Karnataka High Court
Sri Srikantaiah vs The State Of Karnataka on 14 December, 2021
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.8786/2018
BETWEEN
SRI SRIKANTAIAH
S/O LATE EREGOWDA
AGED ABOUT 78 YEARS
THE PRESIDENT
GAVIPURA EXTENSION HOUSE
BUILDING CO-OPERATIVE
SOCIETY LTD.,
NO.50, 3RD CROSS
GAVIPURAM EXTENSION
BENGALURU-560 019
R/AT NO.414, 4TH MAIN
6TH BLCOK, BSK III STAGE
BENGALURU-560 085
... PETITIONER
[BY SRI. ANANDA K., ADV.]
AND
1. THE STATE OF KARNATAKA
BY JNANABHARATHI POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUDILDING
BENGALURU-01
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2. SRI. SRINIVASAMURTHY
S/O. VENKATASWAMAPPA
AGED ABOUT 38 YEARS
R/AT NO.228/42
5TH CROSS, P. SHANKAR ROAD
MARIYAPPANAPALYA
JNANABHARATHI POST
BENGALURU-560 056
... RESPONDENTS
[BY SRI. R.D. RENUKARADHYA, HCGP FOR R1;
SRI. SHARATH S. GOWDA, ADV. FOR R2]
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO QUASH THE CHARGE SHEET
FILED AGAINST THE PETITIONER FOR THE OFFENCES
P/U/S 418, 420 OF IPC IN CR.NO.17/2018 AND
CONSEQUENTIAL PROCEEDINGS PENDING ON THE FILE
OF THE IX A.C.M.M., BANGALORE IN C.C.NO.18660/2018.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court calling in question the proceedings in Crime No.17/2018, which is presently C.C.No.18660/2018 for offences punishable under Sections 418 and 420 of the Indian Penal Code pending before the IX Additional Chief Metropolitan Magistrate, Bengaluru.
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2. Heard Sri. Ananda K., learned counsel appearing for the petitioner, Sri. R.D.Renukaradhya, learned HCGP for respondent No.1, Sri.Sharath S. Gowda, learned counsel for respondent No.2 and have perused the material on record.
3. Facts in brief, germane for a consideration of the issue in the lis are as follows::
Land in Sy.No.42/68 of Malathahalli village, Kengeri Hobli, Benglauru was notified for acquisition by issuance of a preliminary notification on 09.02.1988. In furtherance of the said preliminary notification, a final notification came to be issued on 15.03.1989 and possession of the land was taken by the Acquiring Authority on 29.09.1992 and the land appears to have been handed over to the Society on 01.12.1992. The acquisition proceedings insofar as it pertains to Sy.No.119 became subject matter of Writ Petition No.1845/1990. This Court, by an order dated 4 18.01.2000, allowed the writ petition and quashed the notification of such acquisition insofar as it pertains to Sy.No.119 as could be gathered from the narration in the order. The narration in the order reads as follows:
" ORDER
The Deputy Commissioner vide
notification (under Section 4(1) of the Land Acquisition Act (for short 'Act') dated 9-2-1988 proposed for acquiring the land measuring 1 acre 5 guntas in Sy.No.119 of Nagadevanahalli, Kengeri Hobli, Bangalore South Taluk for a Society registered under the Karnataka Co operative Societies Act. This was followed by a final notification dated 15-
3-1989 issued under Section 6(1) of the Act. The petitioner has raised an additional ground by filing an application to the effect that the acquisition of land is bad since no scheme is framed with the prior approval of the State Govt. as required under Section 3(f)(iv) of the Act.
2. The State Govt. though has taken several adjournments to file objections has 5 not filed objections in so far as this ground is concerned. Further, the learned Govt. Advocate who appears for respondents 1 and 2 is not able to say whether the scheme framed by the Housing Society has been sanctioned by the State Govt. In the absence of any scheme framed by the Housing Society with the prior approval of the State, the entire acquisition is vitiated in view of the decision of the Supreme Court in the case of H.M.T. HOUSE BUILDING COOPERATIVE SOCIETY - VS - SYED KHADER AND OTEHRS reported in 1995 (2) SCC 677.
2. In the result, I pass the following order:-
i) Writ Petition is allowed;
ii) The impugned notifications are
quashed."
4. The order was passed on 18.01.2000, close to 14 years thereafter nothing transpired. The claim of the petitioner is that the petitioner Society formed a layout and distributed sites to its members in the 6 interregnum. After about 14 years, the Society generating a doubt with regard to the order insofar as it pertains to the quashing of the notifications, which contained all other survey numbers, filed an application seeking clarification in I.A.No.1/2014. The application came to be allowed by the following clarifications: "ASBJ: WP 1845/1990
7.11.2014 ORDER ON I.A.1/2014 I.A.1/2014 is field seeking clarification of the order dated 18.01.2000. This Court, by order dated 18.01.2000, had allowed the writ petition and quashed the impugned notifications. The petitioner therein was claiming to be the owner of Sy.No.119 of Nagadevanahalli, Kengeri Hobli, Bangalore South Taluk, measuring 1 acre 5 guntas.
Since the order does not specify as to whether the Notification was quashed only in relation to the said land belonging to the petitioner or to enure to the benefit of the petitioner, the applicant/3rd respondent herein has filed an 7 application seeking clarification that quashing of the Notification be limited only to the extent the prayer made in the writ petition.
Since the learned counsel who had represented the petitioner earlier had indicated that they had no instructions to appear and in that regard though the petitioner was served, he has not chosen to appear. In that light, the learned Government Advocate was requested to secure clarification as to whether the Scheme in respect of the remaining lands regarding which there was no challenge has been completed.
The learned Government Advocate, on instructions, would submit that as per the communication dated 25.05.1986 and 05.07.19847 the present position is that the Scheme in respect of the other lands have been completed.
Therefore, the application (I.A.1/2014) is allowed. It is clarified that the quashing of the Notifications by the order 8 dated 18.01.2000 would stand limited to the challenge made in the petition i.e., the land to which the petitioner had claimed therein. The order dated 18.01.2000 shall therefore be read to that effect only."
5. Against the allowing of the I.A. for clarification, certain other aggrieved persons filed a Review Petition seeking review of the order, which allowed the clarification in I.A.No.1/2014. Those review petitions came to be allowed by an order of the co-ordinate Bench dated 17.10.2016.
6. All these issues were called in question before the Division Bench in W.A.No.2792/2018 and connected cases. The Division Bench, after considering the issue and hearing all the parties to the present lis, allowed the appeal and restored the order passed on 07.11.2014 on I.A.No.1/2014 holding that the acquisition proceedings that were quashed by an order of the co-ordinate Bench on 18.01.2000 was restricted 9 to Sy.No.119 and not any other survey number, which measured 1 acre 30 guntas.
7. In the interregnum between the date on which the learned single judge passed the order on 18.01.2000 and the clarification was rendered by this Court on 07.11.2014, the allegation of the complainant is that the Society could not have formed layout or sold sites in the land that was not in their possession as the entire acquisition proceedings had stood obliterated by the order of the learned single judge as quoted supra.
8. The complaint is registered in the year 2018. After all the aforesaid proceedings except the writ appeal supra came to be concluded. The allegation in the complaint is for offences punishable under Sections 418 and 420 of the Indian Penal Code. If the lands were subject matter of acquisition and the lands were acquired and handed over to the Society and Society taking possession of the land in Sy.No.42/68, the 10 complaint could not have claimed any land except Sy.No.119, on that ground, alleged cheating against the petitioner Society. Sections 418 and 420 of IPC are the allegations that are made in the case at hand. Section 418 and 420 of IPC reads as follows:
" 418. Cheating with knowledge that wrongful loss may ensure to person whose interest offender is bound to protect.- Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, 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 inducting 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 11 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 year, and shall also be liable to fine."
9. The complainant claims to be the owner of the erstwhile lands that stood obliterated by quashing of the notifications in terms of the order of the learned single judge dated 18.01.2000. Therefore, it is a clear case where the complainant takes advantage of the order dated 18.01.2000, which infact quashed the impugned notifications, when the challenge was restricted only to Sy.No.119. This having been clarified is the vindication of the stand of the Society that the acquisition proceedings were quashed only with regard to Sy.No.119. The added circumstance is that in Writ Appeal (supra) has restored the order of clarification dated 07.11.2014.
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10. It is unimaginable how an allegation under Sections 418 or 420 of the Indian Penal Code can spring in the facts afore-narrated, as there is neither entrustment of the property nor inducement by the petitioner against respondent No.2 for delivery of any property.
11. It is a clear case where the complainant takes an advantage of an ambiguous situation, which is cleared after 14 years by an order passed by this Court, which is affirmed by the Division Bench in W.A.No.2792/2018. The offence of cheating cannot even remotely link to the facts narrated hereinabove. Permitting trial to be continued against the petitioner with the aforesaid facts, would undoubtedly degenerate into a weapon of harassment against the petitioner and in favour of the complainant and be an abuse of process of the law.
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12. For the aforesaid reasons, the following:
ORDER i. Criminal Petition is allowed.
ii. Proceedings in C.C.No.18660/2018 pending before the IX Additional Chief Metropolitan Magistrate, Bangalore stands quashed qua the petitioner.
The observations made in the course of this order is only for the purpose of consideration of the case under Section 482 of Cr.P.C., the same shall not bind or influence any other proceeding that the petitioner would avail of in law, if available.
Sd/-
JUDGE KG