Karnataka High Court
Sri Kashif Ali Khan vs State Of Karnataka on 28 January, 2025
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NC: 2025:KHC:3825
CRL.P No. 6100 of 2021
C/W CRL.P No. 3804 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL PETITION NO. 6100 OF 2021
C/W
CRIMINAL PETITION NO. 3804 OF 2020
IN CRL.P NO. 6100/2021
BETWEEN:
1. SRI KASHIF ALI KHAN,
AGED ABOUT 63 YEARS,
S/O. LATE. MR. MIR AHMED ALI KHAN,
2. SMT. RUBINA ALI KHAN
AGED ABOUT 52 YEARS,
W/O. MR. KASHIF KHAN,
BOTH RESIDING AT: NO.A2902,
BRIGADE EXOTICA, 35 OLD MADRAS
ROAD, BANGALORE - 560 049
...PETITIONERS
(BY SRI. UDAYA PRAKASH MULIYA,
SRI. KAMALUDDIN, ADVOCATES)
AND:
Digitally 1. STATE OF KARNATAKA
signed by
SWAPNA V BY ASHOK NAGAR POLICE STATION,
Location: REPRESENTED BY STATE PUBLIC
high court of PROSECUTOR, HIGH COURT
karnataka
BUILDING, BANGALORE - 560 001
2. M/S. SKYLINE DEVELOPERS,
A COMPANY INCORPORATED UNDER
COMPANIES ACT HAVING OFFICE AT
NO.206 AND 207, 2ND FLOOR,
SOPHIA'S CHOICE, ST. MARKS ROAD,
BANGALORE - 560 001.
REPRESENTED BY ITS PARTNER,
MR. AVINASH PRABHU
...RESPONDENTS
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NC: 2025:KHC:3825
CRL.P No. 6100 of 2021
C/W CRL.P No. 3804 of 2020
(BY SRI. VENKAT SATHYANARAYAN, ADVOCATE FOR R1
SRI. ASHOK B. PATIL, ADVOCATE FOR R2 (AB))
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO A. QUASH
THE ENTIRE PROCEEDINGS IN P.C.R.NO.53057/2020 PENDING ON
THE FILE OF THE 29TH ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE MAYO HALL BENGALURU (ANNEXURE-A). B. QUASH
THE FIR IN CR.NO.77/2021 REGISTERED BY 1ST RESPONDENT
ASHOK NAGAR, POLICE STATION, FOR THE OFFENCE P/U/S. 420,
417, 34 OF IPC PENDING ON THE FILE OF THE 29TH ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, BENGALURU (ANNEXURE-B).
AND ETC.,
IN CRL.P.NO.3804/2020
BETWEEN:
MR. MOHAMMED MOUAZZAM AZEEZ
SON OF LATE ABDUL AZEEZ MEMON
AGED ABOUT 44 YEARS
RESIDING AT NO.6, 1ST MAIN ROAD,
JAYAMAHAL, BENGALURU - 560 046
FORMERLY RESIDING AT- NO.35,
C K GARDEN COOKE TOWN RD EXTENSION,
BENGALURU - 560 084.
...PETITIONER
(BY SRI. SYED KHAMRUDDIN, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ASHOKNAGAR POLICE STATION,
BANGALORE - 560 001
REPRESENTED BY
PUBLIC PROSECUTOR
2. M/S SKYLINE DEVELOPERS,
A COMPANY INCORPORATED UNDER
COMPANIES ACT, HAVING ITS OFFICE
AT NO.206 AND 207, 2ND FLOOR,
SOPHIA'S CHOICE, ST. MARKS ROAD,
BANGALORE - 560 001.
REPRESENTED BY ITS PARTNER,
MR. AVINASH PRABHU
...RESPONDENTS
(BY SRI. VENKAT SATHYANARAYAN, HCGP FOR R1
SRI. ASHOK B. PATIL, ADVOCATE FOR R2 (AB))
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NC: 2025:KHC:3825
CRL.P No. 6100 of 2021
C/W CRL.P No. 3804 of 2020
THIS CRL.P IS FILED 1. SET ASIDE THE ORDER DATED
15.07.2020 PASSED IN PCR.NO.53057/2020 BY THE XXIX A.C.M.M
AT BENGALURU ANNEXURE-A. 2. QUASH THE COMPLAINT FILED BY
THE 2ND RESPONDENT IN PCR NO.53057/2020 AND ALL FURTHER
PROCEEDINGS (ANNEXURE A AND B)SO FAR AS THE PETITIONER IS
CONCERNED PENDING BEFORE THE XXIX A.C.M.M., AT BENGALURU.
AND ETC.,
THESE CRIMINAL PETITIONS, COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
COMMON ORAL ORDER
The petitioners in Crl.P.No.6100/2021 arising out of Crime No.77/2021 of Ashok Nagar Police Station being accused Nos. 1 and 2 and the petitioner in Crl.P.No.3804/2020 arising out of Crime No.174/2022 of Ashok Nagar Police Station being accused No.3 are seeking to quash the criminal proceedings initiated against them in P.C.R.No.53057/2020, pending on the file of the learned 29th Additional Chief Metropolitan Magistrate, Mayohall, Bengaluru, for the offences punishable under Sections 417 and 420 read with Section 34 of IPC.
2. Brief facts of the case are that, respondent No.2 as complainant filed PCR No. 53057/2020 before the learned 29th Additional Chief Metropolitan Magistrate, Mayo Hall, Bengaluru, against accused Nos.1 to 3, alleging commission of offences punishable under Sections 417 and 420 read with Section 34 of -4- NC: 2025:KHC:3825 CRL.P No. 6100 of 2021 C/W CRL.P No. 3804 of 2020 IPC. It is the contention of the complainant before the Trial Court that, it is a developer under the name and style of M/s. Skyline Developers. Accused No.1 is the owner of the land, accused No.2 is the wife of accused No. 1 and accused No.3 is the subsequent purchaser of 3 apartments from accused No. 1. It is stated that there was a Joint Development Agreement (JDA) and a Sharing Agreement (SA) dated 17-04-2008 entered into between accused No.1 and respondent No.2 as per Annexure-D and E respectively. Accused No.1 executed the registered GPA deed in favor of respondent No.2 on the same day.
3. It is the contention of the petitioners that since respondent No.2 could not develop the land as undertaken under the JDA, accused No.1 entered into Memorandum of Understanding (MOU) with respondent No.2 as per Annexure-F dated 21.04.2012 to enable accused No.1 to transfer his rights in favor of a third party. As per the terms of MOU, accused No.1 was entitled to sell his share in favour of 3rd party and accordingly, accused No.1 entered into a registered exchange deed with accused No.3 on 28.09.2012 and the same is -5- NC: 2025:KHC:3825 CRL.P No. 6100 of 2021 C/W CRL.P No. 3804 of 2020 produced as per Annexure-G. As per the terms of the exchange deed, accused No.1 took the house of accused No.3.
4. It is the contention of respondent No.2 that accused No.1 was liable to pay Service Tax, VAT & KEB/BWSSB charges as agreed under JDA, which is quantified as Rs.66,76,173/-. The same is not being paid by accused Nos.1 to 3. They were having intention to cheat the complainant and therefore, they filed the private complaint, alleging commission of the offences punishable under Sections 417 and 420 read with Section 34 of IPC. Learned Magistrate referred the matter for investigation and accordingly, FIR in Crime No.77/2021 of Ashok Nagar Police Station came to be registered. In the meantime, the petitioners being accused Nos.1 to 3 have approached this Court, seeking to quash the criminal proceedings initiated against them.
5. Heard Sri. Udaya Prakash Muliya, learned counsel for Sri. Kamaluddin, learned counsel for the petitioners, Sri. Venkat Sathyanarayan, learned High Court Government Pleader for respondent No.1. Perused the materials on records. -6-
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6. Learned counsel for petitioners in Crl.P.No.6100/2021 contended that petitioner No.1 being accused No.1 was the owner of the property, who entered into Joint Development Agreement, Sharing Agreement and the registered GPA deed with respondent No.2 on the same day as per Annexure D & E. It is an admitted fact that, accused No.1 entered into MOU with respondent No.2 as per Annexure - F dated 21.04.2012. He has drawn the attention of the Court to the letter dated 03.05.2013 addressed by respondent No.2 to accused Nos. 1 & 3 calling upon them to pay the Service Tax and VAT of their share of constructed area and also to pay the BESCOM & BWSSB charges, quantified at Rs.66,76,173/-. The complainant called upon accused Nos. 1 and 2 to pay the said amount within 7 days or else cautioned them that they are liable to pay an interest @ 24% as penalty.
7. Learned counsel for the petitioners - accused Nos.1 and 2 in Crl.P.No.6100/2021 submitted that when respondent No.2 referred to the MOU and transfer of the rights and liabilities of accused No.1 to accused No.3 under the exchange deed, accused Nos. 1 & 2 are not at all liable to pay any amount and under such circumstances, offences under Section -7- NC: 2025:KHC:3825 CRL.P No. 6100 of 2021 C/W CRL.P No. 3804 of 2020 417 and 420 is not at all made out against them. Accordingly, he pays for allowing the petition.
8. Learned counsel for the petitioner- accused No.3 in Crl.P.No.3804/2020 contends that, entering into the documents between accused No. 1 and respondent No.2 i.e., JDA, SA, and registered GPA deed dated 17.04.2008 are not disputed. Execution of MOU between accused No.1 and respondent No.2 dated 21.04.2012 as per Annexure-F is also not in dispute. Pursuant to the same, there was exchange deed between accused Nos.1 and 3 dated 28.09.2012, upon which, accused No.3 took the share of accused No.1 in the project under MOU. Learned counsel admits that accused No.3 is liable to pay BESCOM & BWSSB charges to respondent No.2 as agreed under the JDA. However, he disputes the quantification of the amount claimed by respondent No.2. It is his contention that, since there is serious dispute about the quantum of the amount that is payable by accused No.3, it cannot be said that accused No.3 was having any intention to cheat.
9. Learned counsel further submitted that a similar complaint was filed by respondent No.2 alleging commission of -8- NC: 2025:KHC:3825 CRL.P No. 6100 of 2021 C/W CRL.P No. 3804 of 2020 offence under Section 506 on 28.08.2015. FIR came to be registered against accused No. 3. Accused No.3 had approached this Court by filing Crl.P.No.1261/2017 before this Court. This Court after considering the contentions taken by the parties, allowed the petition and quashed the criminal proceedings that were registered for the offence under Section 506 of IPC in C.C.No.56911 of 2016 and thereafter, belatedly, during 2020, the present complaint came to be filed without any basis. Hence, he prays for allowing the petition.
10. Per contra, learned High Court Government Pleader opposing the petitions submitted that, serious allegations are made against the accused by Respondent No.2. Admittedly, the accused have not paid the amount towards BESCOM & BWSSB charges after agreeing to pay the same and it is a clear case of cheating. The investigation is not undertaken by the Investigating Officer in view of the interim order of stay granted by this Court. Investigation in the matter would reveal the true facts and hence, he prays for dismissal of the petitions. -9-
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11. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the Petitioners have made out any grounds to allow the petition and to quash the criminal proceedings initiated against them?"
My answer to the above point is in 'Partly Affirmative' for the following:
REASONS
12. The facts of the case are that, accused No.1 was the owner of the land, accused No.2 is his wife and accused No.3 is the subsequent purchaser of 3 apartments from accused No.1 is not in dispute. It is also not in dispute that respondent No.2 being the builder, had entered into JDA with accused No.1 on 17.04.2008, agreeing to develop the property. Sharing Agreement of even dated was also entered into between accused No. 1 and respondent No.2 as per Annexure- E. Admittedly, a registered GPA deed was executed by accused No.1 in favor of respondent No.2 on the very same day. These documents are admitted by all the parties.
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13. It is the contention of accused No.1 that since respondent No.2 could not develop the property as agreed under JDA, an MOU was entered into between accused No.1 and respondent No.2 where under, accused No.1 was authorized to transfer his right in favor of third party. The said MOU is produced as per Annexure-F. As per the terms of MOU, accused No.1 was entitled to sell his share and in such event, either accused No.1 or the subsequent purchaser was liable to pay KEB and BWSSB charges in respect of the apartments while taking possession.
14. Learned counsel for accused No.1 has drawn the attention of Court to the letter dated 03.05.2013 addressed by respondent No.2 to accused Nos.1 and 3, wherein, there is reference to registered exchange deed dated 28.09.2012, and it is stated that accused No.3 had stepped into the shoes of accused No.1 and thus, accused No.3 is liable to pay for the Service Tax, VAT, KEB and BWSSB charges, and he quantified it as Rs.66,76,173/-. When respondent No.2 categorically admits accused Nos.1 and 3 entering into exchange deed and accused No.3 entering into the shoes of accused No.1, the liability to pay the amount claimed by respondent No.2 is on
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NC: 2025:KHC:3825 CRL.P No. 6100 of 2021 C/W CRL.P No. 3804 of 2020 accused No.3. However, the complainant is claiming the amount from accused No.1 and alleging cheating against accused Nos.1 and 2. In the light of these admitted facts and circumstances, when respondent No.2 admits entering into exchange deed between accused Nos.1 and 3 and categorically states that accused No.3 stepped into the shoes of accused No.1, I do not find any merits in the contention taken by respondent No.2 that accused No.1 is still liable to pay any amount and he had an intention to cheat the complainant. Therefore, filing of the complaint and registration of FIR against the accused Nos.1 and 2 is liable to be quashed.
15. In view of the facts and circumstances narrated above, it is clear that accused No.3 purchased the share of accused No.1 and it is stated that accused No.3 has already taken 3 apartments and he is in possession of the same. But in spite of that, he has not paid the Service tax, VAT, KEB and BWSSB charges which was undertaken to be paid while taking possession of the property.
16. As per the letter dated 03.05.2013 referred to above, respondent No.2 has addressed a letter to accused
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NC: 2025:KHC:3825 CRL.P No. 6100 of 2021 C/W CRL.P No. 3804 of 2020 Nos.1 and 3, calling upon them to pay the amount of Rs 66,76,173/-. Admittedly, accused No.3 has not replied to the same. He never raised any dispute about the quantum of the amount. However, he has not paid it. On the other hand, the complainant had filed the first complaint on 28.08.2015 against accused No.3, and the F.I.R. in Crime No.610 of 2015 of Ashok Nagar Police Station came to be registered for the offence punishable under Section 506 of IPC. Accused No.3 appears to have filed O.S.No. 6427 of 2015 seeking permanent injunction against respondent No.2. Pursuant to the same, Crl.P.No.1261/2017 came to be filed before this Court seeking quashing of the criminal proceedings. The Co-ordinate Bench of this Court, considering the merits of the case, found that the offence alleged is a non-cognizable offence and the procedure under Section 155(2) of Cr.PC is not followed. It was also found by the Co-ordinate Bench that, the petitioner in the said petition (accused No.3, herein) had filed the suit O.S.No.6427/2015 seeking permanent injunction and therefore, the criminal proceedings came to be quashed. Interestingly, after quashing the criminal proceedings, by allowing Crl.P.No.1261 of 2017, the said civil suit O.S.No.6427/2015 is
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NC: 2025:KHC:3825 CRL.P No. 6100 of 2021 C/W CRL.P No. 3804 of 2020 not pressed by accused No.3. Here the conduct of accused No.3 is to be taken into consideration. Admittedly, he purchased the share of accused No.1 and he is liable to pay Service tax, VAT, KEB and BWSSB charges, but he has not paid the same. He admits receipt of the notice from respondent No.2 demanding payment of the amount. But, no reply was issued by accused No.3. It is also admitted that accused No.3 is in possession 3 apartments. The suit O.S.No.6427/2015 was filed seeking permanent injunction against respondent No.2 from interfering with the possession of accused No.3. He was successful in getting temporary injunction and later, the suit was not pressed and it was withdrawn. Thus, accused No.3 has never raised any dispute with regard to the claim made by respondent No.2, but at the same time, he took possession of the property, squatting over the same, without paying the amount. Thus, prima facie the intention on the part of accused No.3 to cheat respondent No.2 is very clear. No investigation is undertaken by the Investigating Officer in view of the interim order of stay granted by this Court. A detailed investigation will reveal the truth in the matter. Hence, criminal proceedings initiated against him is not liable to be quashed.
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17. Accordingly, I answer the above point Partly Affirmative and proceed to pass the following:
ORDER
(i) The Crl.P.No.6100/2021 filed by accused Nos. 1 and 2 is allowed.
(ii) The Crl.P.No.3804/2020 filed by accused No.3 is dismissed.
(iii) Entire proceedings in P.C.R.No.53057/2020 (Crime No.77/2021 of Ashok Nagar Police Station) against accused Nos. 1 and 2, pending on the file of the learned 29th Additional Chief Metropolitan Magistrate, Mayohall, Bengaluru, for the offences punishable under Sections 417 and 420 read with Section 34 of IPC, is hereby quashed.
Sd/-
(M G UMA) JUDGE SPV List No.: 1 Sl No.: 17