K. Muniswamy vs State of Karnataka and Others

K.N. Phaneendra, J.—The petitioner has approached this Court seeking quashing of the entire proceedings in PCR No. 289/2014 which was referred to the Police u/s. 156(3) of Cr.P.C.. and also consequent registration of FIR in Crime No. 141/2014 on the file of the Raichur West Police Station.

I have heard the arguments of the learned counsel for the petitioner and the learned High Court Government Pleader for the first respondent -State and Sri Shivanand V. Pattanshetti, learned counsel for respondent No. 2. Perused the records.

The records disclose that one Smt. P. Bharathi, respondent No. 2 lodged a private complaint in PCR No. 289/2014 on the file of the IIJMFC, Raichur, against the petitioner for the offence punishable under Section 403, 406, 420, 421, 423, 467, 469, 474, 425, 441, 442 of IPC, making several allegations stating that the accused on mortgage of the property of the complainant bearing House No. 1-11-52/24 measuring 40'' x 60'' advanced loan of Rs. 35 lakhs and by misguiding the complainant, the accused took her to the Registrar''s office and got some document registered and later, on the basis of such document, he has obtained a decree from the competent Court and thereafter, he went to the house of the complainant on the basis of the decree dated 28.08.2015 at about 2.00 p.m. and when the complainant was not in the house, he has taken away the properties worth Rs. 25 lakhs in the said house and thereby committed several offences against the complainant.

The learned Magistrate after going through the contents of the complaint, referred the matter to the Police for investigation and report.

The records discloses that the petitioner herein has filed a suit in OS No. 94/2013 against the present respondent No. 2 for specific performance of the agreement and the said suit came to be decreed vide judgment dated 18.2.2014, wherein the learned Judge has observed that though the suit summons were duly served upon the defendant (complainant), but the defendant has not appeared before the Court. Therefore, she was placed ex parte and ex parte decree was passed. After obtaining the decree, the petitioner herein put that decree into execution in EP No. 26/2014, wherein, notice was ordered and this respondent No. 2 as a JDR appeared before the said Court and filed application for setting aside the ex parte decree passed against her seeking restoration of OS No. 94/2013 and also filed a complaint u/s. 340 of Cr.P.C. and requested the said executing Court to refer the said complaint to the competent Court for the purpose of taking cognizance and inquire into the matter.

The records also discloses that in the said EP No. 26/2014, the Addl. Senior Civil Judge at Raichur, vide order dated 3.11.2014 has dismissed the said applications filed under Order IX Rule 13 of CPC and also u/s. 340 of Cr.P.C. by writing a detailed order narrating that the said executing Court has no jurisdiction to entertain any application Order IX Rule 13 of CPC to set aside the decree passed by the competent Court and that the judgment debtor ought to have filed a separate Civil Misc. Petition seeking for setting aside the decree before the same Court which passed the decree or she would have filed an appeal against the ex parte decree passed by the competent Court. It is also observed that the offences alleged in the application filed u/s. 340 of Cr.P.C. were not admitted before the Executing Court, but admitted before the Original Court in OS No. 94/2013. Therefore, the executing Court gets no jurisdiction to refer the complaint u/s. 340 of Cr.P.C. Therefore, the said application also came to be rejected. Instead of challenging the said order before the competent Court or filing Misc. Petition for the purpose of setting aside the ex parte judgment and decree passed against Respondent No. 2, the petitioner has approached the criminal Court by way of a private complaint. When once the complaint has been lodged before the Court u/s. 340 of Cr.P.C. and it came to be dismissed, the respondent No. 2 could have challenged that order before the competent Court.

Looking from any angle, the second complaint is not maintainable in PCR No. 289/2014. In fact, this PCR was filed on 30.8.2014. After the summons being served on the defendant in the original suit, on which the Execution Petition was filed against her in EP No. 26/2014. However, all these facts in fact, have not been stated in the private complaint. Therefore, the learned Magistrate without knowing the decree being passed by the Trial Court and Execution Petition being filed, referred the matter to the jurisdictional Police for investigation and report. But the conduct of the respondent No. 2 clearly goes to show that knowing fully well, the decree passed against her by the Civil Court and also Execution Petition being pending, suppressing all the material things, she filed a private complaint, in my opinion, which is not maintainable. Therefore, the order passed by the learned Magistrate referring the complaint u/s. 156(3) of Cr.P.C. amounts to abuse of process of law and if it is allowed to continue, it will give rise to complicity of the proceedings.

In the above said circumstances, the said private complaint in PCR No. 289/2014 and consequential reference of the same to the Police and registration of FIR in Crime No. 141/2014 deserves to be quashed.

Accordingly, I pass the following:

"The petition is allowed. All further investigation in PCR No. 289/2014 and consequential reference of the said complaint u/s. 156(3) of Cr.P.C. to the jurisdictional Police and registration of Crime No. 141/2014 of Raichur West Police, are hereby quashed."