Suresh Vs. Mahadevappa Shivappa Danannava and anr. - Court Judgment

Excerpt:
criminal - criminal procedure code (crpc) - sections 156(3), 190, 190(1), 200, 401, 415 - complaint for execution of sale deed after 11 years - cognizance of offence under section 190 (i)(b) cr.p.c. - validity of - complaint filed by respondent 1 alleging execution of agreement to sell dated 25.12.1988 in respect of suit premises by appellant - respondent 1 alleging payment of a sum of rs 1,25,000 as advance out of total consideration of rs 2,50,000/- to be paid at time of registration of sale deed - sale of suit premises by appellant to third party - issue of legal notice on 11.7.1996 by respondent complainant to appellant for execution of sale deed - appellant denying existence of alleged agreement to sell and having received rs 1,25,000 as consideration amount - cognizance of offence under section 190(1)(b) cr.p.c. by magistrate - criminal revision thereagainst by appellant - dismissed by high court - appeal to supreme court - execution of alleged agreement to sell on 25.12.1988 - complaint filed after 7 and half years of date of alleged agreement - dismissal of criminal revision by high court in a mechanical manner without application of mind - complaint filed after a lapse of 11 ½ years not maintainable due to distance of time - complaint liable to be dismissed on question of inordinate laches on part of complainanant itself - impugned order of high court and magistrate liable to be set aside - - 2-4 as well which clearly shows the non-application of mind by the magistrate. 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. 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.orderperused the record. cognizance of the offence alleged against the accused is taken under section 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/- 4-8-2000'7. 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 17.02.2004.8. 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.9. 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.10. 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 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.11. as already noticed, the complaint was filed on 17.05.1999 after a lapse of 111/2 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.12. 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.

Judgment:
ORDER

Perused the record. Cognizance of the offence alleged against the accused is taken Under Section 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'

7. 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.

8. 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.

9. 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.

10. 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 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.

11. As already noticed, the complaint was filed on 17.05.1999 after a lapse of 111/2 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.

12. 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.