Karnataka High Court
Mr. Avinash Prabhu vs State Of Karnataka on 26 November, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:48389
CRL.P No. 7797 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 7797 OF 2023
BETWEEN:
MR. AVINASH PRABHU
AGED ABOUT 48 YEARS
S/O MR. PETER J.R.RABHU
MANAGING DIRECTOR
M/S. SKYLINE CONSTRUCTIONS
AND HOUSING PVT. LTD.,
HAVING THEIR REGD. OFFICE AT
NO. 11, HAYES ROAD
BENGALURU - 560 025.
...PETITIONER
(BY SRI VYSHAK MANIKANTA S., ADVOCATE FOR
SRI SHIVAKUMAR N., ADVOCATE)
AND:
Digitally signed
by NAGAVENI
Location: HIGH 1. STATE OF KARNATAKA
COURT OF
KARNATAKA BY HEBBAGODI POLICE STATION ANEKAL
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
HIGH COURT BUILDING
BENGALURU - 580 001.
2. MR. SUDHAKAR MURGESAN
S/O LATE MR. N.S.S.MURGESAN
AGED ABOUT 47 YEARS
R/AT NO. 19, BANGIAPPA GARDEN
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NC: 2024:KHC:48389
CRL.P No. 7797 of 2023
1ST MAIN, 5TH CROSS
SHANTHINAGAR
BENGALURU - 560 027.
...RESPONDENTS
(BY SRI HARISH GANAPATHY, HCGP FOR R1;
SRI I.S.DEVAIAH, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S 482 OF THE CR.P.C. PRAYING
TO SET ASIDE THE ORDER DATED 24.01.2017 TAKING
COGNIZANCE OF THE OFFENCES P/U/S 341, 504 AND 506 OF
IPC, 1860, PASSED BY THE LEARNED II ADDL. CIVIL JUDGE
AND JMFC, ANEKAL IN C.C.NO.177/2017, BEARING
CR.NO.129/2013 AND ETC.,
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court calling in question the proceedings in C.C.No.177 of 2017 registered for offences punishable under Sections 341, 504, 506 of the IPC.
2. Heard Sri Vyshak Manikanta S, learned counsel appearing for petitioner, Sri Harish Ganapathy, learned High Court Government Pleader for respondent No.1 and Sri I.S.Devaiah, learned counsel appearing for respondent No.2.
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NC: 2024:KHC:48389 CRL.P No. 7797 of 2023
3. The petitioner is said to be the Managing Director of M/s Skyline Constructions and Housing Pvt Ltd., The petitioner and the 2nd respondent enter into an agreement of construction of a particular property owned by the 2nd respondent as a co- owner of the said property. It transpires that the petitioner did not complete the work after having secured permissive possession on the property for the purpose of construction work. Therefore, the agreement entered into between the parties comes to be terminated. After the termination of the agreement, it transpires that certain civil proceedings are instituted and were being adjudicated between the parties. At that point in time, on a particular day i.e., on 03-03-2013, the petitioner is said to have barged into the property of the complainant and hurled certain abuses or intimidated the complainant. Therefore, the complaint comes to be registered on 03-03-2013 narrating the incident that has taken place on the said date. The complaint results in filing of a final report by the jurisdictional police. The final report, the charge sheet for offence punishable under Sections 341, 504 and 506 of the IPC. -4-
NC: 2024:KHC:48389 CRL.P No. 7797 of 2023 The charge sheet was filed in the year 2014. The concerned Court takes cognizance of the offence in the year 2017 and issues summons to the petitioner. The petitioner appears to have lost track of the case and has not attended the proceedings, therefore, a non-bailable warrant is hanging on the head of the petitioner. It is all these factors that have led the petitioner to this Court seeking quashment of the entire proceedings.
4. The learned counsel for petitioner would vehemently contend that the Assistant HR Manager of the petitioner- Company in fact registered a crime in Crime No.106 of 2013 against the complainant along with others for offence punishable under Sections 427, 447 and 506 of the IPC. The police have filed a charge sheet in the said case in C.C.No.426 of 2014 which is pending consideration before the concerned Court. Learned counsel would submit that the allegations in the charge sheet against the petitioner is the one punishable under Sections 341, 504 and 506 of the IPC. The complaint itself does not indicate the presence of the petitioner. -5-
NC: 2024:KHC:48389 CRL.P No. 7797 of 2023 Therefore, the offence cannot be laid against him is his submission.
5. Learned counsel Sri I S Devaiah appearing for the 2nd respondent/complainant would refute the submissions in contending that the complaint was for the offence punishable under Sections 427, 447 and 506 of the IPC and the charge sheet is filed for offence punishable under Sections 341, 504 and 506 of the IPC. Therefore, it is no fault of the complainant that the police have investigated and filed charge sheet for wrong offences. He would submit that the case was clear that the petitioner had trespassed into the property of the complainant. He would seek dismissal of the petition.
6. The learned High Court Government Pleader would however defend the action of filing of the charge sheet for the offence under Sections 341, 504 and 506 of the IPC. According to him, the statements recorded during investigation would clearly indicate that it was for offence under Sections 341, 504 and 506 of the IPC. He would nonetheless seek dismissal of -6- NC: 2024:KHC:48389 CRL.P No. 7797 of 2023 the petition contending that it is for the petitioner to come out clean in a full blown trial.
7. 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 transaction between the petitioner and the complainant is a matter of record. The transaction is a Joint Development Agreement for development of the property owned by the complainant and others to be developed by the petitioner. The conditions in the agreement go wrong. The agreement is terminated. After the termination of the agreement, it transpires that several civil proceedings are instituted by the petitioner or by the complainant against the petitioner.
9. The issue in the lis is with regard to an incident that happens on 03-03-2013. It is that incident that has propelled the registration of the crime. The crime is registered for offence punishable under Sections 427, 447 and 506 of the IPC -7- NC: 2024:KHC:48389 CRL.P No. 7797 of 2023 in Crime No.129 of 2013. Since the issue has triggered from the complaint, I deem it appropriate to notice the complaint. It reads as follows:
"To, Bangalore
The Sub-Inspector of Police 03/03/2013
Hebbagodi, Police Station
Bangalore.
From,
Sudhakar M,
(#160/2B, Hebbagodi & 98/1, Kammasandra), 19, Bangiappa Garden, Shanthinagar, Bangalore 27.
Ph: 9845763630.
Respected Sir, Subject:- Disturbing our site by excavating & changing of Property by trespassing at site # 160/2B, Hebbagodi, 98/1, Kammasandra against court Order.
I along with my mother S.M.Rukkumani & my sister Hemalath had entered into a Joint Development Agreement with Skyline Constructions on 07/03/2007. However as there was no activity done till date, we had terminated the agreement in July 08 by issuing a letter of Termination. Subsequent to that, Skyline represented by his M.D. Mr. Avinash Prabhu had accepted to terminate if the Project does not start on or before Nov'08.
A case was filed AA.18/2011 & ΑΑ.Νο.19/2011 in Addl. District Judge, Bengaluru Rural Disrtrict, Bengaluru, where is an injunction order was passed asking Skyline not alienate, encumber or part with or perform any of its rights under joint Development Agreement dated 07/03/2007 till the dispute is resolved by the Arbitrator. However, Skyline represent by Mr. Avinash Prabhu has entered into an agreement with M/S GL Earth Movers, Hebbagodi, Hosur Road, Bangalore to carry Excavation & -8- NC: 2024:KHC:48389 CRL.P No. 7797 of 2023 levelling work at our site. We are the absolute owners enjoying the peaceful possession of the property.
Skyline represented by Mr. Avinash Prabhu has breached the court order though the injunction order has restrained him not to engaged or entered into any agreement with any third party. The contract has issued as on 28/02/2013 to M/s. GPL Earth Movers by Mr. Avinash Prabhu.
We have been put to lot of hardship by Skyline & Mr. Avinash Prabhu causing damage to our property. Kindly take the necessary action to stop the ongoing activity & restrain them to carry out any further activities at our sites.
Kindly provide us protection to our site & do us as they are threatening us with dire consequence. Kindly provide us the police protection to us & our site also arrest the people violating the Injunction Order. When I visited to day the site they are working & changing site condition & threating me.
With warm regards.
SD/-
Enclosed: Agreement entered with GPL & Earth Movers.
Injunction Order
ಾಂಕ 03.03.2013 ರಂದು ಮ ಾ ಹ 1.30 ಗಂ ೆ ೆ ಾ ಾಜ ಾ
ೊಟ ದೂರನು ಪ ೆದು ಾ!ೆ. ".ನಂ. 129/2013 ಕಲಂ 447, 427, 506 IPC $ೕತ ಪ'ಕರಣ )ಾಖ+,ರು-ೆ.ೕ ೆ.
SD/-"
The police after investigation file a charge sheet. The summary of the charge sheet as obtaining in column No.7 reads as follows:-9-
NC: 2024:KHC:48389 CRL.P No. 7797 of 2023 "PÀ®A. 341, 504, 506 L¦¹ ಾಂಕ 03-03-13 gÀAzÀÄ ¨É½UÉÎ 11-00 ಗಂ ೆ ೆ ಘನ ಾ ಾಲಯದ 1ಾ . ೆ 2ೇ$ದ ಾ!ಾ ಸರಹದು4 ಕಮ5ಸಂದ' ಾ'ಮದ ಸ1ೆ ನಂ. 160/26 ಮತು. 98/1 ರ ಜ7ೕ8ನ ಬ: ಈ )ೋ<ಾ ೋಪ!ಾ ಪ= ಯ ಅಂಕಣ 2 ರ+? ಕಂಡ ಆ ೋ ಯು ಜ7ೕ8ನ BCಾರದ+?, ಜ7ೕನನು ೋಡಲು ೋದ 2ಾD 1,2 ಮತು. 3 ರವರನು ಅಡFಗ= ತ ೆದು ¤°è¹, ಾ ೆ ಜ7ೕನನು $G¸ÉÖçಷI JಾK, ೊಳM)ೆ ೆಲಸ JಾKಸುN. 4 ಾ ಎಂ-ಾ ೇ:ದ4 ೆP ಅ1ಾ ಚ ಶಬ4ಗ:ಂದ SಾT ೆ ಬಂದಂ-ೆ Sೈಯು4, ಜ7ೕ8ನ BCಾರ ೆP ಬಂದ ೆ ೊVೆ JಾಡುವW)ಾ Xಾ'ಣ Sೆದ$ ೆ ಾYರುವWದು ತ8ZೆTಂದ ಧೃಡಪ= ರು-ೆ..
ಆದ4$ಂದ ಆ ೋ ಯ Bರುದ4 ]ೕಲPಂಢ PÀ®AUÀ¼À $ೕ-ಾ _ೕ`ಾಹ ಅಪ ಾದ JಾKರು-ೆ.ೕ ೆಂ-ಾ ೊ$ಸಲaಟ )ೋ<ಾ ೋಪ!ಾ ಪ= ."
The summary of the charge sheet is drawn on the statement so tendered by the complainant or other witnesses. The statements would nowhere indicate offence of criminal trespass against the petitioner as is alleged. The charge sheet is drawn for the offence under Sections 341, 504 and 506 of the IPC.
10. For an offence to become punishable under Section 341 of the IPC, the ingredients as obtaining under Section 339 of the IPC are necessarily to be present. Section 339 of the IPC would indicate that the victim or the complainant should be stopped from all the ways to move anywhere for the offence of wrongful restraint. The allegation in the complaint is not that and it is the case of the complainant himself that the petitioner was not in the site, as he was the Managing Director of the
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NC: 2024:KHC:48389 CRL.P No. 7797 of 2023 Company and other persons belonging to the company had stopped the complainant. If that be so, the charge cannot be laid against the petitioner for an offence that is made penal under Section 341 of the IPC. Thus falls the offence under Section 341 of the IPC. Sections 504 and 506 of the IPC would get subsumed for the reasons so rendered for the offence punishable under Section 341 of the IPC where the observation is the absence of the petitioner. If the petitioner has been absent on the alleged scene of crime on that day, none of the offences can spring against him. Therefore, the offences in the opinion of the Court are loosely laid against the petitioner.
11. Learned counsel for the complainant submits that a charge sheet filed against him for offences under Sections 427, 447 and 506 of the IPC is pending consideration and would seek time in this case to bring it before this Court for the purpose of quashment. In the considered view of this Court, the step that the complainant would be wanting to take, will not halt the hands of this Court to quash the proceedings against the petitioner, on the score that it does not amount to
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NC: 2024:KHC:48389 CRL.P No. 7797 of 2023 the offences so alleged against the petitioner. Therefore, I deem it appropriate to exercise my jurisdiction under Section 482 of the Cr.P.C. and obliterate the crime against the petitioner, failing which, it would become an abuse of the process of law and result in miscarriage of justice.
12. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Proceedings in C.C.No.177 of 2017 pending on the file of II Additional Civil Judge and JMFC, Anekal stands quashed qua the petitioner.
Consequently, I.A.No.1 of 2023 also stands disposed.
Sd/-
(M.NAGAPRASANNA) JUDGE BKP List No.: 2 Sl No.: 3 CT:SS