2 . MR. ANKAMMA RAO,
AGED ABOUT 50 YEARS,
S/O B.VEERAIAH,
NO.1/727, 9TH LINE,
PANDARIPURAM, CHILAKALURIPETA,
GUNTURU DISTRICT,
ANDHRA PRADESH.
... RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP FOR R-1;
SRI SANDESH J.CHOUTA, SENIOR ADVOCATE A/W.,
SRI AKASH R. RAO, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C.,, PRAYING TO QUASH THE FIR IN CR.NO.3/2023 ANEKAL
POLICE STATION, ON PENDING FILE OF THE COURT OF PRINCIPAL
CIVIL JUDGE (Jr.Dn.) AND JMFC ANEKAL BENGALURU RURAL
DISTRICT AGAINST THE PETITIONER FOR THE OFFENCE P/U/S.417,
418, 420, 464, 465, 34 OF IPC 1860 PRODUCED HEREWITH AS
DOCUMENT NO.1 AND ALLOW THIS CRIMINAL PETITION WITH
COSTS THROUGHOUT.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.05.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners are before this Court calling in question registration of a crime in Crime No.3 of 2023 for offences punishable under Sections 417, 418, 420, 464, 465 r/w 34 of the 4 IPC and pending before the Principal Civil Judge (Junior Division) & JMFC, Anekal, Bangalore Rural District.
2. Facts adumbrated are as follows:-
The 2nd respondent is the complainant and petitioners are accused Nos. 1, 3 to 8. A complaint comes to be registered against the petitioners and another by the 2nd respondent on 02-01-2023 alleging that the petitioners have all connived, forged the signatures of the complainant and got several sale deeds registered. A brief history to the complaint as narrated is that on 04-12-2014 a Joint Development Agreement ('JDA' for short) comes to be executed between the 2nd respondent/Ankamma Rao with M/s Mahidhara Projects Private Limited ('the Company' for short), a Company registered under the Companies Act. The Company later, on the strength of JDA develops a layout in the name and style of 'Mahidhara Fortune City' after obtaining all necessary permissions from Anekal Development Authority. The complainant further narrates that he along with other owners of properties subsequently entered into a partition to partition the remaining sites after the 5 disposal, which fell to the individual shares under the deed of partition dated 2-03-2021.
3. Thirteen properties are identified to be the subject matter of the complaint, as in terms of the JDA and the sharing agreement as well as the partition deed, the properties ought to have been in the share of the owner/complainant. The owner in order to secure loan from SBICAP, by way of depositing of title deeds, has mortgaged those 13 sites in favour of SBICAP and has secured finance. After the said act, the complainant comes to know that sale deeds are executed of those 13 properties which are the subject matter of loan that was secured from SBICAP on depositing of title deeds. The properties were sold by the Special Power of Attorney Holder one Chikka Kondappa, an employee of the 1st petitioner without consent, knowledge, authorization and by forging the signatures of the owner of the properties and without even mentioning the mode of payment. It is, therefore, alleged that the 1st petitioner who is one of the Directors of Bhoomika Infrabuild Private Limited along with his children and other accused have all connived and conspired to cheat the complainant. Therefore, the 6 complainant seeks to register the complaint on 02-01-2023. The complaint becomes a crime in Crime No.3 of 2023 for the offences aforementioned. Soon after registration of crime, the petitioners knocked at the doors of this Court with the present petition and a co-ordinate Bench of this Court in terms of its order dated 17-02-2023 stayed further investigation into the matter. The interim order is subsisting even as on date.
4. Heard Sri H. Pavana Chandra Shetty, learned counsel for petitioners, Sri Mahesh Shetty, learned High Court Government Pleader appearing for respondent No.1 and Sri Sandesh J.Chouta, learned senior counsel appearing for respondent No.2.
5. The learned counsel appearing for petitioners would vehemently contend that the issue in the lis is purely civil in nature and a proceeding that ought to have been before the civil Court is sought to be given a colour of crime by setting the criminal law in motion. If there was a dispute with regard to the JDA, it was open to the complainant to have knocked at the doors of the appropriate forum seeking resolution of the dispute. The Special Power of 7 Attorney is executed in favour of Mr. C. Kondappa, accused No.2 by the complainant in respect of those very 13 sites that he complains of and, therefore, having executed Special Power of Attorney and permitted the attorney to sell the properties, it is not open to the complainant to turn around and contend that there has been fraud played or there is forgery of signatures of the complainant. He would seek to place reliance upon the judgment of the Apex Court in the case of VIJAY KUMAR GHAI v. STATE OF WEST BENGAL1 to buttress his submission.
6. On the other hand, the learned senior counsel representing the 2nd respondent/complainant, who has filed detailed statement of objections, takes this Court through the statement of objections and documents that are placed for perusal of the Court. He would contend that the Special Power of Attorney is specific for the purpose of presentation of sale deeds before the Registering Authority as he could not be present at all times before the Registering Authority being a resident of the State of Andhra Pradesh. The learned senior counsel would further take this Court 1 (2022) 7 SCC 124 8 through several sale deeds of comparative nature to demonstrate that the sale deeds that are subject matter of the complaint do not contain any indication of what is the consideration and the mode of payment which is imperative for a sale deed to be registered. A sale deed cannot be vague and the mode of payment cannot be kept clandestine is what the learned senior counsel would submit. He would further emphasise the fact that these very properties are mortgaged to SBICAP in the year 2021 for the purpose of raising of loan and title deeds are deposited before the SBICAP. If title deeds are before the Bank, it is definitely a forged signature of the accused No.2 while executing the sale deeds and who buys the property is most important. Accused No.1 has sold all the properties to accused Nos. 3 and 4 his children. He would submit that it is a matter of trial for the petitioners to come out clean.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
98. The afore-narrated facts are not in dispute. The matter is still at the stage of investigation, as registration of crime has happened on 03-01-2023 and an interim order is granted by this Court on 17-02-2023. Therefore, the investigation has not proceeded any further. The relationship between the complainant and the petitioners is that the 1st petitioner is one of the Directors and other petitioners are Directors of one Bhoomika Infrabuild Private Limited. In the light of his association with Bhoomika Infrabuild Private Limited, the complainant executes a Special Power of Attorney in favour of Chikka Kondappa, accused No.2 who is not before Court. Sri. Chikka Kondappa, on the strength of Special Power of Attorney has executed several sale deeds in favour of the 1st petitioner, one of the Directors of Bhoomika Infrabuild Private Limited. In turn, accused No.1 has executed several sale deeds in favour of petitioners 2 and 3/ Accused No.3 and 4 who are the children of petitioner No.1.
9. The history to the said transaction is execution of a JDA between the complainant with M/s Mahidhara Projects Private Limited to jointly develop the lands and share the developed sites.
10In terms of the agreement, the complainant and a few neighbouring land owners enter into a sharing agreement on 04-12-2014. The Company developed the land and formed layout with sites of various dimensions. Later the complainant along with other land owners entered into a partition deed to partition the remaining sites which had fallen to the exclusive share of the complainant. The partition deed was entered into on 02-03-2021. After the JDA executed on 04-12-2014 and in furtherance of any further transaction since the complainant was a resident of Andhra Pradesh, the complainant had executed a Special Power Attorney on 06-05-2015 in favour of accused No.2/Sri. C.Kondappa who is not before the Court. The entire submission of the learned counsel for the petitioners hinges upon a clause in the Special Power of attorney and it reads as follows:
"Accordingly the sale agreements, sale deeds, so also Deeds of Rectification, Supplemental Deeds, Declaratory Deeds etc. are being drafted as per my instructions and I am executing the same at all relevant times in the presence of the purchasers, attesting witnesses and my Power of Attorney Holder.
Whereas I am pre-occupied with several commit- ments and I am unable to present personally at all relevant times before the Sub-Registrar, Attibele/Basavanagudi/ Banashankari, Bangalore to admit 11 execution of the sale deeds and perform such other act/s or deed/s, document/s for completion of the conveyance in favour of the intending purchasers, which includes execution of any other deeds of conveyance of sale, so also Deeds, Agreements granting easementary rights and also deeds of sale conveying the plots in the lay-out to be formed. However, I am intend to personally execute the document and further I deem it fit and necessary for to authorize my Special Power of Attorney to represent me before the Sub-Registrar for the purpose of completion of registration in the afore-mentioned mattes and perform all such act/s may be required for fulfillment of the aforementioned object and intent of this POWER OF ATTORNEY."
The afore-quoted clause in the Special Power of Attorney indicates that the complainant cannot be personally present to execute any document and, therefore, for the completion of conveyance in favour of intending purchasers the power of attorney holder was permitted to execute documents i.e., register the same before the concerned Registering Authority. It is alleged that on the strength of special power attorney, several transactions have taken place.
10. The 1st petitioner has sold sites that had fallen to the share of the complainant to petitioners 2 and 3/accused 3 and 4.
The sites that are sold, by accused No.1 are already mortgaged to the Bank/SBICAP for the purpose of raising of finance by the complainant. Therefore, the title deeds are all deposited before the 12 Bank. The complainant comes to know that despite the properties being mortgaged to the Bank, those very properties are sold by way of several registered sale deeds and the purchasers are the children of the 1st petitioner/accused No.1. It is then the complaint comes to be registered by the complainant. The complaint insofar as it is necessary to be noticed reads as follows:
"I state that I had executed SPA dated 06th may 2015 to Mr.Chikka Kondappa, registered in the office of Sub Registrar of Basavangudi (Banashankari), Vide Document No. BNG(U)BSK 30/ 2015-16, only to present the documents executed/signed by me before the concerned authority for registration and granted other limited powers. The same Special Power of Attorney now stands cancelled.
By way of Deed of Revocation of SPA dated 28th December 2022 at Bangalore and registered in the office of Sub Registrar of Basavangudi (Banashankari), Vide Document NO.BNG(U)BSK514/2022-23.
I have mortgaged the plots falling to my share which includes the above-mentioned properties by way of Depositing the title Deeds on 07th October 2021 (attached) with SBICAP Trustee Company Limited, registered as "Memorandum of Entry - By Deposit of Title Deed with The Security Trustee"
Vide Document No.4649 of 21-22 of Book I in the office of the Sub Registrar, Anekal, Bengaluru, to which Papaiah Anjaneya Reddy was a witness. As part of SBICAP Trustee Company Limited requirement to check EC annually, I have checked the same and to my utter shock and dismay the above-mentioned properties were sold vide various sale deeds by the SPA holder Chikka Kondappa (an employee of Papaiah Anjaneya Reddy) without my consent, knowledge, authorization and have used 13 forged documents (Forged my signatures) to dupe the concerned authorities. I further looked at the forged sale deeds and even the payment mode is not mentioned, no particulars of how the payment was made to acquire such sale is not mentioned and was clearly scripted by simply paying challan amounts without any sale considerations, to create a dispute and legal hassle.
I, B.Ankamma Rao, and Papaiah Anjaneya Reddy are the Directors of Bhoomika Infrabuild Private Limited. Articles of Association attached. Due to my association in Bhoomika Infrabuild Private Limited, I have entrusted Chikka Kondappa with SPA with him being the employee of my partner Papaiah Anjaneya Reddy, He and the following persons have conspired to dispute my personal properties situated in Bengaluru. The following persons are the conspirators in the crime.
Papaiah Anjaneya Reddy, son of Papaiah Reddy, aged 49 years residing at No.C1, 225, 2nd floor, BDA Flats, Domlur, Bangalore 560 071 is another Director of Bhoomika Infrabuild Private Limited.
Chikka Kondappa, son of Chikka Kondappa, residing at Venkatapura Village, Chikkamaluru Post, Madugiri Taluk, Tumkur 572 123, an employee of Papaiah Anjaneya Reddy.
Arjun Anjaneya Reddy is the son of Papaiah Anjaneya Reddy, residing No.83, 1st Main Road, Versova Layout, CV Raman Nagar, Bangalore 560 093.
Harsha Vardhan Anjaneya Reddy is the son of Papaiah Anjaneya Reddy, residing at NO.83, 1st main road, Versova Layout, CV Raman Nagar, Bangalore 560 093.
Papaiah Srinivasa Reddy is the brother of the Papaiah Anjaneya Reddy residing at No.37-5/3, Kempapura, Yamalur Post, Bangalore 560 037.
14M. Sundara Murthy, residing at NO.2, 1st Cross Road, Mudaliar Compound Residents Association, Ejipura, Bangalore 560 047, Mr.Muniraju V, residing at No.4444, Appa amma Nilaya, MES Colony, Konena Agrhara HAL Post, Bangalore 560 017, and T.M Poovayya, residing at NO.39A, Jal Vayu Vihar, Kammanahalli Main Road, Bangalore 560 043, are the employees of the Papaiah Anjaneya Reddy.
I state that Papaiah Anjaneya Reddy, one of the Director of Bhoomika Infra build Private Limited, along with his children Arjun Anjaneya Reddy and Harsha Vardhan Anjaneya Reddy, and his brother Papaiah Srinivasa Reddy, and his employees Chikka Kondappa, M.Sundara Murthy, Mr. Muniraju V, and T.M Poovayya, have all conspired to criminally cheat me and forged my signatures and have registered the above said Sale Deeds (Properties Personally belonging to me) in their names, when I have not signed any of the above mentioned sale deeds registered by Sub Registrar, Anekal (Sale Deeds attached), to which Papaiah Anjaneya Reddy acted as a witness.
I state that Papaiah Anjaneya Reddy also being the witness of depositing the title Deeds by me on 07th October 2021 (attached) of the above said properties with SBICAP Trustee Company Limited, has intentionally and willfully conspired with all the above mentioned conspirators, to cheat me in illegally registering the above-mentioned sale deeds of the properties belonging to me in their favour without my consent or knowledge. When I along with my cousin Mr. Siva Sankar Prathipati enquired and asked about the same with Mr.Chikka Kondappa, Papaiah Anjaneya Reddy, Arjun Anjaneya Reddy, Harsha Vardhan Anjaneya Reddy, Papaiah Srinivasa Reddy, M.Sundara Murthy, Mr. Muniraju V, and T.M.Poovayya, they have threatened me and my cousin of dire physical consequences claiming to be influential people and further threatened me saying "we are local here and be careful" if I intend to initiate any legal actions against them.
15Therefore, I pray your esteemed authority to register case and take immediate action as per law against Mr. Chikka Kondappa, Papaiah Anjaneya Reddy, Arjun Anjaneya Reddy, Harsha Vardhan Anjaneya Reddy, Papaiah Srinivasa Reddy, M.Sundara Murthy, Mr.Muniraju V and T.M Poovayya on their acts of forgery, willful misrepresentation, cheating, Criminal Intimidation, and Physical threats. And I also request your goodselves to give necessary protection to me in the interest of justice and equity."
(Emphasis added) It is upon the said complaint, the crime in crime No.3 of 2023 comes to be registered for the afore-quoted offences. The offences are the ones punishable for cheating and forgery inter alia.
11. The contention of the petitioners is that the issue is purely civil in nature and therefore, investigation should not be permitted to be continued. The allegation of the complainant is that signatures of the complainant have been forged which is demonstrable on the very look of the documents, as also the contents of the sale deeds. As an illustration, the sale deed alleged to have been executed on 18-03-2022 in favour of the 4th petitioner/accused No.5 requires to be noticed. It reads as follows:
"NOW THIS DEED OF ABSOLUTE SALE WITHNESSETH AS FOLLOWS:16
1. The total sale consideration of Rs.24,20,000/- (Rupees Twenty-Four Lakhs Twenty Thousand Only) is paid by the Purchaser/s to the Vendor/s which payment the Vendor/s hereby jointly admit and acknowledge as proper and sufficient consideration, the Vendor/s hereby grant, convey, transfer, assign and assure unto the use of the Purchaser/s herein, the "Schedule"B"Property" together with all easements and appurtenances thereto, to the Purchaser/s herein, to have and hold the same forever."
The total sale consideration of the property mentioned is `24,20,000/-. It reads that it is paid by the purchaser to the vendor who is the complainant. The mode of payment and date of payment are not even mentioned in the sale deed which are necessary concomitants to be present in a sale deed to be executed between the parties. Another sale deed is also appended to the petition which has the same amount and the same narration. This is executed in favour of petitioner No.6/accused No.7. Likewise all the sale deeds contain same contents. There is not an iota of difference in the disputed sale deeds. This Court in order to consider the submission of the 2nd respondent/complainant that the sale deed did not contain any amount, summoned other sale deeds executed by the complainant which have been produced for perusal by this Court. One of the sale deed executed by the complainant in favour of the Company reads as follows:
17"NOW THIS DEED OF ABSOLUTE SALE WITNESSETH AS FOLLOWS:
1. The total sale consideration of Rs.12,00,000/-
(Rupees Twelve Lakhs Only) is paid by the Purchaser/s to the Vendor/s as under, i. An amount of Rs.2,00,000/- (Rupees Two Lakhs only), by way of Cheque bearing No.988829, Drawn on State Bank of India, Yelahanka Branch, Bengaluru, in favour of the confirming party as instructed by the Vendor, ii. An amount of Rs.4,97,200/- (Rupees Four Lakhs Ninty Seven Thousands and Two Hundred Only), by way of Cheque bearing No.988841, Drawn on State Bank of India, Yelahanka Branch, Bengaluru, in favour of the Vendor.
iii. The balance amount being the loan amount sanctioned by AXIS BANK to the Purchaser/s vide Cheque/DD No.156570, Dated 01.07.2015, Drawn on AXIS BANK Bank, Branch, at the request and authorization of the Purchaser/s and paid this day to the vendor/s at the time of registration of this Absolute Sale Deed."
(Emphasis added) If the sale deeds that are the subject matter of the complaint is juxtaposed with what are produced by the learned senior counsel for the 2nd respondent, what would unmistakably emerge is a serious dispute with regard to execution of sale deeds.
1812. The other circumstance that would require a detailed investigation is that these very properties are said to be subject matter of mortgage before the Bank and all the necessary title deeds are deposited before the Bank. This is a fact, that is not in dispute. If all the title deeds of the disputed property were deposited before the Bank, on what strength the sale deed is executed is yet another factor that requires to be thrashed out.
These are all in the realm of seriously disputed questions of fact. If the complainant had deposited title deeds with SBICAP, he could not have sold the properties in favour of several accused after executing a Special Power of Attorney in favour of accused No.2.
Therefore, these seriously disputed questions of fact, it is for the petitioners to come out clean in a full blown proceeding.
13. The submission of the learned counsel appearing for the petitioners that it is purely a matter which is civil in nature and, therefore, this Court should not interfere in the light of plethora of judgments of the Apex Court, holding that civil proceedings which are given a colour of crime, should be interfered and the proceedings should be nipped in the bud, is unacceptable, as those 19 judgments are inapplicable to the facts of the case. In the light of what is narrated hereinabove, it is germane to notice the judgment of the Apex Court in the case of KAMAL SHIVAJI POKARNEKAR v. STATE OF MAHARASHTRA AND OTHERS2 wherein the Apex Court has held as follows:
"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 [State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri) 539] .
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 [Indian Oil Corpn. v.
NEPC (India) Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] .
7. Relying upon the aforementioned judgments of this Court, Mr M.N. Rao, learned Senior Counsel appearing for the appellant submitted that the High Court acted in excess of its jurisdiction in setting aside the order of the trial court by 2 (2019) 14 SCC 350 20 which process for summoning the accused was issued. He further submitted that the evaluation of the merits of the allegations made on either side cannot be resorted to at this stage.
8. Mr R. Basant, learned Senior Counsel appearing for Respondents 2 to 6 and 8 to 11 submitted that a proper evaluation of the material on record would disclose that the complaint is frivolous. He submitted that the dispute is essentially of a civil nature and the ingredients of the offences that are alleged against the respondent are not made out. By making the above statement, Mr Basant commended to this Court that there is no warrant for interference with the judgment of the High Court.
9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the trial court issuing summons to the respondents. A perusal of the complaint discloses prima facie, offences that are alleged against the respondents. The correctness or otherwise of the said allegations has to be decided only in the trial. At the initial stage of issuance of process it is not open to the courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted."
(Emphasis supplied) The Apex Court holds that if prima facie allegations are made, the Court exercising its jurisdiction under Section 482 of the 21 Cr.P.C., should not interfere merely because what is projected is that it is a matter which is purely civil in nature. The said judgment would become applicable to the facts of the case on all fours, as the complaint registered by the 2nd respondent gives minute details of the alleged acts of the accused and those minutes details are supported by documents produced by the 2nd respondent.
Therefore, in the teeth of the facts being in the realm of seriously disputed questions of fact, reference being made to the judgment of the Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH3 becomes apposite, wherein the Apex Court holds as follows:
"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 Cr.P.C.,, has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 Cr.P.C.,, quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and 3 (2021) 9 SCC 35 22 order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 Cr.P.C.,, was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered.
However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 :
(2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.
9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 23 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 Cr.P.C.,, to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C.,, though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C., Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.
9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.,
10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27-10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the 24 same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.
11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance 25 has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.
12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.,
13. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.
14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C., is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 Cr.P.C., only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."
(Emphasis supplied) 26 In the light of the aforesaid judgment, interfering with further investigation or proceedings would become contrary to law. There may be scores and scores of criminal cases being set into motion on issues which are purely civil in nature, breach of agreements or recovery of money and there may be scores and scores of cases where the allegation made is prima facie met in the complaints.
Therefore, interference under Section 482 of the Cr.P.C., would be, on a case to case basis as the facts obtaining in each case would be different, for such interference. The facts obtaining in the case at hand would clearly indicate that it would require a full blown trial and the investigation in the matter is yet to complete.
14. Insofar as the judgments relied on by the learned counsel for the petitioners, there can be no qualm about the principles so laid down by the Apex Court in the case of VIJAY KUMAR GHAI and even in plethora of cases, but those are distinguishable on facts obtaining in the case at hand without much ado. It is not a case where an issue which is purely civil in nature is given a colour of crime. The case at hand is an issue which is prima facie criminal in 27 nature dressed with the same colour of crime. It would require further proceedings.
15. For the aforesaid reasons, I pass the following:
ORDER
(i) Criminal Petition is dismissed.
(ii) However, it is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioners under Section 482 of Cr.P.C., and the same shall not bind or influence the proceedings pending before the trial Court or any other fora.
Consequently, I.A.No.2 of 2023 also stands disposed.
Sd/-
JUDGE bkp CT:SS