Karnataka High Court

Sri. Shashanka Narasimha vs State Of Karnataka on 7 December, 2021

Bench: M.Nagaprasanna

                            1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 7TH DAY OF DECEMBER, 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

          CRIMINAL PETITION No.1773/2018

BETWEEN

SRI. SHASHANKA NARASIMHA
S/O. LATE. S NARASIMHA PRAKASH
AGED ABOUT 38 YEARS
PRESENTLY AT NEW
R/AT NO. 811, 5TH CROSS
1ST BLOCK, HRBR LAYOUT
BANGALORE - 560 043

OLD NO.2188, 8TH MAIN
E BLOCK, 2ND STAGE,
RAJAJINAGAR,
BANGALORE - 560 010
                                    ... PETITIONER

[BY SRI. MANJUNATH K.V., ADVOCATE
   (PHYSICAL HEARING)]

AND

1.    STATE OF KARNATAKA
      BY BAGALUR POLICE STATION
      BENGALURU RURAL DISTRICT
      REPRESENTED BY THE
      STATE PUBLIC PROSECUTOR
      HIGH COURT BUILDING
      BANGALORE - 560 001
                              2



2.   SRI. CHETHAN BHARATH
     S/O. VISHNU BHARATH
     AGED ABOUT 29 YEARS
     R/AT NO. 7/8, 2ND FLOOR
     SHOUKATH BUILDING
     SJP ROAD
     BANGALORE - 560 002
                                      ... RESPONDENTS

[BY SRI. R.D. RENUKARADHYA, HCGP FOR R1
    (PHYSICAL HEARING)
    R2 IS SERVED & UNREPRESENTED]

     THIS CRIMINAL PETITION IS FILED U/S.482 OF
CR.P.C PRAYING TO QUASH THE CHARGE SHEET FILED IN
C.C.NO.2323/2015 PENDING ON THE FILE OF THE
LEARNED    PRINCIPAL  CIVIL  JUDGE   AND   JMFC,
DEVANAHALLI, VIDE ANNEXURE-'E'.

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

                        ORDER

The petitioner is before this Court calling in

question the proceedings in C.C.No.2323/2015 pending

before the Principal Civil Judge & JMFC, Devanahalli.

2. Heard Sri. Manjunath K.V., learned counsel

appearing for the petitioner, Sri. R.D. Renukaradhya,

learned HCGP appearing for respondent No.1 and have

perused the material on record.

3. Facts as projected by the prosecution are as

follows:

A residential layout was formed by one Durga

Properties at Sahakaranagar, Bangalore in the name

and style of 'Durga Residency', which is a

conglomeration of 250 sites. One such site is sold by

one Sri. N. Sreenivasa Gowda in favour of the father of

the petitioner. The sale deed is executed on 17.10.2012

by the alleged General Power of Attorney (hereinafter

referred to as 'GPA' for short) holder in favour of the

petitioner. Father of the petitioner died on 21.02.2014.

To the sale deed, the petitioner i.e., his son signs as an

attesting witness. The developer of the land Sri. Chetan

Bharath, respondent No.2 - complainant and

Sri. N. Sreenivasa Gowda, who claimed to be the GPA

holder, generate a dispute within themselves on the

allegation of Sri. Chetan Bharath that he has never

executed a GPA in favour of Sreenivasa Gowda. Based

upon this allegation, a private complaint is registered

against all the accused including the petitioner in PCR

No.64/2014. Since the issue springs from the complaint

and the same is extracted for purpose of quick

reference.

"COMPLAINT UNDER SECTION 200 OF THE CODE OF CRIMINAL PROCEDDURE.

The complainant begs to submits as follows:-

1. The address of the complainant for service of notices, summons etc., from this Hon'ble court is as stated in the cause title and also that of his counsel, Sri. Y.A. Srinivas, Advocate, Narayanachar Complex, Sulibele Road (NH-207), Shanthinagar, Devanahalli Town.

2. The address of the accused for service of ntoices, summons from this Hon'ble court is as stated in the cause title.

3. The complainant submits that, the land bearing Sy.No.57/1 to an extent of 1 acre 11

guntas of Boilahalli village, Jala Hobli,

Bangalore North Taluk is the self acquired property of the complainant.

4. The complainant submits that, the complainant is the purchaser of the land bearing Sy.No.57/1 to an extent of 1 acre 11

guntas of Boilahalli village, Jala Hobli, Bangalore North Taluk - there after the complainant filed an application before the thasildar for changing the katha. The thasildar Bangalore North Taluk asked the certified copies of sale deed and E.C. But the complainant is shocked that the accused no.1 herein had created the GPA in the name of complainant herein and he got executed the sale deed dated 17-10-2012 in favour of the accused no.2 herein on behalf of complainant herein, but the complainant herein had not executed any GPA or any other documents in favour of any person, in turn the accused no.1 had sold the said property in favour of the accused no.2 herein and the accused No 3 & 4 are the witnesses of the said created sale deed.

5. The complainant submits that, as such when the complainant recently obtained the revenue documents in respect of the above said property then only he came to know about the illegal transaction between the accused, then immediately the complainant questioned about the same with the complainant for fabricated GPA in the name of complainant.

6. The complainant submits that, the schedule property is the self acquired property of the complainant, but the accused herein were with intention to grab the complainant have created the all these forged documents in the name of complainant herein.

7. The complainant submits that the complainant is went to the Bagalur police station lodged the complaint with regard to the illegal acts of the accused the police assured them that the accused will be summoned and suitable action will be taken in the matter, but after one week the police have stated that the matter is civil in nature after consideration of the documents

produced they are satisfied that the complainant, complaint is false one and not fit for investigation.

8. The complainant submits that the above narrated acts of the accused are without authority of law and amount to offence permissible under section 419, 420, 465 and 468 of IPC. The above said offences have been committed within the jurisdiction of this Hon'ble court. Hence this complaint.

Wherefore, prays that this Hon'ble court be pleased to take cognizances of above and offences to record the sworn statement or direct the jurisdictional police to investigate, to proceed against the accused to convict and sentence him in accordance of law, in the interest of justice and equity."

(emphasis added)

The narration in the complaint insofar as it

pertains to the petitioner is that the complainant had

sold the property in favour of accused No.1 and accused

Nos.3 and 4 were witnesses to the said created sale

deed.

4. The dispute is primarily between the

developer of the land and the alleged GPA holder -

Sri. N. Sreenivasa Gowda. The petitioner being a

witness, who has attested his signature to the

document of sale is dragged into these proceedings.

5. The submission of the learned counsel

appearing for the petitioner is that the father of the

petitioner or the petitioner themselves have been

cheated by either Sri. Chetan Bharath or Sri. N.

Sreenivasa Gowda, as they were bonafide purchasers of

the property from the hands of Sri. N. Sreenivasa

Gowda, who projected himself to be the GPA holder of

Sri. Chetan Bharath, developer of the property. The

issue with regard to the criminal liability particularly

Section 420 of the IPC being laid upon an attesting

witness has no longer res integra.

6. The Apex Court in the case of M.SRIKANTH

v. STATE OF TELANGANA1 while affirming the finding

of the High Court of Telangana which had quashed

proceedings against attesting witnesses holds as

follows:

"26. We fail to understand, as to how after observing the aforesaid, the learned Judge could have refused to quash the proceedings against Accused 4. Not only that, but on the basis of the said observations, the learned Judge himself has observed that it will not be in the interest of justice to permit the police authorities to arrest the accused for the purposes of investigation. We are of the considered view, that the learned Judge, having found that the entire allegations with regard to forgery and fabrication and Accused 1 executing the lease deed on the basis of the said forged and fabricated documents were only against Accused 1, ought to have exercised his jurisdiction to quash the proceedings qua Accused 4 also. We find that the learned Judge ought to have applied the same parameters to the present Accused 4, which had been applied to the other accused whose applications were allowed.

27. Insofar as the criminal appeals arising out of the special leave petitions filed by the original complainant is concerned, we absolutely find no merit in the appeals. The learned Single Judge has rightly found that there was no material to proceed against Accused 5 -- HPCL and its officers Accused 6 and 9 as also Accused 7 and 8, who have been roped in, only because

(2019) 10 SCC 373

they were the attesting witnesses. The learned Single Judge has rightly exercised his jurisdiction under Section 482 CrPC.

28. Insofar as original Accused 4 is concerned, we have no hesitation to hold, that his case is covered by categories (1) and (3) carved out by this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . As already discussed hereinabove, even if the allegations in the complaint are taken on its face value, there is no material to proceed further against Accused 4. We are of the considered view, that continuation of criminal proceedings against Accused 4, M. Srikanth, would amount to nothing else but an abuse of process of law. As such, his appeal deserves to be allowed."

(Emphasis supplied)

The Apex Court holds that HPCL and its

officers/accused 6 and 9 as also accused 7 and 8, who

have been roped into a criminal proceeding only

because they were attesting witnesses. The Apex Court

affirms the order passed by the High Court of Telangana

quashing proceedings against attesting witnesses.

7. It is also germane to notice the judgment of

the Apex Court in the case HEMKUNWAR BAI v.

SUMERSINGH AND OTHERS2 with regard to the role of

attesting witnesses in the execution of a document. The

Apex Court holds as follows:

"The main issue is whether Ratankuwarbai, who was an illiterate lady and suffering from cancer, has executed these documents or not. The defendants examined Antar Singh and Laxman Singh who are witnesses to all the three documents. As far as Laxman Singh is concerned, he clearly stated that at the time of registration of the sale deeds and the Will, the sub-Registrar concerned had read out the subject matter of the three documents in short to Ratankuwarbai. He also heard the sub- Registrar at that time. It has been contended that both these witnesses have stated that they were not aware of the contents of the documents, when they signed as witnesses. The witnesses need not necessarily know what is contained in the documents. Furthermore, when these witnesses state that the Sub-Registrar had told the gist of the documents to the deceased then they become aware of the nature of the documents at the time of registration thereon. In fact both Antar Singh and Laxman Singh had deposed with regard to transfer of the consideration."

(Emphasis supplied)

8. The Apex Court clearly holds that the

witnesses need not necessarily know what is contained

Civil Appeal No.8827 of 2011 decided on 25th September, 2019

in the document except what was brought out in the

evidence.

9. In the light of the facts obtaining in the case

at hand, the afore-quoted judgments of the Apex Court,

continuing the impugned proceedings against the

petitioner would degenerate into harassment. This

Court in exercise of its jurisdiction under Section 482 of

Cr.P.C., would not permit such proceedings to continue

which would result in miscarriage of justice or be an

abuse of the process of the law.

10. For the aforesaid reasons, the following:

ORDER

i. Criminal Petition is allowed.

ii. the proceedings pending against the

petitioner, who is an attesting witness

to the document, requires to be

obliterated following the law laid down

by the Apex Court in the aforesaid case

as followed by this Court in the

aforesaid judgment.