Karnataka High Court
Rev Fr Walter D Mello vs Mr Stephen V Gomes on 9 October, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9TH DAY OF OCTOBER 2014
BEFORE
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
CRL P.No.658/2014
BETWEEN:
1.REV FR WALTER D' MELLO
AGED ABOUT 56 YEARS
PRESIDENT MUKKA WELFARE
SOCIETY, ADDRESS: PARISH
PRIEST, MILAGRES CHURCH
HAMPANAKATTA
MANGALORE-575001
2.MR ROBERT JOHN D' SOUZA
AGED ABOUT 63 YEARS
S/O LATE SHANTHAN D' SOUZA
SECRETARY MUKKA WELFARE
SOCIETY R/O HARSHA
DOOR NO.16-58/1, PADRE
TEMPLE ROAD, BESIDES NITK
MUKKA, SURATHKAL
MANGALORE-575021
3.PROF A M D' SOUZA
AGED ABOUT 86 YEARS
TREASURER: MUKKA WELFARE
SOCIETY
"OPEL" NEAR "JYOTHI MANDIR"
MUKKA POST-SURATHKAL
MANGALORE-575021
4.PROF J S V SALDHANA
AGED ABOUT 84 YEARS
DIRECTOR: MUKKA WELFARE
SOCIETY
"SALCOTE" UDAYANAGAR, P.O
SRINIVASANAGAR, MUKKA
SURATHKAL
MANGALORE-575021
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5.MR RAYMOND ROACH
AGED 71 YEARS
DIRECTOR MUKKA WELFARE
SOCIETY
ADDRESS: RUSSEL OPTICALS
NEAR BUS STAND
MOSQUE BUILDING
SURATHKAL
MANGALORE-565021
6.MR SUNDARA SHETTIGARA
AGED ABOUT 76 YEARS
DIRECTOR MUKKA WELFARE
SOCIETY
R/O " SRI GANGA NIVAS"
SURATHKAL
MANGALORE-575021
7.MR M T
MASCARENHAS, PROF
AGED ABOUT 76 YEARS
DIRECTOR MUKKA WELFARE
SOCIETY
R/O BEJAI NEW ROAD -4
MANGALORE-575004
8.MRS EZRA JUDITH
FERNANDIS
AGED ABOUT 40 YEARS
D/O A.M.D D"SOUZA
W/O GEORGE FERNANDES
C/O A M D"SOUZA
R/O "OPEL" NEAR JYOTHI
MANDIR"
MUKKA POST-SURATHKAL
MANGALORE-575021
9.MR GEORGE FERNANDES
AGED ABOUT 46 YEARS
SON-IN-LAW OF A.M.D. SOUZ
C/O A M D"SOUZA
R/O "OPEL" NEAR JYOTHI
MANDIR"
MUKKA POST-SURATHKAL
MANGALORE-575021
10.MR TITSON D SOUZA
AGED ABOUT 31 YEARS
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S/O TRITSON D"SOUZA
ADDRESS: METRO FOOTWEAR
GEETHA MAHAL BUILDING
NEAR NATARAJ TALKIES
SURATHKAL
MANGALORE-575021
11.MR BERNARD D SOUZA
AGED ABOUT 78 YEARS
S/O LTE SANTAN D SOUZA
R/O MAJALAKERE HOUSE
POST NANDALIKE
KARKALA TALUK
MANGALORE-575021
12.MRS MELANIC TAURO
AGED ABOUT 46 YEARS
D/O J S V SALDANHA
W/O CLETUS TAURO
R/O C/O "SALCOTE"
BESIDES PADRE TEMPLE ROAD
BESIDES NITK, UDAYANAGAR
MUKKA SURATHKAL
MANGALORE-575021
13.MRS REENA MAVIS PINTO
AGED ABOUT 51 YEARS
W/O JOSEPH SYLVESTER
STEPHEN PINTO
R/O "CYPRIAN COTE"
KADRI, MANGALORE-575002 ...PETITIONERS.
(BY SRI JEEVAN K. ADV.)
AND:
1.MR STEPHEN V GOMES
S/OLATE VALERIAN J GOMES
AGED ABOUT 42 YEARS
R/O KOTEKOPPALA
KARKALA KASABA VILLAGE
KARKALA TALUK
UDUPI DISTRICT-574104
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2.THE STATE
REPRESENTED BY SURATHKAL POLICE STATION
THE SPECIAL PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE-560001 ...RESPONDENTS
(BY SRI S VISHWAJITH SHETTY, HCGP FOR R-1,
SRI NAZRULLA KHAN, HCGP FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER U/S 482 OF
CR.P.C. BY THE ADVOCATE FOR THE PETITIONERS PRAYING
TO QUASH THE ORDER DATED 13.04.2012 PASSED BY THE I
ADD'L SENIOR CIVIL JUDGE AND C.J.M COURT MANGALORE IN
P.C NO.6/12 (C.C NO.357/12) AND THE ORDER DATED 6.12.13
PASSED BY THE II ADD'L DISTRICT & SESSIONS JUDGE, D.K,
MANGALORE IN CRIMINAL REVISION PETITION NO.58/12 AT
ANNEXURE 'A' AND 'B' IN THE INTEREST OF JUSTICE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING: -
ORDER
Heard the learned counsel for the petitioners as well as the learned counsel for the respondents. Perused the records.
2. Respondent No.1 herein Mr. Stephen V Gomes lodged a private complaint before the I Addl. Senior Civil Judge and CJM Court, Mangalore in PC No.6/2010 against the petitioners herein making certain allegation that the land bearing Sy.No.9/2010 belonging to the Mukka Welfare Society of Mukka Village the petitioner Nos.1 to 7 are the office bearers and others are the close relatives -5- of the petitioners. It is alleged that for the purpose of making wrongful gain the petitioner Nos.1 to 7 have sold the property in favour of petitioner Nos.8 to 13 for throw away price. It is also alleged in the sworn statement filed in support of the complaint that the said property bearing Sy.No.239/2010 was reserved for the purpose of construction of house for fisherman. It is also alleged that for the purpose of cheating the society and public at large the said sale deeds have been concocted and by producing those documents the complainant has requested the Court to take cognizance and issue summons. The learned Magistrate after going through the contents of the complaint, sworn statement as well as the documents produced before the Court has come to the conclusion that there are sufficient material at that stage to attract the penal provisions, hence he took cogzinance. The learned Magistrate took cognizance for the offence under Sections 406, 409, 420 r/w 34 of IPC issued summons against all the petitioners herein. The said order of the learned Magistrate was subjected to challenge before the II Addl. -6- District and Sessions Judge, D.K. Mangalore. The learned Sessions Judge by writing a detailed order has also confirmed the orders of the learned Magistrate holding that there is a prima facie case in order to attract the said provisions of IPC invoked by the complainant and also the procedure followed by the learned Magistrate holding there is no illegality and it is in accordance with law.
3. On perusal of the petition averments and complaint produced before the Court, it discloses that some allegations have been made against the petitioners herein. It is specifically alleged in the complaint that the said survey number belong to Mukka Welfare Society and in the sworn statement it is alleged that the same was reserved for construction of houses for fishermen and illegally the said land has been sold to petitioner Nos.8 to 13 for a throw away price, whether the said property has been sold for throw away price or not has to be proved by way of evidence before the Court.
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4. Neither the revisional Court nor this Court can appreciate the documents produced by the parties before this Court in order to come to a definite conclusion that the accused persons have not at all committed any offence. This is the right of the trial Court to consider the facts and documents on appreciating the material on record. Even for summary disposal of the case such act should not be done by this Court while exercising power under Section 482 of Cr.P.C. When the allegations made in the complaint coupled with the sworn statement which are broadly sufficient to constitute any offence for the time being in force this Court cannot scuttle the legitimate prosecution at any stage. Therefore in the above said circumstances, I am of the opinion, the petitioners have not made out any substantial ground to quash the entire proceedings.
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5. It is the private complaint filed by the parties and cognizance has been taken and the now the trial Court has issued summons to the petitioners. After appearance of the petitioners, the Court has to record the evidence of the prosecution witnesses under Section 244 of Cr.P.C. In such an event the petitioners will also get sufficient opportunity to produce the documents in their favour and also to confront the same to the prosecution witnesses and also cross-examine the witnesses for the purpose of showing to the Court that there is no material on record for framing charges. When such opportunity is available to the petitioners, I am of the opinion, at this stage the entire proceedings cannot be quashed. Last but not least, the learned counsel for the petitioners submitted that some of the petitioners are very old aged and that the provisions of Cr.P.C. is vide enough to meet those contingencies. But petitioners who are unable to attend can show the genuineness before the Trial Court by filing necessary application under Section 317 or 205 of Cr.P.C. In that event if the Court is satisfied it may exempt their -9- presence for a limited period by imposing certain conditions.
6. With these observations, I am of the opinion, the petition deserves to be dismissed. Accordingly, the petition is dismissed.
Sd/-
JUDGE NG*