Laxman and Others vs State of Karnataka and Others

S.N. Satyanarayana, J.—1. Accused Nos. 1 to 3 and 5, in C.C. No. 1293/2012, on the file of II Addl. Civil Judge and JMFC, Chikkodi, have come up in this petition under Section 482 of Cr.P.C, seeking quashing of the concurrent finding of both the Courts below in rejecting their application for discharge.

Though initially accused Nos. 1 to 3 and 5 have filed this petition, during pendency 1st petitioner who is accused No. 1 in C.C. No. 1293/2012 is said to have died. It is only accused Nos. 2, 3 and 5, who are pursuing this matter.

The sum and substance of the proceedings leading to this criminal petition are that the 2nd respondent/complainant is said to be the owner of a residential house, which is subject matter of sale deed dated 24.5.2010. According to complainant, her husband was addicted to vices. Hence he was selling all the properties of the family. To save the family, she is said to have taken over the management of the family and that she sold one of the properties standing in her name to develop one of the properties of the family and also to clear the loans raised by her husband. When she was not able to clear the loan, she requested the 1st accused who is none other than the friend of her husband to help her in securing loan from any private bank and who in turn assured the complainant that she will be able to get loan on the security of property which is subject matter of sale deed dated 24.5.2010.

The case of the complainant is that she executed several documents which were given to her as documents required for securing loan. Subsequently it turned out that all the documents as not the documents executed by her for loan in question, but they are the documents executed for conveying the property in favour of the 1st respondent/1st accused for valuable consideration of Rs. 6 lakhs and subsequently in getting the said property leased in her favour on monthly rent. It is only when she received a notice with reference to failure to pay the rent agreed in the lease seed, she realized the fraud played by 1st accused in connivance with accused Nos. 2 to 5. Hence she filed a private complaint and pursued the same, wherein cognizance was taken and complaint was registered into a criminal case for the offence punishable under Section 420, 504 and 506 read with section 149 of IPC.

In the meanwhile she also filed a suit seeking declaration that she is the absolute owner of the property and sale deed dated 24.5.2010 got executed by her is null and void and other reliefs. In the meanwhile accused Nos. 1 to 3 and 5, against whom C.C. No. 1293/2012 was registered, filed an application under Section 239 of Cr.P.C, seeking their discharge from the proceedings in C.C. No. 1293/2012. The said application came to be dismissed by order dated 31.12.2013, which was subject matter of a revision petition before the VII Addl. District and Sessions Court, Belagavi, sitting at Chikodi, in Crl. R.P. No. 48/2014, which also came to be dismissed by order dated 1.7.2014. As against the concurrent finding this petition is filed under Section 482 of Cr.P.C.

Heard the learned counsel for petitioners as well as contesting 2nd respondent/complainant and also learned Government Pleader for the State. The case of petitioners is that filing of private complaint and prosecuting them for the offence under Section 420, 504, 506 of IPC is erroneous when the complainant has already filed a suit seeking declaration regarding the sale deed dated 24.5.2010 as null and void. It is the further contention that until the said suit is decided holding that execution of sale deed is without the concurrence of plaintiff and that the said sale deed was clandestinely obtained from her, then she will have right to prosecute and not before that.

The learned counsel would also rely upon the judgment rendered by the Full Bench of the Apex Court in the matter of Inder Mohan Goswami and another v. State of Uttaranchal and others, reported in , AIR 2008 SC 251. However in this proceedings the learned counsel appearing for complainant and HCGP for State tried to substantiate the rejection of application for discharge by the learned Magistrate and confirmation of the same by the revision Court on the ground that filing of civil suit and simultaneously launching criminal prosecution for the offence punishable under the provisions of IPC is permissible and rejection of application for discharge is just and proper, by relying upon the judgment rendered by Full Bench of Apex Court in the matter of Vijayander Kumar and others v. State of Rajasthan and another, which is rendered subsequently and reported in , (2014)3 SCC 389.

After giving careful consideration to the arguments rendered by both the counsels and on going through the judgments cited supra, it is clearly seen that the judgments relied upon by the petitioners in the matter of Inder Mohan Goswami (supra), the Apex Court has quashed the proceedings not on the basis that parallel proceedings are not permissible but on the premise that the complaint which was filed did not contain the ingredients which are necessary to prosecute the accused for the offence punishable under Section 420 and 467 of IPC. Therefore the judgment which is relied upon by the petitioner would have no bearing for the case on hand.

On the contrary, in the matter of Vijayander Kumar (supra), relied upon by the learned HCGP and the counsel for the respondent No. 2, at para 12 the Apex Court has observed as under:

"12. The learned counsel for the respondents is correct in contending that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose a criminal offence or not. This proposition is supported by several judgments of this Court as noted in para 16 of the judgment in Ravindra Kumar Madhanlal Goenka v. Rugmini Ram Raghav Spinners (P) Ltd."

This judgment is rendered relying upon the judgment rendered in an earlier judgment reported in , 2009(11) SCC 529 in the matter of Ravindra Kumar Madhanlal Goenka v. Rugmini Ram Raghav Spinners (P) Ltd.

In the light of the aforesaid discussion this Court feel that in the instant case the accusation of petitioners herein trying to mislead the complainant for executing the sale deed in the guise of getting her signature on loan transaction being pleaded in the complaint, the ingredients of Section 420 and 467 and other relevant provisions being present, the question of quashing the complaint on the ground that civil suit is filed seeking declaration of the sale deed executed by the complainant in favour of accused No. 1 is null and void, the prosecution for aforesaid offence is not maintainable cannot be accepted.

In the light of the aforesaid discussion this Court feel dismissal of the application filed seeking discharge even before the matter is tried for the aforesaid offences cannot be found fault with and accordingly the present petition which is filed challenging the concurrent finding of both the Courts below does not merit consideration. Hence the same is dismissed.

The observation which is made by this Court while deciding the legal issue cannot be made use of by the parties to the proceedings in C.C. No. 1293/2012, on the file of II Addl. Civil Judge and JMFC, Chikkodi, and the said proceedings will have to be decided strictly in accordance with the merits of the case.