Sri N A Ramesh vs The State Of Karnataka
2021 Latest Caselaw 868 Kant

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 15TH DAY OF JANUARY, 2021

                               BEFORE

            THE HON'BLE MR. JUSTICE K. SOMASHEKAR

              WRIT PETITION No.14353/2017(GM-RES)

BETWEEN
SRI N.A.RAMESH
S/O LATE N.R.ANANTHARAMAIAH
AGED ABOUT 61 YEARS
RETIRED SENIOR SUB-REGISTRAR
PRESENTLY RESIDING AT NO.905/24F
IV MAIN, II CROSS
VIDYARANYAPURAM
MYSORE-570 008.
                                                    ... PETITIONER
(BY SRI M.S.BHAGWAT, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      SUB-INSPECTOR OF POLICE
      KENGERI POLICE STATION
      KENGERI
      BANGALORE-560 038

2.    SMT. GIRIJA NAGARAJ
      W/O NAGARAJU
      AGED ABOUT 53 YEARS
      RESIDING AT NO.101,
      PARAS MANYATHA APARTMENTS
      PHASE-1, RACHENAHALLI
      BANGALORE-560 077.
                                                ...RESPONDENTS
(BY SRI RASHMI JADHAV, HCGP)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C. PRAYING
TO QUASH THE IMPUGNED PRIVATE COMPLAINT IN PCR No.6474/2016
DATED 24.06.2016 GIVEN BY R-1 VIDE ANNEXURE-C AND IMPUGNED
                                     2


FIRST INFORMATION REPORT IN CRIME NO.211/2016 DATED 02.08.2016
PENDING ON THE FILE OF R-2 VIDE ANNEXURE-B AND ALL
PROCEEDINGS THEREOF PENDING IN PCR No.6474/2016 ON THE FILE
OF 56TH ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALORE
VIDE ANNEXURE-A IN SO FAR AS THE PETITIONER IS CONVERNED.

      THIS WRIT PETITION COMING ON FOR DICTATING ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:

                                ORDER

This writ petition is filed under Article 226 of the Constitution of

India read with Section 482 of Code of Criminal Procedure, 1973,

seeking issuance of a writ or an order quashing the proceedings in

Crime No.211/2016 arising out of PCR No.6474/2016 pending before

the 56th Additional chief Metropolitan Magistrate, Bangalore, vide

Annexure-A.

2. The petitioner namely, N.A.Ramesh before this Court is a

retired Senior Sub-Registrar, who is arraigned as accused No.6 in

Crime No.211/2016 arising from PCR No.6474/2016 for the offences

punishable under Sections 420, 120(B), 418, 463, 464, 465, 468, 471

read with Section 34 of IPC.

3. Heard Sri M.S.Bhagwat, learned counsel for the petitioner

and learned HCGP for respondent - State. Perused the materials

available on record. Respondent No.2 - Smt.Girija Nagaraj, is

arraigned as complainant in Crime No.211/2016. But when once the

case has been referred as contemplated under Section 156(3) of

Cr.P.C., then the domain is automatically vested with learned HCGP

for the State to represent the complainant and to proceed in further in

accordance with law under the relevant provisions of Cr.P.C.

Accordingly, in this petition, heard the arguments of learned HCGP for

State.

4. It is transpired in the complaint petition filed by the second

respondent - Complainant is that she had initiated private complaint

against Smt.Yashodamma and others that they have no right over the

property in question but they have colluded with each other and

Accused No.6 - Mr.N.A.Ramesh, who was the Sub-Registrar, working

at the office of Sub-Registrar, Kengeri without verification of the title

in respect of the schedule property depicted therein had registered the

sale deeds dated 29.06.2011 and 28.07.2011. In this regard, the

complainant had initiated the private complaint against the accused

before the 56th Addl.CMM, Bangalore and the same came to be

referred as contemplated under Section 156(3) of Cr.P.C. Consequent

upon the reference of the said complaint, the sub-inspector of police,

Kengeri police station registered the case in Crime No.211/2016 by

recording the FIR for the offences as reflected therein.

5. Whereas, learned counsel for the petitioner has taken me

through the averments made in the private complaint filed by

Mrs.Girija Nagaraj that there is no allegation made by her against the

accused though she has approached the Judicial Magistrate having

the jurisdiction to deal with the matter. But the allegations made in

the private complaint is only a general allegation and it is a theory

set-up so as to implicate the petitioner in the crime, though there are

no ingredients said to have been constituted in the alleged offences

reflected in the FIR. Whereas in the private complaint, it is alleged

that accused No.6 has not even seen the earlier registration of

documents and even ignored the title of property in question of the

respondent No.2. However, the provision under Section 192(A) of the

Karnataka Land Revenue Act does not attract. In support of his

contention he has produced the documents as per Annexure-J which

is the order passed by this Court on 11.6.2009 in

Crl.P.No.No.4662/2008.

6. It is further contended that the Inspector General of

Registration and Commissioner for stamps has issued a letter to the

Director General of Police and Inspector General of Police requesting

to issue instructions to the investigating officer not to include the

name of the registering officer narrating the legal position. The

counsel for the petitioner has produced a copy of the circular dated

03.07.1999 as per Annexure-K for the purpose of reference in this

petition. It is further contended by the petitioner's counsel by

producing Annexure-L which is the copy of the order passed by this

Court in Crl.R.P.No.121/2014 to contend that the Sub-Registrar is no

way responsible for registration of the document and he cannot refuse

to register the documents if the contents are bogus. Even if the

documents enclosed are bogus, the Sub-Registrar cannot go into the

genuinity of the document and cannot refuse on the ground that

Khatha produced before his is forged. On this premise learned

counsel for the petitioner seeks for interference of this court by

exercising the power under Section 482 of Cr.P.C. and Article 226 of

the Constitution of India, if not, the gravamen of the accused would

be sufferer.

7. The second limb of the arguments advanced by the learned

counsel for the petition is that even at a cursory glance of the

allegation made in the complaint filed by the second respondent, that

there is no specific allegation made against accused No.6. Even at

para 7 of the complaint it is alleged that petitioner/accused No.6

being the Sub-Registrar he has not seen the documents relating to the

title of owner despite of it, registered the deed in respect of the

property in question. It is well settled law that the Sub-Registrar has

no power to go into the validity of the documents produced before him

and there is no powers vested with him to refusal to register the deed

on the ground that contents of the documents facilitated by the

parties termed as seller and purchaser are found to be erroneous but

the action of the respondent which is opposed to the Registration Act,

1908. On this aspect the Hon'ble Supreme Court laid down certain

guidelines that there cannot be any prosecution against the Sub-

Registrar on the ground that he/she has not verified the title of the

seller or he has accepted the documents produced founds to be that

document has been created. However, the Court has not applied its

mind to proceed in further while referring the case as contemplated

under Section 156(3) of Cr.P.C. On this premise, learned counsel for

the petitioner seeking for intervention of this Court by exercising the

power under Section 482 of Cr.P.C by quashing the criminal

proceedings initiated against the petitioner in crime No.211/2016

arising out of PCR No.6474/2016.

8. In support of his contention, counsel for the petitioner has

produced reliances of the Hon'ble Supreme Court reported in (2013) 9

SCC 245 (Ravinder Singh vs. Sukbhir Singh) and the judgment in

(2014) 3 SCC 151 (Virender Singh vs. State of Punjab) wherein it is

held that High Court can exercise power to quash the FIR if the

complaint and FIR does not disclose any offence even if they are read

in its entirety and taken at face value, then the High Court would be

justified in quashing. Further he has referred to the reliance of the

Hon'ble Supreme Court in (2015) 1 SCC 788 (P.S.Meherhomiji vs.

T.Vijaykumar) wherein it is held that if the complaint does not

disclose any offence, then the proceedings are liable to be set-aside.

9. Further, he has relied on the Judgment of the Hon'ble Apex

Court reported in ARCI vs. Nimra Cerglass Technics (P) Ltd reported

in (2016) 1 SCC 348 wherein the said principles are reiterated. Apart

from this, he has also relied on the judgment of the Hon'ble Supreme

Court in V.P.Srivatsava vs. Indian Explosive Limited reported in

(2010) 10 SCC 361 wherein para 15 it is held as under:

"Before evaluating the contentions advanced on behalf of the parties, it will be useful to briefly notice the scope and ambit of the inherent powers of the High Court under Section 482 of the Code. The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely; (i) to give effect to an order under the Code;

(ii) to prevent an abuse of the process of court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice."

10. Learned counsel for the petitioner has facilitated all these

reliances in support of his arguments and grounds urged in this

petition seeking to issue of writ/order quashing the impugned private

complaint in PCR No.6474/2016 dated 24.06.2016 and the FIR in

Crime No.211/2016.

11. Whereas, learned HCGP for the State has taken me through

initiation of the private complaint by the second

respondent/complainant against the petitioner and others. In

support of the complaint, the complainant has produced several

documents. But on perusal of the averments made in the complaint

and so also, the material documents relating to the allegations made

that the case has been referred as contemplated under Section 156(3)

of the Cr.P.C. to the jurisdictional police. Accordingly, the

investigating agency has registered the case in Crime No.211/2016 for

the offences reflected in the FIR and proceeded with the case for

investigation. But the complaint as filed by the complainant to

recourse relating to the offence lugged against the accused as where

the accused having not gone through the material for which produced

by either the complainant and colluded with each other and registered

the documents relating to the properties depicted in the conciliation.

Whereas the petitioner/accused No.6 by avocation is a Sub-Registrar,

Office at Kengeri, Bengaluru City. The sum and substance of the

complaints and also reflected in the FIR said to have been recorded. It

reveals that complainant purchased site No.62, new Municipal

No.731/3, Old Municipal No.113/5 of Kengeri Town, Bangalore South

taluk, Bangalore by sale deed dated 21.04.1995 from one Mr.Gopala

Krishna represented through Power of attorney holder K.Garudappa.

To construct a house in the said property, when complainant and her

husband visited the above site, they came to know that the said site

has been sold to two different persons by dividing it into two parts in

the office of Sub-registrar at Kengeri. All the accused held criminal

conspiracy by creating documents as revealed in the substance of the

FIR. This accused No.6 in collusion with the other accused got

registered the said properties with an intention to cheat the

complainant. Therefore, complainant initiated the private complaint

against the accused persons. Unless the investigation has to be

carried by the investigating agency without any hurdles or obstacles

or impediment, it cannot be arrival at this stage, that there is no

ingredients for having constituted the offence as alleged against

accused No.6 as he being the conspirator in the office of Sub-

Registrar of Kengeri. But there was a role made by the accused also

that he did not verify the material documents while registering the

properties. The same has to be seen that after thoroughly

investigation by the investigating agency and then only arrival for

conclusion whether there is prima-facie materials against the accused

in commission of offences by colluding that the other accused by

hatching criminal conspiracy in order to cheating the complainant.

However, respondent Nos.1 to 3 in the private complaint have stated

that they do not having no right, title, interest over the properties in

the disputed site for fraudulently executing sale deed in favour of

respondent No.4 . These are all the averments as finds place in the

complaint as filed by the complainant before the Court below. Though

the complainant is the absolute owner of the aforesaid site and the

complainant has been paying the property tax regularly to the BBMP

and all this has not been verified by accused No.6 being the Sub-

Registrar in the office of Sub-Registrar Kengeri. On all this premise,

learned HCGP for State contends that petitioner do not deserves

quashing of the criminal proceedings initiated against him in Crime

No.211/2016.

12. It is in this backdrop of the contentions as taken by the

learned counsel for the petitioner and so also, counter made by

learned HCGP for the State it is relevant to refer certain provision of

law such as Section 83 of the Registration Act, 1908 which reads as

under:

    83.    Registering         officers       may         commence
    prosecutions.--

(1) A prosecution for any offence under this Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permission of the Inspector-General, the Registrar or the Sub-Registrar, in whose territories, district or sub-district, as the case may be, the offence has been committed.

Section 84 of the Registration Act reads as under:

Registering officers to be deemed public servants.--

(1) Every registering officer appointed under this Act shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860).

(2) Every person shall be legally bound to furnish information to such registering officer when required by him to do so.

(3) In Section 228 of the Indian Penal Code (45 of 1860), the words "judicial proceeding" shall be deemed to include any proceeding under this Act.

Section 86 of the Registration Act reads as under:

"Registering officer not liable for thing bona fide done or refused in his official capacity.--No registering officer shall be liable to any suit, claim or demand by reason of anything in good faith done or refused in his official capacity.

13. It is relevant to refer the judgment rendered by this

Court in Sulochanamma vs. H.Nanjundaswamy and others

reported in 2001(1) KLJ 215 wherein it is held that Sub-Registrar

is entrusted with the duty of registering the documents in

accordance with the provisions of the Act and he is not

authorized to go into the genuineness or otherwise of the

document.

14. Whereas under Section 71 of the Registration Act read

with Rule 171 of the Karnataka Registration Rules, the Sub-

Registrar has no authority to refuse registering of document

unless the same is not in conformity with Sections 19 to 35 and

40 to 43 and 72, 75, 77 and 80 and the Sub-Registrars therefore

cannot be held under the provisions of the Act. Whereas Section

192-A of the Karnataka Land Revenue act refers to Clause(5)

which deals with sale of an agricultural land for non-agricultural

purposes without getting such land converted or without getting

approval of the competent authority. But the petitioner who is

arraigned as accused No.6 in crime No.211/2016, he was

working as a Sub-Registrar in the office of Sub-Registrar at

Kengeri. But Accused No.1 - Yashodamma and others executed

sale deed in favour of Susheela Bai and Hanumanta Gowda in

respect of two sites owned by them.

15. In this regard, it is relevant to refer to the order passed

by this Court in W.P.No.55725/2016 dated 08.07.2019 wherein it

is held that "a reading of the complaint indicates that a sale deed

relating to the immovable property belonging to the complainant

was presented for registration before the petitioner on

13.10.2015. I have perused the copy of the said sale deed at

Annexure-C. Except registering the document, there is nothing

in the said document to show that the petitioner herein has

identified either the executant or the purchaser of the property.

Further reference has been made to Rule 73 of the Karnataka

Registration Rules, 1965 which casts a duty on the Registering

Officer to register the documents presented before him, unless

the registration thereof is objected by any person on the grounds

specified therein. It reads as under:

73. Duties of the Registering Officer.---- (i) It shall form no part of the Registering Officer's duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest

against the registration of a document, provided execution is duty admitted; but in case of executants who are unable to read, the document shall be road out and if necessary explained to them. If the document is in a language which they do not understand it must be interpreted to them.

(ii) If registration is objected to by any person on any of the following grounds, viz.,

(a) that a person appearing or about to appear before the Registering Officer as an executant or claimant the person he Professes to be, or that he is a minor, an idiot, or lunatic.,

(b) that the instrument is forged;

(c) that the person appearing as a representative, assignee or agent has no right to appear in that capacity;

(d) that the executing party is not really dead, as alleged by the party applying for registration.

Such objections shall be duly weighed by the Registering Officer and if they are substantiated, registration shall be refused but under subsection (2) of Section 58, if execution be admitted, registration should take place even if the executant refuses to sign the Registering Officer`s endorsement of admission."

16. A reference has been made to the decision in the case

of S.Sreenivasa Rao Vs. Registrar reported in ILR 1990 KAR 3740

was also made. Considering the similar issue raised before this

Court as to the duties of the Sub-Registrar, it is observed as

under:

6. Coming to the next question as to whether the Registrar of Societies could have issued a direction to the Sub-Registrar not to register a particular document, learned Counsel for the respondents - 3 to 5, 7 and 10, could not point out any provision either in the Karnataka Societies Registration Act, 1960 or the Rules framed thereunder or in the Registration Act, 1908, which authorised the Registrar of Societies to make such a direction. We also find no provision in the Registration Act, 1908 which obliges the Sub-Registrar to act upon any such direction and/or to investigate at the stage of registration of a document itself, the title of the party executing the document. We are, therefore of the view that if a document is presented for registration by the executant, and in doing so, the executant complies with all the provisions of Registration Act, 1908, it is not open to the Sub-Registrar to refuse registration of the document unless he exercises that discretion pursuant to any provision in the Registration Act, 1908 or any other law or Rule having the force of law. The mere registration of a document is by itself not a proof of its validity, neither does it follow that the executant had title to the property, he seeks to dispose of under the document. Matters such as relating to title have to be decided before the appropriate forum. If any person is interested in contending that any particular document executed and registered under the Registration Act, 1908 is invalid or illegal for any reason whatsoever, he !s certainly at liberty to question the validity of the document, the title of the executant, and

such other questions before the proper forum in an appropriate proceeding. Similarly, if it is sought to be contended in the instant case that the Trust Deed has been executed in contravention of the provision of the Karnataka Societies Registration Act, 1960 any person aggrieved may challenge the validity of the Trust Deed in a duly constituted proceeding. There is, however, no warrant for the proposition that the registration of the document itself can be prevented by directing the Sub- Registrar not to register the document. We are therefore of the view that the learned Single Judge was in error in holding that the direction issued by the Registrar of Societies to the Sub-Registrar was competent and consequently Annexure-D was also valid."

17. Further at para-7 of the petition it is held that "in the

case of Devaraju.B vs. The State, this Court has elaborately

considered the obligations of the sub-Registrar with regard to

registration of the documents and having regard to the provision

of Rule 73 of the Karnataka Registration Rules, 1965 and the law

laid down by this Court in various other decision referred to

above quashed the proceedings initiated against the Sub-

Registrar. Facts of the instant case bear resemblance to the facts

of the above case. In the absence of any allegations imputing

knowledge to the petitioner about falsity of the document merely

on the basis of registration of said document by the petitioner in

the course of his duties is wholly illegal and cannot be sustained.

For the said reasons, the petition deserves to be allowed."

18. In the instant case, there is no dispute that respondent

No.2 who is an instrument of the complaint and based upon the

said complaint, the case in PCR No.6474/2016 came to be

registered before the XLVI ACMM, Bangalore. Subsequently, the

matter was referred for investigation to the jurisdictional police as

contemplated under Section 156(3) of Cr.P.C. and to submit the

report. Accordingly, the Kengeri Police registered the case in

Cr.No.211/2016 by recording the FIR as contemplated under

Section 154 of Cr.P.C. In this regard, it is relevant to refer Section

482 of Cr.P.C. which reads as under:

"482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

19. But in the instant case, petitioner/accused No.6 was

discharging his duties as a Sub-Registrar in the office of Sub-

Registrar, Kengeri. Therefore, it needs to look into the scope of

Section 482 of Cr.P.C. in respect of inherent jurisdiction which

should be exercised sparingly, carefully and with caution and

only such exercise is justifiable when the tests specifically laid

down in the Section itself.

20. In this regard, it is relevant to refer the reliance placed

in the case of Anand Kumar Mohatta and Another vs. State

(Govt. of NCT of Delhi) Dept. of Home and Another reported in

AIR 2019 SC 210, and also in many number of judgments

referred relating to quashing of FIR u/s.482 of Cr.PC., restricting

exercise of power of court to prevent abuse of process of court or

miscarriage of justice only to stage of FIR - High Court can

exercise jurisdiction u/s.482 Cr.PC., even if charge sheet is filed

during pendency of application. It is further held that "there is

nothing in the words of this Section which restricts the exercise

of the power of the Court to prevent the abuse of process of court

or miscarriage of justice only to the stage of the FIR. It is settled

principle of law that the High court can exercise jurisdiction

under Section 482 of Cr.P.C even when the discharge application

is pending with the trial court. Indeed, it would be a travesty to

hold that proceedings initiated against a person can be interfered

with at the stage of FIR but not if it has advanced, and the

allegations have materialized into a charge sheet. On the contrary

it could be said that the abuse of process caused by FIR stands

aggravated if the FIR has taken the form of a charge sheet after

investigation. The power is undoubtedly conferred to prevent

abuse of process of power of any court.

21. In this judgment the Hon'ble Supreme Court has further

held as under:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

22. Keeping in view the observations made by the Hon'ble

supreme Court in the reliance referred to supra, there is no

hesitation in quashing the FIR. In terms of the aforesaid reasons, it

needs for exercising of power under Section 482 of Cr.P.C.

Accordingly, I proceed to pass the following:

ORDER

The writ petition filed by the petitioner/accused No.6 under

Article 226 of the Constitution of India read with Section 482 of

Cr.P.C. is hereby allowed.

The criminal proceedings initiated against the

petitioner/accused No.6 in Crime No.211/2016 arising out of

PCR No.6474/2016 which is pending before the 56th Addl.Chief

Metropolitan Magistrate, Bangalore are hereby quashed.

Sd/-

JUDGE

Mv/Dkb