SURESH Vs. MAHADEVAPPA SHIVAPPA DANANNAVAR

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 4-8-2002 passed by the VI Addl. C. M. M. , Bangalore, in C. C. No. 6779/2000 (P. C. R. No. 453/99) mainly on the ground that the private complaint filed by respondent-1 nearly 11 years from the date of alleged agreement which is beyond period of limitation prescribed under the Limitation Act. The allegation set out in the complaint do not constitute any offence. The entire dispute sought to be raised by the complainant is based on an alleged agreement of sale dated 25-12-1998. In fact the revision petitioner has denied the alleged agreement of sale executed by him in favour of the complainant and he suitably replied to the legal notice issued to him by the complainant and further that the trial Court without applying its mind took the cognizance of the case and issued process. There is no consistency in the statement recorded by the trial Court. Even the police report discloses that no prima facie case has been made out against the accused-2 to 4. Despite the same the magistrate passed an order and issued the process against accused 1 and 4. Apart from filing the complaint respondent 1 - complainant sent a representation to the bank where the revision petitioner is working with a request to take appropriate action against him. Therefore, the order under revision passed by the trial is to be set aside.

(2.) THE brief facts of this case are that respondent 1 filed a private complaint i. e. , p. C. R. No. 453/99 on 17-5-1999 against this revision petitioner and four others for the offences punishable under Section 196, 209, 386, 403, 406 and 420 IPC on the allegations that this revision petitioner executed "khareedi Sanchakara Patra" (agreement of sale) in respect of house No. 120, situated at MIG Colony, K. H. B. Colony, Agrahara dasarahalli, Bangalore, agreeing to sell the same for a total consideration of rs. 2,50,000/ -. The said agreement was executed by the revision petitioner after receiving the part sale consideration of rs. 1,25,000/- in favour of one Smt. Renukamma wife of respondent-1 - complainant. The second accused being the father of the revision petitioner accused-1 was a member of Karnataka Housing board who negotiated the transactions among the parties. In spite of several requests made by respondent 1 - Complainant that the revision petitioner failed to register the execution of the sale deed in respect of the house in favour of the respondent 1 - complainant, but the revision petitioner sold and executed a registered sale deed in favour of 4th respondent i. e. , Smt. Devayani for a sum of Rs. 5 lakhs even though he has agreed to receive the balance sale consideration amount of Rs. 1,25,000/- from the respondent- 1 complainant. It is further case of the respondent - complainant that he got the premises for rent to the 4th accused through a friend Sri Nadgir.

(3.) HEARD the arguments of the learned counsel for the petitioner and respondents. 3a. The allegations made in the complaint is that this revision petitioner entered into an agreement of sale on 25-12-1988 but the revision petitioner said to have sold the said house in favour of Uma Belagavi on 25-12-1995. The respondent complainant got issued a legal notice dated 11-7-1996. Accordingly, the revision petitioner sent a reply on 18-7-1997 which was served on Respondent 1 on 23-7-1996 wherein he has completely denied about the alleged agreement of sale dated 25-12-1995 in favour of respondent-1. But the complaint was filed on 17-5-1999 after a lapse of 111/2 years, therefore the very private complaint filed by respondent-1 is not at all maintainable and the learned Magistrate has not applied his judicious mind while taking cognizance against this revision petitioner. In fact the charge sheet came to be filed against the revision petitioner but the Magistrate issued process against all the accused. Further it is submitted that the alleged agreement of sale executed by him in favour of one renukamma, wife of respondent-1 therefore the complaint filed by the respondent-1 is not at all maintainable. It is further submitted that she has not at all executed any power of attorney to file a complaint on her behalf against this revision petitioner. Further it is submitted that no such pleadings in the complaint that the revision petitioner induced respondent 1 and his wife to enter into an agreement of sale by paying rs. 1,25,000/ -. There is no dishonest intention in the alleged execution of agreement of sale. The remedy, if any, available for respondent-1 is to approach the civil Court. Further it is submitted that the respondent has come up with this false complaint. There is not averments made by respondent-1 that the revision petitioner had any fraudulent intention to cheat him. Therefore the allegations made by the complainant does not disclose the ingredients of Section 415 of cr. P. C. and the cognizance taken by the magistrate is liable to be set aside. In support of his contention the learned counsel for the revision petitioner has relied on following decisions they are;