Case Note & Summary
The appellant, Arun Kumar Sharma, filed a criminal appeal under Section 341 of the Code of Criminal Procedure, 1973, challenging the judgment and order dated 27.11.2023 passed by the Learned Additional Sessions Judge, North Goa, Mapusa in Criminal Miscellaneous Application No.31/2021. The learned Judge had declined to make a complaint under Section 340 read with Section 195 CrPC against the respondents, Anand Rao V Chatim and Amit Anand Chatim, for alleged offences punishable under Sections 451, 454, 457, 380, 427, 341 read with Section 34 of the Indian Penal Code. The appellant, an advocate by profession but not in active practice, appeared in person. The factual background involved a composite oral agreement between the appellant and the respondents for reciprocal sale and purchase of immovable properties. The appellant claimed that in pursuance of this arrangement, he was delivered possession of four apartments at Green Forest Apartments, Canca, Verla, Bardez, Goa on 24.01.2016. He occupied two apartments for residence and used the remaining two for his son and rental income. He executed a Sale Deed dated 29.01.2016 in favour of Respondent 1 for land at Anjuna, and the respondents executed a conveyance in his favour for a property. However, the remaining conveyances, including those for the apartments, were not executed as the respondents allegedly resiled from the arrangement. The dispute intensified when the appellant received a notice from the Income Tax Department regarding non-payment/delayed payment of TDS. The appellant filed a civil suit and a criminal complaint, and later filed an application under Section 340 CrPC seeking a complaint against the respondents for perjury and other offences. The learned Sessions Judge conducted a preliminary inquiry, recorded the appellant's deposition, and found no prima facie case for making a complaint. The High Court examined the memorandum of appeal, the impugned judgment, the application, the reply, and the deposition. The court noted that the dispute was essentially civil in nature, arising from a failed reciprocal arrangement for sale and purchase of properties. The appellant failed to provide sufficient evidence to establish that the respondents had committed criminal offences such as trespass, theft, or mischief. The court held that the learned Sessions Judge had correctly exercised his discretion in declining to make a complaint under Section 340 CrPC, as there was no prima facie satisfaction that any offence had been committed in relation to the proceedings before the court. The appeal was dismissed.
Headnote
A) Criminal Procedure Code - Complaint under Section 340 CrPC - Preliminary Inquiry - The court must conduct a preliminary inquiry and form a prima facie satisfaction that an offence has been committed in relation to proceedings before it before making a complaint under Section 340 CrPC. The mere filing of a civil suit and criminal complaint does not automatically warrant initiation of proceedings under Section 340 CrPC. (Paras 1-10) B) Indian Penal Code - Offences of Trespass, Theft, Mischief - Sections 451, 454, 457, 380, 427, 341 read with Section 34 IPC - The appellant alleged that respondents committed these offences by forcibly entering and taking possession of apartments. The court held that the dispute was essentially civil in nature regarding reciprocal sale and purchase of properties, and the appellant failed to establish a prima facie case for criminal offences. (Paras 2-5) C) Criminal Procedure Code - Appeal under Section 341 CrPC - Scope - An appeal under Section 341 CrPC lies only against an order making a complaint under Section 340 CrPC, not against an order refusing to make a complaint. The appellant's appeal was maintainable as it challenged the refusal to make a complaint, but the court found no merit. (Para 1)
Issue of Consideration
Whether the learned Additional Sessions Judge erred in declining to make a complaint under Section 340 read with Section 195 CrPC against the respondents for alleged offences under the Indian Penal Code.
Final Decision
The High Court dismissed the appeal, upholding the order of the learned Additional Sessions Judge declining to make a complaint under Section 340 CrPC.
Law Points
- Section 340 CrPC
- Section 195 CrPC
- Section 341 CrPC
- Sections 451
- 454
- 457
- 380
- 427
- 341 IPC
- Section 34 IPC
- Preliminary inquiry
- Prima facie satisfaction
