Bangalore District Court
Vishwanath vs Mohammed Aseefulla @ Shareed on 15 July, 2025
KABC030259772014 Digitally
DEEPA signed by
VEERASWAMY DEEPA
VEERASWAMY
Presented on : 16-04-2014
Registered on : 16-04-2014
Decided on : 15-07-2025
Duration : 11 years, 2 months, 29 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 15th Day of July, 2025
C.C. No.9271/2014
(Crime No.362/2012)
State by Sanjay Nagara Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
Sri Mohammed Asifulla @ Shariff,
Aged about 57 years,
S/o Sri Late Abdul Azeez Saab,
R/at No.30/1, K.H.M. Block,
R.T.Nagara, Bengaluru City. ... Accused
(Represented By Sri M.V.Manjunath, Advocate)
KABC030259772014 CC No.9271/2014
1. Date of commission of 01-09-2012 to
offence 08-10-2012
2. Date of FIR 08-10-2012
3. Date of Charge sheet 20-10-2013
4.Name of Complainant Sri Vishwanath
5. Offences complained of Under Section 427, 447,
420 of IPC and Sec.33(A)
of BDA Act
6. Date of framing of 19-06-2019
charges
7.Charge Pleaded not guilty
8. Date of commencement 29-08-2019
of evidence
9. Date of Judgment is 15-07-2025
reserved
10. Date of Judgment 15-07-2025
11. Final Order Accused is acquitted
12. Date of sentence -
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JUDGMENT
The Police Sub-Inspector of Sanjay Nagara Police Station submitted charge sheet against accused for the offences punishable under Section 427, 447, 420 of IPC and Sec.33(A) of BDA Act.
2. Prosecution Case: The accused has illegally trespassed into the Survey No.1/1 of Lottegollahalli Village, Kasaba Hobli, Bangalore North Taluk, within the limits of Sanjayanagar Police Station, constructed a building with the intention to cheat BDA authority and grab BDA property by violating the order of Hon'ble High Court in W. A. No. 21143/2012 to maintain the status quo in said property, which belongs to Bangalore Development Authority and caused damaged to BDA property.
3. First Information Report: Upon the receipt of first information from CW1, CW10 Sri Huchchegowda, PSI of Sanjay Nagara Police Station registered Crime No.362/201 against accused for the offences punishable under Section 427, 420, 447 of IPC and Sec.33(A) of BDA Act, prepared FIR and sent the same to the Court and to his superior officers. Thereafter, he drawn spot mahazar on 09-10-2012 from 9.30 a.m. to 10.15 am in the presence of CW8 namely Sri Babu Ayyam and CW9 namely Sri Tukaram and handed over the case papers to CW11.
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4. Investigation: CW11/PW2 Sri S. Narasimhaiah, PSI continued the investigation and secured the documents from BDA through Ex.P1 letter and filed charge sheet against accused for the alleged offences.
5. On receipt of charge sheet, this Court had taken cognizance of offences alleged against the accused.
6. At the pre-cognizance stage, the accused was enlarged on bail by the order dated 20-12-012.
7. Copies of prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused.
8. Charge: After hearing learned Sr.APP and counsel for accused, charge for the offence punishable U/Sec.447, 427, 420 of Indian Penal Code and Section 33(A) of B.D.A. Act, has been framed, read over and explained to the accused in the language known to him, who, in turn, pleaded not guilty and claimed to be tried.
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9. Prosecution Evidence: The prosecution in order to establish its case cited 11 witnesses, examined 2 witnesses and exhibited 1 document and closed their side. The presence of CW1, CW3 and CW4 could not be secured despite the execution of proclamation by the order dated 07/10/2023. the presence of CW5 to CW9 could not secured on issuance of NBW from 05/08/2024 till 07/07/2025 and hence the examination of CW5 to CW9 was dropped out by the order dated 07/07/2025. The witness summons to the CW10 namely Sri Huchegowda returned with shara as dead along with death certificate who is said to have died on 14/02/2024 and hence given up by the order dated 27/03/2024.
10. Statement of Accused as per section 313 of CrPC: After completion of evidence of prosecution, the accused was examined as per section 313 of Cr.P.C wherein he denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
11. Heard the arguments. Perused materials on the record.
12. The following point are arises for consideration is as follows;
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1. Whether the prosecution proved beyond all reasonable doubt that the accused illegally trespassed into the Survey No.1/1 of Lottegollahalli village, Kasaba Hobli, Bangalore North Taluk, within the limits of Sanjayanagar Police Station which belongs to Bangalore Development Authority thereby resulted in commission of an offence punishable under Section 447 of IPC?
2. Whether the prosecution proved beyond all reasonable doubt that the accused illegally trespassed into the above said property and constructed house and caused damage to BDA property thereby resulted in commission of an offence punishable under Section 427 of IPC?
3. Whether the prosecution proved beyond all reasonable 6 KABC030259772014 CC No.9271/2014 doubt that the accused has illegally trespassed into the site and constructed a building with the intention to cheat BDA authority and grab BDA property by violating the order of the Hon'ble High Court in W.A.No. 21143/2012 to maintain the status quo in Survey No.1/1 of Lottegollahalli village, Kasaba Hobli, Bangalore North Taluk, within the limits of Sanjayanagar Police Station which belongs to Bangalore Development Authority thereby resulted in commission of an offence punishable under Section 420 of IPC and Sec.33(A) of BDA Act?
4. What order?
13. The Court's findings on the above points are as under:
Point No.1-3 : In the negative
Point No.4 : As per final order
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REASONS
14. Point No.1 to 3: These points are taken up together for the purpose of common discussion in order to avoid repetition of facts as they form the same part of transaction. In support of prosecution case as narrated in paragraph 2 and the point for consideration in paragraph 12 of this judgment, the prosecution has examined the witnesses which are as follows i. CW2 Sri Mohan Gowda examined as PW1 deposed that, the accused had built an apartment on the land in Sy. No.1/1 of Lottegollanahalli, Kasaba Hobli, Bangalore North Taluk, where the road used to be in existence as per the BDA map. The Hon'ble High Court of Karnataka had ordered the BBMP Commissioner to clear the said illegal building. Accordingly, on 06-12-2012, he along with CW3 to CW8 went to the said spot and cleared the building illegally constructed on the road as shown by CW1. In this regard CW1 had lodged complaint.
ii. CW11 Sri S.Narasimhaiah, the then PSI of Sanjay Nagara PS, examined as PW2 deposed that, after receipt of case papers from CW10, he continued the investigation and requested to provide the documents regarding the notification issued by the BDA regarding Survey No.1/1 Lottegollahalli and 8 KABC030259772014 CC No.9271/2014 same were received. After completion of investigation he filed charge sheet against the accused. He identified the letter as per Ex.P1 and his signature as per Ex.P1(a).
15. The charges levelled against accused is under Sec. 420 of IPC. To hold a person guilty of cheating, it must be shown that the accused had a fraudulent or dishonest intention at the time of making representation or promise and there must be a culpable intention at the time of making a promise. The culpable intention cannot be presumed, merely because, he failed to keep up the promise subsequently.
16. The ingredients required for constituting an offence of cheating have been clearly laid down by the Hon'ble Supreme Court of India in the case of Ram Jas v. State of U.P. reported in [1970(2) SCC 740], which read as follows:
"(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii) (a) the person so deceived should be induced to deliver any property to any person, or to 9 KABC030259772014 CC No.9271/2014 consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
17. The specific case of prosecution is that the accused has encroached his property and put up construction into the Survey No.1/1 of Lottegollahalli Village, Kasaba Hobli, Bangalore North Taluk, within the limits of Sanjayanagar Police Station when the order of status quo was maintained by the order of Hon'ble High Court of Karnataka, Bangalore in W. P. No. 21143/2012 with intention to grab the property belongs to BDA thereby, committed the offence of cheating punishable under Section 420 of the Indian Penal Code however it is the specific defence of the accused that the land measuring 0.33 guntas in survey No.1/1 of Lottegollahalli Village, Kasaba Hobli, Bangalore was de-notified and sold the lands 11 years back and hence the question of cheating does 10 KABC030259772014 CC No.9271/2014 not arise. It appears from the record that the representative of BDA Sri G.K.Vishwanath (CW1) filed the objection in the W P No. 21143/2012 wherein he admitted the extent of 0.33 guntas of land was withdrawn from acquisition proceedings and third party purchased the land but only contention was that the petitioner nor respondents related to the said extent of land. In furtherance from the available record, it appears from order dated 26/06/2012 that the Hon'ble High Court of Karnataka in W P NO. 21143/2012, the respondent No.1 (BDA/CW1) herein be and is hereby restrained from demolishing the existing construction of the petition schedule property. Similarly the petitioner is also restrained from putting up further construction on the said property.
18. However this court had taken a judicial note about the ownership of disputed land from the website of Hon'ble Karnataka High Court to know about the status of W.P. No. 21143/2012 wherein the accused has taken the specific contention that he purchased the land from one Sri B.L.Gajendra, Major, S/o Late B.S.Lakshmanappa, residing at No.18, 'Sanjeevini Nilaya, Lottegollahalli, RMV II stage, Sanjayanagar, Bangalore - 560 094 and the said W P No.21143/2012 came to be dismissed on 05/10/2012 as the accused violated the interim order by raising the construction from basement level and erected first floor. The accused being aggrieved by the 11 KABC030259772014 CC No.9271/2014 order dated 05/10/2012 in W. P. NO. 21143/2012, has filed the W. A. No. 6966/2012 wherein the order by the 30/10/2012, Hon'ble Division Bench of Karnataka High Court, Bangalore has ordered as follows;
xxx It is, however, admitted that so far as the Bangalore Development Authority is concerned, their contention is that the construction is not being carried out in 33 guntas of denotified land but elsewhere including the acquired land.
Therefore, apart from the fact that the petitioner/appellant is guilty of having violated the status-quo order passed by the Writ Court, there are disputed questions of fact, which will have to be adjudicated upon. Although, the learned Single Judge has dismissed the Writ Petition, because of the carrying out of construction which could certainly have been done, inasmuch as an abuse of order would sustain the dismissal of the Writ Petition, the proper remedy would be by way of filing of a civil suit.
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19. To establish that there is an encroachment by the accused in the survey No.1/1 belongs to BDA property, there are no materials furnished by the prosecution except producing sketch, however the said sketch lacks the substance of encroachment to determine where and on which direction exactly the accused has encroached the land of BDA.
20. Though the CW1 has lodged the complaint that BDA property has been encroached however IO/PW2 did not not collect any supporting document during investigation to corroborate that there was an encroachment in the land survey No.1/1 except claiming 0.33 guntas of land was asked for possession in the sketch.
21. Added to which, the basic ingredients of cheating i.e., inducement and fraudulent or dishonest intention were not made out from the complaint averments or from the contents of charge sheet except the accused violated the interim order by raising the construction of another floor during the status quo order thereby the prosecution failed to prove the ingredients of offence under section 420 of IPC 13 KABC030259772014 CC No.9271/2014
22. The next accusation is under section 447 of IPC which reads as under
Sec. 447 of IPC. Punishment for criminal trespass.-- Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
So far as the offence under Sec 447 of Indian Penal Code is concerned, to satisfy the offence under Section 447, the prosecution should prove that there is a criminal trespass, as defined under Section 441 of the Indian Penal Code. To bring home an offence under Section 441 of the Indian Penal Code, the prosecution should establish, entering into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property and the aim or dominant intention of the accused must be proved for committing an offence or intimidation, insult or annoyance.
23. To bring home an offence under Section 447 of the Indian Penal Code, no material produced by the prosecution/complainant that the accused has criminally trespassed into the BDA's property or entered upon the property of the BDA with an 14 KABC030259772014 CC No.9271/2014 intention to commit an offence or to intimidate, insult or annoy thereby the prosecution failed to prove the ingredients of offence under section 447 of IPC.
24. The next charge is under section 427 of IPC which reads as under
Sec. 427 of IPC. Mischief causing damage to the amount of fifty rupees.-- Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Now coming to whether the ingredients of Section 427 of IPC are fulfilled. 425 of IPC defines mischief and the essential ingredients are as follows:1 (1)Whoever (2)with intent to cause or knowing that he is likely to cause (3)Wrongful loss or damage to the public or to any person (4)causes destruction of any property or any such change in the property which destroys or diminishes its value or utility or affects it injuriously, is said to commit mischief. Unless the encroachment is established in the Survey No.1/1 belongs to BDA, this court cannot come to a conclusion that the accused has caused loss or 15 KABC030259772014 CC No.9271/2014 damage to the property of BDA thereby the prosecution failed to prove the ingredients of offence under section 427 of IPC.
25. Section 33A of Bangalore Development Authority Act which reads as under
[33A. Prohibition of unauthorized occupation of land.- (1) Any person who unauthorisedly enters upon and uses or occupies any land belonging to the Authority to the use or occupation of which he is not entitled or has ceased to be entitled, shall on conviction, be punished with imprisonment for a term which may extend to three years and which fine which may extend to five thousand rupees.
(2) Any person who having unauthorisedly occupied whether before or after the commencement of the Karnataka Municipal Corporations and certain other Laws (Amendment) Act, 1984, any land belonging to the Authority to the use or occupation of which he is not entitled or has ceased to be entitled, fails to vacate such land in pursuance of an order under 16 KABC030259772014 CC No.9271/2014 sub-section (1) of section 5 of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974 (Karnataka Act 32 of 1974) shall, on conviction, be punished with imprisonment for a term which may extend to three years and with fine which may extend to five thousand rupees and with a further fine which may extend to fifty rupees per acre of land or part thereof for every day on which the occupation continues after the date of the first conviction for such offence. (3) Whoever intentionally aids or abets the commission by any other person of an offence punishable under sub-section (1) or sub-section (2) shall, on conviction , be punishable with the same punishment provided for such offence under the said sub-
sections.] however in reference to Section 33A of BDA, it is relevant to mention Section 60 of BDA Act which reads as under 17
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60. Sanction of prosecution.-No prosecution for any offence punishable under this Act shall be instituted except with the previous sanction of the Authority.
When no sanction is obtained from the Government of Karnataka to prosecute under Section 33A of BDA Act, there cannot be prosecution against the accused in respect of Section 33A of BDA Act and the said principle is appreciated in the case of Smt. Susheela Narayan Vs State of Karnataka in Crl. Petition No. 7456/2020 dated 09/03/2021.
26. Even considering the nature of allegations in the complaint, this court is of the opinion that no case is made out for taking cognizance of offences under Section 420, 447, 427 of Indian Penal Code and Section 33A of Bangalore Development Authority. The case involves a civil dispute and for settling a civil dispute, the criminal law set into motion by the CW1.
27. Even assuming that there is an encroachment, it is essentially a civil in nature and the parties should resolve their dispute only through a Civil Court, and the CW1 cannot give a criminal colour to the same, it is nothing but an abuse of process of law. Even when there is a violation of interim order, the contempt proceedings could have 18 KABC030259772014 CC No.9271/2014 been initiated against the accused however no such steps were taken. At this juncture, it is profitable to refer to the decision of the Hon'ble Supreme Court of India in the case of G.Sagar Suri v. State of U.P reported in 2000(2) SCC 636 wherein it has been held that the criminal proceedings is not a short cut remedy, when other remedies are available in law and in the case of the Commissioner of Police and Ors. vs. Devender Anand and Ors reported in AIR 2019 SUPREME COURT 3807 held that the criminal proceedings initiated by Original complainant is nothing but an abuse of the process of law for settling a civil dispute thereby the accused is entitled for an order of acquittal and answered the above point No.1 to 3 in the negative.
28. Point No.4:- For the foregoing discussion an the findings to the above point No.1 to 3, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Section 447, 427, 420 of Indian Penal Code and Section 33(A) of Bangalore Development Authority Act.19
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(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) Ordered accordingly.
(Dictated to the stenographer directly on computer, typed by steno, verified and corrected by me in my laptop, then the judgment pronounced by me in the open court, on this the 15th day of July, 2025) DEEPA Digitally signed by DEEPA VEERASWAMY VEERASWAMY (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for Prosecution :
PW1: Sri Mohan Gowda AEE, BBMP PW2: Sri S.Narasimhaiah PSI/Partly IO
Documents marked on behalf of Prosecution:
Ex.P1: Letter dtd: 25-07-2013 PW2 20 KABC030259772014 CC No.9271/2014 Material Objects marked on behalf of the Complainant: Nil Witnesses examined for the defence: Nil Documents marked on behalf of the defence: Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.21
KABC030259772014 CC No.9271/2014 15-07-2025 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Section 447, 427, 420 of Indian Penal Code and Section 33(A) of Bangalore Development Authority Act.
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) Ordered accordingly.
VIII ACJM, Bengaluru.
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