IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Criminal Petition No.______________/2016
BETWEEN:
- C.ABC
S/o XYZ
Aged about 64 years
R/o No.1014,
Bangalore 560 040
- PQR
S/o RQS
Aged about 45 year
Bengaluru
3.Smt. SDC
D/o DEC
Aged about 48 years
R/o Bangalore 560 040
- . Smt. POQ
D/o QOP
Aged about 24 years
R/o. No.00,
Government Press Layout,
Ullal main road, Bengaluru ……Petitioners.
AND:
- State by Kamkshipalya Police ,
Kamkshipalya Police Station
Bangalore
Represented by State Public Prosecutor,
High Court of Karnataka Building,
Bangalore.
- BOP
S/o POB
Aged about 65 years
R/a. ,
Soudi Arabia 31952
Rep. by his GPA Holder
S/o NOP
Aged about 40 years
Bangalore 560 073
- BOP
S/o POB
Aged about 65 years
R/a. P.O.Box No.00,
A-1, Kbobar
Soudi Arabia 31952 ….. Respondents.
MEMORUNDAM OF CRIMINAL PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE
The petitioners most respectfully submit as under:
- The address of the parties for the purpose of court notices, summons etc., is as shown in the above cause title. The petitioners may also be notified through his advocate Mr. Advocate No.00/8/2, Bangalore 560 080.
- The second respondent has filed a Private Complaint in PCR No. 00/2015 before the IV ADDL. Chief Metropolitan Magistrate, Bangalore alleging that he is the owner of resorts in the name and style `Meros Holiday Resort Pvt.ltd’ and that in order to improve his Business he had approached one QOR for fianancial help with an offer to give the resort properties on Mortagage in lieu of the same. It is alleged in pursuance of the same said QOR introduced him to the 1st petitioner and suggested the 2nd respondent/complainant to hand over the originals of the resort documents by executing a simple mortagage in favour of the 1st petitioner; complainant accordingly agreed for the same and handed over all the original documents to QOR . It is further alleged that the first petitioner however while giving the loan amount had prepared Agreement of sale instead of mortgage deed and upon refusal to sign the same by the complainant; insisted that, the complainant has to sign the same in order to avail the loan amount. It is further alleged that, complainant improved the resort Business and left India for personal reasons; that, the complainant had given GPA to one RJD on 2/8/2012 to look after the resort Business and thereafter GPA holder took possession of the resort and put his phone no. on the resort Sign board.
- The further allegation in the complaint is that on 10/11/2015 2nd petitioner along with few anti social elements came to the resort and tried to take possession of the resort property claiming the complainant and his son CED have delivered possession of the property vide agreement of sale dt.08/07/2010 and further had executed a letter dt.10/07/2010 admitting about the receipt of substantial amount and, based on the same tried to dispossess the GPA holder and that, only when threatened with Police complaint by GPA holder they, left the place.
- Further averment of the complaint is to the effect that, immediately thereafter the GPA holder PQR got it clarified from the QOP regarding the alleged execution of Agreement, MOU’s and the letter and, it is alleged to have been informed by QOP to the GPA holder that, petitioners 1 to 3 have impersonated the signature of QOP on the letter and created the same in the name of Resort Pvt.Ltd.
- The further allegation of the complaint is that, GPA holder was called for a meeting by petitioner No 1 to 3 at one R house and he reached the place along with his friend G; that, at the said place first petitioner showed him the forged documents and as such he refused to vacate the resorts. That, upon refusal to vacate GPA holder R was manhandled by 2nd petitioner and he was saved only with the help of his friend G who took him to the Hospital. The further allegation of the complaint is that, with continuous harassment petitioners have taken possession of the resort and have threatened to kill if he comes near the resort.
- With the above allegations and also alleging about the high handedness of the petitioners GPA holder directly filed a complaint in PCR No.00/2015 before the IV ADDL.CMM,Bangalore seeking reference/direction U/s 156(3) of Criminal Procedure Code.The Learned IV.ADDL.CMM without application of mind to the averments made in the complaint which on the face of it does not attract the offences now registered has vide his order dated 08/12/2015 referred the matter for investigation and report by 19/03/2016 under section 156(3) of the Criminal Procedure Code. That, first respondent Police based on the reference have opened the FIR in Crime No.0789/2015 for the offence punishable under section 149,420,506(B)323,468, and 471 of IPC against the petitioners. Copy of the order sheet, complaint and FIR are produced herewith and marked as Annexure A,B and C
- The allegation made in the complaint are far from truth and made only to mislead the court and also to armtwist the petitioners in meeting to the illegal demands of GPA holder of the complainant and the men behind him.
- It is submitted that it is true and correct to state that petitioner No.1 had entered into an Agreement of Sale dated 08/07/2010 with the complainant for the purchase of several of the properties enumerated in the schedule thereat; having received substantial sale consideration possession of the properties also came to be handed over/delivered to the 1st petitioner on the date of said Sale agreement and since, then the 1st petitioner and his representatives (Petitioner 2 to 4) are in actual physical possession of all schedule properties. Copy of the registered sale agreement is marked as Annexure D.
- It is stated that the complainant was in touch with the 1st petitioner and has also in furtherance of the aforementioned sale agreement dated 08/07/2010 received further sale consideration and had been promising through out about the execution of the sale deed in favour M/s. Resorts Pvt.Ltd belonging to the 1st petitioner herein. The complainant having failed to come forward and execute the sale deed; the first petitioner having left with no other alternate has filed OS No.00/2012 for the relief of Specific performance of the Agreement of Sale dated 08/07/2010 and the same is pending consideration before the Prl. City Civil and Sessions Judge, Bangalore.
- It is submitted that the complainant has been served in the above OS No. 00/2012 as early as in the month of January 2013 and immediately thereafter he has brought to the notice of the learned Judge about the filing of OS No.00/2013 by the 1st petitioner herein for relief of permanent injunction against the complainant and his representatives.
- That, in the said Suit the, learned Judge while passing orders on the IA’s has clearly held to the fact of petitioner No.1 claiming possession of the schedule properties based on document letter dated 10/07/2010 and so also the defendent (complainant) therein relying upon the said document in urging the court to direct the petitioner herein to pay additional stamp duty on the document-Agreement of sale dated 08/07/2010 and the letter dated 10/07/2010 since, the same are deficitly stamped. The 2nd respondent-complainant in the said civil proceedings do not talk/whisper about the same being forged or otherwise since, he very well knows about the same being a genuine Letter/document. That, in none of the pending proceedings/pleadings before the Civil court the 2nd respondent has taken the plea of the Letter dated 10/07/2010 being forged etc. Copy of the order passed on IA’s in O.S.No.00/2012 is herewith produced and marked as Annexure E. That, subsequently court has framed issues in the aforementioned O.S.No.00/2012. Copy of the issues is herewith produced as Annexure F
- It is submitted that the GPA holder of the complainant and his henchmen on 19/05/2015 had illegally and forcefully entered the premises of the petitioners and threatened to kill the 2nd petitioner if they do not vacate the said premises. Copy of the NCR registered based on the complaint filed by the first petitioner about the threat to his life by the GPA holder and his henchmen is herewith produced as Annexure G
- Notwithstanding the above incident GPA holder of the complainant and his henchmen again on 19/07/2015 illegally barged into the office of the 1st petitioner and threatened the employees by brandishing iron rods, abused them in filthy language and forcefully disconnected the CC Camera and power supply and further stole important documents belonging to the petitioners. Second petitioner who is the administrative officer of M/S Resorts Pvt Ltd has filed a written complaint dated 20/07/2015 before the jurisdictional Jnanabharathi Police and same is registered as Crime No.00/2015 for the offences U/s 427,504,143,147,149,380,448 and 506(B) of the IPC. Same is herewith produced and marked as Annexure H
- Though each one of the allegations made in the complaint are purely civil in nature the, 2nd respondent has chosen to file criminal complaint just to harass the petitioners at the hands of the respondent Police and further with an intention of making wrongful gains from the petitioners; that the learned jurisdictional Magistrate without applying his mind to the averments made in the complaint which is clearly an enforceable right under Civil jurisprudence has mechanically passed the order referring the same for investigation and report. Hence left with no other alternative remedy, petitioners are approaching this Hon’ble Court on the following amongst other grounds.
- That the petitioners have not approached this court on earlier occasion on the same cause of action.
G R O U N D S
- That the continuation of the investigation in the above matter amounts to abusing the process of law and as such entire investigation in so far as these petitioners are concerned is liable to be quashed.
- The said complaint is an after thought and belated one seeking to convert the civil dispute in to one of criminal in order to harass the petitioners.
- The complaint has been filed by the GPA holder of the complainant; the same is neither maintainable nor permissible in the eyes of Law.
- The complaint has been filed based on the Power of Attorney (POA) executed in the year 2012 but, however the alleged incident of forgery as per complaint averments is of the year 2010. Hence, the complaint filed based on hearsay information is neither maintainable nor legally tenable in the eyes of Law. On this ground alone the proceedings before the court below need to be quashed at the hands of this Hon’ble court.
- There is not even a word said/alleged/referred in the entire complaint in so far as 4th petitioner is concerned; she being a lady is sought to be used as a weak link in order to harass and armtwist the 1st
- Petitioner No 3 (Accused No.3) is a old lady of 60 years and except saying at the beginning of para 9 “Accused No 1 and 3 called Mr.R for a meeting” there is nothing else in the complaint as against said petitioner No.3. The, same does not amount to commission of any offence and she has been roped in as accused since, she is the wife of petitioner No.1.
- That, paragraph 9 of the complaint speaks about the POA holder of the complainant being called for a meeting and assaulted. The said allegation on the face of it is false, created, concocted and baseless to say the least. complaint does not even give the bare minimum details about date of incident, time of incident and what sort of injuries he sustained and why he did not complain to the Police about the same.
- 2nd respondent-complainant at para 11 of the complaint admits about possession being with the petitioners; in fact complaint has been registered against POA holder of the complainant and his henchmen when they illegally barged into the office of the 1st petitioner and threatened the employees of the petitioner by brandishing iron rods, abused them in filthy language and forcefully disconnected the CC Camera and power supply and further stolen the important documents. The said complaint has been registered in Crime No.00/2015 for the offences Under section 427,504,143,147,149,380,448 r/w 506 (B) of IPC and same is pending investigation.
- The 2nd respondent who was issued and served with notice in O.S.No.00/2012 in janauary 2013 keeps quite for nearly 3 years before filing this false complaint to harass the petitioners and their representatives. There is enormous delay in filing the complaint and further the pendency of the civil proceedings has been deliberately suppressed in the complaint.
- The alleged properties are situated at Gidadakonehalli village, Yeshwanthpura Hobli and fall within the jurisdiction of Jnabharathi Police station but, however the complainant with ulterior motive seeks direction for investigation by the Kamakshipalya Police.
- There is absolutely no averment in the complaint alleging that, the petitioners had conspired to cheat the second respondent and that there was an intention to cheat him right at the inception i,e either at the time of negotiations or at the time of entering into Agreement of sale. On the other hand he admits to the execution of Sale Agreement. Hence, in the circumstances by any stretch of imagination it cannot be said that provisions of IPC are attracted. Hence, on this ground also the proceedings before the court below need to be quashed at the hands of this Hon’ble court.
- Admittedly, the dispute is in relation to an agreement of sale executed by 2nd respondent in favour of petitioner No.1 the, same being not honoured a suit seeking specific performance of the same has been filed and is pending consideration. Hence, in the circumstances remedy does not lie in knocking the doors of a criminal court.
- It is submitted that, a close reading of the averments made in the complaint would reveal that there is no allegation of petitioners have deliberately induced the second respondent into entering into the agreement with 1st petitioner; and further it is not the case of the complainant that, the 1st petitioner or petitioners had any prior intention to cheat the second respondent/complainant at the time of either negotiating for advancing the loan or while entering into agreement of sale. Hence, on this ground also the proceedings before the court below need to be quashed at the hands of this Hon’ble court.
- Viewed from any angle, interference of this Hon’ble Court is just and necessary to meet the ends of justice.
P R A Y E R
WHEREFORE, for the reasons stated herein above, this Hon’ble Court be pleased to:
- Call for the records.
- Set aside/Quash the entire proceedings in PCR No.00/2015 3 pending before IV ADDL.CMM, Bangalore Bangalore including the investigation in Crime No 00/2015 registered and pending investigation on the file of the first respondent in respect of these petitioners.
- Pass such other orders as this Hon’ble Court deems fit in the circumstances of the case in the interest of justice and equity.
Bangalore Advocate for Petitioners
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Criminal Petition No.______________/2016
BETWEEN:
- V.C.ABC and others Petitioners
AND:
- State by Kamkshipalya Police
and another Respondents
APPLICATION UNDER SECTION 482 OF THE CRIMINAL PROCEDURE CODE
- The petitioners in the above petition have challenged the proceedings in PCR No 00/2015 pending before the Chief Metropolitan Magistrate, Bangalore
- The complaint in PCR No 00/2015 is filed in order to harass and illegally compel the petitioners to part with their valauable properties acquired a registered Agreement of sale which the petitioners are not obligated to legally and in the circumstances of the case.
- That, the whole transaction is purely Civil in nature and the provisions of the Indian Penal Code do not get attracted; the learned Magistrate has committed a grave mistake in directing investigation under section 156(3) of the code of Criminal procedure without even properly going to the averments made in the complaint .
- It is pertinent to state that the complainant himself at various places of the complaint has referred to he having executed the Sale Agreement in favour of 1st petitioner has now in order to illegally enrich himself at the cost of the 1st petitioner since, the value of the properties involved in the above dispute has risen appreciably is now seeking to armtwist and coerce the petitioners to part with the said properties; Hence, the allegations of cheating, fraud is untenable in the eyes of Law and the continuation of proceedings before the court below will amount to abuse of process of court and Law.
- It is well settled that for getting ones civil rights enforced the course available to any person is to file for enforcement of same by instituting civil proceedings and not by filing a criminal complaint as has been done in the case on hand.
- It is clear from the complaint averments that the complainant not wanting to execute the sale deed in favour of 1st petitioner has now resorted to filing this false and illegal complaint against the petitioners in order to scuttle and coerce the petitioner to come forward and succumb to the illegal demands of the complainant and his henchmen.
- The petitioners have not committed any offence much less the offences alleged in the complaint. The complaint is nothing but, an arm twisting method adopted by the second respondent to harass and coerce the petitioners to yield to the illegal demands of the 2nd
WHEREFORE this Hon’ble court be pleased to allow the accompanying application and stay all further proceedings pursuant to the filing of PCR No 00/2015 before the IV ADDL.CMM Bangalore in the interest of justice and equity.
Date: 25 /01/2016 Advocate for Petitioners
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Criminal Petition No.______________/2016
BETWEEN:
V.C. ABC and others Petitioner
AND:
State by Kamkshipalya Police
and another Respondents
VERIFYING AFFIDAVIT
- C.ABC S/o XYZ, Aged about 64 years R/o Bangalore 560 040 do hereby state on oath as follows,
- That, I am the 1ST petitioner in the above petition and am well aware about the facts of the case. That. I am also authorised by the petitioner Nos 2 to 4 to swear to the contents of this Affidavit.
- That, the statements made at para 1 to of the accompanying application are true and correct.
- That, Annexures are certified copies.
- That, Annexres are true copies.
- That, what is stated hereinabove is true and correct.
Date: DEPONENT
Place: Bangalore
Identified by me
Advocate
No of correction
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Criminal Petition No.______________/2016
BETWEEN:
- V.C.ABC and others Petitioners
AND:
- State by Kamkshipalya Police
and another Respondents
S Y N O P S I S
|
Sl.No. |
Date |
Events |
- 08/07/2010 Agreement of sale executed by 2nd respondent in
favour of 1st Petitioner
- 10/07/2019 Letter of the 2nd respondent in favour of 1st
petitioner
- 07/12/2012 O.S.No.00/2012 filed by M/s R Resorts Pvt Ltd represented by the second petitioner against the complainant seeking specific performance of the Agreement of sale dated 08/07/2012.
- 17/01/2013 Complainant appeared through his Advocate in O.S.No./2012 before the Civil court, Bangalore and field IA under O.7 Rule 11 of CPC. No mention of forgery.
- 19/06/2013 Son of the complainant and 2nd defendent
thereat appeared through his
Advocate in O.S. 00/2012 proceedings.
- 05/09/2013 Son of the complainant files IA No.3 under
section 34 of the Stamp Act. No mention of forgery.
- 25/04/2014 Learned City Civil Judge passes order on IA Nos.1
to 3 filed in O.S. No.00/2012.
- 20/05/2015 complaint filed by 1st petitioner against the POA
holder of the complainant and his men for having
illegally barged and threatened him and the 2nd
petitioner with dire consequences if they do not
vacate and leave tne premises of M/s Resorts
Pvt Ltd.
- 20/07/2015 Crime No.00/2105 registered for offences U/s
427, 504, 143,147,149,380,448 and 506 of IPC
against POA holder of the complainant and his
henchmen on the complaint filed by 2nd petitioner.
- 07/12/2015 complaint in PCR No.00/2015 filed by the POA
holder of 2nd respondent /complainant before the
IVth ACCM,Bangalore
- 08/12/2015 Complaint referred under section 156(3) by the
IVth ACCCM for investigation and report.
- 24/12/2015 Crime No 789/2015 registered by the 1st
respondent against the petitioner for offences
under section 149,420,506(B),323,468 and 471 of
IPC.
- 26/12/2015 Police notices under section 41(a) of CR.P.C issued
to petitioner No.1 and 3
BRIEF FACTS OF THE CASE
The petitioners herein are questioning the registration and continuation of investigation in Crime No 00/2015 registered against the petitioners for the offences under section 149,420,506(B),323,468 and 471 of Indian Penal Code on the reference made by the Chief Metropolitan Magistrate, Bangalore upon a private complaint in PCR No 00/2015; have preferred this Criminal Petition.
25/01/2016 Advocate for Petitioner
Place: Bangalore
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Criminal Petition No.______________/2016
BETWEEN:
V.C.ABC and others Petitioners
AND:
State by Kamkshipalya Police
and another Respondent
INDEX
Sl.No. Particulars Pages
01 Synopsis
02 Memorandum of Criminal Petition.
03 Annexure A – Certified Copy of the order sheet
04 Annexure B - Certified Copy of the Complaint
05 Annexure C - Certified Copy of FIR
06 Annexure D - Copy of the Registered Agreement of Sale
07 Annexure E - Copy of the Order passed on IA in
O.S.No.00/2012
- Annexure F - Copy of the Issues framed in O.S.No.00/2012
- Annexure G - Copy of the NCR registered against POA holder of
the complainant and his hencemen
- Annexure H - Copy of the FIR in Crime No.00/2015 registered
against POA holder of the complainant and his
hencemen
- Copy of IA
12 Copy of Affidavit
13 Vakalath
Bangalore Advocate for petitioners
