N. SUBRAMANI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This criminal petition is filed under Section 482 of Cr.P.C. praying this Court to quash the proceedings in PCR No.1936/2014 on the file of Chief Metropolitan Magistrate, Bengaluru City, consequently to quash FIR bearing Crime No.170/2014 registered by the Kodigehalli Police Station and pass such other appropriate order.

(2.) The factual matrix of the case is that the second respondent has filed the private complaint which is numbered as PCR No.1936/2014 under Section 200 of Cr.P.C. against the petitioners, who have been arraigned as accused Nos.2 and 3 therein and also against accused Nos.1 and 4. In the complaint, an allegation is made against the petitioners and others that they had entered into a sale agreement dated 21.04.2010 and agreed to sell the schedule property in favour of the complainant for a sum of Rs.70,00,000/-. Accused Nos.1 to 3 have received an advance amount of Rs.47,80,000/- and the balance sale consideration of Rs.22,20,000/- was payable to accused Nos.1 to 3 Inspite of several demand and request, the petitioners and others did not come forward to execute the sale deed and hence, legal notice was issued. However, the petitioners along with others, in collusion with their minor children got filed the suit in O.S.No.2567/2011 against the complainant and accused Nos.1 to 3. The very intention of the petitioners is to cheat and not to execute the sale deed in collusion with accused No.4. Hence, they have committed the offences punishable under Sections 120-B and 420 of IPC. When the complaint was filed, the learned Magistrate has invoked Section 156(3) of Cr.P.C. referring the complaint to concerned police and consequently, FIR was registered. Hence, the petitioners have approached this Court by filing this petition.

(3.) The main contention of the petitioners before this Court is that, non-execution of the sale deed does not amount to an offence punishable under Section 420 of Cr.P.C. r/w. Section 120-B of IPC. The learned Magistrate has committed an error in referring the matter for investigation under Section 156(3) of Cr.P.C. when the suit is filed for specific performance, which is pending before the Court. The Trial Court has committed an error in referring the matter for investigation, inasmuch as the case on hand should not have been dealt with under Section 190 of the Cr.P.C. When the complaint is filed under Section 200 of Cr.P.C., it is obligatory on the part of the Magistrate to examine the complainant and his witnesses on oath and thereafter, to examine prima facie, as to whether there exists any material which constitute such an offence. Unless such a procedure is followed, the learned Magistrate cannot exercise the power under Section 156(3) of CR.P.C. Hence, it requires interference of this Court and to quash the proceedings.