Smt Revamma vs State Of Karnataka
2021 Latest Caselaw 1886 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 15TH DAY OF APRIL, 2021

                        BEFORE:

         THE HON'BLE MR. JUSTICE H.P. SANDESH

           CRIMINAL PETITION No. 5555/2020
BETWEEN:

1.     SMT REVAMMA
       W/O LATE DODDA SHANTHAPPA
       AGED ABOUT 83 YEARS
       R/A NO. 228, AREHALLI
       VILLAGE, UTTARAHALLI HOBLI,
       BENGALURU - 560 061.

2.     SHRI SHIVARUDRAPPA
       S/O LATE DODDA SHANTHAPPA
       AGED ABOUT 44 YEARS
       R/A NO. 228/1,
       AREHALLI VILLAGE
       UTTARAHALLI HOBLI,
       BENGALURU - 560 061.
                                         ... PETITIONERS
             [BY SRI. V. B. SHIVA KUMAR, ADV.]
AND:

1.     STATE OF KARNATAKA
       BY SUBRAMANYAPURA
       POLICE STATION
       SUBRAMANYAPURA,
       BENGALURU - 560 061.
       REP. BY SPP,
       HCK, BENGALURU - 01

2.     SMT. K.V. SATHYAVATHI
       W/O LATE T.L. RAMAIAH
       AGED ABOUT 84 YEARS
       NO.13, VENKATASWAMAPPA LANE
       LALBAGH UPPARAHALLI,
                                2


        LALBAGH WEST GATE
        BENGALURU - 560 004.
                                           ... RESPONDENTS

         [BY SMT. NAMITHA MAHESH B.G, HCGP FOR R1;
               SMT. RAKSHITHA D.J., ADV FOR R2]

     THIS PETITION IS FILED UNDER SECTION 482 OF CR.PC,
PRAYING TO QUASH THE PROCEEDINGS INITIATED BY THE 1ST
RESPONDENT ON THE BASIS OF THE COMPLAINT FILED BY
THE 2ND RESPONDENT BEFORE THE II ADDL.C.M.M.,
BENGALURU IN CR. NO. 24/2020 AT ANNEXURE-C.

     THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:-

                        ORDER

This petition is filed under Section 482 of the

Cr.PC, praying this Court to quash the proceedings

initiated against the petitioners herein in Crime

No.24/2020 pending on the file of II Additional Chief

Metropolitan Magistrate, Bengaluru and pass such

other order as deems fit in the circumstances of the

case.

2. The factual matrix of the case is that the

Respondent No.2 had lodged a complaint with the

Respondent No.1 vide complaint dated 3.2.2020 making

allegation against these petitioners that they have

created a power of attorney and forged the signature of

the complainant and making use of the power of

attorney executed gift deed and also sale deeds in

respect of property bearing Nos.1/1A, 1/1B to the

extent of 1 acre 32 guntas situated at Arehalli Village,

Uttarahalli Hobli, Bengaluru South Taluk. Based on

the complaint, the Police have registered the case

against the petitioners for the offences punishable

under Sections 465, 468, 471, 420 of IPC read with

Section 34 of IPC. Hence, the petitioners are before this

Court.

3. Learned counsel for the petitioners would

vehemently contend that the alleged power of attorney

dated 6.7.1995 and the same is executed by the

complainant/Respondent No.2 and only in the year

2020, notice was issued and also filed a civil suit.

When the civil suit is pending before the trial Court with

regard to the alleged offence of forgery and fabrication of

documents and there is presumption under Section 85

of the Indian Evidence Act in respect of execution of the

document, the complaint is nothing but an absue of

process, giving criminal colour to the civil dispute

between the parties. Learned Counsel also brought to

the notice of this Court with regard to exchange of

notice between the parties and also brought to the

notice of this Court the original suit in O.S.

No.3747/2020 and also averments made in the

complaint. Learned Counsel also relied upon the power

of attorney which is marked as Annexure-G. When the

civil suit is pending between the parties and allegation

has to be proved in the said case and after conclusion of

the said case, the Respondent No.2 can initiate criminal

proceedings and there cannot be two parallel

proceedings against the petitioners both in civil and

criminal proceedings.

4. Per contra, learned High Court Government

Pleader submits that the petitioners are not assisting

the Investigating Officer in conducting the investigation

and they have not produced the original power of

attorney and notice has been issued under Section 41[a]

of Cr.PC to produce the original and the same is not

produced. When serious allegations of forgery and

fabrication of documents are alleged against the

petitioners herein, the Investigating Officer has to get

FSL report with regard to the forgery and hence this

Court cannot invoke Section 482 of Cr.PC to stop the

investigation and crime has to be unearthed by

conducting the probe.

5. Learned counsel for the respondent No.2 would

vehemently contend that the land originally belonged to

late Patel Dodda Shanthappa and the same was

purchased by the complainant/respondent and even

portion of the land was acquired and the same has been

quashed and the matter was taken to the Supreme

Court and ultimately the acquisition was cancelled.

Learned Counsel would vehemently contend that out of

2 acres 13 guntas of land, 1 acre 32 guntas which has

been retained by the Respondent No.2 is the subject

matter of fabrication and forgery and no such power of

attorney was executed and it is the specific case of the

complainant that signature found on the power of

attorney does not belong to her. She also contends that

based on the forged power of attorney, gift deeds are

created in favour of children of the petitioner No.2

herein and the documents they are relying upon, they

have not produced the original before the Investigating

Officer and the very contention of civil suit pending is

not a ground to quash the proceedings.

6. Learned Counsel, in support of her arguments,

also relied upon the Judgment of the Hon'ble Apex

Court in the case of PARBATBHAI AAHIR @

PARBATBHAI BHIMSINHBHAI KARMUR v. STATE OF

GUJARAT reported in 2017 [9] SCC 641 and brought

to the notice of this Court paragraphs 4 and 16 with

regard to fabrication of documents, forgery and

conspiracy where parties have acted upon based on the

said document. Learned Counsel also relied upon the

Judgment of the Hon'ble Apex Court in the case of

DINESHBHAI CHANDUBHAI PATEL v. STATE OF

GUJARAT reported in 2018 [2] Crl. CC 426 and

brought to the notice of this Court paragraphs 29 to 34

wherein the Hon'ble Apex Court also summarized the

principles with regard to quashing of the FIR.

7. Learned Counsel also relied upon the Judgment in

the case of AZIJA BEGUM v. STATE OF

MAHRASHTRA AND ANOTHER reported in [2012] 3

SCC 126 wherein the Hon'ble Apex Court declined to

invoke Section 482 of Cr.PC when serious allegations

are made in the FIR and also relied upon the Judgment

of this Court in the case of K. MUNIRATHNAM v. THE

STATE OF KARNATAKA AND OTHERS reported in

2021 SCC Online Karnataka 372 and referring to this

Judgment, brought to the notice of this Court,

paragraphs 5, 6, 9, 10 and 11 and this Court referring

to the Judgments of the Apex Court in the case of

similar circumstances, declined to invoke Section 482 of

Cr.PC and hence prayed this Court to reject the prayer

sought in the petition.

8. Learned Counsel appearing for the petitioners in

reply to the arguments of the respective respondents'

Counsel would vehemently contend that when the

matter is pending before the Civil Court and the same

has to be adjudicated and the Police cannot decide the

issue with regard to forgery and fabrication of the

documents and it requires full fledged trial and Civil

Court can take a decision with regard to forgery and

fabrication of the documents and hence if the

proceedings is continued, it amounts to abuse of

process which leads to miscarriage of justice.

9. Having heard the petitioners' Counsel and also

respondents' Counsel, this Court has to analyze the

material available on record. It is settled principle that

when the FIR is sought for quashing, the Apex Court

also in the case of DINESHBHAI CHANDUBHAI PATEL

v. THE STATE OF GUJARAT reported in 2018 [3] SCC

104 held that Court has to look into the contents of the

complaint, where the complaint discloses prima facie

committing of cognizable offence and then High Court

should not venture to collect material as Appellate

Court or interfere with the investigation to be done by

the Investigating Officer and the same is the domain of

the Investigating Officer.

10. The main contention of the petitioners' Counsel

that civil suit is also pending before the Court and it is

not in dispute that the original suit in O.S.

No.3747/2020 is also pending before the Civil Court

and on perusal of the complaint dated 3.2.2020

[Annexure-A], specific allegations are made against

these petitioners that they have indulged in creation of

the power of attorney and specific allegation is made

that signatures found in the power of attorney does not

belong to the complainant and they have forged the

signature and making use of the forged power of

attorney, properties are sold and even created gift deeds

in favour of the children. The very contention of the

petitioners' counsel that the power of attorney was

executed on 16.7.1995 and after a lapse of almost 25

years, the complainant disputed the document i.e.,

Power of Attorney. The very contention of the

petitioners that they have given criminal colour to the

civil dispute.

11. In reply to the arguments, learned counsel for the

respondent No.2 contends that the complaint was given

at the first instance on 3.2.2020 and civil suit is filed

subsequent to the complaint. Having perused the

complaint averments, specific allegations are made

against the petitioners that they have indulged in

creation of power of attorney and based on the power of

attorney, third party interest is created. In view of the

principles laid down in DINESHBHAI CHANDUBHAI

PATEL'S case supra, the Apex Court held that the

Court has to look into the contents of the complaint. No

doubt, civil suit is also pending before the Court. When

the offence of forgery with regard to criminal culpability

is alleged in the complaint, the Court has to take note of

the same and when the contents of the complaint

discloses prima facie commission of the offence of

forgery, the High Court should not venture to curtail the

right of the Investigating Officer who has to conduct

investigation of the cognizable offence of the alleged

complaint. No doubt civil proceedings also pending

before the Court, there cannot be any criminal colour

given to the civil dispute. In the case on hand, merely

because suit is pending is not a ground to quash the

FIR. The Apex Court in the recent Judgment in the case

of SAU. KAMAL SHIVAJI POKARNEKAR v. THE

STATE OF MAHARASHTRA & OTHERS in Criminal

Appeal No.255/2019 disposed of on 12.02.2019, in

paragraph-5 discussion with regard to similar issues

wherein quashing criminal proceedings the complaint

does not disclose any offence, or is frivolous, vexatious,

or oppressive. If the allegations set out in the complaint

do not constitute the offence of which cognizance has

been taken by the Magistrate, it is open to the High

Court to quash the same. It is not necessary that a

meticulous analysis of the case should be done before

the Trial to find out whether the case would end in

conviction or acquittal. The Apex Court also in

paragraph-9 held that the High Court ought not to have

set aside the order passed by the Trial Court issuing

summons to the Respondents. A perusal of the

complaint discloses that prima facie, offences that are

alleged against the Respondents. The correctness or

otherwise of the said allegations has to be decided only

in the Trial. At the initial stage of issuance of process it

is not open to the Courts to stifle the proceedings by

entering into the merits of the contentions made on

behalf of the accused. Criminal complaints cannot be

quashed only on the ground that the allegations made

therein appear to be of a civil nature. If the ingredients

of the offence alleged against the accused are prima

facie made out in the complaint, the criminal proceeding

shall not be interdicted.

12. This Court also in similar circumstances, had

considered the issues involved between the parties in

Criminal Petition No.5641/2020 vide Order dated

22.01.2021 and in detail discussed the Judgment of the

Apex Court in M. KRISHNAN v. VIJAY SINGH AND

ANOTHER reported in [2001] 8 SCC 645 wherein the

Apex Court held that the proceedings initiated against

the accused/respondent under Sections 193, 209,

406, 468 and 471 read with Section 120B of IPC is

quashed by the High Court due to pendency of a civil

suit filed by the accused disputing the genuineness

of the documents setting aside the High Court's

order, held, mere pendency of the civil suit between the

parties cannot be a ground for quashing the

criminal proceedings against the accused. If

permitted, such practice would be an easy way out

for the accused to avoid criminal proceedings.

13. This Court also discussed the principles laid down

in the case of VIJAYANDER KUMAR AND OTHERS

v. STATE OF RAJASTHAN AND ANOTHER reported in

(2014) 3 SCC 389 and so also reported Judgment in

RAY CONSTRUCTIONS LIMITED, IIT MARKET,

POWAI, MUMBAI AND OTHERS v. STATE OF

KARNATAKA AND ANOTHER reported in 2020 (4)

KAR.L.J. 555. Referring to the Apex Court Judgments,

this Court also has come to the conclusion that after

filing of the charge-sheet, took cognizance and

issued process. The legality of it is well-settled that

when given set of facts may make out a civil

liability as also a criminal offence and only because

civil remedy may also be available to the complainant,

that itself cannot be a ground to quash criminal

proceedings. The real test is whether the allegations

disclose a criminal offence or not.

14. Having taken note of the principles laid down in

the Judgments referred to supra and also Judgment

relied upon by the learned Counsel for the Respondent

No.2 in PARBATBHAI AAHIR's case supra, in

paragraph-16 discussed in detail with regard to scope of

Section 482 of Cr.PC wherein allegation is with

reference to offences punishable under Sections 384,

467, 468, 471, 120B and 506[2] of IPC. Regarding

creation of documents, the Apex Court held that the

Court should not venture to quash the proceedings

under Section 482 of Cr.PC.

15. Having considered the principles laid down in the

Judgments referred to supra and also factual aspects in

the case on hand and complaint allegations are specific

that signatures are forged and the complaint discloses

prima facie committing of cognizable offence and then

High Court should not venture to collect material as

Appellate Court or interfere with the investigation to be

done by the Investigating Officer and the same is the

domain of the Investigating Officer. Hence this Court

cannot invoke Section 482 of Cr.PC to stop the

investigation and crime has to be unearthed by

conducting the probe. In view of the discussions made

above, I pass the following:

ORDER

The petition is dismissed. However, liberty is

given to the petitioners to approach this Court after

filing of final report, if need arises.

I.A. No.1/2021 does not survive for consideration

and hence stands dismissed.

SD/-

JUDGE

AN/-