Point of Law: Merely because, the property belonged to the complainant and it having been sold in public auction, the criminal trial could not have been set in motion. It is in such cases, the learned Magistrate before whom the proceedings are instituted must have exercised care and caution while taking cognizance on the allegation of such offence.

ORDER :

The petitioner is before this Court calling in question the order dated 30th July, 2016 passed by the I Additional Civil Judge and JMFC, Udupi in C.C.2719 of 2016, arising out of Cr.No.387 of 2009.

2. Facts in brief are as follows:-

The wife of the 2nd respondent/complainant had borrowed finance from the Karnataka State Finance Corporation (‘the Corporation’ for short), and had established Sri Durga Printers and Sri Durga Printers Conventional Hall in the city of Brahmavar. Having defaulted in repayment of loan in terms of the conditions of loan, the property of the 2nd respondent and his wife, was brought to sale by way of public auction. The petitioner who was a participant in the said auction became the highest bidder of the property and the property was directed to be handed over to the successful auction purchaser i.e., the petitioner. The complainant claiming that the property was worth more than Rs.55/-lakhs had been sold at Rs.29/-lakhs by the Corporation, made a hue and cry and filed objections to the auction proceedings.

3. All the efforts of the 2nd respondent to stall auction process or even issuance of sale certificate in favour of the petitioner went in vain. Thereafter, according to the complainant on 10-11-2009, at about 4.30 p.m., when he had visited Udupi Branch of the Corporation, he saw the petitioner coming out after all the formalities being over and on the ground that the petitioner had threatened him not to interfere with the auction proceedings, which was already over and that he had given him life threat, registered a complaint two days after the issuance of sale certificate and all further proceedings were over before the Corporation, by handing over the property in favour of the petitioner. The formalities before the Corporation had concluded on 11-11-2009, and the complaint is registered on 13-11-2009.

4. Based on the complaint for the alleging offence punishable under Section 506 of the IPC, investigation was ordered and the 1st respondent/Police after conduct of investigation, filed a ‘B’ report. The petitioner filed a protest petition against acceptance of ‘B’ report under Section 200 of the Cr.P.C. The learned Magistrate recorded the sworn statement of the complainant and on perusal of the report, directed registration of criminal case against the petitioner for offence punishable under Section 506 of the IPC and summons issued. It is at this stage, the petitioner approached this Court in the subject criminal petition.

5. Heard Sri K.N.Nitish, learned counsel appearing for the petitioner and Smt. Namitha Mahesh B.G., learned High Court Government Pleader appearing for the 1st respondent.

6. Sri K.N.Nitish, learned counsel appearing for the petitioner submits that the entire allegation against the petitioner would not make out an offence punishable under Section 506 of the IPC, the petitioner is innocent of the property that was put to auction and because the petitioner purchased the property belonging to the complainant, the complainant to harm the petitioner has registered the criminal case. It is his further submission that the learned Magistrate while rejecting ‘B’ report and directing registration of the criminal case, did not apply his mind with regard to the offence alleged or the ‘B’ report and has mechanically ordered registration of the criminal case.

7. On the other hand, Smt. B.G. Namitha Mahesh, learned High Court Government Pleader appearing for the 1st respondent would submit that since the Police have conducted investigation and the Court has not accepted the ‘B’ report, it is a matter for trial and the learned Magistrate at this stage need not apply his mind as everything would be at large in the trial. The petitioner can as well prove his innocence in the trial Court and this Court at this stage should not interfere or interject the criminal trial.

8. I have given my anxious consideration to the aforesaid submissions of the learned counsel appearing for both parties and perused