Bangalore District Court
P Manjunath vs A.S.Gowda on 8 October, 2024
KABC030385542021
Presented on : 24-06-2021
Registered on : 24-06-2021
Decided on : 08-10-2024
Duration : 3 years, 3 months, 14 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 08th day of October, 2024
C.C. No.13513/2021
State by Hebbala Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
1. Sri A.S.Gowda @ Sonnegowda
Aged about 50 years,
S/o Sri Anjaneya Gowda,
2. Smt.Suguna
Aged about 43 years,
W/o Sri A.S.Gowda @ Sonnegowda,
KABC030385542021 CC No.13513/2021
Case against accused No.2 was split up by the order
dated 26-08-2022.
Both are R/at No.413.
1st Floor, Talakaveri Layout,
Amruthahalli, Bengaluru. ... Accused
(Represented By Sri. H. S. Ramamurthy Advocate)
1. Date of commission of 10-04-1996 till
offence 24-10-2019
2. Name of Complainant Sri P.Manjunath
3. Offences complained of Under Section 417,
506, 120(B) R/w
Sec.34 of IPC
4. Charge Pleaded not guilty
5. Final Order Accused is acquitted
6. Date of order 08-10-2024
JUDGMENT
The informant Sri P.Manjunath filed a private complaint against accused No.1 and 2 under Section 2 KABC030385542021 CC No.13513/2021 200 of Cr.P.C. for the offences punishable under Sec. 415, 468, 474, 506 read with 120B Indian Penal Code 24-06-2019. On receipt of complaint, this court has registered the complaint as PCR and referred the case as required under Sec.156(3) of Cr.P.C. to Hebbala Police Station for investigation and submit report. Accordingly, the Police Sub-Inspector of Hebbala Police Station after the investigation, submitted charge sheet against accused No.1 and 2 for the offences punishable under Section 417, 506, 120B read with sec.34 of IPC.
2. Prosecution Case: The aunt of CW1 late Smt. Muniyamma purchased Sy.No.2/6 land measuring 1 acre 18 guntas situated at Hebbal Village under registered Sale Deed dated 14-06-1973 and thereafter she divided the said land in 3 portions. She kept one portion for herself, gave another portion to uncle of CW1 by name Ramakrishna and third portion to father of CW1 by name Sri Papanna under registered gift deed dated 30-08-1976. Thereafter, accused No.1 and 2 with common intention to cheat CW1 Sri Manjunath, created sale agreement on 10- 04-1996 and filed a suit in OS no.5922/98 for specific performance against Smt. Muniyamma represented by GPA holder accused No.2, who is none other than wife of accused No.1 for specific performance and obtained on ex-parte decree dated 11-7-2000 without knowledge of complainant. Thereafter accused No.1 filed execution case 3 KABC030385542021 CC No.13513/2021 No.2026/2000 by giving wrong address of Muniyamma at Kolar District, though she was residing at Hebbal, Bengaluru and managed to obtain a registered sale deed dated 07-02-2002 illegally by suppressing above facts. On 23-05-2019 when CW1 questioned about illegal act, accused No.1 and 2 with common intention threatened CW1 and his wife with life consequences.
3. First Information Report: On receipt of first information from CW1 Sri Manjunath.P., CW7 Sri Rajesh.V.M. the PSI of Hebbala PS has registered the case, prepared FIR and sent to the court and his superior.
4. Investigation: After registration of the case, CW7 conducted spot mahazar on 17-11-019 in the presence of CW4 and CW5, collected the records and submitted the charge sheet against the accused for the offences punishable under Sec.417, 506, 120B read with sec.34 of IPC.
5. Accused No.1 and 2 were enlarged on bail by the order dated 13-02-2020.
6. On receipt of charge sheet, this Court took cognizance of offence alleged against the accused.
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7. Thereafter, in view of continued absence of accused No.2, the case against her is ordered to be split up by the order dated 26/08/2022.
8. Copies of prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused No.1.
9. Charge: After hearing learned Sr.APP and counsel for accused, charge for the offence punishable U/Sec. 417, 506, 120B read with sec.34 of Indian Penal Code has been framed, read over and explained to the accused No.1 in the language known to him, who, in turn, pleaded not guilty and claimed to be tried
10. Prosecution Evidence: The prosecution in order to establish its case cited 7 witnesses however examined 3 witnesses and exhibited 6 documents and closed their side. Despite due execution of proclamation, the presence of CW7 could not be secured thereby the examination of CW7 was dropped out by order dated 23-11-2023. The examination of CW2 and CW3 were given up by order dated 13-09- 2024 as the proclamation was not executed. During the course of preparing the judgment, it is observed that the witness summons was not issued however CW6 is none other than the Sub-Registrar and he does not have a pivotal role in allegation of cheating against the accused No. 1 and 2.
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11. Statement of accused as per section 313 of CrPC: After completion of evidence of prosecution, the accused No.1 was examined as per section 313 statement of Cr.P.C wherein he denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
12. Heard the arguments. Perused materials on the record.
13. The following point are arises for consideration is as follows;
1. Whether the prosecution proved beyond all reasonable doubt that the aunt of CW1 late Muniyamma purchased Sy.No.2/6 land measuring 1 acre 18 guntas situated at Hebbal Village under registered Sale Deed dated 14-06-1973, and divided the said land in 3 portions, one for herself, another portion to uncle of CW1 by name Ramakrishna and third portion to father of CW1 by name Papanna under registered gift deed dated 30- 08-1976, thereafter, accused 6 KABC030385542021 CC No.13513/2021 No.1 and 2 with common intention to cheat CW1 Sri Manjunath, got created an agreement of sale on 10-04-
1996 and filed a suit in OS No.5922/98 against Muniyamma represented by GPA holder accused No.2, who is none other than wife of accused No.1 for specific performance and obtained on ex-parte decree dated 11-7- 2000 without knowledge of complainant and accused No.1 filed execution case No.2026/2000 by giving wrong address of Smt. Muniyamma at Kolar District, though she was residing at Hebbal, Bengaluru and managed to obtain a registered sale deed dated 07-
02-2002 illegally by suppressing above facts and cheated CW1 thereby resulted in commission of an offence punishable under Section 417 read with Sec.34 of IPC?
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2. Whether the prosecution proved beyond all reasonable doubt that accused No.1 along with split up accused No.2 conspired with each other to cheat CW1 by filing above cases by suppressing the true facts and obtained the sale deed by illegal means and by giving wrong address of Smt. Muniyamma thereby resulted in commission of an offence punishable u/Sec.120B R/w Sec.34 of IPC?
3. Whether the prosecution proved beyond all reasonable doubt that on 23-05-2019 at above said site accused No.1 along with split up accused No.2 in furtherance of common intention threatened CW1 with criminal intimidation thereby resulted in commission of an offence punishable u/Sec.506 R/w Sec.34 of IPC?
4. What order?
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14. 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 REASONS
15. Point No.1: In support of prosecution case as narrated in paragraph 2 and the point for consideration in paragraph 13 of this judgment, the prosecution has examined the following witnesses, which are as follows i. CW1 Sri Nagendra, being informant examined as PW1 deposed that the said Muniyamma is his grandmother, on 30.08.1976, Smt. Muniyamma executed gift deed in favor of his father, in the year 1990 his father expired and on 18.10.2016, his mother expired. In the year 2019, they came to know that a GPA was created by A1 and 2 by encroaching property. Initially A1 and 2 had created GPA as if it was executed by Muniyamma in favor of A2. Thereafter, A2 executed sale deed in favor of A1. Thereafter one M.C.Dayanand filed specific performance suit and purchased above property. The measurement of said site is 120x180. Thereafter M.C.Dayanand obtained possession of said site by filing suit in Civil Court. In the year 2019, they 9 KABC030385542021 CC No.13513/2021 approached accused No. 1 and 2 for enquiring about said property, accused threatened them with deadly consequences. Hence he lodged private complaint and police conducted spot mahazar as per Ex.P1 in the presence of CW4 and CW5. He has produced the certified copy of gift deed executed by Muniyamma in favor of his father as per Ex.P2, certified copy of sale agreement dated 10.04.1996 as per Ex.P3, certified copy of order sheet in OS No. 5922/1998 as per Ex.P4, certified copy of sale deed executed by court dtd:07.02.2002 as per Ex.P5, in execution petition, accused have given wrong address of Muniyamma as Kolar, though she was residing in Hebbal, hence said case was closed exparte, the accused had mentioned wrong site number in said case as site No.9 measuring 180 x 120 including their site, they had filed suit in OS No.15810/2005 for T.I. and it was dismissed, then filed RFA No.709/2012 and in said case suit is remanded back to trial court. The sale deed obtained by M.C.Dayanand through court is made by giving wrong boundaries and concocted documents, when they questioned the same on 12.05.2019, a quarrel had taken place, police did not take any action in the case and hence he had filed private complaint before court on 12.06.2019 as per Ex.P6 ii. CW2 Sri Chethan and CW5 Sri Srinivas examined as PW2 and PW3 respectively, have deposed that they affixed their signatures on Ex.P1 as 10 KABC030385542021 CC No.13513/2021 per Ex.P1(b) and (c) at No.28, Hebbal, in respect of regard quarrel held between CW1 and Accused.
16. The present case is charge sheeted against accused No.1 and 2 for the offences punishable under section 417, 506, 120B R/w Section 34 of IPC. The aforesaid provision has been reiterated as under:
417. Punishment for cheating.-
Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
120B. Punishment of criminal conspiracy.-- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
506. Punishment for criminal intimidation- Whoever commits the offence of criminal intimidation shall 11 KABC030385542021 CC No.13513/2021 be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both The term Cheating is defined under section 415 of the Indian Penal Code as whoever fraudulently or dishonestly deceives a person in order to induce that person to deliver a property to any person or to consent to retain any property. If a person intentionally induces a person to do or omit to do any act which he would not have done if he was not deceived to do so and the act has caused harm to that person in body, mind, reputation or property, then the person who fraudulently, dishonestly or intentionally induced the other person is said to cheat. Any dishonest concealment of facts which can deceive a person to do an act which he would not have done otherwise is also cheating within the meaning of this section.
17. It is important to note that a dishonest concealment of facts constitutes deception under this section.
18. The essential ingredients of Cheating read as under 12 KABC030385542021 CC No.13513/2021 I. Deception: The accused must have deceived another person by making a false representation or by any other dishonest act.
II. Fraudulent Intention: The deception must have been done to induce the other person to deliver property, consent to the retention of property, or do or omit to do something he would not do or omit if he were not so deceived.
III. Act or omission Induced by Deception: The deception must have caused the person to whom it was directed to either deliver property, consent to the retention of property, or do or omit to do something.
IV. Dishonest Inducement:
The inducement must be dishonest. The accused must have induced the person by some deception, so as to enable him or her to act in a manner in which he or she would not otherwise have acted.
V. Presence of mens rea: The accused must have had a guilty 13 KABC030385542021 CC No.13513/2021 mind or mens rea at the time of committing the act of cheating.
Based upon the provision of law, this court had taken oral testimony of witnesses along with documentary evidence.
19. It appears from the record that PW1 admitted that the accused No. 2 is the daughter of Smt. Muniyamma and the accused No. 1 is the husband of accused No. 2. The said Smt. Muniyamma filed the O S No. 2888/1998 for declaration and injunction alleging the registered gift deed dated 30/08/1976 is not binding on her however the same came to be dismissed on the file of 24th Additional City Civil Judge, Bangalore (CCH 6) vide judgment and decree dated 10/06/2005.
20. It is the case of prosecution that the accused No.1 and accused No.2 being the PA Holder of Smt. Muniyamma has created a concocted agreement in collusion with each other without knowledge of PW1 on 10/04/1996. It ought to be seen that during the pendency of case O.S No. 2888/1998 does not arise as the said agreement came into the existence in the year 1996 itself much prior to the filing of Suit O.S No. 2888/1998 does not arise.
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21. It is the case of prosecution that the accused No.1 being a husband of accused No. 2 filed a suit O.S. No.5922/1998 against the said Smt. Muniyamma (mother in law) being represented by the GPA Holder accused No.2 (Wife of accused No.1) without the knowledge of said Smt. Muniyamma and the exparte judgment and decree dated 1107/2000 however the said Smt. Muniyamma was not a witness in this case to speak about the GPA dated 10/04/1996 was created nor the best evidence was not produced by the prosecution to corroborate their version that the GPA was not executed by Smt. Muniyamma.
22. Based upon the said judgment and decree in OS No. 5922/1998, the accused No.1 and 2 had given a false address and false boundaries for obtaining the exparte decree and obtained the possession by extending the Site No.3. If such site No.3 was included in the property being conveyed to the name of accused No.1 through the sale deed, then the PW1 always had an option to challenge the wrong boundaries given in O S No. 5922/1998 and the right of PW1 could be established through civil proceedings. This court cannot decide the civil rights and thereafter to come to a conclusion that the accused No.1 and 2 had defrauded the rights of PW1 by giving the wrong boundaries i.e., by including the site No. 3.
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23. The mother of PW1 Smt. Puttamma filed a suit O S No. 15810/2005 was filed against the accused No. 1 and the same came to the dismissed and the said decree of dismissal was uphold by the Hon'ble High court of Karnataka in RF No. 709/2012.
24. It ought to be seen that PW1 deposed in his complaint as per Ex.P.6 that one Sri.M.C. Dayananda filed the suit OS No.4095/2005 against the accused No.1 for specific performance of alleged agreement dated 04/02/2005 and obtained the sale deed in respect of property No.9 measuring east to west 150 feet and north to South 120 feet the including his property. If the property of PW1 is included, then, he is at liberty to challenge the same in the civil proceedings and not under this suit as he purchased the property from Smt. Muniyamma. Merely the wrong address of said Smt. Muniyamma was given as Kolar instead of Hebbal, Bangalore, how his right was infringed for having given the wrong address was not mentioned and the said Smt. Muniyamma is at liberty to knock the door of civil court for reopening the case by proving her address was at Hebbal. When the accused No.1 has already alienated the property to one Sri M.C. Dayananda, then the question of creation of false documents does not arise as PW1 himself admitted that 16 KABC030385542021 CC No.13513/2021 "It is true to suggest that, A2 is own daughter of Muniyamma.
It is true to suggest that, on the basis of GPA executed by Muniyamma, A2 executed sale agreement in favor of A1. It is true to suggest that, as A2 did not execute sale deed as per said agreement, A1 filed OS No. 2888/1998 against A2. It is true to suggest that, said case was decreed in favor of A1. Witness volunteers but we were not parties to said proceedings. It is true to suggest that, A1 filed EP No. 2026/2000 in pursuant to said decree and as per said decree court executed sale deed in his favor. Witness volunteers we were not parties to said EP. We have challenged said order. We have not produced any documents in that regard. Xxxxx It is true to suggest that, in the year 2000, Katha was transferred in the name of A1, but we came to know it later. It is true to suggest that, a specific performance suit was pending between A1 and M.C.Dayanand in respect of said 17 KABC030385542021 CC No.13513/2021 property, but we were not parties to said proceedings. I do not know if said suit under OS No. 4095/2006 was decreed in favor of M.C.Dayanand. I do not know if A1 had challenged decree of said suit before Hon'ble High Court of Karnataka and said appeal is also disposed. I do not know if as per order of Hon'ble High Court of Karnataka in said RFA No. 588/2013, it is ordered the M.C.Dayanand has to pay Rs.
2.14 Crores to A1.
Thus, PW1 admitted that on the basis of execution of GPA by Smt. Muniyamma in favour of accused No. 2, sale agreement came to be executed. PW1 did not produce any corroboration that the GPA was created by the accused persons and further emerges that he is agitating his right before the Civil Court in respect of Property.
25. It is relevant to mention the decision of the Apex Court in the case of Syed Yasir Ibraim Vs State of Uttra Pradesh and other reported in 2022 SCC OnLine SC 271, has held as follows:
18KABC030385542021 CC No.13513/2021 "6. The submissions which have been urged on behalf of the appellant fall within a narrow compass. It has been urged on behalf of the appellant by Mr. Gaurav Khanna that the entire dispute is of a civil nature. The charge-sheet which has been submitted before the competent court specifically contains a recital that a suit is pending before the court of the Civil Judge (Senior Division). Moreover, it has been stated therein that the issue as to whether the appellant is entitled to claim under the deed of gift would be resolved in the trial, while, on the other hand, the claim of the second respondent which is based on the Will would also have to be tested on the basis of evidence in the suit.
7. Mr. Sanjay Singh has relied upon relevant extracts from the charge-sheet. Learned Counsel urged that the sale of the property is hit by the doctrine of lis pendens.19
KABC030385542021 CC No.13513/2021
8. Both the FIR and the charge-
sheet, which has been submitted after investigation, would leave no manner of doubt that there are rival contentions of the appellant, on the one hand, and the second respondent, who is the complainant, on the other, which form the subject of a pending suit. The contesting parties lay a claim to the immovable property, which is in dispute. The appellant founded his claim on the strength of an alleged deed of gift. On the other hand, the second respondent has claimed on the basis of a Will alleged to have been executed in his favour. The second respondent has instituted a suit for declaration and possession which is pending. The suit was dismissed in default on 13 October 2014. The sale deed was executed by the appellant on 24 November 2014. The suit has been restored to file on 21 April 2016. Each of the rival claims would be tested in the course of the evidence adduced at the trial of the suit. Mr. Sanjay Singh 20 KABC030385542021 CC No.13513/2021 submitted that since the sale took place during the pendency of the suit, doctrine of lis pendens will apply. This itself is an indicator of the position that it is essentially a dispute of a civil nature. The execution of a sale deed, during the pendency of the suit, may attract the doctrine of lis pendens, but, from reading the charge-
sheet as it stands, it is evident that there is no element of criminality which can stand attracted in a matter which essentially involves a civil dispute between the appellant and the second respondent.
9. Insofar as the appellant is concerned, none of the ingredients of the offence punishable under Section 420 of the IPC have been found to exist after the investigation was complete. Neither the FIR nor the charge-sheet contain any reference to the essential requirements underlying Section
420. In this backdrop, the continuation of the prosecution 21 KABC030385542021 CC No.13513/2021 against the appellant would amount to an abuse of the process where a civil dispute is sought to be given the colour of a criminal wrong doing."
Thus, it would unmistakably infer that matters which are predominantly civil in nature are being given the colour of crime as PW1 himself deposed that "We have challenged said order". The Apex Court in Syed Yasir Ibrahim's clearly held that the parties being before the civil Court on the respective rival claims would be a clear indicator of the position that the issue is purely civil in nature as in the said case, execution of sale deed during the pendency of the suit is also the question in the case at hand, which is the very question that is pending before the civil Court in the execution petition. Therefore, there is no element of criminality that can be attached in the matter which essentially involves civil dispute between the PW1 and the accused No. 1 and 2, who are already before the civil Court. Therefore, when the accused No. 1 had already delivered the possession of subject property to one Sri M. C Dayananda much prior to this complaint, the question of invoking the alleged incident dated 23-05-2019 does not arise. When the PW1 himself admitted based upon the GPA executed by the said Smt. Muniyamma, the sale agreement was executed by the accused No. 2 in favour of accused No. 1 and hence the question of criminal conspiracy of accused No. 1 and 2 with each other to 22 KABC030385542021 CC No.13513/2021 do illegal things to deprive the property of PW1 and 2 does not arise and mere utterance of word would not constitute an offence punishable under section 506 of IPC and thereby this court has to accord the benefit of doubt to the accused as the prosecution failed to prove the charges against the accused beyond all reasonable doubt thereby this court answer the above point No.1 to 3 in the negative.
26. Point No. 4:- For the foregoing discussion and 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 No.1 is found not guilty and acquitted from the offences punishable under Sec.417, 506, 120B read with section 34 of IPC.
(ii) Accused No.1 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.23
KABC030385542021 CC No.13513/2021
(iv) Office to keep this file against split up accused No.2.
(v) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 08th day of October, 2024) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri Manjunath.P. PW2 : Sri Chethan PW3 : Sri Srinivas
Documents marked on behalf of the prosecution:
Ex.P1 : Spot Mahazar
Ex.P2 : Gift Deed (copy)
Ex.P3 : Sale Agreement dtd 10-4-1996 (copy)
Ex.P4 : Order sheet in OS.No.5922/1998
Ex.P5 : Sale Deed dated 07-02-2002 (copy)
Ex.P6 : Complaint
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KABC030385542021 CC No.13513/2021
Material Objects marked on behalf of the prosecution: NIL Witnesses examined for the defence: Nil Documents marked on behalf of the defence: Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.
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