Jannath Begum W/O Subhansab ... vs Shankar S/O Ramakrishna Hanchate
2021 Latest Caselaw 6840 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 20TH DAY OF DECEMBER 2021

                        BEFORE

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

         CRIMINAL PETITION No.200682/2021

BETWEEN:

1.     SMT.JANNATH BEGUM
       W/O SUBHANSAB CHOUDRI
       AGE: 44 YEARS, OCC: HOUSEHOLD

2.     SRI SUBHANSAB
       S/O HUSSAINSAB CHOUDRI
       AGE: 50 YEARS, OCC. AGRICULTURE
       BOTH ARE R/O LAXAMPUR VILLAGE
       TQ. SHORAPUR, DIST. YADGIR.
                                         ... PETITIONERS

(BY SRI RAVINDRA REDDY, ADVOCATE)

AND:

SHANKAR
S/O RAMAKRISHNA HANCHATE
AGE: 42 YEARS, OCC. BUSINESS
R/O SHAHAPUR
TQ. SHAHAPUR, DIST. YADGIR
                                         ... RESPONDENT

(BY SRI SANJAY A. PATIL, ADVOCATE)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE PRAYING TO ISSUE ORDER
FOR SETTING ASIDE ORDER DATED 07.03.2020 PASSED BY
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THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS,
SHAHAPUR IN        C.C.NO.367/2020       IN       TAKING    COGNIZANCE
AGAINST THE OFFENCES PUNISHABLE UNDER SECTIONS 419,
420, 465, AND 468 R/W SEC. 149 OF IPC AND CONSEQUENTLY
TO    DISMISS       THE    COMPLAINT              IN     C.C.NO.367/2020
(P.C.NO.16/2018.


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


                              ORDER

This petition is filed under Section 482 of Cr.P.C.,

praying this Court to set aside the order dated 07.03.2020

passed by the Court of Judicial Magistrate First Class,

Shahapur in C.C.No.367/2020 in taking cognizance against

the offences punishable under sections 419, 420, 465, and

468 r/w section 149 of IPC and consequently to dismiss

the complaint in C.C.No.367/2020 (P.C.No.16/2018).

2. Heard the learned counsel for the petitioners

and the learned counsel for the respondent.

     3.      The    factual     matrix       of    the    case   is   that

respondent    herein      has   filed    a    private      complaint    in

P.C.No.16/2018 making allegation in the complaint that

accused Nos.1 and 2 are husband and wife and residents

of Laxampura village taluk Shahapur. The complainant and

accused are known to each other in plot transaction.

Accused No.2 came and shown the khata of plot number

1-1-8/59 old (New 51-93) situated at municipal limits of

Shahapur and accused put their offer to sell the property

and complainant has believed the same and negotiated for

the same and purchased for an amount of Rs.1,25,000/-.

When the complainant filed application before the Town

Municipal Corporation, Shahapur for mutation of the said

plot and the same was mutated as per procedure.

Thereafter, the complainant sold the said plot to one

Dr.Gayatri for his family necessities. The complainant

came to know about the fraud and illegality of accused

No.1 as she has sold the plot defrauding the original owner

and she is acted as original owner and sold the plot by

receiving entire sale consideration amount. Then the

complainant came to know about the illegal transaction of

accused after filing the criminal complaint by original

owner Smt. Salima Begum in Crime No.290/2014 and

hence, approached the Court to take cognizance for the

offences punishable under Sections 420, 465, 468 of IPC

on filing of the said complaint. The learned Magistrate

proceeded to record the sworn statement and thereafter

took cognizance and issued the process. Hence, the

present petition is filed before this Court by the petitioners

herein.

4. The learned counsel for the petitioners would

submit that based on the complaint filed by one Smt.

Salima Begum, the case was registered against these

petitioners and also against the respondent herein. In the

said case, the trial was conducted and ultimately

acquitted. Hence, there cannot be a second complaint in

respect of the very same transaction by the respondent.

The learned counsel vehemently contended that when

these petitioners have already undergone the trial in

respect of the complaint filed by Smt. Salima Begum and if

complaint is continued and they were subjected to trial, it

amounts to double jeopardy and also it violates article

20(2) of the Constitution of India and hence, it is a fit case

to exercise power under Section 482 of Cr.P.C.

5. In support of his contention, he relied upon the

judgment of the Hon'ble Apex Court in the case of Kolla

Veera Raghav Rao vs. Gorantla Venkateswara Rao

and Another reported in AIR 2011 SC 641 wherein

discussed Section 300(1) of Cr.P.C., and Article 20(2) of

the Constitution of India with regard to double jeopardy

and held that there cannot be any two criminal prosecution

if two criminal prosecution amounts to double jeopardy

and hence, it requires interference of this Court.

6. Per contra, learned counsel for the respondent

would submit that these petitioners by impersonation have

sold the property in favour of the respondent and

respondent had purchased the property for a valuable

consideration only after coming to know of complaint filed

by Smt. Salima Begum and committing of fraud this

respondent also faced the criminal trial based on the

complaint of original owner Smt. Salima and now they

cannot contend that this complaint is second complaint

and it attracts Article 20(2) of the Constitution of India and

the judgment of Hon'ble Apex Court is not applicable to the

facts of the case on hand. The learned counsel would also

submit that in the earlier complaint in which these

petitioners have also faced the trial, complainant is

different i.e., original owner wherein allegation is made of

impersonation as well as forgery and selling the property

belonging to the said complainant in favour of this

respondent by the petitioners herein and now allegation

against these petitioners that these petitioners have

committed fraud on this complainant by executing a sale

deed even though they were not the owners of property

and suppressed the ownership of the said Smt. Salima

Begum and sold the property, as a result, respondent also

faced the trial and suffered the loss, since the respondent

had purchased property for valuable consideration of

Rs.1,25,000/- and hence, it cannot be contended that it

amounts to double jeopardy.

7. Having heard the learned counsel for the

petitioners and learned counsel for the respondent and

also factual aspects of the case whether this Court can

exercise power under Section 482 of Cr.P.C., by coming to

the conclusion that whether it attracts Article 20(2) of the

Constitution of India and amounts to double jeopardy.

Having heard the respective counsels and considering the

factual aspects of the case, no doubt earlier based on the

complaint of Smt. Salima Begum a case was registered not

only against these two petitioners but also against

respondent for the offences punishable under Sections

166, 420, 419, 465, 468 read with Section 149 of IPC

wherein specific allegation made in the said complaint that

these petitioners as well as respondent for indulging in

creation of documents committed the offence of forgery.

Even though the petitioners herein are not owners of the

said plot sold the same in favour of the respondent herein.

But in the present complaint, the very purchaser is the

complainant and made an allegation against the petitioners

herein that they have committed fraud on him and invoked

the offence under Sections 420, 465, 468 of IPC and the

trial Court took the cognizance for the said offences.

Admittedly, both the complaints are different and

complainants are different, allegations are also different

and may be in respect of the very same transactions but

when the complainant is different and allegations are

different the question that it amounts to double jeopardy

as contended by the petitioners' counsel cannot be

accepted. Now the petitioners are the accused and one of

the accused in the earlier case now became the

complainant and made an allegation against these

petitioners though they are not the owners of the plot,

they have sold the same by impersonation that too forging

the signature of the original owner Smt. Salima begum and

when such being the allegation made and contents of the

complaint are different, merely because they have

acquitted in the other case it does not amount to any

double jeopardy as contended by the learned counsel for

the petitioners and hence, I do not find any force in the

contention of the petitioners' counsel that it amounts to

double jeopardy and the same is violation of Article 20(2)

of the Constitution of India. Hence, there is no merit in the

petition.

8. In view of the discussion made above, I pass

the following:

ORDER

The petition is rejected.

Sd/-

JUDGE

VNR