K Munirathnam vs The State Of Karnataka
2021 Latest Caselaw 1317 Kant

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                                                     R
       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY OF JANUARY, 2021

                          BEFORE

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

              CRIMINAL PETITION No.5641/2020

BETWEEN:

K. MUNIRATHNAM,
S/O VENKATASUBBA NAIDU,
AGE ABOUT 48 YEARS,
R/AT NO.1, 12TH MAIN,
15TH 'B' CROSS, J.C. NAGAR,
BENGALURU - 560 086.                          ... PETITIONER

               [BY SRI KALYAN R., ADVOCATE]

AND:

1.     THE STATE OF KARNATAKA,
       MAHADEVAPURA POLICE,
       WHITEFIELD SUB-DIVISION,
       BENGALURU.
       REP BY PUBLIC PROSECUTOR,
       HONBLE HIGH COURT OF KARNATAKA,
       BENGALURU - 01.

2.     SMT. J. BHAVANI,
       W/O J. KONDAPANAIDU,
       AGED ABOUT 39 YEARS,
       PARTNER M/S LEAD BUILDERS,
       HAVING OFFICE AT FLAT NO.104,
       LEAD GRANDEUR NO.88/1,
       SHIGEHALLI, BIDARAHALLI HOBLI,
       OPP. TO SAI GARDENIA
                            2



     NEXT TO HP PETROL BUNK,
     KADUGODI ROAD, WHITEFIELD,
     BENGALURU - 560 067.

     RESIDING AT FLAT NO.20201,
     BHUVANA GREENS,
     KASAVANAHALLI MAIN ROAD,
     BENGALURU - 560 035.

3.   J. KONDAPANAIDU,
     S/O J. MALLAIAH NAIDU,
     PARTNER M/S LEAD BUILDERS,
     HAVING OFFICE AT FLAT NO.104,
     LEAD GRANDEUR, NO.88/1,
     SHIGEHALLI, BIDARAHALLI HOBLI,
     OPP. TO SAI GARDENIA,
     NEXT TO HP PETROL BUNK,
     KADUGODI ROAD, WHITEFIELD,
     BENGALURU - 560 067.

     RESIDING AT FLAT NO.20201,
     BHUVANA GREENS,
     KASAVANAHALLI MAIN ROAD,
     BENGALURU - 560 035.                ... RESPONDENTS

            [BY SRI K.S. ABHIJITH, HCGP FOR R-1,
SRI P.P. HEGDE, ADVOCATE FOR R-2 AND R-3 (THROUGH V.C.)]

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET IN
CR.NO.546/2018 REGISTERED BY MAHADEVAPURA POLICE AND
THE ORDER OF TAKING COGNIZANCE DATED 16.11.2019 FOR
THE ALLEGED OFFENCES PUNISHABLE UNDER SECTIONS 420,
465, 468, 471, 120(B) READ WITH SECTION 34 OF IPC
PENDING ON THE FILE OF XXIX ADDL. C.M.M., BENGALURU IN
C.C.NO.57765/2019.

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

Though this matter is listed for admission today, with the

consent of both the parties, taken up for final disposal.

2. This petition is filed by accused No.1 under Section

482 of Cr.P.C. praying this Court to quash the charge-sheet in

Crime No.546/2018 registered by Mahadevapura Police and the

order of taking cognizance dated 16.11.2019 for the offences

punishable under Sections 420, 465, 468, 471 and 120B read

with Section 34 of IPC.

3. The factual matrix of the case is that the accused

and the complainants are the partners of the partnership firm

and they entered into joint development agreement in respect of

Survey No.88/1 to the extent of 37.04 guntas of land. There

were differences between them and hence in terms of mutual

settlement between the parties, complainant No.1 executed 11

sale deeds on 28.09.2017. It is the allegation that while taking

the signature in respect of those 11 sale deeds, the petitioner

herein and other accused persons have forged the signature of

the complainant and obtained the sale deed in favour of accused

No.2. Hence, the complaint is lodged on 08.11.2018 that the

petitioner forged the signature of the complainant and executed

the sale deed in favour of accused No.2. The police have

registered the case and investigated the matter and filed the

charge-sheet. Hence, the petitioner herein is before this Court

praying to quash the proceedings.

4. The main contention of the learned counsel for the

petitioner is that the suit is also filed in respect of particular sale

deed and the same is pending. When the civil suit is pending,

there cannot be any parallel proceedings against the petitioner

and it amounts to an abuse of process. The learned counsel in

support of his contentions, relied upon the judgment of the Apex

Court in the case of RAJESHBHAI MULJIBHAI PATEL AND

OTHERS v. STATE OF GUJARAT AND ANOTHER reported in

(2020) 3 SCC 794 and brought to the notice of this Court

paragraph Nos.18 and 19 of the judgment, wherein the Apex

Court has held that when there is a dispute with regard to the

issue as to genuineness of documents, forgery of which was the

basis of the criminal proceedings, was pending consideration in

civil suit, FIR ought not to have been allowed to continue in the

present case as it would prejudice the interest of parties and the

stand taken by them in the civil suit. The learned counsel

referring this judgment would contend that there cannot be

separate parallel proceedings and if the criminal proceedings is

continued, it amounts to an abuse of process, which leads to

miscarriage of justice. The learned counsel would also submit

that the FSL report is obtained based on the xerox documents

and the same cannot be a basis to proceed against the

petitioner.

5. Per contra, the learned counsel for respondent Nos.2

and 3 would submit that the complaint was given on 08.11.2018

and suit was filed on 19.11.2018. The civil suit is subsequent to

the filing of the complaint. The police have investigated the

matter and filed the charge-sheet. The police during the course

of investigation have obtained the FSL report. The learned

counsel would submit that when the accused was summoned to

produce the original document, he did not produce the same,

instead he made the submission before the Investigating Officer

that the said document is lost. Hence, the contention raised by

the petitioner that xerox documents was sent for FSL cannot be

accepted. The learned counsel would submit that accused Nos.3

and 4 are the attesting witnesses to the said documents and

they are absconding. The learned counsel would submit that

accused No.2 has already approached this Court by filing

criminal petition before this Court in Crl.P.No.1768/2019 and this

Court rejected the petition observing that the charge-sheet has

already been submitted before the Trial Court and the same is

pending before the XLIII Additional Chief Metropolitan Magistrate

in C.C.No.57765/2019. While rejecting the petition, liberty is

given to the petitioner to seek for discharge before the Trial

Court.

6. The learned counsel for respondent Nos.2 and 3

would submit that suppressing the same, the petitioner has

approached this Court. Hence, the petitioner is not entitled for

relief under Section 482 of Cr.P.C. In support of his contentions,

the learned counsel relied upon the judgment of the Apex Court

in the case of M. KRISHNAN v. VIJAY SINGH AND ANOTHER

reported in (2001) 8 SCC 645, wherein the Apex Court has

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.

7. The learned counsel also relied upon the judgment of

the Apex Court in the case of VIJAYANDER KUMAR AND

OTHERS v. STATE OF RAJASTHAN AND ANOTHER reported

in (2014) 3 SCC 389. In this judgment the Apex Court with

regard to exercising the power under Section 482 of Cr.P.C. in a

criminal as well as civil liability has held that a given set of facts

may make out a civil wrong as also a criminal offence and only

because a civil remedy may also be available to the

informant/complainant that itself cannot be a ground to quash a

criminal proceedings. The real test is whether the allegations in

the complaint disclose a criminal offence or not.

8. The learned counsel also relied upon the judgment of

this Court in the case of RAY CONSTRUCTIONS LIMITED, IIT

MARKET, POWAI, MUMBAI AND OTHERS v. STATE OF

KARNATAKA AND ANOTHER reported in 2020 (4) KAR.L.J.

555. This Court in this judgment referring the judgment of the

Apex Court reported in (2014) 3 SCC 389 held 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.

9. The learned counsel relying upon these judgments

would contend that mere filing of a civil suit which is filed

subsequent to the initiation of criminal proceedings, cannot be a

ground to quash the proceedings.

10. Having considered the principles laid down in the

judgments referred supra, this Court has to consider the factual

aspects of the case. On perusal of the complaint, specific

allegation made against the petitioner is that the signature of the

complainant is forged while executing the documents in favour of

accused No.2 along with accused No.1. It is not in dispute that

the sale deed contains the signature of the petitioner and also

the signature of the complainant. The complainant's specific

case is that her signature has been forged in connivance with the

officials of the Sub-Registrar office. The matter has been

investigated by the police after registration of the case. The

police during the course of investigation have obtained the FSL

report. The learned counsel for the petitioner would submit that

the FSL report is obtained based on the xerox documents. The

learned counsel for respondent Nos.2 and 3 would submit that

even though the accused is called to produce the original

documents, he did not produce the same and he conceded the

said document making the submission that the same is lost. The

FSL report is obtained based on the certified copies.

11. Having considered the factual aspects of the case, it

is nothing but disputed questions are before this Court. This

Court cannot quash the proceedings under Section 482 of Cr.P.C.

and cannot answer with regard to the disputed questions

involved in the matter. The Court has to look into the contents of

the complaint. Subsequently the matter has been investigated

and charge-sheet has been filed. When the statements of the

witnesses have been recorded and when the specific allegation

that signature of the complainant has been forged while

executing the sale deed in favour of accused No.2, though the

learned counsel for the petitioner relies upon the judgment of

the Apex Court in the case of Rajeshbhai Muljibhai Patel

(supra), the Court has to take note of the factual aspect of the

case. In the said case, the dispute is with regard to the receipt.

In the present case, the dispute is with regard to execution of

the sale deed forging the signature of the complainant. The

facts of each case has to be taken note of while considering the

matter. The Apex Court with regard to considering the factual

aspects in other judgments which have been referred by the

learned counsel for the respondent Nos.2 and 3 also comes to a

conclusion that even though there was a civil suit between the

parties, the parties who indulge in such acts cannot be scot free.

Otherwise, it would be an easy way out for the accused to avoid

the criminal proceedings. This Court in respect of accused No.2

also after filing of the charge-sheet dismissed the petition filed

under Section 482 of Cr.P.C. and made an observation that he

can make necessary application before the Trial Court for

discharge.

12. Having considered the factual aspects of the case

and the allegations made in the complaint as well as in the

charge-sheet, serious question of issues are between the parties

and hence this Court cannot invoke Section 482 of Cr.P.C. If it is

invoked, it amounts to interfering and stalling the proceedings

when serious allegation of forgery is made. The Apex Court in

the judgment in the case of DINESHBHAI CHANDUBHAI

PATEL v. THE STATE OF GUJARAT reported in 2018 (3) SCC

104 has categorically held that if the material is collected by the

Investigating Officer and the Court has taken the cognizance,

the Court has to look into the prima facie material available on

record whether the same discloses commission of any cognizable

offence and under such circumstances, it should stay its hands

and should not act like an Investigating Officer and probe into

the material available on record considering the evidence.

Hence, I do not find any merit in the petition to invoke Section

482 of Cr.P.C.

13. In view of the discussions made above, I pass the

following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

MD