Karnataka High Court

Mr Cheluvaraj vs State By Udayagiri Police Station on 25 January, 2022

Bench: M.Nagaprasanna

                             1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 25TH DAY OF JANUARY, 2022

                            BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.6117 OF 2018

BETWEEN

MR CHELUVARAJ
S/O HALAGA SHETTY,
AGED ABOUT 43 YEARS
NOW R/AT NO.707,
1ST B MAIN, 2ND PHASE,
7TH BLOCK, BSK 3RD STAGE,
BANGALORE-560 085.

RETIRED SUB-REGISTRAR
NORTH ZONE, AGRAHARA,
K.R MOHALLA, MYSORE                      ... PETITIONER

(BY SRI SHARATH GOWDA.G.B., ADVOCATE (PHYSICAL HEARING))

AND

1.    STATE BY UDAYAGIRI POLICE STATION
      DEVARAJ SUB-DIVISION,
      MYSURU, KARNATAKA-570019
      REPRESENTED BY PUBLIC PROSECUTOR
      HIGH COURT OF KARNATAKA
      BANGALORE-560008.

2.    EQBAL MOHAMMAD
      S/O MOHAMMAD HUSEEN
      AGED ABOUT 56 YEARS.
                              2



3.   FARIDUNISSA
     C/O EQBAL MOHAMMAD,
     AGED ABOUT 51 YEARS

     BOTH ARE R/AT NO.143/4,
     17TH CROSS, 18TH MAIN ROAD,
     5TH STAGE, JM RESIDENCE,
     J.P. NAGAR,
     BENGALURU-560 078.                     ... RESPONDENTS

(BY SMT. NAMITHA MAHESH.B.G., HCGP FOR R-1
    SRI. VENKATESH.R.BHAGAT, ADVOCATE FOR R-2 & R-3
    (VIDEO CONFERENCING))

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE CHARGE SHEET IN
C.C.NO.4971/2016 ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE AND C.J.M., MYSURU FOR THE OFFENCES U/S 406,
420, 120B OF IPC AND CONSEQUENTLY QUASH THE ENTIRE
PROCEEDINGS.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING :-

                            ORDER

The petitioner in this petition calls in question proceedings

pending in C.C.No.4971 of 2016 on the file of the III Additional

Civil Judge (Senior Division) and Chief Judicial Magistrate,

Mysore for offences punishable under Sections 406, 420 and

120B of the IPC.

2. Brief facts for filing of the present petition, as borne out

from the pleadings, are as follows:-

The petitioner was appointed and posted as Sub-Registrar,

Channapatna on 9-08-1999 and was later transferred to Mysore

as a Sub-Registrar. During his tenure at Mysore on 30.05.2001,

the 2nd respondent/complainant No.1 enters into three different

registered agreements of sale with the other accused for

purchase of agricultural land measuring 7 acres 23 guntas in

Sy.No.38 at Devanur Village, Kasaba Hobli, Mysore Taluk. In

terms of the agreements of sale, a sale deed was also registered

on 21-04-2006 not between the same parties but it was executed

in favour one Sri T.N.Venkatesh who is not before this Court in

the present criminal petition. At the time of registration of the

sale deed, the petitioner was also working as Sub-Registrar. Two

months after registration of the sale deed, the other accused who

were parties to the sale, the vendors of the properties which were

agreed to be purchased by the 2nd respondent/complainant No.1

executed two cancellation deeds dated 21-08-2006 cancelling

the agreements of sale entered into on 30-05-2001. The deed of

cancellation was presented before the petitioner and the same

was registered. The contents of the deed of cancellation was that

there were disputes with regard to payment in full and final

settlement between the vendors and the purchasers. Such deeds

were registered by the petitioner as Sub-Registrar.

3. The petitioner in this petition seeks and is granted

voluntary retirement on 13-11-2014 at which point of time he

was working as Senior Sub-Registrar. After retirement of the

petitioner, the 2nd respondent registers a private complaint in

Crime No.29 of 2016 alleging that the petitioner while working

as Sub-Registrar has cancelled agreements to sell five years after

their execution and after execution of the sale deed in favour of

the purchaser. The allegations were of offences punishable

under Sections 406, 420 and 120B of the IPC. After

investigation, the Police have filed a charge sheet against the

petitioner, challenging which the petitioner is before this Court.

4. Heard Sri G.B.Sharath Gowda, learned counsel

appearing for the petitioner, Smt. Namitha Mahesh B.G., learned

High Court Government Pleader for respondent No.1 and

Sri Venkatesh R. Bhagat, learned counsel for respondent Nos.2

and 3.

5. The learned counsel appearing for the petitioner Sri G.B.

Sharath Gowda would submit that the deeds of cancellation took

place on 15-06-2006 and 21.08.2006 and the complaint is

registered on 16.02.2016, nearly 10 years after the act of

cancellation of sale deeds. The delay in registering the complaint

or the FIR is not explained in the complaint. He would submit

that the petitioner being a Government servant, the proceedings

could not have been conducted without at the outset obtaining

sanction under Section 197 of the Cr.P.C., notwithstanding the

fact that the petitioner had retired voluntarily on the date on

which the FIR came to be registered and would seek quashing of

entire proceedings in C.C.No.4971 of 2016 pending in the Court

of the III Additional Civil Judge (Senior Division) and Chief

Judicial Magistrate, Mysore.

6. On the other hand, the learned counsel appearing for

the complainants Sri Venkatesh R.Bhagat would contend that

delay in such cases, where it is a fraud that is pleaded by the

petitioner will not vitiate the proceedings, as the petitioner

registers all three documents - first the agreements of sale on

30-05-2001, next the deed of sale on 21-04-2006 and deeds of

cancellation of agreements to sell dated 30-05-2001 on

15.06.2006. For the act of the petitioner, which is a fraud,

sanction need not be obtained as it is not in the course of his

normal official duties is his emphatic submission.

7. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused material on record.

8. The afore-narrated dates and events are not in dispute

and are therefore not reiterated. The only issue that falls for my

consideration is whether the act of the petitioner who was the

Sub-Registrar who registered the deed of cancellation or the sale

deed between the parties was contrary to law? The petitioner

was appointed as a Sub-Registrar, Channapatna with effect from

09.08.1999. On 30.05.2001 certain agreements of sale were

registered by the petitioner as Sub-Registrar of Channapatna. It

transpires that deeds of cancellation of the said agreements to

sell were also registered by the petitioner, which were on

15.06.2006 and 21.08.2006 respectively. This was a deed of

cancellation cancelling the agreements of sale dated 30.05.2001

executed between them.

9. On 13.11.2014 the petitioner seeks and is granted

voluntary retirement and therefore cease to be in employment of

the State Government with effect from 13.11.2014. Long after

the retirement of the petitioner and about 14 years of the

registration of the agreement of sale and 10 years after

registration of the cancellation deeds, a private complaint is

registered by the complainants/respondents 2 and 3 invoking

Section 200 of the Cr.P.C. on 19.11.2015 against the petitioner.

On registration of the said complaint, the learned Magistrate

refers the matter for investigation under Section 156(3) of

Cr.P.C. on 24.11.2015 and the police, after investigation, filed a

charge sheet and the entire proceedings are now pending in

C.C.No.4971/2016. It is these proceedings that are called in

question in the present writ petition.

10. The dates and events are not in dispute. Several

agreements to sell were executed on 30.05.2001 and

cancellation of those agreements were executed on 15.06.2006

and 21.08.2006. The bone of contention is the cancellation

deeds registered by the petitioner. As observed, the complaint is

registered on 19.11.2015 for the last of the incident which was

on 21.08.2006. Therefore, there is a clear delay of close to 10

years in registering the complaint. The justification of the

learned counsel appearing for the complainants is that the

complainants were not aware of the fraudulent act of the

petitioner in registering the cancellation deeds, cancelling the

agreement to sell and came to know only in the year 2015,

nothing can be farther than truth, than the statement that is

made by the learned counsel appearing for the petitioner.

Crl.P.No.5301/2018 is the one where plethora of civil

proceedings are pending between the parties to the agreement to

sell and parties to the cancellation of the agreement of sale or

even the sale deed.

11. The subject matter of the property that is involved in

the present case is the same that is being fought between the

parties in Crl.P.No.5301/2018. Therefore, the complainants

cannot feign ignorance of the registration of the document. For

9 years there was no problem with the documents that were

registered and the parties to the said documents were in

squabble before the civil Court. In the entire complaint there is

not a word of explanation offered for the delay of 10 years much

less plausible in registering the complaint under Section 200 of

the Cr.P.C. Therefore, the very initiation of the proceedings

against the petitioner after about 10 years of its occurrence does

vitiate the proceedings.

12. A perusal at the charge sheet would also indicate no

offence made out against the petitioner or even the reason for

the delay as it is drawn up after investigation and recording of

statements. Column No.17 of the charge sheet reads as follows:

"17. zÉÆÃµÁgÉÆÃ¥Àt «ªÀgÀ. (CªÀ±ÀåPÀ«zÀÝ°è ¥ÀævÉåÃPÀ ºÁ¼É ®UÀw¹):

¢£ÁAPÀ: 21-04-2006 gÀAzÀÄ n.J£ï. ªÉAPÀmÉÃ±ï gÀªÀjUÉ PÀæAiÀÄ ¥ÀvÀæªÀ£ÀÄß 2£ÉÃ DgÉÆÃ¦AiÀÄÄ ªÀiÁrPÉÆnÖgÀÄvÁÛgÉ. F «ZÁgÀªÁV ¢£ÁAPÀ: 23-11-2005 gÀAzÀÄ ¸ÁQë-2 gÀªÀjUÉ £ÉÆAzÁªÀuÉ PÀæAiÀÄ¥ÀvÀæªÀ£ÀÄß f.¦.J. ªÀÄÆ®PÀ ¸ÁQë-1 gÀªÀgÀÄ §gÉzÀÄ PÉÆnÖgÀÄvÁÛgÉ. £ÀAvÀgÀ ªÉÄÃ®ÌAqÀ ¢£ÁAPÀ: 21-04-2006 gÀAzÀÄ ¸ÀzÀj 2£ÉÃ DgÉÆÃ¦AiÀÄªÀgÉÃ n.J£ï.ªÉAPÀmÉÃ±ï gÀªÀjUÉ ªÀÄvÉÆÛAzÀÄ PÀæAiÀÄ¥ÀvÀæªÀ£ÀÄß §gÉzÀÄ PÉÆnÖgÀÄvÁÛgÉ. FUÁUÀ¯ÉÃ 2 ¨Áj PÀæAiÀÄ¥ÀvÀæUÀ¼ÁVzÀÄÝ, £ÀAvÀgÀ ¢£ÁAPÀ: 30-08-2006 gÀAzÀÄ ¸ÀzÀj 2£ÉÃ DgÉÆÃ¦AiÀÄªÀgÉÃ 2001gÀ £ÉÆAzÁ¬ÄvÀ PÀæAiÀÄ¥ÀvÀæzÀ PÀgÁgÀ£ÀÄß gÀzÀÄÝ ¥Àr¹gÀÄvÁÛgÉ. F £ÀqÀÄªÉ 2005 gÀ°è PÀæAiÀÄ¥ÀvÀæ, E.¹. ªÀÄvÀÄÛ ªÀÄºÁ£ÀUÀgÀ ¥Á°PÉAiÀÄ zÁR¯ÁwUÀ¼ÀÄ ¸ÁQë-2 gÀªÀgÀ ºÉ¸Àj£À°ègÀÄªÀÅzÀÄ vÀ¤SÉ¬ÄAzÀ PÀAqÀÄ §A¢gÀÄvÉÛ. £ÀAvÀgÀ zÁR¯ÁwUÀ¼À£ÀÄß ¥Àj²Ã°¹zÀ 6£ÉÃ DgÉÆÃ¦ F ªÉÄÃ®ÌAqÀ PÀæAiÀÄ¥ÀvÀæzÀ ªÀåªÀºÁgÀªÀ£ÀÄß UÀªÀÄ£ÀPÉÌ vÉUÉzÀÄPÉÆ¼ÀîzÉ 1 jAzÀ 6gÀ ªÀgÉV£À DgÉÆÃ¦UÀ¼ÀÄ MnÖUÉ ¸ÀAZÀÄ gÉÆÃ¦¹gÀÄvÁÛgÉ. DgÉÆÃ¦UÀ¼ÀÄ ªÀiÁrgÀÄªÀ PÀÈvÀåªÀÅ vÀ¤SÉ¬ÄAzÀ ¸Á©ÃvÁVgÀÄvÉÛ. DzÀÝjAzÀ 1 jAzÀ 6gÀ ªÀgÉV£À DgÉÆÃ¦UÀ½UÉ ªÉÄÃ®ÌAqÀ PÀ®A jÃvÁå zÉÆÃµÁgÉÆÃ¥ÀuÉ ªÀiÁqÀ¯ÁVzÉ.

18. ¦gÁå¢AiÀÄ ªÉÄÃ¯É £ÉÆÃnÃ¸ï eÁj ªÀiÁqÀ¯ÁVzÉAiÉÄÃ? ºËzÀÄ/E®è. ¢£ÁAPÀ:

19. ªÀÈvÛ ¤jÃPÀëPÀgÀ µÀgÁ ªÀÄvÀÄÛ £ÁåAiÀiÁ¢üÃ±ÀjUÉ PÀ¼ÀÄ»¹zÀ ¢£ÁAPÀ: 11-06-2016

F zÉÆÃµÁgÉÆÃ¥ÀtÉ ¥ÀvÀæªÀ£ÀÄß DAVÃPÀj¸À¨ÉÃPÁV PÉÆÃjPÉ."

For the aforesaid reasons, the first limb of defence of the

petitioner sounds acceptance.

13. The other limb of defence of the petitioner is that

Section 32(a) of the Registration Act, 1908 does not require the

presence of both the parties when there is a transfer of property

except in certain circumstances. It is germane to notice the

judgment rendered by the Apex Court in the case of

H.P.PUTTASWAMY VS. THIMMANNA AND OTHERS1

interpreting Section 32(a) of the Registration Act, 1908, wherein

the Apex Court holds as follows:

"6. So far as the provisions of Registration Act, 1908 is concerned, the law requires presentation of the document to be registered at the proper registration office by following categories of persons:-

"32. Persons to present documents for registration:--Except in the cases mentioned in [Sections 31, 88 and 89],every document to be

Civil Appeal No.3975/2010

registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,-

(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or

(b) by the representative or assign of such a person, or

(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned."

7. The plaintiff has not disputed that the vendor or seller i.e., Madegowda had executed the document (first sale deed) and we do not find any doubt expressed over his presence before the Registering Authority. No case has been made out either that the deed of conveyance carried any collateral obligation on the part of the purchaser, in this case being Manchegowda (since deceased). The plaintiff has not made out a case of acquiring title under the principle of part performance as incorporated in Section 53 (A) of the Transfer of Property Act, 1882. No pleading to that effect in the plaint has been made out."

The Apex Court holds that it is not necessary for both the

parties to be present when the document is sought to be

registered.

14. It is further germane to notice that the issue with

regard to Sub-Registrars registering document and those

registrations becoming subject matter of criminal proceedings

has been considered by the Co-Ordinate Benches of this Court

holding that acts of such Sub-Registrars cannot be made a

criminal misconduct. A Co-ordinate Bench of this Court in the

case of SMT. SULOCHANAMMA VS. H. NANJUNDASWAMY AND

OTHERS2 has held as under:

"The registration of the deed was refused on the basis of the com-munication received from the Tahsildar that the revenue documents were all bogus and false. The Sub- Registrar was entrusted with the duty of registering the documents in accordance with the provisions of the Act and he was not authorised to go into the genuineness or otherwise of the documents presented before him. If the documents are bogus or false, the party affected by it will have the right to initiate both civil and criminal proceedings to prosecute the party who tries to have benefit from such document and also to safeguard his right, title and interest. It was not for either the Tahsildar or the Sub-Registrar to express opinion as to the genuineness or otherwise of the documents unless called upon by the Court of law or any other authorised investigating agency. There was no occasion for the Sub-Registrar to refer the document to the Tahsildar when presented for the purpose of registration. Thus, both the Tahsildar and the Sub-Registrar have exceeded their jurisdiction in the matter in submitting his report regarding registration of the document and upon such report the second respondent should not have made an

(2001) 1 KantLJ 215

endorsement on the document and refused to register the document by him."

Later, a Co-ordinate Bench of this Court in the case of SRI.

S. RAMANNA VS. THE STATE BY NELAMANGALA POLICE

AND ANOTHER3 has held as under:

"Para 3 - Learned counsel appearing for the petitioner submits that as far as the petitioner is concerned, he has to verify whether the documents produced are bogus documents or not, whether the vendor has clear title deed to the property, whether the transfer is by impersonating the real owner and whether the transfer is in accordance with law? There is no reference under the sale deed that there is transfer of non agricultural land without conversion order nor there is any allegation that this authority has got anything to do with the conversation order or non-conversion.

Para 4 - Section 192-A 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. Section 192(B) relates to abetment of offences. From the registered sale deed produced in this case, it shows that a small portion of agricultural land has been sold. No doubt, the vendor might be circumventing the provisions of Land Revenue Act by selling the land in piece meal. But that does not constitute an offence as far as the Sub-Registrar is concerned. Along with the sale deed, the vendor has produced the certificate of the purchaser to show that the purchaser is an agriculturist and has also obtained necessary permission under the relevant law. If that is so, as far as this petitioner is concerned, there is no violation of Section 192(A) of the Karnataka Land Revenue Act. Accordingly, the petition is allowed. The complaint dated 19.09.2008 by the Tahsildar/Executive

Crl. P. No.4662/2008

Magistrate Bangalore North Taluk, Bangalore and the First Information Report dated 15.10.2008 in Crime No.962/2008 on the file of the JMFC, Nelamangala insofar the petitioner is concerned are quashed."

Following the aforesaid judgments, a Co-ordinate Bench of

this Court in the case of SRI. DEVARAJU B. VS. THE STATE

BY MADANAYAKANAHALLI POLICE STATION AND ANOTHER4

has held as under ;

"5. The learned Counsel for the petitioners, by way of reply, would point out that the question is no longer res integra. Since the circulars could be an impediment to register documents when the petitioners are duty bound to register documents, they have been quashed by a Division Bench of this court in Writ Petition No.18939/2009 and connected cases dated 18.3.2016, following a division bench decision in S. Sreenivasa Rao vs. Sub-Registrar, ILR 1990 Kar. 3740 and yet another decision in Smt.Sulochanamma vs. H.Nanjundaswamy and others, 2001 (1) KLJ 215, wherein it was held that when a document is presented for registration fulfilling all requirements, the Sub-Registrar has no option but to register the document unless the document is not in conformity with the provisions of the Indian Registration Act of 1908 and the relevant Rules and that the Sub-Registrar was entrusted with the duty of registering documents in accordance with the provisions of the Act and he was not authorized to go into the genuineness or otherwise of the documents presented before him. If the documents are bogus and false, the party affected by it will have the right to initiate both civil and criminal proceedings to prosecute the party who tries to have benefit from such document and also to safeguard his right, title and interest. It was not for either the Tahsildar or

Crl. P. No.4158/2014 and connected matters

the Sub-Registrar to express opinion as to the genuineness or otherwise of the documents, unless called upon by the court of law or any other authorised investigating agency. Reference was also drawn to a judgment of the Supreme Court, wherein Section 22A as inserted by the Legislature of Rajasthan made to the Act which is in pari materia with the aw prevailing in Karnataka and that the circulars if any issued overriding the provisions of the Act and Rules would not have any precedence and that there was no irregularity in the Sub-Registrar not having complied with the terms of the Circular contrary to the provisions of the law.

6. Hence, in the light of the settled legal position, the petitions are allowed. The proceedings pending against the respective petitioners in Crime No.297/2014, Crime No.269/2014, Crime No.295/2014, Crime No.296/2014, Crime No.270/2014 and Crime No.268/2014, pending on the file of the Civil Judge and JMFC, Nelamangala, as well as PCR No.17160/2013 pending on the file of the Chief Metropolitan Magistrate, Bangalore and Crime No.256/2013 are quashed."

All the afore-quoted judgments were concerning certain

acts of the Sub-Registrars in registering certain documents,

which the complainant claims to be forged by the beneficiaries of

such transaction, in which, the registered document is the

subject.

15. The offences alleged in the case at hand are one of

Sections 406 and 420 of IPC. Section 406 of IPC requires

entrustment of property by the victim to the hands of the

accused and Section 420 of IPC mandates inducement of the

victim by the accused to part with any property or enter into any

such agreement. The petitioner has performed his duty as a

Sub-Registrar. There can be no criminal breach of trust or