Smt Vanaja vs Sri V Vibhu
2022 Latest Caselaw 344 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF JANUARY, 2022

                           BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

             CRIMINAL PETITION No.4777/2021
BETWEEN
SMT VANAJA
W/O RAJAN
AGED ABOUT 58 YEARS
R/AT NO.5/1
OPP. ACHALA SADGURU SEVASHARAM COLONY
GEDDALAHALLI
RAJ MAHAL VILAS 2ND STAGE
BENGALURU - 560 094.               ... PETITIONER
(BY SRI K S MALLIKARJUNAIAH, ADVOCATE (VIDEO CONFERENCE))
AND

1.    SRI V VIBHU
      S/O VASUDEVAN NAIR
      AGED ABOUT 63 YEARS
      R/A NO.5, 4TH CROSS
      2ND MAIN
      NEAR ACHALA SADGURU SEVASHRAMA COLONY,
      GEDDALAHALLI
      RAJ MAHAL VILAS 2ND STAGE
      BENGALURU-560094

2.    THE STATE BY
      SANJAYNAGARA POLICE STATION
      BENGALURU-560 094

      SPP REPRESENTING STATE
      HIGH COURT BUILDING
      HIGH COURT
                                      ... RESPONDENTS
(BY SRI MADHUKAR NADIG, ADVOCATE FOR R1
 SRI MAHESH SHETTY, HCGP FOR R2)
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      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.8771/2017 ON THE FILE OF THE VIII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE AT BENGALURU AND
OFFENCE PUNISHABLE UNDER SECTION 420 OF IPC.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THROUGH VIDEO CONFERENCING THIS DAY, THE COURT MADE
THE FOLLOWING:

                             ORDER

This petition is filed by the petitioner-accused under

Section 482 of Cr.P.C. for quashing the criminal

proceedings against the petitioner pending in

C.C.No.8771/2017 in respect of P.C.R.No.5536/2011 for

the offences punishable under Sections 420 and 361 of

IPC.

2. Heard the arguments of learned counsel for the

petitioner and learned High Court Government Pleader for

respondent No.2-State.

3. The case of the petitioner before the trial Court

is that respondent No.1 has filed a private complaint in

P.C.R.No.5536/2011 under Section 200 of Cr.P.C. for the

above said offences and got referred to the Police under

Section 156(3) of Cr.P.C., it is alleged that the Police have

filed 'B' final report and subsequently, the 'B' final report

has been challenged by the complainant-respondent No.1,

sworn statement was recorded and accordingly, the

Magistrate took cognizance for the offences on

06.03.2017, issued summons to the petitioner-accused

and also said to be appeared and filed a discharge

application which is not yet disposed of by the trial Court

and the petitioner being aggrieved with taking cognizance

has filed the petition before this Court.

4. Learned counsel for the petitioner has

contended that the wife of respondent No.1-Smt.Shylaja is

none other than the sister of the petitioner and the sister

has executed a will in favour of her son and this petitioner

was appointed as guardian. Subsequently, the same was

challenged by the respondent No.1-complainant by filing a

suit in O.S.No.3320/2013 by challenging the will on the

ground of forgery which came to be dismissed and an

appeal also filed before this Court which is pending in

R.F.A.No.1430/2017. Such being the case, the Police have

also filed 'B' final report, but the trial Court without looking

to the documents, taking cognizance of the offence against

the petitioner is not correct. When the competent civil

court took the decision that there is no forgery of the will

and the Police also taken a same view, such being the

case, filing and taking cognizance is abuse of process of

law. Hence, prayed for quashing the same.

5. Per contra, learned counsel appearing for

respondent No.1 has contended that the civil court did not

properly consider the suit without filing of written

statement and the defendant has not participated and in

spite of the same, the Civil Court dismissed a suit which is

under challenge before the High Court. There is a

document to show that the will was created by the

petitioner. Hence, prayed for dismissing the petition.

6. Upon hearing the arguments and on perusal of

the records, which reveals that it is an admitted fact that

the petitioner is none other than the sister-in-law of

respondent No.1. The wife of respondent No.1-Smt.

Shylaja is said to have executed a will in favour of her son-

Anantha Padmanabhan and shown this petitioner has

guardian. After coming to know about this fact after death

of the wife of respondent No.1-complainant, he has filed a

suit in O.S.No.3320/2013 by taking contention that the will

was not executed by his wife, but it is forged by this

petitioner and the said case ended in dismissal of the suit

and it is also an admitted fact that respondent No.1 has

filed first appeal before this Court pending in

R.F.A.No.1430/2017. In the meanwhile, the respondent

has also filed G & WC case seeking custody of the child in

the Family Court, Bengaluru which also came to be

rejected by the VI Additional Prl. Judge, Family Court,

Bengaluru in G & WC No.77/2008. Respondent No.1-

complainant has filed a P.C.R before the Magistrate which

was referred to the Sanjaynagar Police and Sanjaynagar

Police after due investigation have filed 'B' final report on

the complaint. Admittedly, the complainant has offered his

sworn statement and marked some documents especially

the will and the trial Court took cognizance against the

petitioner for the offences punishable under Sections 420

and 361 of IPC.

7. In my considered opinion, when the Family

Court, Bengaluru which is the competent court has

rejected the custody of the respondent No.1-complainant

which was filed under Section 25 of the Guardians and

Wards Act, 1890 and rejected the prayer for custody, the

question of considering the petitioner abducted his son

does not arise. That apart, the competent civil court has

given findings that there is no manipulation or forgery of

the will in the civil case, the decision of civil court which is

binding on the criminal court and though, respondent No.1

already has filed an appeal challenging the decree of the

civil court for having dismissing the suit which is pending,

such being the case, until the High Court adjudicate the

matter holding that there is a forgery of the will by the

parties i.e., the petitioner till that the Magistrate has no

authority to take decision against the judgment of the civil

court which is a competent court which was already held

that there is no forging of the will. Such being the case,

conducting the proceedings against the petitioner on the

ground that she has forged the will in the name of the wife

of the complainant cannot be acceptable. Therefore, the

complaint is liable to be quashed.

8. Accordingly, the criminal petition is allowed.

The entire proceedings in C.C.No.8771/2017 on the file of

VIII Additional Chief Metropolitan Magistrate, Bengaluru is

hereby quashed.

Sd/-

JUDGE

GBB