(Prayers: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure 1973, praying to quash the complaint bearing PCR No.162/2008 preferred by the second respondent No.2 herein before the Hon'ble Additional Chief Judicial Magistrate, Bangalore vide Annexure-A and etc;
This Criminal Petition filed under Section 482 of the code of Criminal Procedure, 1973 praying to set aside the order dated 29.8.2008 passed by the Additional / Chief Judicial Magistrate Bangalore in C.C.No.2021/2008, taking cognizance against the complainant under Sections 120(b), 447, 506 read with 149 of IPC.
1. These petitions are heard and disposed of together as they arise out of private complaints lodged by the same complainant, against the petitioners who are arraigned as the accused therein.
2. The facts as stated in a private complaint numbered as PCR 162/2008, filed before the Chief Judicial Magistrate, Bangalore, are as follows.
One Venugopal, said to be the General Power of Attorney holder of Gopal and four others is said to have sold land bearing khatha no.88/88-40, measuring about 5200 square feet, formed in land bearing survey no.88 of Nallurhalli, K.R.Puram Hobli, Bangalore, to the complainant, Ashok Narang, as on 31-3-1995, under a registered sale deed.
In the year 2006, as on 18-4-2006, a Memorandum of Understanding (MOU) is said to have been executed between one Paramjeet Singh Patheja and one Chaturbhuj Narang on the one hand and M/s Bagmane Realtors Private Limited, ('BRPL', for brevity) on the other, in respect of housing plots formed in a total area measuring about 19 acres and 20 guntas, situated in lands bearing survey no.87/2, 87/3, 87/4, 88, 89, 92/1 , 92/5 A- B, 92/6, 92/2 and 92/4 of Nallurhalli.
Simultaneously, a Joint Development Agreement (JDA) is also said to have been executed, by the above said parties, whereby BRPL was to develop the lands, totally measuring 19 acres 20 guntas.
It is the Complainant's case that it is only in the year 2008, it had come to his knowledge that the accused were laying claim to the plot of land purchased by him and had sought to demolish the structures on the said land. Hence, the complainant is said to have filed a civil suit for injunctory reliefs and the said accused were said to have been restrained from interfering with the property by an order of temporary injunction granted by the court in the civil suit in OS 1131/2008, pending on the file of the City Civil Judge, Bangalore Rural District. It is further stated that the complainant has learnt in retrospect, that his vendors, namely, Gopal and others (arraigned as Accused no.1 to 5) had executed a sale deed dated 27-4-2006, in respect of land bearing survey no.88 of Nallurhalli, measuring about 3 acres and 1 gunta in favour of one Veerappa ( arraigned as Accused no.7) including the area of 5200 square feet already sold to the complainant in the year 1995 itself.
The complainant also claimed to have learnt that Accused no.1 to 5 had also executed a General Power of Attorney in favour of one D.R. Pradeep, representing BRPL, inter alia, authorizing him to cancel any sale deed executed by them. It was hence alleged by the complainant that there were attempts to cancel the sale deed in favour of the complainant.
In the said complaint numbered as PCR 162/2008, Accused no. 1 to 5 therein are arraigned as the vendors of the plot claimed by the complainant. Accused no.6, as a representative of BRPL and its power of attorney holder. Accused no.7 as the purchaser of land bearing survey no.88 of Nallurhalli, of which the complainant's plot is said to be a portion. Accused no. 8 is BRPL.
The above proceedings are the subject matter of challenge in the writ petitions in WP 49160-61/2014 and WP 49162/2014. In the complaint in PCR 163/2008, it is alleged by the same complainant as in the above case, that property bearing khatha no.204/4, formed in survey no. 92/1 of Nallurhalli, measuring about 5850 square feet, which originally belonged to accused no.1 and 2 therein and two others, was said to have been sold to the complainant through a power of attorney holder, under a sale deed dated 24-7-2002.
It is further alleged that one B.V. Ashok arrayed as Accused no.7, claiming as a power of attorney holder of the erstwhile owners of the said land, had sought to demolish construction on the said plot of land and had called upon the complainant to vacate the property, on 23-6-2008. It is claimed that it is only then he had learnt about the said accused being authorized under the said power of attorney, to even cancel the sale deed in favour of the complainant. It is also said that Accused no. 7 was an employee of BRPL, which is the very developer referred to in the earlier complaint.
It is further stated that the erstwhile owners had sold the land bearing Survey no.92/1 measuring 2 acres 11 guntas in favour of Veerappa, who is again arrayed as an accused in the earlier complaint, under a sale deed dated 6-5-2006. And the plot of land purchased by the complainant is part of the said extent. Hence, it is claimed that the accused have conspired and committed fraud in seeking to transact in respect of property which had already been purchased by the complainant, in seeking to create a second sale deed in respect of the same property.
The said proceedings are the subject matter of challenge in the writ petitions in WP 49157-158/2014 and WP 49159/2014.
In PCR 143/2008, it is alleged that accused no. 1 and 2 named therein had formed a residential layout in land bearing survey no. 89/2 of Nallurhalli, and had sold three plots, bearing site no.4 , 5 and 6, in favour of the complainant and site no.7,8,9 and 10 in favour of the complainant's brother under sale deeds dated 22-2-1995.
It is alleged, just as in the case of the earlier complaints, the accused are said to have interfered with the possession of the complainant on the strength of a subsequent sale transaction, which according to the complainant, is void and fraudulent.
The above proceeding is subject matter of challenge in Criminal Petition 368/2011.
3. Heard the learned Senior Advocate, Shri Shashi Kiran Shetty, appearing for the counsel for the petitioners and the learned counsel for the respondent - complainant. It is contended that the offences alleged against the petitioners are punishable under Sections 141, 149 and 420 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity). It is pointed out that from a perusal of the complaint, the ingredients of Sections 141 and 149 are hardly attracted as there is no indication that any offence has been committed by any member of an unlawful assembly consisting of five or more members and that such an offence was committed in prosecution of a common object of the said unlawful assembly.
In so far as the allegation of an offence punishable under Section 420 IPC is concerned, the primary allegation is that five sites formed in portions of land bearing survey no. 88, 89/2 and 92/1 of Nallurhalli, which belong to the complainant - are subject matter of transactions entered into amongst the accused, without reference to the ownership of the complainant. It is sought to be pointed out that the brother of the complainant, one Chaturbuj Narang is a party to the MOU and the JDA and it was specifically agreed therein that the terms of the same could be effectively performed only if the sale deeds in favour of the complainant could be cancelled. In view of the fact that the same has not occasioned, the said MOU and JDA had not been acted upon.
In so far as the subsequent sale deeds, which purportedly have included the sites already purchased by the complainant, are concerned - the transactions are for consideration in favour of the accused, Veerappa. The said sale deeds if are to be considered as void to the extent of the land held by the complainant, the appropriate forum is a civil court and the same cannot be adjudicated by a criminal court on the allegation of fraud. The sale deeds in favour of Veerappa can neither be declared as void or cancelled by the criminal court.
4. On the other hand, the learned counsel for the complainant seeks to contend that the charge sheet was filed and the Court of the Additional Chief Metropolitan Magistrate Court has taken cognizance of the offence and therefore, the present petitions are not maintainable. The accused, as on 27.4.2006, was well aware of the fact that the respondent no.2 was the owner of the property in question. On 27.4.2006, at 5.05pm, the petitioner falsely had stated that accused nos.1 to 5 were the owners of the property in question. Whereas on the same date at 5.20pm, the petitioner had stated that respondent no.2 was the purchaser and owner of the property in question. The acts and conduct of the accused showed that the petitioner has committed the offence. This is also evident from the documents produced by the accused.
It is contended that the case of the petitioner is based on probabilities which are required to be considered by the Court. The petitioner is required to place cogent and relevant evidence before the court below to disprove the case of the complainant.
5. It is evident that the MOU and the JDA referred to hereinabove have not been acted upon. The mischief that may have occurred is the subsequent sale of lands in favour of Veerappa, one of the accused, which transactions possibly include the five sites held by the complainant, without the complainant being a party to the said sale deeds. However, for the above circumstance to constitute a criminal offence, by all or some of the accused, the court below would have to proceed on the footing that the subsequent sale deeds, which may include the sites held by the complainant, are void ab initio. Any judgment rendered by the court below on the above premise would not efface the sale deeds which shall continue to operate, till the same are delivered up and cancelled in the manner known to law.
In this regard Section 31 of the Specific Relief Act, 1963, is relevant. The same is reproduced hereunder for ready reference.
"31. When cancellation may be ordered.-- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."
It is seen that the sale transactions in favour of the complainant are admittedly through a power of attorney holder of the erstwhile owners. The fraudulent intention on the part of the owners in having proceeded to convey any portion of the land already conveyed in favour of the complainant and the circumstances pertaining thereto are questions of fact which require adjudication by a civil court, in proceeding to find that the subsequent sale deeds were void and fraudulent. Hence, the criminal proceedings initiated by the complainant does not serve any purpose in bringing home any allegations against the accused given the multiple transactions which can only be adjudicated in civil proceedings. The criminal proceedings are therefore premature and untenable at this point of time.
Consequently, the petitions are allowed. The complaints now pending in case no.CC 2440/2014, on the file of the Additional Chief Judicial Magistrate, Bangalore, CC 7390/2013 on the file of the Chief Judicial Magistrate, Bangalore and CC no.2021/2008 on the file of the Additional Chief Metropolitan Magistrate, Bangalore, are hereby quashed.