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CASE NO.: Appeal (crl.)  308 of 2005

PETITIONER: Suresh                                                    

RESPONDENT: Mahadevappa Shivappa Danannava and Anr.   

DATE OF JUDGMENT: 16/02/2005

BENCH: Ashok Bhan & Dr. AR. Lakshmanan  

JUDGMENT: J U D G M E N T (arising out of Special Leave Petition (Criminal) No. 3306 of 2004)    

Dr. AR. Lakshmanan, J.

Leave granted. The 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).   

The short facts leading to the filing of the above appeal are narrated  herein below:

Respondent 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 \026  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.  A 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.   

According 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 dated  17.05.1999.   

The appellant denied the execution of such an agreement or received  any advance from the complainant or his wife.

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The IV 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 order:

"ORDER 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.                                                                                                 Sd/- 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.

We have perused the entire pleadings and the order passed by the  High Court in revision and heard the counsel appearing for the appellant.   Though 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.   

It is 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.   

We 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

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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.   

As 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.   We, 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.