Vs. Mahadevappa Shivappa Danannava & Anr  Insc 104 (16 February 2005)
Bhan & Dr. Ar. Lakshmanan
out of Special Leave Petition (Criminal) No. 3306 of 2004) Dr. AR. Lakshmanan,
present appeal was filed against the final judgment and order dated 17.02.2004
passed by the High Court of Karnataka at Bangalore in Criminal Revision
Petition No. 932/2000 dismissing the said petition filed by the
appellant-herein (accused No.1).
short facts leading to the filing of the above appeal are narrated herein
No.1 is the complainant. According to the complaint, the appellant herein had
executed an agreement to sell dated 25.12.1988 in respect of the house premises
bearing No.120, K.H.B. Colony, Agrahara Dasarahalli, Bangalore in favour of the
wife of the complainant Renukamma and as per the said agreement a sum of Rs.1,25,000/-
was paid as advance out of the total consideration of Rs.2,50,000/- and the
remaining amount was to be paid at the time of registration of sale deed. It is
stated in the complaint that the second accused being the father of the first
accused, the appellant herein was a member of the Karnataka Housing Board, who
negotiated the transaction among the parties and in spite of several requests
and demands made by the complainant it did not yield any fruits and that the
first accused had sold the said property in favour of the wife of the fourth
accused. It was further stated that the complainant approached all the accused
persons several times for possession of the said premises and was ready to pay
the balance sale consideration, but all the accused persons failed to discharge
the obligations of the contract. Certain other averments have also been made in
the complaint in regard to the receipt of Rs.5 lacs from one Uma Belagavi and Nadigar
for vacating the said premises on filing civil cases with which we are not
presently concerned in this appeal.
legal notice dated 11.07.1996 was also issued by the complainant calling upon
the appellant herein to execute the sale deed in respect of the premises in
question. The appellant herein on 18.07.1996 replied to the said legal notice.
He denied the very existence of the alleged agreement to sell. He also denied
that he had ever received Rs.1,25,000/- as consideration amount.
to the complainant, all the accused persons committed offences attracting penal
provisions of IPC under Sections 196, 209, 386, 403, 406 and 420. The
complainant requested the Chief Metropolitan Magistrate, Bangalore to take cognizance of the offence
against the accused persons and punish them in accordance with law in the
interest of justice and equity. This complaint was numbered as PCR No. 453/1999
appellant denied the execution of such an agreement or received any advance
from the complainant or his wife.
Addl. Chief Metropolitan Magistrate directed the office to register the case as
PCR and refer the same to the sub-inspector Kamakshi Palya P.S. for
investigation and submit a report as per Section 156(3) of Cr.PC by 27.08.1999.
This order was passed by the Magistrate on 17.05.1999 (Annexure-P2). On
04.08.2000 the IV Addl. Chief Metropolitan Magistrate passed the following
Perused the record. Cognizance of the offence alleged against the accused is
taken u/s. 190(i)(b) of Cr.P.C. Office to register the case in CC register and
issue SS to accused by 30-9-2000.
4-8-2000" Aggrieved by the order dated 04.08.2000 passed by the IV Addl.
CMM, the appellant accused preferred a criminal revision under Section 401 Cr.PC
praying the High Court to set aside the said order. The said revision was
dismissed by the High Court by the impugned order dated 17.02.2004.
have perused the entire pleadings and the order passed by the High Court in
revision and heard the counsel appearing for the appellant.
notice was served on the first respondent, no one has entered appearance on his
behalf. Mr. Sanjay R. Hegde, learned counsel for the respondent filed vakalatnama
on behalf of the State but has not filed any counter affidavit on behalf of
respondent No.2 - State of Karnataka.
pertinent to notice that the alleged agreement to sell was executed on
25.12.1988. A legal notice was issued to the appellant herein on 11.07.1996
calling upon the appellant to execute the sale deed in respect of the premises
in question. Thus the complaint was submitted after 7 1/2 years of splendid
silence from the date of the alleged agreement to sell i.e. 25.12.1988. It is
further to be noticed that the appellant herein responded to the legal notice
dated 11.07.1996 by his reply dated 18.07.1996 through his lawyer specifically
denying the alleged agreement and the payment of Rs.1,25,000/- as advance.
Nothing was heard thereafter and the complainant after keeping quiet for nearly
3 years filed private complaint under Section 200 Cr.PC before the IV Addl.
CMM, Bangalore on 17.05.1999. The learned
Magistrate on the same date directed his office to register the case as PCR and
referred the same to the local police for investigation and to submit a report
as per Section 156(3) Cr.PC. A charge sheet was filed on 04.08.2000 by the
police against the appellant/accused No.1 only for offence under Section 420
IPC. The learned Magistrate took cognizance of the alleged offence under
Section 190 (1) (b) Cr.PC and issued summons to the accused/appellant herein.
Aggrieved by the aforesaid process order dated 04.08.2000 passed by the
Magistrate, the appellant accused preferred the above criminal revision which
was dismissed by the High Court for the reasons stated therein.
have also perused the Annexures P1-P3 which are copies of the
pleadings/documents which form part of the records of the case in the High
Court against whose order leave to appeal was sought for in this appeal. We
have carefully perused the order passed by the High Court. The High Court, in
our opinion, has passed the order in a mechanical way without applying its
mind. A perusal of the complaint would show that the entire dispute raised by
the complainant is based on the alleged agreement to sell dated 25.12.1988
nearly 11 years prior to the filing of the private complaint on 17.05.1999. The
existence of any such agreement or any advance taken has been specifically
denied by the appellant by way of his reply dated 06.07.1996 in response to the
legal notice dated 11.07.1996 sent by the complainant through his lawyer. For
nearly 3 years from the date of reply, the complainant kept quiet before filing
his complaint on 17.05.1999 before the Magistrate. It is stated that even as
per the police report, no offence is made out against accused Nos. 2-4. Despite
this, the Magistrate issued process against accused Nos. 2-4 as well which
clearly shows the non- application of mind by the Magistrate. A perusal of the
complaint would only reveal that the allegations as contained in the complaint
are of civil nature and do not prima facie disclose commission of alleged
criminal offence under Section 420 IPC. The Magistrate, in our opinion, has not
considered the report filed by the police under Section 156(3) Cr.PC
judicially. Irrespective of the opinion of the police, the Magistrate may or
may not take cognizance under Section 190(1) of Cr.PC. In the instant case, as
could be seen from the records, that the police has given a clean chit to
accused Nos. 2-4. In our opinion, the Magistrate ought not to have taken
cognizance of the alleged offence against the accused No.1, the appellant
herein and that the complaint has been made to harass the accused No.1 to come
to terms by resorting to criminal process.
already noticed, the complaint was filed on 17.05.1999 after a lapse of 11=
years and, therefore, the very private complaint filed by the respondent No.1
is not at all maintainable at this distance of time. It is the specific case of
accused No.1 that he has not executed any agreement to sell or received any
advance payment. In our view, the complaint does not disclose the ingredients
of Section 415 of Cr.PC and, therefore, we have no hesitation to set aside the
order passed by the Magistrate taking cognizance of the offence alleged. It is
also not clearly proved that to hold a person guilty of cheating, it is
necessary to show that he had a fraudulent or dishonest intention at the time
of making the promise. The order of the Magistrate and of the High Court
requiring the accused No.1 appellant herein to face trial would not be in the
interest of justice. On the other hand, in our considered opinion, this is a
fit case for setting aside the order of the Magistrate as confirmed by the High
Court of issuance of process and the proceedings itself.
therefore, set aside the impugned order of the High Court and of the
Magistrate. The complaint is liable to be dismissed on the question of
inordinate latches on the part of the complainant himself. Viewed from any
angle, we do not find any good reasons to maintain the order passed by the
learned single Judge of the High Court confirming the orders of the Magistrate.
Accordingly, this appeal stands allowed and the judgment and order dated
17.02.2004 in Criminal Revision Petition No. 932/2000 of the High Court of
Karnataka at Bangalore is set aside.