Karnataka High Court
Narendra R Badigar vs The State Of Karnataka on 2 August, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
CRL.P No. 923 of 2020
C/W
CRL.P No. 8280 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 923 OF 2020
C/W
CRIMINAL PETITION NO. 8280 OF 2021
IN CRIMINAL PETITION NO. 923/2020
BETWEEN:
1. NARENDRA R BADIGAR
S/O. LATE. RANGAPPA,
AGED ABOUT 47 YEARS
LEGAL OFFICER,
PARKWAY HOLDING PRIVATE LTD,
4C-121, 4TH CROSS,
2ND MAIN, KASTURI NAGAR,
BANGLAORE - 560 043.
2. RAJESHA T R
S/O. T RUDRAPPA,
AGED ABOUT 42 YEARS
AGM - SALES AND BUSINESS DEVELOPMENT
PARKWAY HOLDING PRIVATE LTD,
4C-121, 4TH CROSS,
2ND MAIN, KASTURI NAGAR,
Digitally signed by
PADMAVATHI B K BANGALORE - 560 043.
Location: HIGH ...PETITIONERS
COURT OF
KARNATAKA
(BY SRI. NITIN R.,ADVOCATE)
-2-
CRL.P No. 923 of 2020
C/W
CRL.P No. 8280 of 2021
AND:
1. THE STATE OF KARNATAKA
BY KADUGODI PS,
REP BY SPP,
HIGH COURT BUILDING,
BENGALURU -560 001.
2. RAJENDRA GOYAL
FLAT NO. 113,
PALLAVA TERRACES,
OPP YADDIYUR LAKE,
KANAKAPAURA MAIN ROAD,
BANGALORE - 560 082.
...RESPONDENTS
(BY SMT.K.P. YASHODHA., HCGP FOR R1;
SRI. S. BALAKRISHNAN, ADVOCATE FOR R2)
THIS CRL.P FILED U/S.482 CR.P.C 1973 PRAYING TO
QUASH THE FIR IN CR.NO.301/2018 FOR OFFENCE P/U/S.120-
B,406,465,468,471,420 R/W SEC.34 OF IPC REGISTERED BY
KADUGODI POLICE STATION, BENGALURU RURAL DISTRICT
PENDING ON THE FILE OF THE ADDITIONAL CHIEF JUDICIAL
MAGISTRATE BENGALURU RURAL BENGALURU.
IN CRIMINAL PETITION NO. 8280/2021
BETWEEN:
P K GAJRA
S/O H K GAJRA
AGED ABOUT 68 YEARS,
DIRECTOR
PARKWAY HOLDING PRIVATE LIMITED
-3-
CRL.P No. 923 of 2020
C/W
CRL.P No. 8280 of 2021
4C-121, 4TH CROSS 2ND MAIN
KASTURI NAGAR
BANGALORE-560043.
ALSO AT
NO.12 SATYEN DUTTA ROAD
KOLKATA
WEST BENGAL-700 029.
...PETITIONER
(BY SRI. NITIN R.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY KADUGODI P S
REPRESENTED BY SPP
HIGH COURT BUILDING
BENGALURU-560 001
2. RAJENDRA GOYAL
AGED MAJOR
S/O MOTHIRAM GOYAL
AGED ABOUT 71 YEARS
RESIDING AT FLAT NO.113,
PALLAVA TERRACES OPP, YADDIYUR LAKE
KANAKAPURA MAIN ROAD
BANGALORE-560 082.
...RESPONDENTS
(BY SMT.K.P. YASHODHA., HCGP FOR R1;
SRI. S. BALAKRISHNAN, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S 482 CR.PC PRAYING TO QUASH
THE FIR IN CR.NO.301/2018 FOR THE OFFENCE P/U/S
-4-
CRL.P No. 923 of 2020
C/W
CRL.P No. 8280 of 2021
120B,406,465,468,420,471 R/W 34 OF IPC REGISTERED BY
KADUGODI P.S., BENGALURU RURAL DISTRICT, PENDING ON
THE FILE OF THE I ADDL.CHIEF JUDICIAL MAGISTRATE,
BENGALURU RURAL, BENGALURU AT ANNEXURE-A.
THESE PETITIONS COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners in both the petitions are before this Court calling in question the proceedings in Crime No.301/2018 for offences punishable under Sections 120- B, 406, 465, 468, 420, 471 read with 34 of the Indian Penal Code, 1860 (For short, the 'IPC') pending before the I Additional Chief Judicial Magistrate, Bengaluru Rural, Bengaluru.
2. Heard Sri Nitin R, learned Counsel for the petitioners and Sri S. Balakrishnan, learned Counsel for the second respondent.
-5- CRL.P No. 923 of 2020C/W CRL.P No. 8280 of 2021
3. The brief facts that lead the petitioners to this Court, as borne out from the pleadings, are as follows:
The petitioners are developers doing business of land development in the name and style of 'Parkway Holding Private Limited'. The second respondent is the landlord.
The petitioners and the second respondent enter into a Joint Development Agreement (JDA) for development of land in Sy.Nos.118 and 119, measuring 4 acres 15 guntas of Seegehalli village, Bidarahalli Hobli, Bangalore East Taluk. The JDA was to the effect that the developers would have share to the extent of 65% of the undivided share and the remainder could be with the land owner.
Pursuant to the drawing up of the JDA, a General Power of Attorney (GPA) was also executed by the second respondent in favour of the petitioners to deal with the land in the manner that was depicted in the GPA concerning both Sy.Nos.118 and 119. When the second respondent came to know the fact that the petitioners -6- CRL.P No. 923 of 2020 C/W CRL.P No. 8280 of 2021 have sold 23 flats in the apartment complex built in Sy.No.118, to different purchasers, registers a crime in Crime No.301/2018 on 17.11.2018 for the aforequoted offences. The registration of the crime is what drives the petitioners to this Court in the subject petition.
4. Sri Nitin R, the learned counsel appearing for the petitioners submits that the issue in the lis is purely civil in nature, as breach of a JDA would not give rise to any criminality and it is for the reason that Sy.No.119 was depicted as "Sarkari Thopu" in the RTC, the petitioners had to take a decision to sell a portion of the property belonging to the second respondent, not unauthorisedly but on the strength of the GPA that was subsisting as on the date of the alleged sale to third parties. He would submit that several commercial Original Suits are filed against the petitioners by the second respondent -
complainant and the agreement between the parties contemplates resolution of the dispute by way of -7- CRL.P No. 923 of 2020 C/W CRL.P No. 8280 of 2021 arbitration. On all these grounds, the learned counsel for the petitioners seeks quashment of the entire proceedings initiated in Crime No.301/2018.
5. On the other hand, the learned counsel representing the second respondent would refute the submissions of the learned counsel for the petitioners to contend that the GPA stood cancelled and on the strength of the cancelled GPA, the petitioners have sold the property that belonged to the second respondent. The second respondent having put the petitioners in possession, they could not have sold the property and therefore 'criminal breach of trust' as defined under Section 405 IPC or 'cheating' as defined under Section 420 IPC is made out in the case at hand. He would submit that it is a matter of trial for the petitioners to come out clean.
-8- CRL.P No. 923 of 2020C/W CRL.P No. 8280 of 2021
6. I have given my anxious consideration to the submissions made by the respective learned counsels and I have perused the material on record.
7. The aforenarrated facts, though not in dispute, need reiteration for resolution of the dispute between the parties. On 10.03.2006, M/s Parkway Holdings, owned by the petitioners entered into a JDA with the respondent -
complainant for construction of apartments and villas in the Survey Numbers mentioned hereinabove to an extent of 4 acres 15 guntas. It is the case of the petitioners that on 02.06.2008, a Revised Sharing Agreement for allocation of the respective shares with regard to the apartments and villas was drawn up. The matter was in dispute between the parties intermittently, from 2008 to 2018. Finally, on finding that Sy.No.119 was depicted to be 'Sarkari Thopu" in the RTCs, the petitioners claim to have exercised their right under the GPA which was for both Sy.Nos.118 and 119 and have sold the property. The -9- CRL.P No. 923 of 2020 C/W CRL.P No. 8280 of 2021 respondent, at that juncture, on coming to know of the said fact, registers a case in Crime No.301/2018 against the accused for the aforequoted offences.
8. The solitary contention of the learned Counsel appearing for the second respondent is that the allegations so made in the complaint would touch upon the ingredients of Sections 406, 465 or 420, as the case would be. It is not in dispute that the complaint is a product of the sharing agreement between the parties, which is initially a product of the JDA arrived at between the parties. Therefore, the dispute has arisen with regard to sharing of apartments and villas between the petitioners and the respondent. The justification of the petitioners that Sy.No.119, which measures 1 acre 15 guntas was shown as "Sarkari Thopu" on the basis of the documents and that being the reason for exercising the liberty that was under the GPA for selling a portion of the property in Sy.No.118 sounds plausible.
- 10 -
CRL.P No. 923 of 2020C/W CRL.P No. 8280 of 2021
9. It is not in dispute that the petitioners are at large before the civil Court in about 21 commercial Original Suits filed by the second respondent against the petitioners.
10. Insofar as the issue with regard to whether criminality could be attached qua Sections 406 and 420 of IPC on dispute concerning a JDA between the parties is concerned, need not detain this Court for long and delve deep into the matter. The apex Court in the case of MITESH KUMAR J. SHA V. STATE OF KARNATAKA AND OTHERS1 has held as follows:
"27. In order to ascertain the veracity of contentions made by the parties herein, it is imperative to firstly examine whether the relevant ingredients of offences which the appellants herein had been charged with, are prima facie made out. The relevant sections read as follows:--
"405. Criminal breach of trust--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly 1 2021 SCC OnLine SC 976
- 11 -CRL.P No. 923 of 2020
C/W CRL.P No. 8280 of 2021 misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
[Explanation [1].--A person, being an employer [of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] [Explanation 2.--A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he
- 12 -
CRL.P No. 923 of 2020C/W CRL.P No. 8280 of 2021 makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]
406. Punishment for criminal breach of trust--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
419. Punishment for cheating by personation--Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
420. Cheating and dishonestly inducing delivery of property-- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
28. In the instant case, the complaint levelled against the Appellants herein is one which involves commission of offences of criminal breach of trust and cheating. While a criminal breach of trust as postulated under section 405 of the Penal
- 13 -
CRL.P No. 923 of 2020C/W CRL.P No. 8280 of 2021 Code, 1860, entails misappropriation or conversion of another's property for one's own use, with a dishonest intention, cheating too on the other hand as an offence defined under section 415 of the Penal Code, 1860, involves an ingredient of having a dishonest or fraudulent intention which is aimed at inducing the other party to deliver any property to a specific person. Both the sections clearly prescribed 'dishonest intention', as a pre-condition for even prima facie establishing the commission of said offences. Thus, in order to assess the relevant contentions made by the parties herein, the question whether actions of the Appellants were committed in furtherance of a dishonest or fraudulent scheme is one which requires scrutiny.
29. Coming to the facts of the case at hands, the contested contention between the parties is that the builder company had sold four excess flats beyond its share, in terms of the JDA and supplementary agreement entered into between the parties. Respondent No. 2 contends that builder company which was entitled to sell only 9 flats in its favour, has instead executed sale deed for 13 flats in total. Thus, the company simply could not have sold the flats beyond 9 flats for which it was authorized and resultantly cannot evade criminal liability on a mere premise that a civil dispute is already pending between the parties.
- 14 -
CRL.P No. 923 of 2020C/W CRL.P No. 8280 of 2021
30. The Appellants on the other hand contend that in terms of a subsequent MoU dated 19.02.15, it was mutually agreed between the parties, that partial payment for a loan amount borrowed by Respondent No. 2 from Religare Finvest Ltd., would be paid out from the sale proceeds of the said development project undertaken by both the parties. Pursuant to this MoU, the Appellants had agreed to get an NOC for 15 flats by making payment of Rs. 40,00,000/- for each flat.
31. The key contention, and also the central point of dispute, made by the Appellants is that, it was specifically agreed between the parties that the Appellants would be entitled to sell additional flats beyond their share, as adjustments for payment made to Religare Finvest Ltd. on behalf of Respondent No. 2. It is further contended that Respondent No. 2 had also agreed to execute a ratification deed to the JDA and GPA eventually, which would have formally authorised the Appellants to sell additional apartments.
32. Nonetheless, the ratification deed was never made and Respondent No. 2 subsequently even revoked the GPA unilaterally, contending that the terms of JDA were not followed.
33. It was only after revocation of GPA that the company filed an application for arbitration seeking interim orders to restrain the Respondent No. 2 from alienating the disputed property. Simultaneously, while this dispute was
- 15 -
CRL.P No. 923 of 2020C/W CRL.P No. 8280 of 2021 pending adjudication before the arbitrator Respondent No. 2 filed a criminal complaint against the Appellants.
34. At this juncture, it further becomes pertinent to mention that eventually though both the parties partly succeeded before the arbitrator, in terms of their respective claims, the arbitrator observed that GPA indeed could not have been revoked unilaterally at the instance of Respondent No. 2. Aggrieved, Respondent No. 2 thereafter even preferred a challenge to the award passed by the arbitrator. Moreover, pending arbitration proceedings issue regarding selling of excess flats at the instance of Appellants, was also withdrawn by Respondent No. 2 seeking liberty to pursue his claim with regard to selling of four excess flats in pending civil proceedings.
35. Upon a careful assessment of such facts, by no stretch can it be concluded that the Appellants herein have deceptively or intentionally tried to sell excess flats if any, as contended by Respondent No. 2. Here, it must also be borne in mind that subsequent to the revocation of GPA, it was the Appellants herein who had first resorted to arbitration proceedings on 02.03.16 for redressal of dispute between the parties, to which Respondent No 2 had accordingly filed his statement of objections dated 09.03.16. It was only on 29.03.16 that Respondent No. 2 had filed the FIR in question bearing Crime No. 185/2016 against the Appellants. Moreover, it was Respondent No. 2 who had withdrawn his prayer with respect to
- 16 -
CRL.P No. 923 of 2020C/W CRL.P No. 8280 of 2021 selling of four excess flats by the Appellants, only to pursue the same in civil proceedings.
36. At this stage, by placing reliance on the judgment of this Court in Priti Saraf v. State of NCT of Delhi (Supra) and Sri Krishna Agencies v. State of Andhra Pradesh (Supra), it has been further submitted by Respondent No. 2 that Appellants cannot evade a criminal case by merely contending that the person whose property has been sold has filed a civil suit for recovery of the property, or that the dispute had been referred to arbitration.
37. Although, there is perhaps not even an iota of doubt that a singular factual premise can give rise to a dispute which is both, of a civil as well as criminal nature, each of which could be pursued regardless of the other. In the instant case, the actual question which requires consideration is not whether a criminal case could be pursued in the presence of a civil suit, but whether the relevant ingredients for a criminal case are even prima facie made out. Relying on the facts as discussed in previous paragraphs, clearly no cogent case regarding a criminal breach of trust or cheating is made out.
38. The dispute between the parties, could at best be termed as one involving a mere breach of contract. Now, whether and what, is the difference between a mere breach of contract and an offence of
- 17 -
CRL.P No. 923 of 2020C/W CRL.P No. 8280 of 2021 cheating has been discussed in the ensuing paragraphs.
Whether sale of excess flats even if made amounts to a mere breach of contract?
39. This Court in the case of Hridaya Ranjan Prasad Verma v. State of Bihar6, has observed:--
"15. ....that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise..."
40. Applying this dictum to the instant factual matrix where the key ingredient of having a dishonest or fraudulent intent under sections 405, 419 and 420 is not made out, the case at hand, in our considered opinion is a suitable case necessitating intervention of this Court.
Whether the dispute is one of entirely civil nature and therefore liable to be quashed?
- 18 -
CRL.P No. 923 of 2020C/W CRL.P No. 8280 of 2021
41. Having considered the relevant arguments of the parties and decisions of this court we are of the considered view that existence of dishonest or fraudulent intention has not been made out against the Appellants. Though the instant dispute certainly involves determination of issues which are of civil nature, pursuant to which Respondent No. 2 has even instituted multiple civil suits, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour. As has been rightly emphasised upon by this court, by way of an observation rendered in the case of Indian Oil Corporation v. NEPC India Ltd.7, as under:--
"14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law."
42. It was also observed:--
"13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors....There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a
- 19 -CRL.P No. 923 of 2020
C/W CRL.P No. 8280 of 2021 likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged."
43. On an earlier occasion, in case of G. Sagar Suri v. State of UP8, this Court has also observed:--
"8. Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
44. Furthermore, in the landmark judgment of State of Haryana v. Ch. Bhajan Lal9 regarding exercise of inherent powers under section 482 of CrPC, this Court has laid down following categories of instances wherein inherent powers of the can be exercised in order to secure the ends of justice. These are:--
- 20 -CRL.P No. 923 of 2020
C/W CRL.P No. 8280 of 2021 "(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal
- 21 -CRL.P No. 923 of 2020
C/W CRL.P No. 8280 of 2021 proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
45. Applying this dictum to the instant factual matrix, it can be safely concluded that the present case clearly falls within the ambit of first, third and fifth category of the seven categories enlisted in the above said judgment. The case therefore warrants intervention by this Court, and the High Court has erred in dismissing the petition filed by the Appellants under section 482 CrPC. We find that there has been attempt to stretch the contours of a civil dispute and thereby essentially impart a criminal color to it.
46. Recently, this Court in case of Randheer Singh v. The State of U.P.10, has again reiterated the long standing principle that criminal proceedings must not be used as instruments of harassment. The court observed as under:--
"33. ....There can be no doubt that jurisdiction under Section 482 of the Cr.P.C.
- 22 -CRL.P No. 923 of 2020
C/W CRL.P No. 8280 of 2021 should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above."
47. Moreover, this Court has at innumerable instances expressed its disapproval for imparting criminal color to a civil dispute, made merely to take advantage of a relatively quick relief granted in a criminal case in contrast to a civil dispute. Such an exercise is nothing but an abuse of the process of law which must be discouraged in its entirety."
(Emphasis supplied) The said judgment in the case of MITESH KUMAR J.
SHA V. STATE OF KARNATAKA AND OTHERS supra is
- 23 -
CRL.P No. 923 of 2020C/W CRL.P No. 8280 of 2021 again reiterated in the case of VIJAY KUMAR GHAI AND OTHERS v. STATE OF WEST BENGAL AND OTHERS2 .
Both these judgments of the apex Court deal with the issue of breach of the JDA between the parties qua the criminal offences that were alleged therein i.e., 406 and
420. The apex Court clearly holds that the sharing pattern between the parties in a JDA, at best, can give rise to a civil dispute and not trigger setting the criminal law in motion. The facts of the case that were before the apex Court are identical to the facts in the case at hand.
Therefore, permitting further proceedings qua the offences punishable under sections 406 or 420 IPC for breach of the JDA would run foul of the judgments rendered by the apex Court as aforequoted and if permitted to continue, would become abuse of process of law. The other offences alleged are under Sections 465, 468 and 471, all of which deal with using a forged document to the benefit of the accused and to the detriment of the victim.
22022 SCC OnLine SC 344
- 24 -
CRL.P No. 923 of 2020C/W CRL.P No. 8280 of 2021
11. It is not in dispute that the parties to the lis had entered into a JDA, upon which a GPA was executed by the second respondent in favour of the petitioners. The schedule to the said JDA is as follows:
"All that piece and parcel of property being land measuring 4 acres 15 guntas or 1,90,575 Sq.ft comprised in Survey Nos. 118(3 acres) 119 (1 acre 15 guntas) of sheegehalli village, Bidarahalli Hobli, Bangalore East Taluk(formerly in Hoskote Taluk), Bangalore District, bearing Khata No. 120 and bounded on the East by : 6th Block Survey No. 118 West by : 3rd Block Survey No. 118 North by : Road South by : Private land and remaining portion of Survey No. 118."
The Schedule covers both Sy.Nos.118 and 119. The GPA executed also covers both the Survey Numbers. The dispute is with regard to the sharing pattern. Therefore, if the petitioners have sold the property that was to be allotted to the share of the complainant in terms of the JDA, on the strength of the GPA, which was in subsistence
- 25 -
CRL.P No. 923 of 2020C/W CRL.P No. 8280 of 2021 as on that date, there cannot be any offence of forgery as punishable under Sections 465 or 468 of IPC.
11. Since the issue being purely of civil in nature and breach of agreement between the parties, following the judgments rendered by the apex court in the case of MITESH KUMAR J. SHA V. STATE OF KARNATAKA AND OTHERS and VIJAY KUMAR GHAI AND OTHERS v. STATE OF WEST BENGAL AND OTHERS, supra, I deem it appropriate to obliterate the proceedings against the petitioners, failing which it would result in miscarriage of justice and would become an abuse of process of law.
For the aforesaid reasons, the following:
ORDER
(a) Criminal Petitions are disposed of.
(b) The FIR in Crime No.301/2018 registered by the Kadugodi Police Station, Bengaluru Rural District, pending
- 26 -CRL.P No. 923 of 2020
C/W CRL.P No. 8280 of 2021 on the file of the Additional Chief Judicial Magistrate, Bangalore Rural, Bangalore is quashed.
(c) Any observation made in the course of this order will not influence or bind the civil Court when the civil suits are being adjudicated upon between the parties, which are admittedly pending between them.
Ordered accordingly.
Sd/-
JUDGE NV