Karnataka High Court
Basavaraj A.S. S/O. A Shivananda vs Sunder S/O. Premraj Jotawani on 31 July, 2018
Author: K.Somashekar
Bench: K.Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31ST DAY OF JULY, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO.101998 OF 2017
BETWEEN
BASAVARAJ A.S. S/O.A.SHIVANANDA,
AGE: 45 YEARS, OCC: BUSINESS,
R/O: H.NO. 726, 9TH MAIN ROAD,
P.J. EXTENSION, DAVANAGERE.
... PETITIONER
(BY SRI.S.S.BETURMATH, ADVOCATE)
AND
SUNDER S/O.PREMRAJ JOTAWANI
AGE: 45 YEARS, OCC: BUSINESS
R/O. UREKA CORNER, 2ND FLOOR,
KOPPIKAR ROAD, HUBBALLI
DIST: DHARWAD
... RESPONDENT
(BY SRI.SADIQ N.GOODWALA, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO ALLOW THIS PETITION AND
QUASH THE ORDER DATED 01.08.2017 IN C.C.NO. 3501 OF
2016 PENDING ON THE FILE OF THE I JMFC HUBBALLLI
THEREBY ISSUING NOTICE UNDER SECTION 319 OF CR.P.C.,
AS AGAINST THE PETITIONER.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
:2:
ORDER
Heard the learned counsel for the petitioner and the learned counsel for the respondent.
2. The petitioner has filed this petition under Section 482 of Cr.P.C. seeking to quash the order dated 01.08.2017, passed in C.C. No.3501 of 2016, pending on the file of the learned 1st JMFC Court, Hubballi, the issuing of notice against the petitioner on the application filed under Section 319 of Cr.P.C., who is arraigned as proposed accused No.5, by urging various grounds.
3. It is stated in the private complaint that the respondent complainant filed a complaint on 21.05.2014 against the accused person alleging commission of offences punishable under Sections 407, 418, 420 read with Section 149 of IPC, alleging that the accused Nos.2 to 4 were doing real estate business, the respondent herein and the accused in C.C. No.3501/2016 had an agreement on 01.04.2011 that the accused had agreed to sell the ground floor of SSV Prime Building which was :3: under construction. The total consideration was of Rs.1,50,00,000/-. The complainant had paid an amount of Rs.90,00,000/- on different dates through cheques and cash in advance to the accused towards the sale consideration. Accused No.2 had executed a memorandum of understanding and accused Nos.3 and 4 were the witnesses to the said memorandum of understanding. It is further alleged that, in order to take away the amount given by the complainant, they sold the property to Ever Green properties by changing the name as Time Square. After taking cognizance, the Court below registered the case against the accused therein and issued the notices to them.
4. It is further alleged that when the case was posted for evidence before charge, the respondent complainant had filed an application under Section 319 of Cr.P.C. contending that the petitioner knowing about the memorandum of understanding entered into between the complainant and the accused therein, with a view to make gains and cause loss to the complainant, has :4: purchased the property on 28.08.2013. Accordingly, on filing of the said application by making the petitioner as a necessary party to the proceedings, the Court below issued a notice to the petitioner. Feeling aggrieved, the petitioner has filed this petition.
5. Learned counsel for the petitioner submits that in the application filed under Section 319 of Cr.P.C, it is stated that one Sri.Basavaraja A.S. S/o.A.Shivanand resident of H.No.726, 9th Main Road, P.J. Extension, Davanagere, had knowledge about the memorandum of understanding entered into between the complainant and the accused persons and also about the breach of trust committed by them as alleged in the complaint before the Court of law for the offence punishable under Section 420 of IPC. He further submits that the Court below before taking recourse of Section 319 of Cr.P.C and without there being any ingredients to proceed against the petitioner, proceeded to issue notice against him. In support of his submission, he placed reliance on the judgment in the case of Pandurang and others vs. :5: State through Police Sub-Inspector, Afzalpur reported in 2017(3) AKR 345 relating to Section 319 of Cr.P.C, wherein summoning of accused, the evidence on record must be sufficient to convict the accused and not merely to frame charge or to take cognizance and mere fact that there is some evidence, which would be sufficient to frame charge, is not sufficient material to invoke extraordinary power under Section 319 of Cr.P.C. Whereas, in this petition, notice has been issued on an application filed under Section 319 of Cr.P.C. to the proposed accused No.5/petitioner herein, the same has been challenged. On all these grounds urged, the learned counsel for the petitioner seeks to set aside the order passed on an application filed under Section 319 of Cr.P.C. to arraigned him as accused No.5.
6. Whereas the learned counsel for the respondent contended that, on filing of application under Section 319 of Cr.P.C. the Court below issued notice on that application and the same has been challenged under this petition by the petitioner. The application is filed by :6: the respondent herein for the purpose of impleading the proposed applicant as accused No.5. As the application filed to arraign him as accused no.5 as the memorandum of understanding entered into between the complainant and the accused person and also breach of trust committed by them as alleged in the complaint. The memorandum of understanding entered into between the parties in respect of the property bearing CTS No.3700/A totally measuring 406.1/9. The complaint filed by the complainant against accused Nos.1 to 4 have committed breach of trust as well as cheating as that one Basavaraju.A.S. who has abated the said offence and jointly committed the said offences. Therefore, he is also required to face trial and be arraigned as accused No.5 as he is required to impleaded in C.C. No. 3501/2016, as the accused Nos.1 to 4 colluding with this proposed accused No.5 as this accused who is well aware of all these facts and transactions purposefully with a view to make unlawful gains and cause unlawful loss to the :7: complainant who has purchased the property by way of registered sale deed dated 28.08.2013.
7. When the case was posted for evidence before charge, at that time, application under SEction 319 of Cr.P.C. was filed for impleadment of the proposed Basavaraju.A.S. as accused no.5 as he was also colluding with the other accused for breach of trust and committed offences as alleged in the complaint. Learned counsel has placed reliance on the decision of this Court in Criminal Revision Petition No.231/2016 dated 30.03.2016, wherein it has referred the decision of the Hon'ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab & Others reported in 2014(3) SCC 92, so also relied on the case of Jogendra Yadav & Others V. State of Bihar (AIR 2015 SC 2951). In Jogendra Yadav's case notice was issued on filing of application under Section 319 of Cr.P.C. that he should not be added as an additional accused, after giving opportunity to consider the said application on merits for involvement of the proposed person being an accused. :8: But, in the aforesaid case of Jogendra Yadav, it discloses that, prior notice has been issued to the person sought to be added as an additional accused before including them as parties in the proceedings.
8. In the instant case, on filing an application under Section 319 of Cr.P.C. notice has been issued and the same has been challenged under this petition filed under Section 482 of Cr.P.C. The power of the Court under Section 319 of Cr.P.C. is discretionary and extraordinary power vested with the Courts, it is to be exercised sparingly and only in those cases where the circumstances so warrant as the decision of the Hon'ble Apex Court in Hardeep Singh's case stated supra, the same is also referred in the reliance placed by the respondent counsel in support of his contention.
9. Whereas the decision in the case of Hardeep Singh stated supra, it is held as, the summoning of the proposed petitioner be arraigned as an accused under Section 319 of Cr.P.C. for having issuance of summons/ :9: notice, it cannot be called in question. Therefore, it is incumbent upon the concerned Court to issue prior notice to a person calling upon him to show cause as to why he is not made an additional accused but only giving an opportunity of being heard, a suitable order should be passed in accordance with law. But, in the instant case, the notice has been issued on an application under Section 319 of Cr.P.C. and the same has been challenged in this petition. Therefore, it requires intervention by considering the ratio of the reliance as placed by the learned counsel for the respondent as where the Court below only issued notice on the application under Section 319 of Cr.P.C. Therefore, it is stated that there are no justifiable grounds as urged by the learned counsel for the petitioner herein for quashing/setting aside the order dated 01.08.2017 passed by the Court below in C.C.No.3501/2016. The Court below has rightly passed an order by issuance of notice on an application under Section 319 of Cr.P.C. against the petitioner herein. Therefore, it does not arise calling for any interference. : 10 : Consequently, this petition deserves to be rejected. Accordingly, it is rejected.
Sd/-
JUDGE Vnp*