Karnataka High Court
Sri. Ashok R Jain vs State Of Karnataka on 6 March, 2018
Equivalent citations: 2018 (2) AKR 828, (2018) 4 KCCR 3209 (2018) 3 ALLCRILR 414, (2018) 3 ALLCRILR 414
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.6935 OF 2016
BETWEEN:
Sri. Ashok R Jain, 47 years,
S/o. M. Rikab Jain,
R/at 401, 3rd Cross,
Gandhinagar,
Panchasheel Apartment,
Bengaluru -560 009. ... Petitioner
(By Sri. Jayakumar S Patil, Senior Counsel for Smt.
Sanjana Reddy, Advocate)
AND:
1. State of Karnataka
By Thyagarajanagar Police Station.
2. Rangarajan N.S., 60 years,
S/o. Late N.R. Srikantaiah,
R/at 64/5, GF, 4th Main Road,
Thyagarajanagar,
Bengaluru -560 028. ...Respondents
(By Sri. S. Rachaiah, HCGP)
2
This Criminal Petition is filed under Section 482
of Cr.P.C praying to quash the complaint dated
01.04.2015 lodged by the second respondent at
Annexure -A in Cr. No.61/2015 pending on the file of
the Learned IV ACMM, Bangalore and quash the FIR
dated 06.05.2015 at Annexure -B in Cr. No. 61/2015.
This criminal petition coming on for Admission
this day, the Court made the following:
ORDER
This petition is filed by the petitioner/accused under Section 482 of Cr.P.C. praying to quash the complaint dated 01.04.2015 lodged by the second respondent at Annexure -A in Cr. No.61/2015 pending on the file of the Learned IV ACMM, Bangalore and quash the FIR dated 06.05.2015 at Annexure -B in Cr. No. 61/2015.
2. Heard the arguments of learned counsel appearing for the petitioner/accused and also learned High Court Government Pleader for the respondent-1 3 State and the learned counsel appearing for the respondent -2/complainant.
3. The case of the complainant as per the complaint dated 01.04.2015 that he is the GPA holder for L. Srinivas owner of the mortgaged property. Srinivas is suffering from immobility due to the paralysis of both the sides in 2002 and 2003. In order to take care of his health and to fight the cases filed by Sharathchandra and others from 2007, Srinivas took loan of around Rs.7.25 lakhs from Ashok Jain and executed two mortgages in favour of him. Along with the one above in which Srinivas handed over the possession, another equitable mortgage was executed by Srinivas as security for the same. As per the terms of the registered mortgage his land should be returned to him in vacant position and should not change its structure in any way. Due to the circumstances beyond 4 petitioner's control, a mafia trespassed into the property on 09.02.2011.
4. Subsequently, Ashok Jain told the complainant that he has got a Temporary Injunction (TI) against them and will take possession immediately. Unfortunately, he came to the complainant's house several times in 2012 and asked him to sell the property to the same tress-passers and convert the mortgage money as advance and execute an agreement with the petitioner and as the complainant refused, petitioner handed over the possession of complainant's mortgaged property to the same tress-passers after taking money from them. Therefore, on that basis the FIR came to be registered as against the petitioner herein.
5. Heard the arguments of the learned counsel for the petitioner. He submitted that looking to the complaint averments there are allegations that the 5 petitioner herein committed the alleged offences. Therefore, it is necessary that investigation is to be conducted and final report is to be filed. Learned counsel submitted that it is not a case for quashing of FIR. In support of his contention learned counsel relied upon the decision of the Hon'ble Apex Court.
6. Learned Senior Counsel for the petitioner submitted that looking to the contents of the complaint itself prima facie admittedly mortgage is between the complainant and the petitioner herein. Learned senior counsel also submitted that even the complaint averments go to show that tress-pass by the mafia is concerned, the petitioner himself filed proceedings and obtained the TI against those persons. Hence, it is his contention that when he is under possession of the mortgage transaction, the petitioner tress-passed into the land of the complainant, no offences could be made 6 out from the FIR. This case is frivolous and with malafide intention case has been filed. Hence, he submitted to allow the petition and quash the proceedings. In support to his contention learned senior counsel relied upon the decision of the Hon'ble Apex Court reported in (2013) 11 SCC 673, and drew the attention of the Court to its relevant paragraph Nos. 10, 11 and 13 which reads as under:
" 10. In the complaint, it is the case of Respondent 2 that this suit has been filed on the basis of fabricated documents. It is categorically stated on affidavit by the appellant that the said suit is still pending. If the said suit is still pending, then the grievance made by Respondent 2 that the documents on which reliance is placed by the appellant are not genuine and are forged and fabricated, will be considered by the civil court.
11. it is also significant to note that prior to the filing of this complaint, Respondent 2 tried to lodge and FIR against the appellant by moving an application under Section 156(3) of the Code. But the said application was dismissed on 06.05.2004. We notice from the impugned order that a separate case under 7 Section 406 IPC was filed by Respondent 2 against the appellant in which the appellant was acquitted on 09.02.2009. It is further significant to note that statement was made on behalf of the appellant before the High Court that the appellant has vacated the shop in question and handed over possession to Respondent 2. In the peculiar facts of the case, therefore, we are of the opinion that in the interest of justice, the pending criminal proceedings need to be quashed. We have taken serious note of the fact that Respondent 2 did not appear before the High Court to refute the case of the appellant. He has also not chosen to appear before us though served. Probably because the possession of the shop is handed over to him, he is not interested in prosecuting the appellant and others.
13. As we have already noted, here the dispute is essentially about the profit of the hotel business and its ownership. The pending civil suit will take care of all those issues. The allegation that forged and fabricated documents are used by the appellant can also be dealt with in the said suit. Respondent 2's attempt to file similar complaint against the appellant having failed, he has filed the present complaint. The appellant has been acquitted in another case filed by Respondent 2 against him alleging offence under Section 406 IPC. Possession of the shop in question has also been handed over by the appellant to Respondent 2. In such a situation, in our opinion, continuation 8 of the pending criminal proceedings would be abuse of the process of law. The High Court was wrong in holding otherwise."
7. Per contra, learned counsel appearing for the respondent -2/complainant submitted that looking to the allegations made in the complaint, the complaint goes to show that there is a prima facie case as against the petitioner committing the alleged offence. Hence, the learned counsel submitted that the case is at the stage of FIR, it requires detailed investigation and till the investigation is completed and final report be produced in the case, at this stage, it is not a case for invoking Section 482 for quashing of the proceedings.
8. Hence, learned counsel submitted that there is no merit in the case and can be rejected. In support of his contention respondent -2/complainant relied upon the decision of Hon'ble Apex Court reported in 1999 3 SCC 259.
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9. Learned High Court Government Pleader for the respondent -1/State also submitted that the allegations in the FIR constituted the alleged offences, therefore, the matter requires detailed investigation and filing of the final report in this case. Hence, he submitted that the petition be rejected.
10. I have perused the grounds urged in the petition, FIR, Complaint and also the decisions of Hon'ble Apex Court relied upon by both the sides which are referred above. Looking to the contents of the complaint, it goes to show that the transaction in between the compliant and the petitioner is a mortgage transaction. In fact, according to the complainant himself, two mortgage deeds were executed. One is usufructory mortgage wherein, the possession of the property has been handed over to the petitioner herein. Another transaction mortgaged is title deeds. 10
11. Looking to the complaint averments it is stated that the petitioner going to the house of the complainant repeatedly insisting the complainant to execute the agreement in favour of the tress passers and whatever the money that was paid by the petitioner hereby treat it as advance amount for the registration of the property. For which the complainant has refused. It is also the case of the complainant that some mafia gang criminally tress passed into the property of the complainant. On these grounds the complainant wanted to proceed with the matter and it is his contention that it requires detailed investigation in the matter.
12. Looking to the materials placed on record so far as the petitioner is concerned his possession cannot be said to be illegal nor he said to be illegally trespassed into the land as there is a valid mortgage transaction. 11 Even the complainant has not initiated proceedings by filing the stay for the repayment of his money, so far as his agreement is concerned, so far as the petitioner insisted the complainant, he could have refused there was no binding on him to execute agreement in favour of the petitioner herein. Apart from that, in the complaint itself it is mentioned that the petitioner herein told the owner of the property that he has filed the proceedings and obtained temporary injunction order against those tress passers.
13. In this connection also, the learned senior counsel has produced the documents of O.S. No. 2479/2011 and also the order that was obtained under I.A. No. 1 and 3. Looking to the cause title of the proceedings it is the petitioner herein is the complainant in the proceedings in that case. It is also goes to show in order to restrict the possession, it is the 12 petitioner who has taken steps to file such suit against tress passers. Therefore, considering these materials, it cannot be said that petitioner committed alleged offences, absolutely there is no prima facie case against the petitioner as such. Of course it is the case of invoking Section 482 of Cr.P.C. When the FIR does not make out any prima facie case it be sheer abuse of the process of court. petition is allowed. Proceedings only as against the petitioner herein is hereby quashed.
Sd/-
JUDGE BVK