IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED …judgmenthck.kar.nic.in/judgmentsdsp/bitstream/... · Aged about 52 years, Residing at 176/B, Park Avenue, Horamavu Agara, Kalyan

IN THE HIGH COURT OF KARNATAKA AT

BENGALURU

DATED THIS THE 25TH

DAY OF OCTOBER 2016

BEFORE

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

CRIMINAL PETITION No.4081 OF 2013

CONNECTED WITH












2




IN CRL.P.No.4081 OF 2013

BETWEEN:

Joseph Chacko,

Son of Late P.J.Chacko,

Aged about 52 years,

Residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,

Bangalore – 560 043.

…PETITIONER

(By Shri Sandesh J Chouta, Advocate)

AND:

1. The State of Karnataka,

Through H and B, C.I.D.,

Bangalore.

Through the State Public Prosecutor,

State of Karnataka,

High Court Building,


2. James Varghese,

Son of P.C.Varghese,


3

Residing at Chekkattuseril,

Anjilithanam,

Keviyur Post,

Thiruvalla,

Kerala – 689 582.

…RESPONDENTS

(By Shri K.R.Keshav Murthy, State Public Prosecutor-II for

Respondent No.1;

Notice to respondent No.2 dispensed with)

*****

This Criminal Petition filed under Section 482 code of

Criminal Procedure, 1973, praying to A) set aside the order

dated 1.1.2010 passed by the Principal Civil Judge (Jr.Dn.) and

Judicial Magistrate First Class, Hoskote in C.C.No.3/2010

produced hereto as Annexure-A. B) quash all further

proceedings in C.C.No.3/2010 pending on the file of the

Principal Civil Judge (Jr.Dn.) and Judicial Magistrate First

Class, Hoskote, in so far as this petition is concerned.

IN CRL.P.4103 OF 2013

BETWEEN:

Joseph Chacko,



Residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


…PETITIONER

4


AND:


Through C.O.D.,

Bangalore.


State of Karnataka,



2. Pappy George,

Son of Geevarghese Pappy,

Residing at Hebron Villa,

Chettikulangara Post,

Mavelikara,

Kerala – 686 105.

…RESPONDENTS


Respondent No.1;


*****



dated 29.5.2010 passed by the Principal Civil Judge (Jr.Dn.)

and Judicial Magistrate First Class, Hoskote in

C.C.No.333/2010 produced hereto as Annexure-A. B) quash

all further proceedings in C.C.No.333/2010 pending on the file

of the Principal Civil Judge (Jr.Dn.) and Judicial Magistrate

First Class, Hoskote, in so far as this petition is concerned.

5


BETWEEN:

Joseph Chacko,



Residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


…PETITIONER


AND:


Through C.O.D.,

Bangalore.


State of Karnataka,



2. George Zachariah K.K.,

Son of Late K.S.George,


Residing at Flat No.3E,

Nadugadan Residence,

Chittoor Road,

Cochin,

Kerala – 682 509.

…RESPONDENTS

6


Respondent No.1;


*****










BETWEEN:

Joseph Chacko,



Residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


…PETITIONER


AND:


Through COD.,

7

Bangalore.


State of Karnataka,



2. Abraham Charuvila V.P.,

Son of K. Mathai P.,

aged about 53 years,

residing at Mercy Home,

Odanavattom Post,

Kottrakara, Quilon,

Kerala – 686 100.

…RESPONDENTS


Respondent No.1;


*****










BETWEEN:

Joseph Chacko,



8

Residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


…PETITIONER


AND:


Through COD.,

Bangalore.


State of Karnataka,



2. Zachariah C Cherian,

Son of Late C.C.Cherian,


Chackalayil House,

Angadikkal South P.O.,

Chengannur,

Kerala – 689 121.

…RESPONDENTS


Respondent No.1;


*****




9







BETWEEN:

Joseph Chacko,



Residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


…PETITIONER


AND:


Through COD.,

Bangalore.


State of Karnataka,



2. Sajeed Karappan Vittil Moidunny,

Son of Late T.V.Moidunny,


10

Residing at Karappam Veetil,

Trichur,

Kerala – 680 501.

…RESPONDENTS


Respondent No.1;


*****



dated 3.5.2012 passed by the Principal Civil Judge (Jr.Dn.) and

Judicial Magistrate First Class, Hoskote in C.C.No.512/2012

produced hereto as Annexure-A. B) quash all further

proceedings in C.C.No.512/2012 pending on the file of the

Principal Civil Judge (Jr.Dn.) and Judicial Magistrate First

Class, Hoskote, in so far as this petition is concerned.


BETWEEN:

Joseph Chacko,



Residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


…PETITIONER


11

AND:


Through COD.,

Bangalore.


State of Karnataka,



2. T.V.Varghese,

Son of Late V. Abraham,


Residing at Thakadil Grace Villa,

Vennikulam P.O.,

Thiruvalla,

Kerala – 670 173.

…RESPONDENTS


Respondent No.1;


*****









12


BETWEEN:

Joseph Chacko,



Residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


…PETITIONER


AND:


Through COD.,

Bangalore.


State of Karnataka,



2. Babu Vinod Kandanjothy,

Son of Karunakaran,


residing at Sitaram,

Thiruvangad,

Tellicherrtt,

Kerala – 670 103.

…RESPONDENTS

13


Respondent No.1;


*****










BETWEEN:

Joseph Chacko,



Residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


…PETITIONER


AND:


Through COD.,

Bangalore.

14


State of Karnataka,



2. Mathew Alex,

Son of Late M. Alexander,


Chettuthadathil House,

Mallappally North Post,

Pattanamthitta District,

Kerala – 689 548.

…RESPONDENTS


Respondent No.1;


*****










BETWEEN:

Joseph Chacko,



Residing at 176/B,

15

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


…PETITIONER


AND:


Through COD.,

Bangalore.


State of Karnataka,



2. Thomas George,

Son of Thomas,


Babu Villa,

M.M.Street,

Kodaikanal,

Tamil Nadu – 624 101.

…RESPONDENTS


Respondent No.1;


*****





16






BETWEEN:

Joseph Chacko,



Residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


…PETITIONER


AND:


Through COD.,

Bangalore.


State of Karnataka,



2. P. Mathai Varghese,

Son of P.M.Mathai,


Residing at Padikkaveetil Ebenezer

17

House, Vallamkulam East,

Post Tiruvalla,

Pathanamthitta District,

Kerala – 689 548.

…RESPONDENTS


Respondent No.1;


*****










BETWEEN:

1. Joseph Chacko,



Residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


2. D. Manuel,

Son of Late Devadas,

18


Residing at 373,

Horamavu Agara,

Horamavu Post,


…PETITIONERS


AND:


Through Kothanur Police Station,

Bangalore.


State of Karnataka,



2. Mr. Shaju Hassan C.H.,


Son of Hassan Kunju,

Shaju Manzil,

Madathara P.O.,

Kollam District,

Kerala – 691 541.

…RESPONDENTS


Respondent No.1;


*****


Criminal Procedure, 1973, praying to i) set aside the order

19

dated 25.2.2015 passed by the XI Additional Chief

Metropolitan Magistrate at Bengaluru in C.C.No.50334/2015

produced hereto as Annexure-A in so far as these petitioners are

concerned; ii) quash all further proceedings in

C.C.No.50334/2015 pending on the file of the XI Additional

Chief Metropolitan Magistrate Court, Bengaluru in so far as

these petitioners are concerned.


BETWEEN:

1. Joseph Chacko,



Residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


2. D. Manuel,



Residing at 373,

Horamavu Agara,

Horamavu Post,


…PETITIONERS


20

AND:



Bangalore.


State of Karnataka,



2. Mr. Shaju Hassan C.H.,


Son of Hassan Kunju,

Shaju Manzil,

Madathara P.O.,

Kollam District,

Kerala – 691 541.

For: Mr. Aliyaru Salaudeen Kunju,

son of Late Aliyaru,


Residing at Palookattil Varavela Post,

Kollam District,

Kerala – 691 541.

…RESPONDENTS


Respondent No.1;

Notice to Respondent No.2 dispensed with)

*****


Criminal Procedure, 1973, praying to i) set aside the order

dated 25.2.2015 passed by the XI Additional Chief

Metropolitan Magistrate at Bengaluru in C.C.No.50333/2015

produced hereto as Annexure-A in so far as these petitioners are

21

concerned; ii) quash all further proceedings in

C.C.No.50333/2015 pending on the file of the XI Additional

Chief Metropolitan Magistrate Court, Bengaluru in so far as

these petitioners are concerned.


BETWEEN:

1. Joseph Chacko,



Residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


2. D. Manuel,



Residing at 373,

Horamavu Agara,

Horamavu Post,


…PETITIONERS


AND:



Bangalore.

22


State of Karnataka,



2. Uma Chander Nain Oberoi,

Wife of Chander Nain Oberoi,


C/o. Laxmi Shanker,

No.201, Swathi Apartment,

237, 5th Main, Defence Colony,

Indiran Nagar,


…RESPONDENTS


Respondent No.1;

Notice to Respondent No.2 dispensed with)

*****


Criminal Procedure, 1973, praying to quash the F.I.R. in Crime

No.167/2014 dated 3.12.2014 and complaint dated 2.12.2014 in

XI Additional Chief Metropolitan Magistrate Court, Mayohall,

Bengaluru registered by the respondent Kothanur Police Staton,

Bengaluru, which is produced hereto as Annexure-A and B.


BETWEEN:

1. Joseph Chacko,



Residing at 176/B,

23

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


2. D. Manuel,



Residing at 373,

Horamavu Agara,

Horamavu Post,


3. Rita Chacko,

Daughter of Late P.J.Chacko,


residing at 176/B,

Park Avenue,

Horamavu Agara,

Kalyan Nagar Post,


4. Tomy Joseph,

Son of P.T.Joseph,


Residing Skyline Montecarlo Apartment,

No.6E, Kanjikuzhi,

Kottayam District,

Kerala – 686 004.

5. Anish Abraham,

Son of Abraham Thomas,

Age 33 years,

Residing at 1/1,

20th C Cross,

24

Ejipura,

Vivek Nagar,


6. C.K.Mathew,

Son of P.K.Korah,

Age: 53 years,

Plot No.157, 158,

Bethel House,

Athma Vidya Nagar,

Byrathi, Doddagubbi Road,

Dr. SRK Nagar Post,


7. P.O.Rajan,

Sonof Late K. Oommen,

Age: 51 years,

Residing at No.183/2,

Bethel Street,

Hormavu Agara,

Hormave Post,


8. Stephen K. Varghese,

Son of Thomas Varghese,

Age: 70 years,

No.364, 2B Cross,

Rajanna Layout,

Hormavu Agara,

Hormave Post,


…PETITIONERS


25

AND:


Through Nandagudi Police Station,

Hoskote Taluk,


State of Karnataka,

Represented by

Public Prosecutor,



2. Shamsudeen Fakarudeen,


Son of Late C.T.Varghese,

Residing at TJRA,

#110, Rainbow,

Golf Link Road,

Kowdiar,

Trivandrum – 695 003,

Kerala.

…RESPONDENTS


Respondent No.1;


*****


Criminal Procedure, 1973, praying to quash F.I.R. in Crime

No.303/2016 pending investigation before the first respondent

Nandagudi Police Station, Bengaluru produced as Annexure-A,

in so far as these petitioners are concerned.

26

These Criminal Petitions coming on for Orders this day,

the court made the following:

O R D E R

Heard the learned Counsel for the petitioners and the

learned State Public Prosecutor.

2. Notice to the second respondent in all the petitions is

dispensed with, at the risk of the petitioners.

3. These petitions are filed by the accused in criminal

petitions who are differently arrayed in the several complaints

filed. However, the grievance of the complainants appears to

be identical. The complainants are said to have purchased the

lands described as sites bearing house list numbers of several

villages in Hosakote, K.R.Puram and Dodda Gubbi villages. It

transpires that the complainants had purchased the house sites

through a general power of attorney holder of the original

grantees and they were purportedly put in possession of the

vacant sites. It is subsequently learnt by them that the house

27

sites formed in the layout, were no longer identifiable, as third

parties had intervened and it is in retrospect they learnt that the

accused have purchased the same under registered sale deeds in

the face of the sale deeds in favour of the complainants and

therefore they have alleged offences punishable under the

various provisions of the Indian Penal Code, 1860 (Hereinafter

referred to as the ‘IPC’, for brevity) alleging fraud, forgery,

trespass and criminal conspiracy and so on. The court below

having taken cognizance, the present petitions were filed and

interim orders of stay were granted staying further proceedings.

4. At the outset, it is to be noticed that the allegations of

forgery etc., in respect of the incidental documents pursuant to

the registered sale deed in favour of the complainants could not

be adjudicated in a criminal case, for the reason that unless the

registered sale deed is cancelled and delivered up in terms of

Section 31 of the Specific Relief Act, 1963, the same cannot be

ignored. The court would not be in a position to proceed on the

basis that the sale deeds set up by the complainants are void ab

28

initio. This would again amount to a declaration by a criminal

court that the sale is void, which is impermissible. Therefore,

in the face of the registered sale deed, which the complainants

may claim, was a subsequent conveyance and could not

override their sale deeds, which is earlier in point of time, also

cannot be readily accepted, since it is an admitted fact that the

sale deeds in favour of the complainants is in respect of

particular plots of land without reference to any survey number.

Admittedly, the lands in question are not converted for non-

agricultural purpose. In the face of the further circumstance

that the sale deeds in favour of the petitioners herein are in

respect of acreage of lands bearing survey numbers, the identity

would be a serious matter to assume that the sites purchased by

the complainants overlap the lands purchased by the

petitioners. This is an area which requires to be adjudicated by

a civil court and in the absence of which, a criminal court

would hardly be in a position to appreciate the premise under

which the complaints are filed. Therefore, the complaints are

29

premature and would lack the basic foundation to demonstrate

that the sale deeds of the petitioners are void.

5. Hence, the remedy of the complainants would only be

before a civil court, where they would be enabled to have the

sale deeds of the petitioners declared as void, if it is their case

that they are void and thereafter may pursue all consequential

remedies of even criminal prosecution for having proceeded to

lay claim to the lands under a void sale deed.

Consequently, the Magistrate having taken cognizance,

cannot be sustained. Since the complaint itself was not

sustainable, before the court below in the circumstances which

are not disputed, the petitions are summarily allowed. The

proceedings initiated before the court below in each of these

petitions are quashed.

Sd/-

JUDGE

nv

Documents

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED …judgmenthck.kar.nic.in/judgmentsdsp/bitstream/... · Aged about 52 years, Residing at 176/B, Park Avenue, Horamavu Agara, Kalyan