Sri. Ashok R Jain vs State Of Karnataka on 6 March, 2018






Sri. Ashok R Jain, 47 years,
S/o. M. Rikab Jain,
R/at 401, 3rd Cross,
Panchasheel Apartment,
Bengaluru -560 009. … Petitioner

(By Sri. Jayakumar S Patil, Senior Counsel for Smt.
Sanjana Reddy, Advocate)


1. State of Karnataka
By Thyagarajanagar Police Station.

2. Rangarajan N.S., 60 years,
S/o. Late N.R. Srikantaiah,
R/at 64/5, GF, 4th Main Road,
Bengaluru -560 028. …Respondents

(By Sri. S. Rachaiah, HCGP)

This Criminal Petition is filed under Section 482
of Cr.P.C praying to quash the complaint dated
01.04.2015 lodged by the second respondent at
Annexure -A in Cr. No.61/2015 pending on the file of
the Learned IV ACMM, Bangalore and quash the FIR
dated 06.05.2015 at Annexure -B in Cr. No. 61/2015.

This criminal petition coming on for Admission
this day, the Court made the following:


This petition is filed by the petitioner/accused

under Section 482 of Cr.P.C. praying to quash the

complaint dated 01.04.2015 lodged by the second

respondent at Annexure -A in Cr. No.61/2015 pending

on the file of the Learned IV ACMM, Bangalore and

quash the FIR dated 06.05.2015 at Annexure -B in Cr.

No. 61/2015.

2. Heard the arguments of learned counsel

appearing for the petitioner/accused and also learned

High Court Government Pleader for the respondent-1

State and the learned counsel appearing for the

respondent -2/complainant.

3. The case of the complainant as per the

complaint dated 01.04.2015 that he is the GPA holder

for L. Srinivas owner of the mortgaged property.

Srinivas is suffering from immobility due to the

paralysis of both the sides in 2002 and 2003. In order to

take care of his health and to fight the cases filed by

Sharathchandra and others from 2007, Srinivas took

loan of around Rs.7.25 lakhs from Ashok Jain and

executed two mortgages in favour of him. Along with the

one above in which Srinivas handed over the

possession, another equitable mortgage was executed by

Srinivas as security for the same. As per the terms of

the registered mortgage his land should be returned to

him in vacant position and should not change its

structure in any way. Due to the circumstances beyond

petitioner’s control, a mafia trespassed into the property

on 09.02.2011.

4. Subsequently, Ashok Jain told the

complainant that he has got a Temporary Injunction (TI)

against them and will take possession immediately.

Unfortunately, he came to the complainant’s house

several times in 2012 and asked him to sell the property

to the same tress-passers and convert the mortgage

money as advance and execute an agreement with the

petitioner and as the complainant refused, petitioner

handed over the possession of complainant’s mortgaged

property to the same tress-passers after taking money

from them. Therefore, on that basis the FIR came to be

registered as against the petitioner herein.

5. Heard the arguments of the learned counsel

for the petitioner. He submitted that looking to the

complaint averments there are allegations that the

petitioner herein committed the alleged offences.

Therefore, it is necessary that investigation is to be

conducted and final report is to be filed. Learned

counsel submitted that it is not a case for quashing of

FIR. In support of his contention learned counsel relied

upon the decision of the Hon’ble Apex Court.

6. Learned Senior Counsel for the petitioner

submitted that looking to the contents of the complaint

itself prima facie admittedly mortgage is between the

complainant and the petitioner herein. Learned senior

counsel also submitted that even the complaint

averments go to show that tress-pass by the mafia is

concerned, the petitioner himself filed proceedings and

obtained the TI against those persons. Hence, it is his

contention that when he is under possession of the

mortgage transaction, the petitioner tress-passed into

the land of the complainant, no offences could be made

out from the FIR. This case is frivolous and with

malafide intention case has been filed. Hence, he

submitted to allow the petition and quash the

proceedings. In support to his contention learned senior

counsel relied upon the decision of the Hon’ble Apex

Court reported in (2013) 11 SCC 673, and drew the

attention of the Court to its relevant paragraph Nos. 10,

11 and 13 which reads as under:

” 10. In the complaint, it is the case of
Respondent 2 that this suit has been filed on
the basis of fabricated documents. It is
categorically stated on affidavit by the
appellant that the said suit is still pending. If
the said suit is still pending, then the
grievance made by Respondent 2 that the
documents on which reliance is placed by the
appellant are not genuine and are forged and
fabricated, will be considered by the civil

11. it is also significant to note that prior to
the filing of this complaint, Respondent 2 tried
to lodge and FIR against the appellant by
moving an application under
Section 156(3) of
the Code. But the said application was
dismissed on 06.05.2004. We notice from the
impugned order that a separate case under

Section 406 IPC was filed by Respondent 2
against the appellant in which the appellant
was acquitted on 09.02.2009. It is further
significant to note that statement was made
on behalf of the appellant before the High
Court that the appellant has vacated the shop
in question and handed over possession to
Respondent 2. In the peculiar facts of the
case, therefore, we are of the opinion that in
the interest of justice, the pending criminal
proceedings need to be quashed. We have
taken serious note of the fact that Respondent
2 did not appear before the High Court to
refute the case of the appellant. He has also
not chosen to appear before us though served.
Probably because the possession of the shop
is handed over to him, he is not interested in
prosecuting the appellant and others.

13. As we have already noted, here the
dispute is essentially about the profit of the
hotel business and its ownership. The
pending civil suit will take care of all those
issues. The allegation that forged and
fabricated documents are used by the
appellant can also be dealt with in the said
suit. Respondent 2’s attempt to file similar
complaint against the appellant having failed,
he has filed the present complaint. The
appellant has been acquitted in another case
filed by Respondent 2 against him alleging
offence under
Section 406 IPC. Possession of
the shop in question has also been handed
over by the appellant to Respondent 2. In
such a situation, in our opinion, continuation

of the pending criminal proceedings would be
abuse of the process of law. The High Court
was wrong in holding otherwise.”

7. Per contra, learned counsel appearing for the

respondent -2/complainant submitted that looking to

the allegations made in the complaint, the complaint

goes to show that there is a prima facie case as against

the petitioner committing the alleged offence. Hence, the

learned counsel submitted that the case is at the stage

of FIR, it requires detailed investigation and till the

investigation is completed and final report be produced

in the case, at this stage, it is not a case for invoking

Section 482 for quashing of the proceedings.

8. Hence, learned counsel submitted that there

is no merit in the case and can be rejected. In support

of his contention respondent -2/complainant relied

upon the decision of Hon’ble Apex Court reported in

1999 3 SCC 259.


9. Learned High Court Government Pleader for

the respondent -1/State also submitted that the

allegations in the FIR constituted the alleged offences,

therefore, the matter requires detailed investigation and

filing of the final report in this case. Hence, he

submitted that the petition be rejected.

10. I have perused the grounds urged in the

petition, FIR, Complaint and also the decisions of

Hon’ble Apex Court relied upon by both the sides which

are referred above. Looking to the contents of the

complaint, it goes to show that the transaction in

between the compliant and the petitioner is a mortgage

transaction. In fact, according to the complainant

himself, two mortgage deeds were executed. One is

usufructory mortgage wherein, the possession of the

property has been handed over to the petitioner herein.

Another transaction mortgaged is title deeds.

11. Looking to the complaint averments it is

stated that the petitioner going to the house of the

complainant repeatedly insisting the complainant to

execute the agreement in favour of the tress passers

and whatever the money that was paid by the petitioner

hereby treat it as advance amount for the registration of

the property. For which the complainant has refused. It

is also the case of the complainant that some mafia

gang criminally tress passed into the property of the

complainant. On these grounds the complainant wanted

to proceed with the matter and it is his contention that

it requires detailed investigation in the matter.

12. Looking to the materials placed on record so

far as the petitioner is concerned his possession cannot

be said to be illegal nor he said to be illegally trespassed

into the land as there is a valid mortgage transaction.

Even the complainant has not initiated proceedings by

filing the stay for the repayment of his money, so far as

his agreement is concerned, so far as the petitioner

insisted the complainant, he could have refused there

was no binding on him to execute agreement in favour

of the petitioner herein. Apart from that, in the

complaint itself it is mentioned that the petitioner

herein told the owner of the property that he has filed

the proceedings and obtained temporary injunction

order against those tress passers.

13. In this connection also, the learned senior

counsel has produced the documents of O.S. No.

2479/2011 and also the order that was obtained under

I.A. No. 1 and 3. Looking to the cause title of the

proceedings it is the petitioner herein is the

complainant in the proceedings in that case. It is also

goes to show in order to restrict the possession, it is the

petitioner who has taken steps to file such suit against

tress passers. Therefore, considering these materials, it

cannot be said that petitioner committed alleged

offences, absolutely there is no prima facie case against

the petitioner as such. Of course it is the case of

invoking Section 482 of Cr.P.C. When the FIR does not

make out any prima facie case it be sheer abuse of the

process of court. petition is allowed. Proceedings only

as against the petitioner herein is hereby quashed.



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