Karnataka High Court
Santosh. B Reddy vs The State By Banaswadi P.S on 19 July, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 09.07.2024 R
Pronounced on : 19.07.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No. 8448 OF 2023
BETWEEN:
1 . SANTOSH B.REDDY
S/O BALASUBRAMANYA
AGED ABOUT 38 YEARS
2 . SMT. VINAYA B.N.REDDY
D/O B.A.NARAYANA REDDY
W/O SANTOSH B.,
AGED ABOUT 32 YEARS
BOTH ARE RESIDING AT:
NO. 420/422, 5TH CROSS
3RD 'B' MAIN, 3RD BLOCK
NEAR FOOD WORLD
KALYAN NAGAR
BENGALURU - 560 043.
... PETITIONERS
(BY SRI VIVEK N., ADVOCATE)
AND:
1 . THE STATE BY BANASWADI P.S.
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
2
BENGALURU - 560 001.
2 . VINDHYA B.N.REDDY
D/O B.A.NARAYAN REDDY
AGED ABOUT 38 YEARS
R/AT NO. GRIHA UDYAN-2
NO.402, KANAKASHREE LAYOUT
KANNUR, BENGALURU - 562 149.
... RESPONDENTS
(BY SRI THEJESH P., HCGP FOR R-1;
SRI P.PRASANNA KUMAR, ADVOCATE A/W.,
SMT. NIDHI M.PATIL, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CR.P.C., PRAYING TO QUASH THE FIR WITH RESPECT TO THE
PETITIONERS IN CR.NO.430/2023 DATED 13.08.2023 BEFORE THE
4TH ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (MAYO HALL)
REGISTERED BY THE BANASWADI P.S., FOR THE OFFENCE P/U/S
406 AND 420 OF IPC.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09.07.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners/accused 1 and 2 are before this Court calling in question registration of a crime in Crime No.430 of 2023 registered for offences punishable under Sections 406 and 420 of the IPC.
2. The facts, in brief, germane are as follows:-
3The 2nd respondent, the complainant and petitioners 1 and 2 are members of the same family. The father of the complainant who is also the father of the 2nd petitioner had acquired a property pursuant to a registered sale deed in the year 1997 from one Dr. Latha Natarajan who acquired the land through a document executed by the Bangalore Development Authority. Thus, the father of the complainant became the absolute owner of the property. He dies. The mother who was suffering from cancer is said to have executed a mortgage deed in favour of ICICI Bank without the knowledge of the complainant by creating a mortgage for availing loan upon the property for `7.10 crores. The said amount is transferred by the Bank into the account of the 1st petitioner. It is said to have been utilized by the 1st petitioner keeping the complainant in dark. Broadly on these circumstances, the complainant registered a complaint against the petitioners on 13-8- 2023. The registration of the complaint led to a crime in Crime No.430 of 2023 for offences punishable under Sections 406 and 420 of the IPC. The registration of the crime drives the petitioners to this Court in the subject petition. A coordinate Bench of this Court 4 on 25-09-2023 grants an interim order of stay of further investigation. Therefore, the investigation is stalled.
3. Heard Sri N. Vivek, learned counsel appearing for the petitioners, Sri P. Thejesh, learned High Court Government Pleader appearing for respondent No.1 and Sri P. Prasanna Kumar, learned counsel appearing for respondent No.2.
4. The learned counsel for the petitioner would vehemently contend that the issue is purely civil in nature. The complainant appears to be aggrieved by her not getting any share in the property. Instead of agitating the same before a civil Court by filing an appropriate suit, the complainant is wanting to set the criminal law in motion, only to harass the petitioners or settle her scores. He would contend that the property is mortgaged with the Bank and installments towards the loan are being paid by the petitioners.
Khatha is also changed in favour of the petitioners. Therefore, there is no ground to continue the investigation against these petitioners.
55. Per contra, the learned counsel Sri P.Prasanna Kumar representing the 2nd respondent/complainant takes this Court through the documents appended to the petition to demonstrate that the claim of the petitioners is on complete forged documents.
The first forgery comes about when they secured a family tree excluding the complainant, the daughter of the deceased. Then begins the next fake document that is the application for khatha.
The complainant has also filed a civil suit in O.S.No.26382 of 2023.
But the present crime is necessary to be continued as forgery is apparent on the face of the record. He would submit that without the complainant being depicted as a member of the family, `7.10 crores loan is raised by the petitioners upon the property in which the complainant is also entitled to a share. The entire property is now subject matter of mortgage.
6. The learned High Court Government Pleader would submit that the matter is yet to be investigated into, as the interim order interdicted investigation.
67. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
8. The afore-narrated facts are not in dispute. The issue at this juncture lies in a narrow compass. The 2nd respondent is the complainant, a sibling or a family member of the petitioners. The complaint comes about after the death of the father of the complainant who had purchased the property in the year 1997.
After his demise on 02-02-2016, accused No.3, the mother, the complainant and petitioner No.2 became absolute owners of the property having 1/3rd share each. The family tree of the deceased B.A.Narayana Reddy is as follows:
"B.A. NARAYANA REDDY (DECEASED) SMT. HOODI KRISHNA REDDY CHANCHALA DEVI (WIFE) (ACCUSED No.3)
------------------------------------
SMT. VINDHYA B.N. REDDY SMT. VINAYA B.N. REDDY (DAUGHTER) COMPLAINANT (DAUGHTER) RESPONDENT. No.2 PETITIONER. NO.2 (ACCUSED NO.2)"
7Accused No.2 and the complainant are the daughters. Accused No.3 is the mother. Accused No.3 is said to be battling with cancer and is residing with the petitioners. It is the allegation that the petitioners induced accused No.3 to mortgage the property to ICICI Bank for a loan to be availed at `7.10 crores. This includes the share of the complainant. Whether the complainant was privy or not is required to be noticed. It is alleged that the petitioners induced accused No.3 to sign on blank papers and she was taken to the Sub-Registrar's office on the pretext of registering some documents and the mortgage deed was registered. The mother after few days thereafter comes to reside with the other daughter, the complainant and narrates the incident of availing loan of `7.10 crores on the property.
9. The complainant then becomes aware of the transaction and wondered as to how the land was mortgaged without her consent. It is averred in the objections that accused No.3 herself was shocked on learning about the mortgage deed created on the property with the Bank and had knocked at the doors of the Bank on several occasions and also requested furnishing of documents 8 upon which the loan was granted. It is then, the Bank divulges the family tree that led to grant of a loan. In the family tree, the name of the complainant is missing. The family tree produced before the Bank by the petitioners in the form of an affidavit of accused No.3 is as follows:-
"FAMILY TREE I, H.K. CHANCHALADEVI, aged about 63 years, W/o late B.A. Narayana Reddy, No.422, 5th Cross, 4th Block, 3rd B.Main, Kalyan Nagar, Bangalore-560034 do hereby solemnly affirm and state on oath as follows:
B.A. NARAYANA REDDY (LATE) CHANCHALA DEVI H.K. WIFE 63 YEARS VINAYA B.N. DAUGHTER 31 YEARS I am swearing this affidavit regarding my family tree which is mentioned as above and which is correct.
What is stated above is true and correct to the best of my knowledge, belief and information.
Bangalore Sd/- CHANCHALA DEVI H.K.
Dated: 29-12-2022 DEPONENT".
(Emphasis added)
This is referred to as Family Tree-II. This, according to the learned counsel for 2nd respondent, is a fake document that is produced, as it does not contain the name of the complainant, who is also a daughter. The mother then registers a complaint before 9 the Assistant Commissioner on 08-02-2024 that is after filing of the present petition and the same is pending consideration. It is besides the point.
10. The 2nd respondent/complainant, to further buttress the act of forgery of the petitioners, refers to a gift deed allegedly executed by accused No.3 in favour of petitioner No.2 pertaining to another property measuring 6.17 guntas of Sy.No.174/1A, Hoodi Village which is said to have been registered on 30-09-2022 before the Sub-Registrar, Banaswadi. This gift deed is said to have been produced before the Bank for the purpose of availing the loan. Both the gift deeds are produced as documents appending to the statement of objections. The first gift deed is the one that is maintained as a public record after registration, and the second gift deed is the one that is produced by the petitioners to the Bank.
The difference in both the gift deeds as obtaining in the statement of objections is as follows:
Sl. Document No.R9 Document No.R10
No (as filed with the Sub-Registrar, (as filed with the Bank)
allegedly
1. Presence of QR code at the Absence of the QR Code 10 bottom left of the document. from the document.
2. Difference in signature of Chanchala Devi (Accused No.3) in both the documents
3. Value of Stamp Paper - `2/- Value of Stamp Paper -
`3/-
4. Signature mismatch of the authorized persons at the Sub-
Registrar's office.
5. Page 8 - Name & Seal of the Page 8 - The name & seal Advocate who drafted the gift of the Advocate who deed mentioned drafted the gift deed is missing.
Loan thus, is availed on the strength of the aforesaid documents -
one the family tree and the other the gift deed allegedly executed by accused No.3 in favour of petitioner No.2. To the second gift deed executed in favour of the 2nd petitioner, the 1st petitioner is a witness.
11. The cat comes out of the bag when, a show cause notice issued by the ICICI Bank. The 1st petitioner is alleged to have produced forged documents to the Bank for availing the loan. The show cause notice reads as follows:
"Ref No. ICBK/FCPG/2023-24/1512 Date: March 04, 2024.
Borrower: Mr. Santosh B Co-borrowers - Mrs.
Vinaya Bangalore
Narayana Reddy, Mrs.
11
Chanchala Devi Hoodi
Krishna Reddy
Address:
No.422, 5th Cross, 3rd Block,
3rd B Main Road,
Kalayan Nagar,
Bengaluru-560 043,
Karnataka,
India
Mobile No: 9902762510.
Email; [email protected]
Dear Sir/Madam,
Sub: Show Cause Notice issued in terms of RBI Master Directions on Frauds - Classification and Reporting by commercial banks and select FIs', DBS.CO.CFMC.BC.No.1/23.04.001/2016-17 dated July 01, 2016 (updated as on July 03, 2017) read with extant guidelines issued by Reserve Bank of India ("Master Directions") and the judgment of the Honourable Supreme Court dated March 27, 2023. We, ICICI Bank Limited ('Bank), at the request of Mr.Santosh B, Mrs. Vinaya Bangalore narayana Reddy and Mrs. Chanchala Devi Hoodi Krishna Reddy ('Borrowers') had sanctioned Home loan facility ('Facilities') at `7.10,00,000 (Rupees seven crores ten lakhs) vide Loan Account Number - TBBNGOOOO6457553 on December 31,2022 and a Mortgage Insurance facility of `11,67,728 (Rupees Eleven Lakhs Sixty Seven Thousand Seven Hundred Twenty Eight) vide Loan Account Number - LBBN G00006649858 on May 26,2023.
As on March 04, 2024, the Borrowers have total receivables of `7,12,25,697 (Rupees Seven Crores Twelve Lakhs Twenty Five Thousand Six Hundred Ninety Seven) towards the Facilities for the property situated at below address:
* * * No.420/422, HRBR Layout 3rd Block, Site No. 3BM, Block No.1, Hennuru Banaswadi Near the Princeton School, Main Road, Kacharakanahalli, Bengaluru - 560 043. 12 While reviewing the Facilities, following issues/anomalies have been identified in the investigation report. * The borrower, Santosh B and Co-borrower, Vinaya B.N. Reddy (wife of Santosh B) had submitted fake gift deed of Mrs. Chanchala Devi Hoodi Krishna Reddy, second Co-borrower, having document No.11547/2022-23, dated September 30, 2022 towards the mortgaged property situated at 174/1A, ITPL Main Road, Hoodi Village, K.R. Puram Hobli, Bengaluru. Further, it was observed that notarized sworn statement of false family tree dated December 29, 2022 of Mrs. Chanchala Devi Hoodi Krishna Reddy family members towards property at site No.420/422, HRBR Layout 3rd Block, Site No. 3BM, Block No.1, Hennuru Banaswadi, Near the Princeton School, 3rd B Main Road, Kacharakanahalli, Bengaluru submitted to the bank to avail the Facility.
* The borrower, Santosh B, has provided fake salary slips of February 2023 and fake employment confirmation letter dated March 30, 2023 to avail the Facility. As per his employer, Walmart Gobal Technology Services India Private limited, the borrower had left the job in January 2023 and his last working day was January 31, 2023.
* The HDFC Bank statement of the Borrower generated on February 28, 2023, bearing account Number:
50100301022394 was fabricated to show regular salary credits in the account. Additionally, HDFC Bank statement of Co-borrower, Chanchala Devi Hoodi Krishna Reddy, bearing account number - 50100121631756 was also found fabricated.
* The HDFC Bank statement of Vinaya B.N. Reddy, bearing account number: 03531000056421 and Axis Bank statement bearing account number: 91401003264321 was found to be fabricated/fake.
* As per the terms and conditions of the Facility, the Borrowers were supposed to close the existing home loan 13 of Punjab National Bank (PNB) and personal loan taken from Yes Bank from the disbursed Facility. As a confirmation of loan closures, the Borrowers had provided closure letters dated March 02,2023 and March 08, 2023 of PNB Home loan and personal loan of Yes Bank respectively. Both the closure letters were verified with the respective Banks and found to be fake. The home loan taken from PNB is still active.
* The Borrower had transferred a total sum of `9,34,400 from the disbursed funds to the sourcing officer, Pradeep Kumar S between November 9, 2022 and April 24, 2023 vide 16 transactions. Reasons for such transfers are unknown and it indicates collusion between the Borrowers and sourcing officer to cause wrongful loss to the Bank.
Prior to arriving at a fresh decision with respect to classification of the Facilities as fraud, we would like to hear your submissions/representations on the above findings. Accordingly, we request you to attend the hearing scheduled on March 26, 2024 at 3.15 PM at ICICI Bank Ltd. 4/10, Mythree Tower, Bommanhalli Hosur Main road, Bengaluru, Karnataka-560
068.
You are directed to provide a written confirmation of your presence at the hearing, within 10 (ten) business days from the date of this notice.
Please note that in case you fail to provide a confirmation of your presence within 10 days or fail to appear at the hearing on the date mentioned above, the Bank shall be at liberty to presume that you have nothing to submit and shall proceed to decide the matter based on the documents /evidence before it.
Please feel free to write to us in case of any further information or query on the communication address or email ID given below:
Communication address:
To The Nodal Officer for Fraud Reporting, 14 ICICI Bank Limited Service Centre, BANDRA - KURLA COMPLEX, BANDRA (EAST), Mumbai - 400 051 Maharashtra."
(Emphasis added) The allegations are vividly observed. The 1st petitioner and the co-
petitioner i.e., the 2nd petitioner have submitted a fake gift deed.
The 1st petitioner has provided a fake salary slip. The 1st petitioner has also forged the salary credit account in HDFC Bank of the mother-in-law, the 3rd accused. The borrower transferred `9,34,400/- after disbursement of loan to the account of one Pradeep Kumar who is said to be the agent. All these form contents of the show cause notice upon the petitioners.
12. What would unmistakably emerge from the aforesaid contents is, the issue which in the first blush may appear to be purely civil in nature, has all the hues of mens rea, a necessary foundation for setting the criminal law into motion. It has both mens rea and actus reus, a wrongful mind and a wrongful act albeit, prima facie at this stage. The subject issue that has cropped up, which according to the learned counsel for the petitioners is seemingly civil in nature, cannot be accepted, as is not that 15 seemingly civil in nature. It has not only traces, but prima facie contents of cheating and forgery as is alleged, percolates the proceedings. The matter is still at the stage of investigation. What would emerge in the investigation cannot be gathered at this juncture. Therefore, the petitioners will have to cooperate for such investigation and the Police to file a final report after the outcome of the investigation. It is trite that an act sometimes would give rise to two proceedings - one to set the civil law in motion, and the other setting the criminal law into motion. It cannot be gainsaid that once the issue has a flavour of civil law, in every case criminal law being set into motion should be obliterated, it is qua the facts obtaining in each case.
13. The Apex Court from time and again held that merely because the issue projected appears to be civil, this Court under Section 482 of the CrPC cannot undertake a mini trial to decipher evidence. The Apex Court in the case of MAHESH CHAUDHARY v.
STATE OF RAJASTHAN1 has held as follows:
".... .... .... 1 (2009) 4 SCC 439 16
11. The principle providing for exercise of the power by a High Court under Section 482 of the Code of Criminal Procedure to quash a criminal proceeding is well known. The Court shall ordinarily exercise the said jurisdiction, inter alia, in the event the allegations contained in the FIR or the complaint petition even if on face value are taken to be correct in their entirety, does not disclose commission of an offence.
12. It is also well settled that save and except in very exceptional circumstances, the Court would not look to any document relied upon by the accused in support of his defence. Although allegations contained in the complaint petition may disclose a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior courts are also required to consider as to whether the allegations made in the FIR or the complaint petition fulfill the ingredients of the offences alleged against the accused."
(Emphasis supplied) The Apex Court in the case of PRITI SARAF v. STATE (NCT of DELHI)2 has held as follows:
"... ... ...
31. In the instant case, on a careful reading of the complaint/FIR/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 406 and 420IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only 2 (2021) 16 SCC 142 17 remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482CrPC for quashing such proceedings."
The Apex Court in its latest judgment in the case of CBI v. ARYAN SINGH3 has held as follows:
".... .... ....
10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not"."
(Emphasis supplied) 3 2023 SCC OnLine SC 379 18 Above all, the facts projected in the case at hand are maze, a maze of forgery. It would be amaze for this Court to exercise its jurisdiction under Section 482 of the CrPC in the peculiar facts which would run completely foul of the judgment of the Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH4 wherein it is held 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 CrPC 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 CrPC 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 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 CrPC 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, 4 (2021) 9 SCC 35 19 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 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 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC 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 CrPC. Similar view 20 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 CrPC.
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 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.
2111. 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 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 CrPC.
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 22 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 CrPC 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 CrPC 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)
14. In the light of the facts as obtaining in the case at hand and, the law laid down by the Apex Court, in the aforesaid judgments, I have no scintilla of doubt that interference at this stage, in exercise of jurisdiction under Section 482 of the CrPC, is not warranted, as it is case of fake in uno; fake in omnibus, albeit, prima facie.
2315. For the aforesaid reasons, I proceed to pass the following:
ORDER
(i) The Criminal Petition stands rejected. Interim order, if any operating, shall stand dissolved.
(ii) 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 investigation or proceedings thereafter if any, against the accused.
Consequently, I.A.No.1 of 2024 also stands disposed.
Sd/-
JUDGE bkp CT:SS