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SUPREME COURT OF INDIA
Dipak Misra, Prafulla C. Pant, JJ.
Mr. Robert John D’Souza and others — Appellants
versus
Mr. Stephen V. Gomes and another — Respondents
Criminal Appeal No.953 of 2015 (@ Special Leave Petition (Crl.) No. 330 of 2015)
Decided on : 21-07-2015
(b) Indian Penal Code, 1860 – Section 406 – Society purchasing land – Selling it to relatives of the Directors – Ingredient of section 406 – Entrustment of property – Purchased land not entrustment to the Society for benefit of others – No criminal breach of trust – Section 406 not attracted. (Para 8)
(2003) 3 SCC 641; AIR 1968 SC 700 – Relied upon
(c) Indian Penal Code, 1860 – Section 409 – Appellants not public servant, banker, merchant, factor, broker, attorney or agent – Section 409 not attracted. (Para 11)
Indian Penal Code, 1860 – Section 415 and 420 – Complaint not showing that complainant was deceived or he or anyone else was induced to deliver the property to the Society by deception – What was done, was so reflected in the resolutions, and sale deeds – Section 420 not attracted. (Para 13)
(1988) 1 SCC 692; (2005) 3 SCC 670; (2007) 12 SCC 1 – Relied upon
Facts of the case:
Appellant No. 1, appellant No. 2 and appellant No. 3 were President, Secretary and Treasurer of the Mukka Welfare Society respectively, while appellant Nos. 4 to 7 were Directors of the Society. Other appellants are their relatives.
A piece of land bearing S. No. 239/10 measuring 0.50 acres in Village Suratkal, Taluk Mangalore, was purchased by the Society.
It is alleged by the complainant (respondent No. 1) that appellant Nos. 1 to 7, being members of the Executive and Directors of Mukka Welfare Society, misusing the position, held Board Meetings on 22.9.1995 and 13.10.1995 facilitating the sale of the above mentioned land in favour of their relatives (appellant Nos. 7 to 12). It is further stated that the purchasers (appellant Nos. 7 to 12), executed sale deeds in the same year in favour of the Directors of the Society. It is alleged by the complainant/respondent No.1 that the appellants have fraudulently usurped the property through the sale deeds mentioned above, and thereby committed cheating.
The criminal complaint filed by respondent No. 1 was registered and the appellants were summoned in respect of offences punishable under Sections 406, 409, 420 read with Section 34 of Indian Penal Code.
The appellants filed Criminal Revision Petition before the Principal Sessions & District Judge which was dismissed. Thereafter, the appellants filed a petition under Section 482 CrPC before the High Court and the same was also dismissed.
Finding of the Court:
Criminal action initiated by respondent is abuse of the process of the court.
Result : Appeal allowed.
JUDGMENT
Prafulla C. Pant, J.
1. This appeal is directed against order dated 9.10.2014, passed by the High Court of Karnataka at Bangalore in Criminal Petition No. 658 of 2014 whereby said court has dismissed the petition, and declined to quash the Criminal Complaint case No. 357 of 2012, filed by respondent No. 1, against the appellants.
2. Brief facts of the case are that a Society named – Mukka Welfare Society was constituted on 28.3.1970 for charitable work and social service, registered under Karnataka Societies Registration Act, 1970. Appellant No. 1, appellant No. 2 and appellant No. 3 were President, Secretary and Treasurer respectively, while appellant Nos. 4 to 7 were Directors of the Society. Other appellants are their relatives. A piece of land bearing S. No. 239/10 measuring 0.50 acres in Village Suratkal, Taluk Mangalore, was purchased by the Society vide registered sale deed dated 28.1.1978 from one Smt. Kaveri Hengsu. It is alleged by the complainant (respondent No. 1) that appellant Nos. 1 to 7, being members of the Executive and Directors of Mukka Welfare Society, misusing the position, held Board Meetings on 22.9.1995 and 13.10.1995 facilitating the sale of the above mentioned land in favour of their relatives (appellant Nos. 7 to 12). The sale deeds were executed on 16.2.1996. It is further stated that the purchasers (appellant Nos. 7 to 12), executed sale deeds in the same year in favour of the Directors of the Society. It is alleged by the complainant/respondent No.1 that the appellants have fraudulently usurped the property through the sale deeds mentioned above, and thereby committed cheating.
3. The criminal complaint filed by respondent No. 1 was registered by the 1st Additional Senior Civil Judge and Chief Judicial Magistrate, Mangalore, DK, who, after recording the statement of the complainant under Section 200 of the Code of Criminal Procedure, 1973 (for short “CrPC”), summoned the appellants vide order dated 13.4.2012 in respect of offences punishable under Sections 406, 409, 420 read with Section 34 of Indian Penal Code (IPC). The appellants filed Criminal Revision Petition No. 58 of 2012 before the Principal Sessions & District Judge of D.K. District at Mangalore, which was dismissed vide order dated 6.2.2013. Thereafter, the appellants filed a petition under Section 482 CrPC before the High Court and the same was also dismissed. Hence this appeal through special leave.
4. We have heard learned counsel for the parties and perused the papers on record.
5. The impugned orders passed by the High Court and the other authorities below are challenged before us mainly on the following grounds:-
(i) Respondent No. 1/complainant is not a member of the “Mukka Welfare Society” nor is he in any manner connected with the affairs of the Society, as such he has no locus to file the criminal complaint.
(ii) The sale deeds in question were executed in the year 1996, and the criminal complaint is filed malafide by respondent No. 1 after a period of fourteen years, in the year 2010, as such the courts below have erred in law in not taking note of said fact.
(iii) The courts below have erred in law in not appreciating that the complaint in question was filed to get personal vendetta by respondent No. 1 against the Directors of the Society.
(iv) The courts below further erred in not considering the fact that the complainant/respondent No. 1 had earlier filed a complaint, with same set of facts, before the Deputy Commissioner, Dakshin Kannada, Mangalore, and the same was sent to Police Station Suratkal for investigation, and the Circle Inspector, after investigation, did not find any offence to have been committed by the appellants, as the dispute was purely of civil in nature.
(v) Ingredients of the offences punishable under Sections 406, 409 and 420 IPC are not made out.
(vi) None of the transactions of sale in question is against any bye-law or clause of Memorandum of Association of the Society.
6. In the co
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