Karnataka High Court
Sri Thirumale Gowda @ T M Gowda vs State Of Karnataka on 22 June, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.1642/2020
C/W.
CRIMINAL PETITION No.1674/2020
IN CRIMINAL PETITION No.1642/2020
BETWEEN:
1. SRI THIRUMALE GOWDA @ T.M.GOWDA
S/O AKKANNA GOWDA
AGED ABOUT 57 YEARS
R/O K.HARIVESANDRA
KADABA HOBLI, GUBBI TALUK
PRESENTLY RESIDING AT
"SOUNDARYA ARTS"
NO.592, 1ST FLOOR
32ND CROSS, 21ST MAIN
4TH BLOCK, JAYANAGARA
BENGALURU - 560 041.
2. SRI BHOJARAJU
S/O LATE UGRE GOWDA
AGED ABOUT 57 YEARS
R/AT NO.43, 35TH CROSS,
2ND BLOCK, RAJAJINAGAR,
BENGALURU - 560 010.
3. SRI KANTHARAJU
S/O LATE UGRE GOWDA
AGED ABOUT 45 YEARS
2
R/AT C.KODIGEHALLI
VILLAGE AND POST,
C.S.PURA HOBLI, GUBBI TALUK
TUMAKURU DISTRICT - 572 213.
... PETITIONERS
(BY SRI S.KALYAN BASAVARAJ, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY STATION HOUSE OFFICER,
C.S.PURA POLICE STATION,
GUBBI CIRCLE, TUMAKURU DISTRICT.
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2. SRI VIRUPAKSHE GOWDA
S/O LATE UGRE GOWDA
AGED ABOUT 55 YEARS
R/AT.59A, 3RD MAIN ROAD,
1ST STAGE, 1ST PHASE,
MANJUNATHA NAGAR,
RAJAJINAGAR,
BENGALURU - 560 010.
... RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP FOR R1;
SRI C.S.MADHU, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER DATED 04.10.2019
PASSED BY THE LEARNED ADDITIONAL CIVIL JUDGE AND JMFC
AT GUBBI IN PCR NO.16/2010 IN RESPECT OF THE OFFENCE
ALLEGED TO HAVE BEEN COMMITTED BY THE PETITIONER
P/U/S.379 AND 420 OF IPC.
3
IN CRIMINAL PETITION No.1674/2020
BETWEEN:
SRI BHOJARAJU
S/O LATE UGRE GOWDA
AGED ABOUT 57 YEARS
R/AT NO.43, 35TH CROSS,
2ND BLOCK, RAJAJINAGAR
BENGALURU - 560 010.
... PETITIONER
(BY SRI S.KALYAN BASAVARAJ, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY STATION HOUSE OFFICER,
C.S.PURA POLICE STATION,
GUBBI CIRCLE
TUMAKURU DISTRICT
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. SRI VIRUPAKSHE GOWDA
S/O LATE UGRE GOWDA
AGED ABOUT 55 YEARS
R/AT 59A, 3RD MAIN ROAD
1ST STAGE, 1ST PHASE
MANJUNATHA NAGAR
RAJAJINAGAR
BENGALURU - 560 010.
... RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP FOR R1;
SRI C.S.MADHU, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER DATED 04.10.2019
4
PASSED BY THE LEARNED ADDITIONAL CIVIL JUDGE AND JMFC
AT GUBBI IN PCR.NO.64/2014 (C.C.NO.588/2019) IN RESPECT OF
THE OFFENCE ALLEGED TO HAVE BEEN COMMITTED BY THE
PETITIONER, P/U/S 406, 417, 420, 464, 468, 471 AND 474 OF IPC.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
IN CRIMINAL PETITION NO.1642 OF 2020 The petitioners/accused Nos.1, 3 and 4 in C.C.No.589 of 2019 arising out of PCR No.16 of 2010, are before this Court calling in question entire proceedings so instituted.
2. Brief facts leading to the filing of the present petition, borne out from the pleadings are as follows:
Accused Nos.3 and 4/petitioner Nos.2 and 3 are brothers of the complainant/2nd respondent. The 1st petitioner is the purchaser of the property in Site No.863/1, 2 & 3 of C.S. Pura Village, Gubbi Taluk from the hands of petitioner Nos.2 and 3. The 2nd respondent registers several complaints against the petitioners, one of which is PCR No.16 of 2010. All the petitioners are arrayed as accused in the said P.C.R. The matter being referred to investigation under 5 Section 156(3) of the Cr.P.C., the Police after investigation file a 'B' report. The 2nd respondent files a protest petition on the 'B' report.
The learned Magistrate by his order dated 4th October, 2019, rejects the 'B' report filed in P.C.R.No.16 of 2010, takes cognizance of the offences punishable under Sections 379 and 420 of the IPC against the petitioners herein, while dropping Section 166 of the IPC and dismissed the complaint against the Police Sub-Inspector. Taking cognizance by the learned Magistrate in terms of his order dated 4th October, 2019, is what drives the petitioners to this Court in the subject petition.
3. Heard Sri S.Kalyan Basavaraj, learned counsel for the petitioners, Sri K.S.Abhijith, learned High Court Government Pleader for respondent No.1 and Sri C.S.Madhu, learned counsel for respondent No.2.
4. Sri S. Kalyan Basavaraj, learned counsel appearing for the petitioners would contend with vehemence that petitioner Nos.2 and 3 and the 2nd respondent are brothers and are before the civil Court concerning their partition of the family property. Despite registration of case before the civil Court and the matter being 6 purely civil in nature, is sought to be given a colour of crime. The learned Magistrate rejecting 'B' report and taking cognizance of the offences under Sections 379 and 420 of the IPC, is clearly untenable and seeks quashment of entire proceedings.
5. Sri C.S.Madhu, learned counsel appearing for the 2nd respondent would seek to justify the order taking cognizance against the petitioners and submits that merely because the matter is of civil in nature, the criminal proceedings cannot be quashed but admits that they are brothers and are before the civil Court concerning partition of the property.
6. The learned High Court Government Pleader would toe the lines of the learned counsel appearing for the 2nd respondent.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. In furtherance whereof, the only issue that falls for my consideration is;
Whether the complainant could have registered a private complaint on the same cause of action for which 7 he had already approached the civil Court in the peculiar facts of this case?
8. The relationship between the complainant/2nd respondent and petitioner Nos.2 and 3 is not in dispute. The only stranger to these proceedings is the 1st petitioner, who is the purchaser of the property from the hands of petitioner Nos.2 and 3 i.e., brothers of the complainant. The subject matter of the present lis is concerning certain immovable properties between the brothers -the complainant and petitioner Nos.2 and 3 - Bhojaraju and Kantharaju.
9. It is the contention of the complainant himself that he and his brothers were in peaceful possession of the property situated at Sl.No.23/2 of C.S.Pura Village and the said property is divided between the complainant and accused Nos.3 and 4/the petitioner Nos.2 and 3 herein. It is the submission in the complaint itself that the complainant and the present petitioner Nos.2 and 3/accused Nos.3 and 4 are absolute owners of the property, which is a cinema theatre called Gayathri theater. The complainant further narrates several electrical connections, film boxes and films etc. being taken away by accused No.1, the purchaser of the property from the 8 hands of the other accused, who claim to be the owners of the property.
10. For the purpose of quick reference, the complaint so registered by the complainant in PC.R.No.16 of 2010 is extracted hereunder:
"2. That complainant and accused Nos. 2 to 4 are the divided brothers, that the property earlier bearing Sy.No.23/2 situated at C.S.Pura Village, within the jurisdiction of C.S.Pura Village Panchayat, Gubbi Taluk after converted as village sites as per the order bearing No.ALN.SR.20/82-83 and ALN.SR.27/82-83 bearing No.863/1,2, 3 and 864 as per assessment register measuring East-West: 270 ft. North-South: 125 ft. bounded by East: Property of Giddashetty and others, West: Gubbi to C.S.Pura Road, North: Land belongs to Thimmappa and others, South: Property of Nagarajaiah and others is originally an ancestral and a joint family property of the complainant and accused Nos. 2 to 4, that property called as Gayathri . The said property and other properties are divided between the complainant and accused Nos. 2 to 4 as per the un-registered partiti9on deed dated 10-02-1995. Accordingly, the complainant got 1/4th share in the portion where the theatre constructed in the property stated supra.
It is submitted that the complainant and the accused Nos. 2 to 4 are the absolute owners of the above said theatre and other equipments which are installed in the theatre for the purpose of to show the films. It is submitted that the complainant and accused Nos. 2 to 4 are enjoyed the said property as per the terms and conditions stated in the un-registered partition deed effected between the complainant, his 9 father and accused Nos. 2 to 4 dated 10.02.1995. The said partition deed/copy of the partition deed is produced herewith for the kind perusal of this Hon'ble Court.
It is submitted that accused No.1 is totally stranger to the complainant family, inspite of that he colluded with other accused and thefted and taken away the asbestos sheets, interior decorators, chairs, DTS sound system with all equipments, screen, two generators, one S.A.model projector, one taco projector, two rectifiers, rack amplifiers, two small cinema scope lens, two plot lens, 8 exhaust fans, 10 ceiling fans, account books, electrical connections, film boxes, with films 20 Nos. belongs to Rajeswari Combines, Gandhinagar, Bangalore, cinema slide machine, one HP motor with pipe connections, synthetic water tank, all fire proof materials and other valuable things from theatre, situated in the property stated supra by demolishing the walls situated in the site allotted to the complainant without the consent or permission of the complainant. Due to above illegal act committed by the accused, the complainant sustained a loss of Rs.50 to 60 lakhs and future earnings in the theatre.
It is submitted that the accused does not have any rights to do the said illegal acts, in spite of that they did and committed the illegal acts with the assistance of accused No.5 who is working as a PSI at C.S.Pura Police Station, in which jurisdiction the theatre is situated and the illegal acts committed by the accused with an intention to defraud and to cheat the complainant dishonestly to get wrongful gain from the property of the complainant. Hence, this complaint against the accused.
It is submitted that at the time when the accused Nos. 1 to 4 are demolishing the theatre was and at the 10 time when the accused Nos.1 to 4 are stolen and taken away the movables stated supra from the theatre of the complainant, the complainant informed the same to the C.S.Pura Police Station, where the accused NO.5 was actually worked as a PSI, but there is no action was taken by the accused No.5 as he colluded with the other accused in this way he committed an offence punishable under Section 166 IPC. The copy of the information given to the Police Station is furnished herewith. The above illegal acts committed by the accused are clearly goes to show that they committed an offence punishable under Section 166, 379 and 420 IPC.
The relevant documents like copy of the information given to the police, with NCR, unregistered partition deed (Xerox copy) dated 10-02-1995 effected between the complainant, his father and accused Nos. 2 to 4, photographs, and one C.D. which is taken by the complainant on the spot at the time of committing the illegal acts of accused Nos. 1 to 4 dated 9-07-2009 are produced for the kind perusal of this Hon'ble Court.
It is submitted that after the illegal acts committed by the accused as stated supra, the complainant filed a civil suit before this Hon'ble court against accused Nos. 1 to 4 by seeking mandatory injunction and such other reliefs on dated 8-09-2009 which was numbered as O.s.204 of 2009 and pending for proper adjudication. The copy of the plaint is also produced herewith for kind perusal of this Hon'ble Court.
WHEREFORE, it is prayed that this Hon'ble Court may kindly be pleased to take the cognizance against the accused and punish the accused in accordance with law with maximum sentence and impose a maximum fine to the accused and further direct to the accused to pay an amount of 50 to Rs.60,000/- to the complainant by way of damages out of the fine amount levied to the 11 accused and pass such other order as this Hon'ble Court deems fit under the circumstances of this case/complaint in the interest of justice."
A perusal at the complaint clearly indicates that it is a dispute between the brothers for certain immovable properties, one of which was sold by accused Nos.3 and 4 by executing a sale deed in favour of accused No.1.
11. Accused No.1 has taken possession of the property and has treated it in the manner that an owner of the property would treat. Prior to registration of P.C.R.16 of 2010, it is not in dispute that the complainant initially filed O.S.No.204 of 2009, seeking mandatory and permanent injunctions retraining the petitioners herein from interfering with the property allegedly belonged to the complainant and his brothers. What was sought by way of mandatory injunction was direction against defendant No.1/ accused No.1 to restore the theatre building and to install machinery. After registration of the subject private complaint in P.C.R.No.16 of 2010, the complainant again approached the civil Court in O.S.No.388 of 2013 against accused No.1 independently and filed another suit in O.S.No.172 of 2013 again, arraigning all 12 the accused as defendants in the said suit. Yet another suit in O.S.No.141/2013 is filed against all the petitioners herein including another brother by name K. Narasimha Murthy and legal heirs of his brothers, for declaration of the sale deed as null and void along with other reliefs. What was sought in the said suit is as follows:
"This suit is for a judgment and decree against the defendants -
(a) Declaring that the sale deed executed by the defendants Nos. 2 to 7 is null and void and not binding on the plaintiff and his share in the joint property.
(b) Declare that the 1st defendant is only entitled to the share in the suit schedule property of the other co-owner/coparceners of the plaintiff and he does not entitled to the property of the plaintiff since the sale deed was not executed by the plaintiff.
(c) Declare the 1/4th share of the plaintiff in the suit schedule property and grant permanent injunction against the 1st defendant over plaintiff's share in the suit schedule property.
(d) Pass such other order as this Hon'ble Court deems fit in the facts and circumstances of the case in the interest of justice and equity."
The suit was for a declaration that the sale deed executed by defendant Nos.2 to 7, which include the present petitioners was not 13 binding on the plaintiff i.e., the complainant and a declaration that the 1st defendant therein/petitioner No.1 herein has only a share in the suit property of other co-owners/coparceners.
12. If the complaint so registered seeking to set the criminal law in motion in P.C.R.No.16 of 2010 is juxta posed with the averments in the plaint in O.S.No.141/2013, what would unmistakably emerge is, it arises out of the very same cause of action. Therefore, it is a case where the matter which is purely civil in nature is dressed with a colour of crime. It also cannot be lost sight of the fact that the complainant herein had registered several complaints against the petitioners who are brothers alleging that all the properties are, according to the complainant, belonged to him in the partition. One such complaint and proceedings is P.C.R.No.1 of 2014, which had resulted in a charge sheet being filed by the Police in Special C.C.No.168 of 2016, was called in question by the very petitioner Nos.2 and 3 before this Court in Criminal Petition No.5605 of 2016. The subject matter was the same i.e., cinema theatre. This Court by its order dated 29-03-2019, quashed the proceedings qua the petitioners by the following order: 14
"8. Insofar as the offences under the provisions of Prevention of Corruption Act is concerned, the petitioners herein are not the public servants. There are absolutely no allegations in the charge sheet that the alleged offence was committed by accused No.1 at the instigation or abetment of the petitioners. On the other hand, the allegations made in the complaint as well as in the charge sheet disclose that, accused No.1 mutated the khata extract in respect of the properties by deleting the name of the complainant therefrom. No material has been produced either by way of any application filed by the instant petitioners seeking deletion of the said name, nor is there anything on record to show that the petitioners herein have given a statement before accused No.1, seeking mutation of the khata extract. There are also no allegations of payment of any gratification or extortion of influence by the petitioners on accused No.1 so as to make out the charge under Section 8 of the Prevention of Corruption Act. The material produced by the prosecution does not prima facie make out any of the offences against the petitioners herein.
9. Insofar as the allegation pertaining to the General Power of Attorney is concerned, I have perused the said General Power of Attorney, which is a part of the charge sheet. The said General Power of Attorney is executed by one Narasima Murthy and Kantharaju. The recitals therein indicate that the executants therein have empowered their Attorney Sri Bhojaraju to deal with their properties. The said General Power of Attorney cannot be construed as conferring any power on the aforesaid Attorney Bhojaraju to deal with the properties of the complainant. Therefore, even in this regard, there is no basis to contend that the petitioners herein have falsified the records and on the strength of the said documents, have alienated the property of the complainant.15
10. The records produced before this Court clearly indicate that the complainant has instituted another parallel proceedings against accused No.1 on the specific allegation that accused No.1 was instrumental in getting the khata mutated by deleting the name of the complainant. In the said proceedings, there were no allegations whatsoever that the petitioners herein used their influence in bringing about the said khata. On the other hand, petitioners are arrayed as witnesses in the said proceedings, making it evident that the mutation has taken place without the participation of the petitioners. Even otherwise, in the wake of the above proceedings, if for any reason the petitioners are involved in the falsification of the khata records, it is always open for the complainant to implead the petitioners herein as co-accused in the said proceeding by making necessary application under Section 319 of the Cr.P.C. Hence, keeping open the said remedy to the prosecution, the instant proceedings initiated against the petitioners being wholly baseless amounting abuse of process of Court, insofar as the petitioners are concerned are liable to be quashed."
In the teeth of the afore-narrated facts and the squabble between the brothers/accused Nos.3 and 4/petitioner Nos.2 and 3 and the complainant- respondent No.2 being at large before the competent civil Court and the police having filed the 'B' report in the case at hand as the matter was purely civil in nature, the learned Magistrate though after due application of mind, has passed a reasoned order rejecting 'B' report and took cognizance of the 16 offences punishable under Sections 379 and 420 IPC, which is on the face of it would suffer from want of tenability.
Section 379 of the IPC reads as follows:
"379. Punishment for theft.--Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Section 379 of the IPC directs punishment of any person who commits theft. 'Theft' is defined under Section 378 of the IPC, which would mean a person intending to take dishonestly any movable property out of the possession of any person without that person's consent, is said to commit theft.
13. Petitioner Nos.2 and 3 and the complainant/ 2nd respondent who are brothers are before the civil Court, wherein the complainant had sought a declaration that the sale deed executed by petitioner Nos.2 and 3 in favour of the 1st petitioner/purchaser to be null and void. If this be the prayer by the complainant in the civil suit, the sale is of the property that is allegedly belonged to petitioner Nos.2 and 3. Therefore, the allegation of theft of their 17 own property cannot be imagined. The other provision of law for which cognizance is taken is Section 420 of the IPC. Section 420 of the IPC deals with cheating. Section 415 of the IPC deals with ingredients of cheating and the soul of Section 415 of the IPC is, whoever fraudulently or dishonestly induces the person to deliver any property to any person without his consent is said to have committed cheating. Therefore, inducement of delivery of property with dishonest intention is the necessary ingredient of Section 420 of the IPC. Here again, the petitioners and the 2nd respondent are before the civil Court in the very proceedings instituted by the complainant with regard to sale of property.
14. A disgruntled complainant being aggrieved by the improper partition or a sale between the brothers is seeking to set the criminal law in motion by registering the private complaint. These facts ought to have been noticed by the learned Magistrate while rejecting the 'B' report and taking cognizance of the offences punishable under Sections 379 and 420 of the IPC, against the petitioners. Though the order taking cognizance after rejection of 'B' report bears reasons, those reasons so rendered by the learned 18 Magistrate are fundamentally flawed as the matter which is in all its fours civil in nature, is undoubtedly given a texture of crime.
15. In the circumstances, it becomes apposite to refer to the judgments of the Apex Court on the issue of setting the criminal law in motion by giving it a colour of crime. The Apex Court two decades ago in the case of G.SAGAR SURI v. STATE OF U.P. reported in (2000) 2 SCC 636, has held as follows:
"8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.19
9. In State of Karnataka v. L. Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 : AIR 1977 SC 1489 :
(1977) 3 SCR 113] this Court said that in the exercise of the wholesome power under Section 482 of the Code the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings are to be quashed."
The said judgment in the case of G.SAGAR SURI (supra) is followed in 2021 in the case of MITHESH KUMAR J.SHAH v. STATE OF KARNATAKA reported in 2021 SCC OnLine SC 976, wherein the Apex Court while answering a specific issue where a dispute would be entirely civil in nature, criminal proceedings could be quashed. The Apex Court in the said judgment holds as follows:
"41. Having considered the relevant arguments of the parties and decisions of this court we are of the considered view that existence of dishonest or fraudulent intention has not been made out against the Appellants. Though the instant dispute certainly involves determination of issues which are of civil nature, pursuant to which Respondent No. 2 has even 20 instituted multiple civil suits, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour. As has been rightly emphasised upon by this court, by way of an observation rendered in the case of Indian Oil Corporation v. NEPC India Ltd.7, as under:--
"14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law."
42. It was also observed:--
"13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors....There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a 21 likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged."
43. On an earlier occasion, in case of G. Sagar Suri v. State of UP8, this Court has also observed:--
"8. Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."22
44. Furthermore, in the landmark judgment of State of Haryana v. Ch. Bhajan Lal9 regarding exercise of inherent powers under section 482 of CrPC, this Court has laid down following categories of instances wherein inherent powers of the can be exercised in order to secure the ends of justice. These are:--
"(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;23
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
45. Applying this dictum to the instant factual matrix, it can be safely concluded that the present case clearly falls within the ambit of first, third and fifth category of the seven categories enlisted in the above said judgment. The case therefore warrants intervention by this Court, and the High Court has erred in dismissing the petition filed by the Appellants under section 482 CrPC. We find that there has been attempt to stretch the 24 contours of a civil dispute and thereby essentially impart a criminal color to it.
46. Recently, this Court in case of Randheer Singh v. The State of U.P.10, has again reiterated the long standing principle that criminal proceedings must not be used as instruments of harassment. The court observed as under:--
"33. ....There can be no doubt that jurisdiction under Section 482 of the Cr.P.C. should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above."
47. Moreover, this Court has at innumerable instances expressed its disapproval for imparting criminal color to a civil dispute, made merely to take advantage of a relatively quick relief granted 25 in a criminal case in contrast to a civil dispute. Such an exercise is nothing but an abuse of the process of law which must be discouraged in its entirety."
(Emphasis supplied) In yet another judgment, the Apex Court in the case of SYED YASIR IBRAHIM v. STATE OF UTTAR PRADESH AND ANOTHER reported in 2022 SCC OnLine SC 271, has held as follows:
"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.26
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.
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 submitted that since the sale took place during the pendency of the suit, doctrine of lis pendens will apply. This itself is an 27 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 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."
(Emphasis supplied) On a coalesce of the judgments rendered by the Apex Court (supra) would unmistakably infer that matters which are predominantly civil in nature are being given the colour of crime and such matters have flooded the courts.
28
16. The Apex Court in SYED YASIR IBRAHIM (supra) clearly holds 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. Therefore, there is no element of criminality that can be attached in the matter which essentially involves civil dispute between the petitioners and the complainant, who are already before the civil Court and as such, further proceedings for the offences punishable under Sections 379 and 420 of the IPC, if permitted to continue against the petitioners would become an abuse of the process of law. This becomes a fit case where jurisdiction of this Court under Section 482 of the Cr.P.C. has to be exercised as the case which essentially is civil in nature has been given a cloak of criminal offence. Therefore, to prevent abuse of the process of any law or miscarriage of justice, the impugned proceedings are required to be obliterated.
17. For the aforesaid reasons, I pass the following: 29
ORDER
(i) The criminal petition is allowed.
(ii) The entire proceedings in C.C.No.589 of 2019 arising out of PCR No.16 of 2010, pending before the Additional Civil Judge and JMFC, Gubbi, stand quashed.
IN CRIMINAL PETITION NO.1674 OF 2020
18. The case concerns P.C.R.No.64 of 2014 pending before the Additional Civil Judge and JMFC, Gubbi, the order dated 04.10.2019, passed by the learned Magistrate rejecting 'B' report filed by the Police and taking cognizance of the offences punishable under Sections 406, 417, 420, 464, 468, 471 and 474 of the IPC.
19. The accused in the said P.C.R.No.64 of 2014 is the brother of the complainant, who is accused No.3/petitioner No.2 in 30 Crl.P.No.1642 of 2020. The facts of the case are heard along with Crl.P.No.1642/2020.
20. For the detailed reasons rendered in Crl.P.No.1642 of 2020, the substratum of the allegation in the present private complaint also touches upon the very reasons so rendered and for those reasons, I deem it appropriate to dispose of this petition with the following:
ORDER
(i) The criminal petition is allowed.
(iii) The order dated 04.10.2019 and the further proceedings in P.C.R.No.64/2014, pending before the Additional Civil Judge and JMFC, Gubbi, stand quashed.
Sd/-
JUDGE nvj CT:MJ