(Prayer: This Criminal Petition is filed under Section 482 code of Criminal Procedure, 1973, praying to quash the complaint, FIR in Crime No.63/2016, registered by first respondent J.C.Nagar Police Station, Bangalore and all further investigation pending before court of VIII Additional Chief Metropolitan Magistrate, Bangalore for Commission of offences punishable under Sections 420 and 468 of IPC.)
1. The petition coming on for Admission is heard for final disposal with the consent of counsel for the parties. The petition is admitted to file.
2. Heard the learned counsel for the petitioner, the learned counsel for the second respondent and the learned State Public Prosecutor.
3. The petitioner is arraigned as an accused in a complaint filed by the second respondent before the jurisdictional police. It is the case of the complainant that the petitioner is known to him and that they are well acquainted. The complainant is said to be engaged in real estate business.
It is alleged that the petitioner had approached the complainant for a loan of Rs.70 lakh, pleading an emergency. In order to secure due repayment, he had agreed to mortgage certain property.
It is said that the complainant had arranged the funds and paid the same to the petitioner, by way of cash, in a total sum of Rs.70 lakh, as on 17.11.2015. The petitioner is said to have executed a 'Memorandum of Mortgage Deed' dated 17.11.2015, in respect of property bearing Flat no.FF-101 and Flat no.FF- 102, First Floor, each with a super built area of 2250 square feet, along with 637.50 square feet of undivided interest in the land, each and Flat no.SF-201, Second Floor of a similar dimension as above, coupled with the undivided interest in the land as mentioned above, along with 4 car parking spaces in the basement.
It was evident that the property mortgaged was described in Schedule-B to the deed as property that was yet to be constructed on property bearing no.26, 5th Main, Jayamahal Extension, Bangalore and described in Schedule - A as property, which was said to belong to the petitioner. The mortgage deed was an unregistered document.
It was urged by the complainant that the amount borrowed was to be repaid by 5.12.2015. It is alleged that the petitioner had defaulted and avoided the complainant, when demands were made for repayment.
It is further claimed that the complainant had learnt that the petitioner had deliberately altered his signature on the mortgage deed. So he had confronted the petitioner and had asked him to affix his proper signature on the deed. This, it is contended, is indicative of his criminal intention from the very beginning in having made the complainant to part with substantial money and to defraud him.
It was in the above background, that the complaint is said to have been lodged.
4. The learned counsel for the petitioner would contend that the complaint is false and baseless. It is stated that the petitioner is a retired bank officer. Originally, the property bearing no.26, V Main Road, Jayamahal Extension, Bangalore, where the petitioner now resides with his family, was acquired by his late father. The same is said to have been gifted to the petitioner.
It transpires that a property developer, M/s Imperium Constructions (P) Ltd., had approached the petitioner - proposing to develop the above said property into an apartment complex. It was said to have been agreed to by the petitioner and certain agreements had been executed.
It further transpires that the said developer had, in gross violation of the terms of the development agreement, without the knowledge of the petitioner, had commenced creating third party interests - in respect of the development that was yet to come about. And several third parties who had made commitments to their detriment, are said to have instituted proceedings even against the petitioner though he was completely in the dark of any such transactions. It is said that when the petitioner questioned the developer of the said circumstances, it appears there was a demand that the petitioner transfer his rights over the property for an absurdly low price. And is said to have threatened him with dire consequences, if he did not do so.
In so far as the Mortgage Deed set up by the complainant is concerned, it is stated that the complainant had claimed that certain rights had been conferred on him by the Developer in respect of the proposed development and that in order to better secure his interest through the petitioner, he is said to have requested him to execute the same. And that he had executed the same without realising that it was styled as a Mortgage Deed. It is claimed he never saw the title of the deed and no copy was said to have been furnished to him. He had in good faith and on account of their friendship and acquaintance, affixed his signature to the document. It is claimed that he has not borrowed any money from the complainant.
It is pointed out that the so called mortgage deed is a compulsorily registerable document and admittedly it is not registered. The same is unenforceable in law and therefore not a contract. It is inexplicable that the complainant, who is a businessman, would part with a substantial sum of money without adequately protecting his interest and also seek to create an encumbrance over the petitioner's property under a void and nebulous document. The conduct of the complainant in not having issued any notice of the alleged default in repayment of the alleged amount paid to the petitioner, is yet another case in point.
It is also alleged that the complainant is acting in collusion with the developer above named, as the petitioner has belatedly learnt.
It is hence contended that the allegations cannot result in a claim in civil law or a complaint in criminal law.
It is complained that the petitioner's entire family consisting of his wife and three daughters have been repeatedly called to the police station by the concerned police officer and have been harassed by making them wait days on end at the police station only to bring pressure on the petitioner to succumb to the illegal demands of the complainant and the developer.
5. The learned counsel for the respondent, on the other hand, would contend that the petition is premature and misconceived. That the matter is under investigation by the police and that the matter should be allowed to run its course. The petitioner does not deny his signatures on the Mortgage Deed. The validity, scope and effect of the deed would have to be tested at the trial and would, on the face of it, have to be given its due credence.
The contentions raised by the petitioner could, at best, be set up as his defence and cannot be a ground to scuttle the complaint, which should be taken to its logical conclusion in the manner known to law.
Reliance is placed on Medchl Chemicals and Pharma Pvt. Ltd. V. Biological E. Ltd., AIR 2000 SC 1869, to contend that in the matter of exercise of the High Court's inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of process of court. The Code of Criminal Procedure, 1973, contains a detailed procedure for investigation, charge and trial. And in the event the High Court is desirous of putting a stop to the known procedure of law, the High Court must proceed with circumspection and great care and caution to quash the complaint in exercise of its inherent jurisdiction. And hence, the learned Counsel for the respondent seeks dismissal of the petition.
6. On a cursory examination of the Mortgage Deed, which is the basis for the complaint, it is evident that the document is nebulous and contrived. It is not worth the paper it is allegedly executed on. The same can never be enforced as it is evidently a compulsorily registerable document and unstamped, which would not be admissible in evidence in a civil court. When no civil rights can be enforced under the said document, to allege a criminal liability flowing from it, when it is not the case of the complainant that the petitioner had taken advantage of his possible naivety or ignorance of law, would not be possible.
It is also difficult to readily accept that a prudent business man would part with a substantial sum of money, namely, Rs.70 lakh - which is not a mean amount by any standard, without proof of payment - as it is paid in cash and without adequate safeguard of repayment on the security of non-existent property, would lead to a presumption that the document has been crafted in haste and possibly forced on the petitioner for his signatures - without regard to the niceties of law.
The suggestion that there be an investigation and matters be taken to their logical conclusion, would be relevant if the case presented is clear and acceptable. Given the above nebulous circumstances and inexplicable sequence of events, particularly, the conduct of the complainant, in proceeding in a fashion, which is not characteristic of a person who has parted with a large sum of money and any interest supposedly created in respect of valuable immovable property being placed in jeopardy, the complaint lacks substance.
The harassment of the petitioner's family members by the police, as alleged, cannot also be ruled out. There is an apparent attempt to bring the petitioner to terms by recourse to criminal proceedings, as there is apparently no enforceable contract in existence in favour of the complainant.
Accordingly, the petition is allowed. The Complaint registered as FIR in Crime no.63/2016 by the first respondent and pending before the VIII Additional Chief Metropolitan Magistrate, Bangalore, and all further investigation, are hereby quashed.