(Prayer: This Crl.P filed U/S.482 Cr.P.C praying to quash the entire proceeding pursuant to filing of the charge sheet by the respondent No.1 In C.C.No.432/2016 which is pending before the Principal Civil Judge and JMFC, Nelamangala for the offences P/U/Ss. 193, 209, 427, 406, 420, 417, 426, 120b R/W 34 of Ipc against the petitioners.)

1. Petitioners have sought for quashing of the entire criminal proceedings in C.C. No.432/2016 pending on the file of the Principal Civil Judge (Jr.Dn.) and JMFC, Nelamangala, for the offences punishable under Sections 193, 209, 427, 406, 420, 417, 426, 120-B r/w. 34 of IPC.

2. I have heard the learned counsel for the petitioners and as well as the 2nd respondent herein. Perused the records, which are produced by the 2nd respondent also before this court today.

3. The undisputed factual aspects as argued before the court are that, the petitioner Nos.1 & 2 have executed two independent agreement of sale on 18.01.2008 in favour of the 2nd respondent herein and received a part consideration of the amount under the said agreements to the tune of Rs.20.00 Lakhs so far as Petitioner No.2 is concerned and Rs.5.00 Lakhs sofaras Petitioner No.1 is concerned. Subsequently, one of the family members by name Gangaraju appears to have filed a suit in OS No.91/2008 before the Civil Court at Nelamangala, against the petitioners and others seeking partition and separate possession of some family properties including the properties, which are the subject matter of the agreements executed by the petitioners in favour of the 2nd respondent. Having come to know about the filing of OS No.91/2008, the respondents appears to have issued a notice to the petitioners stating that Respondent No.2 is not willing to face any civil disputes and therefore, he requested for refund of the advance amount paid under those agreements. Perhaps, as the petitioners have not heeded to the notice and shown any interest to re-pay the amount, the respondent No.2 has filed separate suits for recovery of the earnest money along with interest and damages etc. in OS No.78/2010 sofaras the 2nd petitioner is concerned and OS No.103/2010 sofaras the 1st petitioner is concerned. It is also not in dispute that, in those cases, the petitioners have appeared and filed their written statements denying all the plaint averments and contested the said suit specifically taking up a contention that they are not liable to pay any amount to the Respondent No.2 herein. The trial Court in both the cases framed issues and thereafter on due contest, the suits were decreed and the money decree has been granted in favour of Respondent No.2. In fact, it is also an admitted fact that, aggrieved by the said judgment and decree passed in OS No.78/2010, an appeal was preferred and the appeal is pending. Sofaras the appeal preferred against the judgment and decree in OS No.103/2010 by the 1stpetitioner has already been disposed of by modifying the decree by reducing the interest clause. Thereafter, a private complaint came to be lodged before the jurisdictional Magistrate in PCR No.214/2015 for the offences noted above viz., 193, 209, 427, 406, 420, 417, 120-B r/w 34 of IPC. The said complaint was referred to jurisdictional police for investigation and report under Section 156(3) Cr.PC.. The police after investigation have submitted a charge sheet for the said offences and the court has taken cognizance of the said offences and issued summons to the accused. Thereafter, the accused persons have challenged the charge sheet filed by the police and taking cognizance of the aforesaid offences by the learned Magistrate.

4. The first and foremost argument addressed by the learned counsel for the petitioners is that, under Section 193 and 209 of IPC, a private complaint cannot be filed in view of the bar contained under Section 195 of Cr.PC.. Secondly, he submitted that even translating the entire complaint averments and the entire charge sheet into evidence, there is no constitution of the offences under Section 417 and 426 or 420 and 406 of IPC. It is purely a civil dispute which has already ended in a decree and that has been subsequently given a colour of criminal proceedings before the Magistrate, in order to wreck vengeance against the petitioners by the complainant. Therefore the learned counsel for the petitioners submits that the petition deserves to be allowed.

5. Per contra, learned counsel for Respondent No.2 strenuously argued before the court that, as on the date of execution of the agreements by the petitioners, they knew that some other persons have also got share in the said property, but the same has been suppressed and the agreements have been executed. Therefore, the petitioners wanted to cheat Respondent No.2 in executing the agreements. Secondly, the learned counsel contended that, though the petitioners have taken money on the basis of the agreements, in the suit filed by the 2nd respondent, they gone to the extent of denying the above said transaction and made a false statement before the court and thereby they showed their intention of cheating Respondent No.2 herein. The learned counsel further contended that, though there was an injunction order by the Civil Court not to alienate the property, the petitioners have entered into an agreement of sale with some third party in order to create encumbrance and thereby they also violated the order of the City Civil Court. Last but not least, the learned counsel has strenuously contended that, if the over all conduct of the accused persons/petitioners is taken into consideration, it shows that, they had an intention to cheat Respondent No.2. Therefore, the trial Court has not committed any error in taking cognizance and issuing summons against the petitioners herein.

6. Before adverting to the above said factual aspects and adopting the same to the provisions of IPC, as contended, it is just and necessary to first go through the provisions under Section 195 of Cr.PC. to find out whether respondent No.2 has got any right to file a complaint sofaras the offence under Sections 193 and 209 of IPC are concerned.

7. Section 195 of Cr.P.C. postulates that-

Xxx xxx xxx

(1) No court shall take cognizance -

(a)(i) to (iii) xxx xxx xxx xxx xxx

(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code, (45 of 1860) namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 ( both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to , any proceeding in any Court,

(ii) & (iii) xxx xxx x xx

[Except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court, as that court may authorize in writing in this behalf, or of some other court to which that Court is subordinate]

8. Though the respondent No.2 had knowledge that in the written statement filed by the petitioners they have taken a totally deviated versions denying the agreements itself and committed an offence under the above said provisions, in spite of that, respondent No.2 did not seek indulgence of the court to refer any complaint to the competent court for taking proper action against the petitioners. Therefore, in the absence of any such materials being placed before the court, in my opinion, the 2nd respondent has no right to file any private complaint for the offences under Sections 193 & 209 of IPC, in view of the bar contained in Section 195 of Cr.PC.

9. Now coming to other provisions invoked under Section 417 of I.P.C., it is a punishment section for cheating. Section 415 of I.P.C. is the correct provision, where it defines as to what is meant by cheating, which says that,-

415. Cheating,- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally do or omit if he were no so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to Cheat".

(Emphasis supplied)

"Cheating" is punishable under Section 417 of IPC Section 420 of IPC postulates that,-

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any par of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description.

Section 426 of IPC is the provision for, punishment for mischief.

Section 425.Mischief says that,- Whoever with an intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits mischief.

10. On plain reading of the complaint, I find that there is absolutely no allegations that the petitioners have committed any mischief or they committed any wrongful act to damage to the public or any person, or they caused destruction of any property, or any such change in any property or in the situation thereof have tried to destroy or diminish its value or utility, which affected anybody injuriously. Therefore, Sections 426 and 427 of IPC are not at all attracted even on a plain meaningful reading and understanding of the said provisions, complaint averments and the entire charge sheet papers.

11. What remains for consideration of this court is, whether Section 420 of IPC is attracted or not.

Though it is the contention of Respondent No.2 that the petitioners have not disclosed that the other persons have also got a share in the property, unless and until in the original suit, it is decided by the court that the other persons have also got a share in the property, it cannot be imputed on the part of the petitioners that they have persuaded or deceived respondent No.2 to purchase the property. It is not the voluntary act of the petitioners alone, but it is the voluntary act of petitioners and as well as the 2nd respondent in entering into such an agreement/contract. Apart from the above, at the time of execution of the agreement, absolutely no suit was pending in OS No.91/2008, It is an event that has taken place subsequent to the execution of the agreements. Therefore, the petitioners could not have anticipated that, anybody may file a suit to defeat or defraud their rights. Therefore, it cannot be imputed that on the date of execution of agreements, they have any deceitful or fraudulent intention to cheat Respondent No.2 and with any ill-intention, they had tried to execute the agreements. Further added to that, even considering that, any person files a suit for their share in respect of the property, which is the subject matter of the agreement, even then the court can grant a decree of specific performance in respect of the shares of the persons who have executed the agreements and that is the settled principles of law. Therefore, instead of filing a suit for specific performance, the 2nd respondent did not want to have any litigation to be continued, therefore, he issued notice for recovery of earnest money and further the respondents have filed a suit for recovery of the money and after due contest, a decree has been granted for recovery of the said amount. As I have already noted above, execution of the agreements itself by the petitioners cannot attract Section 420 of IPC, because they were not having any knowledge that somebody may file a suit against them for partition of the properties in question. It should be imputed in the complaint that the petitioners knowing fully well that some persons have got right over the said property and suppressed the same. But, absolutely such allegations are not there in the complaint, merely because, somebody files a suit subsequent to the agreement, such imputations cannot be made sofaras the persons who have executed the agreement.

12. In the above facts and circumstances of the case, in my opinion, none of the ingredients of Section 420 of IPC have been established in this particular case, as the suits have been filed in the year 2009 itself and the 2nd respondent knowing fully well all these factual aspects, kept quiet up to 2015 and filed a complaint in the year 2015. It is nothing but to harass the petitioners the said complaint has been filed. Of course, when Respondent No.2 came to know about the suit in O.S. No.91/2008, immediately he has issued notice to the petitioners recalling the agreement and for payment of the earnest money. In the said notices or in the suits itself, they have not spelled-out that, even at the time of agreement whether the petitioners had any fraudulent intention to cheat the respondent No.2, and immediately after the said suits being filed or even atleast after filing of the suit for recovery of money, complaints have not been filed, and they have waited till passing of decree in the suits and thereafter a lapse of more than seven years, the present complaint is filed. In my opinion, the complaint is devoid of merit and it ought not to have been referred to the police even for investigation.

13. In the above facts and circumstances of the case, I am of the opinion that, if continuation of the prosecution is ordered, it would amount to abuse of process of law. It is purely a civil litigation between the parties and knowing fully well and understandingly prosecuted themselves before the civil court and taken a decree, there is no further scope for proceeding with any other criminal case.

14. With the above observation, I am of the opinion that the petition deserves to be allowed. Hence, the following order.

ORDER

The petition is allowed. The case in C.C. No.432/2016 (Crime No. 194/2018 of Nelamangala Town P.S.) on the file of the Principal Civil Judge and JMFC, Nelamangala, registered against the petitioners for the offences punishable under Sections 193, 209, 427, 406, 420, 417, 426, 120-B r/w. 34 of IPC, and all further proceedings therein, insofar as the petitioners concerned, are hereby quashed.