Karnataka High Court
Sri. Sukesh.N S/O B. Nageshwar Rao ... vs The State Of Karnataka And Anr on 19 July, 2021
Author: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA R
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF JULY, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION NO. 200206/2020
Between:
1. Sri.Sukesh.N, S/o B.Nageshwar Rao,
Aged about 37 years,
HL-79, Nijalingappa Colony,
Raichur-584101.
2. Sri.B.Nageshwar Rao,
S/o late Bheemanna,
Aged about 65 years,
HL-79, Nijalingappa Colony,
Raichur-584101.
3. Sri.N.Narashimalu
S/o Narasappa Achari,
Aged about 73 years,
R/o H.No.1-4-373, S.B.H.colony,
Raichur-584101.
4. Sri.N.Sriramachandra Murthy,
S/o late.B.Savareppa,
Aged about 49 years,
No.7-52/1, Rampuram,
Near Sadana Public School, Pewndurthi,
Vishakpatnam, Andhra Pradesh-531173.
... Petitioners
(By Sri.S.P.Kulkarni & S.B.Patil, Advocates)
2
And:
1. The State of Karnataka,
Represented by its Netaji Nagar Police Station,
Raichur East Circle,
Raichur-584101.
Now represented by Addl.State PP
High Court of Karnataka,
Kalburgi Bench, Kalburgi-585102.
2. Sri.Santhosh Kumar.N @ Santhosh Nandini,
S/o late Narasimhalu,
Aged about 37 years,
No.L-246, Nijalingappa Colony,
Raichur-584101.
Dist, Raichur, Karnataka.
... Respondents
(By Sri.Gururaj.V.Hasilkar, HCGP for R1
Sri.Venugopal, Advocate for
Sri.Shivanand Patil, Advocate for R2)
This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to call for the records in complaint dated
26.12.2019 filed by the second respondent in FIR/Crime
No.84/2019 registered before Raichur East Circle, Netaji Nagar
Police Station, Raichur, against the petitioners herein, for the
offences under Sections 419, 420, 467, 468, 471 read with
Section 34 of IPC and to quash the complaint dated
26.12.2019 and FIR dated 26.12.2019 in crime No.84/2019
registered by the first respondent police for the offences
punishable under Sections 419, 420, 467, 468, 471 read with
Section 34 of IPC, insofar as the petitioners herein are
concerned, being arbitrary, erroneous and opposed to law
equity and justice, amounting to abuse of process of Court
(Annexures-A & B).
3
This Criminal petition having been heard and reserved
for judgment on 12.07.2021, coming on for 'pronouncement of
orders' this day, the court made the following:
ORDER
The petitioners have filed this petition under Section
482 of Cr.P.C. for quashing the FIR registered in Crime
No.84/2019 on the file of the Netaji Nagar Police Station,
Raichur for the offences punishable under Sections 419,
420, 467, 468, 471 read with Section 34 of IPC.
2. The brief facts leading to the case are that the
petitioner No.1 is the son of Nageshwar Rao while
petitioner No.2 is the son of late Bheemanna who is the
brother of Savarappa and petitioner No.3 is the brother of
late Bheemanna and uncle of late Savarappa while
petitioner No.4 is the son of Savareppa. Petitioner No.4 is
the son of Savareppa born to his first wife Vijayalakshmi.
It is the further case that Savareppa has obtained divorce
from his first wife and then contracted second marriage
with Jayashree. It is further the case that both Savareppa
and his second wife Jayashree died in a road traffic
accident on 01.05.2009. That the respondent No.2 is the
son of the other brother of Savareppa by name
Narasimhalu; that the father of respondent No.2
Narasimhalu died prior to 2009 and the respondent No.2
has lodged a complaint on 26.12.2019 claiming that after
the death of Savareppa and his wife Jayashree, the
petitioners have taken certain amount from NEKRTC by
impersonating the present petitioner No.4 as their son
and by filing an affidavit the amount was drawn. It is also
alleged that from second marriage of Saverappa with
Jayashree, they did not have any issues and they have
also obtained Heirship Certificate by showing that the
petitioner No.4 is the legal heir of Saverappa. Hence, he
lodged a complaint for initiation of the action. On the
basis of the complaint, the investigating officer has issued
FIR in crime No.84/2019 for the offences punishable
under Sections 419, 420, 467, 468 and 471 of IPC. Being
aggrieved by this order, the petitioners have filed this
petition for quashing the FIR and complaint on the
ground that it is an abuse of process of law.
3. Heard the arguments advanced by the learned
counsel for the petitioners and the learned counsels for
the respondents.
4. The learned counsel for the petitioners would
submit that admittedly Saverappa is the father of the
petitioner No.4 born to the first wife Vijayalakshmi which
is undisputed. Further he would submit that he had no
issue with second wife Jayashree and the second wife
Jayashree is his step mother. He would submit that in no
way the respondent No.2 becomes class-I heir of the
Saverappa and whatever compensation is obtained is
legal one. Further he would also contend that after delay
of 10 years this false complaint came to the lodged and
civil litigation is still pending. He would further submit
that the Succession Certificate is issued in favour of the
present petitioner No.4 and the Heirship Certificate issued
by the competent authority and in any event the
respondent No.2 does not become class-I heir of the
deceased Saverappa. He would further submit that in
2015 itself regarding forgery of the signature of
Saverappa for cancellation deed a complaint was filed by
petitioner No.4 and since the petitioner No.4 is class-I
heir the brothers and the children of the brother of
Saverappa does not inherit any property. He would also
invite the attention that Saverappa admittedly died on
01.05.2009 but the cancellation deed was got executed in
his name on 07.09.2011 which is created by respondent
No.2 and the complaint is already pending. He would
further submit that the Heirship Certificate and the
Succession Certificates were issued by competent
authorities and they can be only challenged by way of
civil litigation and question of forgery does not arise at
all. He would also submit that the present
complainant/respondent No.2 is asserting his right on the
basis of the alleged Will or gift deed but that itself is in
dispute and it is not tested in any Court of law and it is
not a registered one. Hence, he would submit that the
filing of the complaint is an abuse of process of law that
too after delay of 10 years and sought for quashing the
proceedings.
5. Per contra the learned counsel for respondent
No.2 would submit that the translation of Heirship
Certificate is not properly made and it is not required to
used in civil or criminal proceedings and the civil suit in
original suit is still pending and this respondent had no
knowledge of filing of false affidavit and hence, delay has
no relevance. He contended that there is prima-facie
evidence as against present petitioners and hence,
sought for rejection of the petition.
6. Having heard the arguments and perusing the
records, it is undisputed fact that Saverappa is the son of
Bheemanna. The petitioner No.2 is the other son of
Bheemanna i.e., he is brother of Saverappa while
petitioner No.1 is the son of petitioner No.2. The
petitioner No.3 is the uncle of Saverappa being the
brother of Bheemanna while petitioner No.4 is admittedly
son of Saverappa. It is important to note here that the
petitioner No.4 is the son of Saverappa born to the first
wife of Saverappa by name Vijalakshmi. It is also an
undisputed fact that Saverappa after getting divorce from
Vijayalakshmi contracted second marriage with
Jayashree. Admittedly the petitioner No.4 is the son of
Saverappa and Vijayalakshmi and there is no dispute
about this aspect. Both Jayashree and Saverappa died in
a road accident on 01.05.2009. The Heirship Certificate
was obtained by the petitioner No.4 as per Annexure-E.
The death extract of Saverappa and Jayashree are at
Annexures-C and D. Though the learned counsel for
respondent No.2 contended that there is no proper
translation of the Annexure-E, but he did not explained
what is wrong and on the contrary the original Annexure-
E clearly disclose that Saverappa had two sons and a
daughter by name Sriramachandra Murthy i.e., the
petitioner No.4, other son by name Arun and a married
daughter Arathi. The Heirship Certificate is not issued
only in the name of Sriramachandra Murthy i.e.,
petitioner No.4 but issued in the name of all the children.
Admittedly though Jayashree is a step mother, petitioner
No.4 and other two children become class-I heir of
Saverappa. Even the property situated in Raichur was
mutated in the name of petitioner No.4 as class-I heir
which is evident from Annexure-F.
7. Further from records i.e., from Annexure-G it
is evident that the respondent No.2 herein has moved an
application to City Corporation, Raichur for cancellation of
the mutation of house No.L-229 and claiming that on
bond paper the property was given to him and he became
owner. It is important to note here that only on the basis
of the bond paper the respondent No.2 cannot become
the owner and it should be either a registered gift or a
Will but from Annexure-G it is not forthcoming whether it
is Will or gift deed. However, in Annexure-G itself is
evident that he is claiming it to be gift as he has used the
word "¥ÉæêÀÄzÀ PÁtÂPÉ (PÉÆqÀÄUÉ)". In that event, since the property
is transferred by way of gift pursuant to immovable
property worth of more than Rs.100/- it is compulsory
registerable document. Hence, when the gift itself is not
established and admittedly it is not a registered gift deed,
as such the respondent No.2 does not get any interest in
this property. But, it is evident that he is all along laying
claim over the property.
8. It is also important to note here that a deed of
cancellation was alleged to have been executed in the
name of the deceased Saverappa. This document is
available at Annexure-H and this document was alleged
to have been executed by deceased Saverappa on
07.09.2011. This document is also attested by
respondent No.2. Interestingly it is an undisputed fact
that Saverappa died on 01.05.2009 itself and it is evident
from Annexure-C which is undisputed. Hence, it is evident
that in the name of deceased Saverappa this Annexure-H
was got executed by impersonating. Regarding this
aspect the daughter of Saverappa has filed a complaint
as per Annexure-J on 04.05.2012. But it appears that no
steps were taken. However, on the same aspect the
present petitioner No.4 has lodged a complaint against
respondent No.2 and others in a private complaint and
the same was referred and FIR was issued in Crime
No.72/2012 which is evident from Annexure-K. Looking
to all these documents, it is evident that respondent No.2
has no scrap of paper to show that he is inheriting the
property of Saverappa and Jayashree in any capacity
either by way of gift or any other deed. Hence, the
petitioner No.4 and his brother and sister are admittedly
class-I heir of deceased Saverappa since they were born
to Saverappa through his first wife. Because of divorce,
the relationship of the petitioner No.4 with Saverappa is
not severed and he continued to be a class-I heir along
with his brother and sister. The present respondent No.2
is only a nephew of Saverappa and he is not a class-I heir
of Saverappa. When class-I heirs are there he cannot
inherit the property of Saverappa in any capacity.
9. It is also evident from Annexure-L that the
present respondent No.2 has also filed suit in
O.S.No.323/20105 for permanent injunction. It is
important to note here that it is pertaining to house
property No.L-229-LIG but no declaration was sought
regarding title of respondent No.2. From Annexure-Q it is
also evident that respondent No.2 has also filed an
application under Order XII Rules 3 and 5 seeking
direction to the defendant to admit the documents which
came to be rejected by the learned civil judge. Annexure-
S is the Succession Certificate issued in the name of the
petitioner No.4 and his sister Arathi by Prl.Senior Civil
Judge and CJM, Raichur. Hence, it is evident from the
records that the respondent No.2 is all along making
attempts to establish his claim regarding Heirship of
Saverappa. But he has not produced any material piece
of evidence to substantiate his claim and only stamp
paper does not confirm him any title and he could agitate
his right before the competent civil Court by seeking
declaration regarding the status or inheritance. But
instead of doing so he is continuously using different
tactics as it is evident and he himself is an attesting
witness to a cancellation deed of 2011 alleged to have
been executed by deceased Saverappa, who died two
years prior to the said cancellation deed itself.
10. The compensation claimed on account of death
of Saverappa and his wife Jayashree is nothing to do with
the complainant/respondent No.2. He is no way
concerned and he cannot become class-I heir and further
it is for the KSRTC authority to decide as to who are the
class-I heirs and are entitled for compensation. There is
no need for the present respondent No.2 to poke his nose
in this regard. But it is evident that he is exceeding his
limits without establishing his title or status.
11. The learned counsel for the petitioners has
argued that respondent No.2 instead of fighting a civil
litigation he intend to give colour of criminal litigation to
the civil litigation which cannot be permitted. In this
context he further placed reliance on the decision
reported in 2018 (2) Kar.L.R 864 in the case of
Mrs.Indira Poovaiah and Another vs. The State of
Karnataka and Another wherein this Court has held
that the frustrated litigants who has failed to succeed
before the Civil Court should not be permitted to initiate
criminal proceedings just to harass the other side with
malafide intentions or the ulterior motive of wreaking
vengeance. In the present case respondent No.2 is using
the same tactics.
12. Further he has also placed reliance on the
decision reported in 2019 (1) KCCR 543 in the case of
V.Nagabhushan and Others vs. M/s.
N.K.Constructions, Bengaluru and Another, wherein
it is observed that a civil litigation sought to be given a
criminal colour shall not be allowed. In the instant case,
the respondent No.2 is all along harping on the property
of Saverappa. Undisputedly petitioner No.4 is the son of
Saverappa. The respondent No.2 does not have any right
when there are class-I heirs and his right is only on the
basis of either a Will or a registered gift deed which is not
forthcoming. Even in that event he has to substantiate
his right in the civil Court but, he is choosing a criminal
remedy which disclose his intention. Hence, the same
cannot be permitted.
13. Learned counsel for the petitioners has further
invited the attention to the Court to the decision reported
in 2019 (5) KCCR SN 41 (SC) in the case of
Prof.R.K.Vijayasarathy and Another vs. Sudha
Seetharam and Another, wherein the Hon'ble Apex
Court has clearly held that complaint filed after 5 years
after the civil suit is a clear attempt made to cloak a civil
dispute with criminal nature despite absence of
ingredients and it amounts to abuse of process of Court.
The said principles are also directly applicable to the case
in hand.
14. Further in the case of AIR 2020 SC 626 in
the case of Sardar Ali Khan vs. State of Uttar
Pradesh through Principal Secretary Home
Department and Anr., wherein the Hon'ble Apex Court
has observed that continuation of criminal proceedings
during pendency of civil suit is nothing but an abuse of
process of law and this Court in Crl.P.No.7702/2020
dated 04.03.2021 (Smt.Nirmala vs. State of
Karnataka and Others) has further observed that when
civil suit is pending for 5 years regarding the validity of
the documents, the initiation of criminal proceedings is
abuse of process of law. In the instant case, the civil suit
initiated by the respondent No.2 is already pending but it
is also important to note here that it is only a suit for
bare injunction and he has never claimed any declaratory
relief in any Court of law. Hence, it is evident that the
respondent No.2 is abusing process of law. In the instant
case there is long delay of 10 years regarding allegations
of withdrawal of amount by forging documents.
Admittedly petitioner No.4 is the son of the deceased
Saverappa and question of forgery or misrepresentation
does not arise at all. Further the Succession Certificate
was issued in favour of petitioner No.4 by the civil Court.
The Hiership Certificate is also issued by the competent
authority and as such when there is a Succession as well
as Heirship Certificate question of forgery and cheating so
as to incorporate the ingredients of the offence under
Section 468, 471 and 420 of IPC does not arise at all.
15. On the contrary it is evident that petitioner
No.4 himself has lodged a private complaint in
P.C.R.No.234/2015 and earlier also he had filed a
complaint regarding impersonation of his deceased father
and as a counter blast this complaint is filed. Admittedly
complainant is not the son of Saverappa and he does not
succeed him.
16. Learned counsel for the petitioner further
placed reliance on the following decisions:
1) AIR 1992 SUPREME COURT 604(1) in the
case of State of Haryana and others vs.
Ch.Bhajan Lal and others.
2) AIR 1998 SUPREME COURT 128 in the case
of M/s. Pepsi Foods Ltd., and another vs.
Special Judicial Magistrate and others.
3) AIR 2005 SUPREME COURT 9 in the case of
M/s. Zandu Pharmaceutical Works Ltd., and
others vs. Md.Sharaful Haque and others.
4) 2017(5) KCCR 350 in the case of Purnakala
alias Poornima and Another vs. State of
Karnataka.
5) AIR 2019 SUPREME COURT 296 in the case
of Vinod Natesan vs. State of Kerala and
Ors.
6) AIR 2020 SUPREME COURT 626 in the case
of Sardar Ali Khan vs. State of Uttar
Pradesh.
7) AIR 2020 SUPREME COURT 788 in the case
of Ahmad Ali Quraishi and Anr. Vs. State of
Uttar Pradesh and Anr.
8) AIR 2020 SUPREME COURT 1877 in the case
of Mukul Agrawal and Ors. Vs. State of U.P
and Anr.
17. In all these decisions it is clearly held that
when there is an abuse of process of law, the High Court
can exercise the inherent powers under Section 482 of
Cr.P.C. for quashing the proceedings. It is further held in
the said citations that when the proceedings are civil in
nature, then initiation of the criminal proceedings are
required to be quashed. In the instant case also the
dispute itself is of civil nature and under these
circumstances, it is evident that the respondent No.2 is
making a futile effort to substantiate his case without any
documents being produced.
18. Learned counsel for respondent No.2 has
placed reliance on the decision reported in AIR 2021
Supreme Court 1918 in the case of M/s Neeharika
Infrastructure Pvt. Ltd., vs. State of Maharashtra
and others. But the principles enunciated in the said
decision does not come to the aid of the respondent No.2
in any way as the matter is of civil nature and respondent
No.2 himself does not have any locus-standi to claim any
interest in the property of Saverappa. Even if he got any
right, it is to be established in a civil Court but he is
making false allegations after 10 years by giving a civil
litigation a colour of criminal litigation and it is abuse of
process of law. In fact the principles enunciated in the
above cited decision would come to the aid of the
petitioners rather than the respondent No.2.
19. He further placed reliance on the decision
reported in AIR 1992 SC 604 in the case of State of
Haryana and Ors vs. Ch. Bhajan Lal and Ors, but
again it will not come to the aid of the respondent No.2 in
any way as in the said decision it is clearly held that when
there is an abuse of process of law, the Court is
empowered to exercise the inherent power under Section
482 of Cr.P.C. The petitioner is not disclosing in what
capacity he is claiming or asserting the right and what is
his locus standi but he is initiating proceedings after
proceedings without substantiating his status or right in
any civil Court.
20. The learned counsel for respondent No.2 has
further relied on the decision reported in privy counsel
(1945) 47 BOMLR 245 in the case of Emperor vs.
Khwaja Nazir Ahmed, but the said principles does not
come to his aid in any way as the respondent No.2 is
making an attempt of abuse of process of law by lodging
complaint after gap of 10 years without any right over
the property of Saverapppa and even if had got any such
right, without establishing the said right in any civil Court
of law.
21. Under these circumstances, the entire
proceedings initiated by the petitioners by lodging a
complaint and issuance of FIR in Crime No.84/2019 is
abuse of process of law and requires to be quashed. The
Court cannot become silent spectator when there is abuse
of process of law and accordingly, the petition requires to
be allowed. Accordingly, I proceed to pass the following:
ORDER
The petition is allowed.
The complaint dated 26.12.2019 and FIR dated
26.12.2019 in Crime No.84/2019 registered for the
offences punishable under Sections 419, 420, 467, 468,
471 read with Section 34 of IPC are quashed.
Sd/-
JUDGE
NS
