Kalegowda vs The State Of Karnataka
2022 Latest Caselaw 3892 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 8TH DAY OF MARCH, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.39/2020

BETWEEN

1.   KALEGOWDA
     S/O. LATE KALEGOWDA
     AGED ABOUT 68 YEARS
     R/O. HUCHANDODDI VILLAGE
     MALAVALLI TALUK
     MANDYA DISTRICT
     PIN - 571 430

2.   M.K. SHEKAR
     S/O. LATE KRISHNAPPA
     AGED ABOUT 55 YEARS
     R/O. ASHOK NAGAR
     MALAVALLI TOWN - 571 430
     MANDYA DISTRICT

3.   KEMPARAJU
     S/O. BADDALAGAIH
     AGED ABOUT 50 YEARS
     R/O. UPPALGERI KOPPALU
     KASABA HOBLI
     MALAVALLI TALUK - 571 430
     MANDYA DISTRICT

4.   SHIVANNA
     S/O. MADEGOWDA
     AGED ABOUT 51 YEARS
     R/O. NAGEGOWDANADODDI VILLAGE
     KASABA HOBLI
                              2



      MALAVALLI TALUK - 571 430
      MANDYA DISTRICT

5.    BASAVANNA
      S/O. BASAVALINGAPPA
      AGED ABOUT 55 YEARS
      R/O. R.B. HALLI VILLAGE - 571 430
      MALAVALLI TALUK
      MANDYA DISTRICT
                                            ... PETITIONERS

[BY SRI. S.B. HALLI, ADVOCATE]


AND

1.    THE STATE OF KARNATAKA
      MALAVALLI TOWN POLICE STATION
      MALAVALLI, MANDYA DISTRICT
      REPTD BY SPECIAL PUBLIC PROSECUTOR
      HIGH COURT OF KARNATAKA
      BENGALURU - 01

2.    VENKATASUBRAMANYA
      S/O. LAKSHMINARASHIMAIH
      AGED ABOUT 47 YEARS
      R/O. D. HALASAHALLI VILLAGE
      MALAVALLI TALUK
      MANDYA DISTRICT
      PIN - 571 430
                                           ... RESPONDENTS

[BY SMT. YASHODA K.P., HCGP FOR R1;
    R2 - SERVED]

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO (a) QUASH THE PROCEEDINGS AGAINST THE
PETITIONER IN C.C.NO.78/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, MALAVALLI FOR THE OFFENCES
                                3



PUNISHABLE UNDER SECTIONS 416, 419, 420, 467, 471 READ
WITH SECTION 149 OF IPC AND ETC.

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

                              ORDER

The petitioners are before this Court calling in question

proceedings in C.C.No.78/2014 pending before the Senor Civil

Judge and JMFC, Malavalli registered for offences punishable

under Sections 416, 419, 420, 467, 471 read with Section 149 of

IPC.

2. Heard Sri. S.B. Halli, learned counsel appearing for

the petitioners and Smt. K.P. Yashoda, learned HCGP appearing

for respondent No.1.

3. Brief facts leading to filing of the present petition, as

borne out from the pleadings, are as follows:

The petitioners are accused Nos. 3 to 7 in C.C.No.78 of

2014. 2nd respondent is the complainant. The issue arises out of

several civil proceedings that were pending consideration

between other accused and the complainant. One Nandish and

Smt. Rangamma were parties to a sale transaction dated 16-12-

2010 of a particular property in Sy.No.21/11 which the

complainant claims that it was his having succeeded to the said

property which was granted to his ancestors on 17-10-1945. The

allegation is that the petitioners were parties to the sale

transaction which was allegedly based upon forged documents

forged by accused Nos. 1 and 2. Prior to making the said

allegations, all the parties to the lis were before the civil Court in

O.S.No.133 of 1987 which was decreed in part on

19-07-2004 granting permanent injunction against the

complainant. Taking cue from this decree, the learned counsel

for the petitioners would submit that they are in possession of

the property which the complainant claims. The judgment in

O.S.No.133 of 1987 is further affirmed in R.A.No.32 of 2006 on

20-11-2018. The present proceedings are instituted by the

complainant against accused Nos. 1 and 2 and the petitioners.

Since the entire issue springs from the complaint, the same is

extracted hereunder for the purpose of quick reference:

"F ªÀÄÆ®PÀ vÀªÀÄä°è «£ÀAw¹PÉƼÀÄîªÀÅzÉãÉAzÀgÉ, £ÀªÀÄä ªÀA±ÀÜgÁzÀ ¯ÉÃmï, ²æêÀÄw, gÀAUÀªÀÄä PÉÆÃA ¯ÉÃmï, vÀªÀÄätÚAiÀÄå EªÀgÀÄ vÀªÀÄä d«ÄãÀ£ÀÄß CªÀgÀ ªÀÄUÀ¼ÁzÀ dAiÀÄ®PÀëöäªÀÄä @ dAiÀĪÀÄä JA§ÄªÀªÀjUÉ jf¸ÀÖgï «¯ï ªÀiÁrgÀĪÀÅzÀÄ ¸ÀjAiÀĵÉ×. CzÀgÉ ²æêÀÄw,gÀAUÀªÀÄä£ÀªÀgÀÄ ¢£ÁAPÀ 17/10/1945 gÀAzÀÄ ªÀÄÈvÀ¥ÀnÖzÀÄÝ, CªÀgÀ ªÀÄUÀ¼ÁzÀ dAiÀÄ®PÀëöäªÀÄä @ dAiÀĪÀÄä [CAzÀgÉ £À£Àß CfÓ] gÀªÀgÀÄ ¸ÀºÀ ¢£ÁAPÀ 08/12/2005 gÀAzÀÄ ªÀÄÈvÀ¥ÀnÖzÀÝjAzÀ ¸ÀzÀj D¹ÛUÉ £Á£ÀÄ ºÀPÀÄÌzÁgÀgÀ£ÁVgÀÄvÉÛãÉ. FVgÀĪÁUÀ £À£Àß CfÓUÉ «¯ï DVgÀĪÀ ªÀļÀªÀ½î vÁ®ÆèPÀÄ gÁV¨ÉƪÀÄä £ÀºÀ½î J¯Éè ¸ÀªÉð £ÀA 21/11 MlÄÖ 07 UÀÄAmÉ d«ÄãÀ£ÀÄß £ÀªÀÄä UÀªÀÄ£ÀPÉÌ ¨ÁgÀzÀAvÉ ¢£ÁAPÀ 16/12/10 gÀAzÀÄ gÁV¨ÉƪÀÄä£ÀºÀ½î UÁæªÀÄzÀ £ÀA¢Ã±À ©£ï ZÉ£Àߧ¸À¥Àà, JA§ÄªÀªÀgÀÄ gÀAUÀªÀÄä£ÀªÀjUÉ ¸ÉÃjzÀ D¹ÛAiÀÄ£ÀÄß CªÀjUÉ ¥ÀjZÀAiÀÄ«zÀÝ AiÀiÁªÀÅzÉÆà ªÀÄ»¼ÉAiÀÄ£ÀÄß ¸À¨ï jf¸ÀÖgï PÀbÉÃjAiÀÄ°è vÉÆÃj¹ [ªÀÄÈvÀ¥ÀnÖgÀĪÀ gÀAUÀªÀÄä¼À£ÀÄß §zÀÄQzÁÝgÉAzÀÄ vÉÆÃj¹] PÀæAiÀÄ ªÀiÁr¹PÉÆArgÀÄvÁÛgÉ. F PÀæAiÀÄ ªÀiÁqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è ¸ÀļÀÄî ¸ÁQëzÁgÀgÁV, PÁ¼ÉÃUËqÀ ©£ï PÁ¼ÉÃUËqÀ, ºÀÄZÀÑ£ÀzÉÆrØ, PÉA¥ÀgÁdÄ ©£ï §qÀØUÀ®èAiÀÄå, G¥Àà®UÉÃjPÉÆ¥Àà®Ä, JA.PÉ.±ÉÃRgÀ ªÀļÀªÀ½îgÀªÀgÁVgÀÄvÁÛgÉ. £ÀAvÀgÀ £ÀA¢Ã±À ©£ï ZÀ£Àߧ¸À¥Àà JA§ÄªÀªÀgÀÄ PÀæAiÀÄ ªÀiÁr¹PÉƼÀÄîªÀ ¸ÀªÀÄAiÀÄzÀ°è ¸ÁQëAiÀiÁVzÀÝ PÁ¼ÉÃUËqÀ ©£ï ¯ÉÃmï PÁ¼ÉÃUËqÀ JA§ÄªÀªÀgÀÄ £ÀA¢Ã²¤AzÀ ¢£ÁAPÀ 27/06/11 gÀAzÀÄ PÀæAiÀÄ ªÀiÁr¹PÉÆArgÀÄvÁÛ£É. EªÀgÀÄ PÀæAiÀÄ ªÀiÁr¹PÉƼÀÄîªÀ ¸ÀªÀÄAiÀÄzÀ°è ¸ÀļÀÄî ¸ÁQëzÁgÀgÁV ²ªÀtÚ §E£ï ªÀiÁzÉÃUËqÀ, £ÁUÉÃUËqÀ£ÀzÉÆrØ UÁæªÀÄ, §¸ÀªÀtÚ ©£ï §¸ÀªÀ°AUÀ¥Àà Dgï.©.ºÀ½î UÁæªÀÄzÀªÀgÁV gÀÄvÁÛgÉ. EªÀgÀÄUÀ¼ÀÄ ¸ÉÃjPÉÆAqÀÄ £ÀªÀÄä UÀªÀÄ£ÀPÉÌ ¨ÁgÀzÀAvÉ & £ÀªÀÄUÉ ªÉÆøÀ

ªÀiÁqÀĪÀ GzÉÝñÀ¢AzÀ ¸ÀzÀj ¸ÀªÉð£ÀA§gï£À D¹ÛAiÀÄÄ £ÀªÀÄäzÀÄ JAzÀÄ w½¹zÀÝgÀÆ ¸ÀºÀ ¸ÀļÀÄî zÁR¯ÉUÀ¼À£ÀÄß ¸Àȶֹ, ªÀÄÈvÀ¥ÀnÖgÀĪÀ ²æêÀÄw gÀAUÀªÀÄä¼À£ÀÄß §zÀÄQzÁݼÉAzÀÄ ¨ÉÃgÉÆç⠪ÀÄ»¼ÉAiÀÄ£ÀÄß ¸À¨ïjf¸ÀÖgï PÀbÉÃjAiÀÄ°è ¤°è¹, ¸ÀļÀÄî PÀæAiÀÄ ªÀiÁr¹gÀĪÀ £ÀA¢Ã±À, ±ÀÈFªÀÄw gÀAUÀªÀÄä JAzÀÄ §gÉzÀÄPÉÆnÖJgÀĪÀ ªÀÄ»¼É, PÀæAiÀÄ ªÀiÁr¸À®Ä ¸ÀļÀÄî ¸ÁQëzÁgÀgÁzÀ PÁ¼ÉÃUËqÀ, PÉA¥ÀgÁdÄ, JA.PÉ.±ÉÃRgÀ, ²ªÀtÚ, §¸ÀªÀtÚgÀªÀgÀ ªÉÄÃ¯É PÁ£ÀÆ£ÀÄ jÃvÁå PÀæªÀÄ dgÀÄV¸À¨ÉÃPÉAzÀÄ vÀªÀÄä°è PÉÆÃjPÉƼÀÄîvÉÛãÉ. ºÁUÀÆ EzÀgÀ §UÉÎ ¸ÀA§AzsÀ¥ÀlÖ zÁR¯ÁwUÀ¼À [£ÀPÀ®Ä ¥Àæw] ¸À°è¹zÉÝãÉ."

4. It is a matter of fact and narration in the complaint

that the petitioners were the attesting witnesses to the sale

transaction. The learned counsel has also produced for perusal

of the Court sale deeds executed which are subject matter of

criminal case. A perusal of the sale deeds would also indicate

that the petitioners were all attesting witnesses and not

confirming witnesses. It is trite law that unless the witnesses are

confirming witnesses and the allegation being of conspiracy

under Section 120B of IPC, the attesting witnesses cannot be

hauled into criminal proceedings as they are not certifying the

recitals or contents in the documents. The issue with regard to

whether the attesting witnesses can be hauled in to criminal

proceedings is considered by this Court in Criminal Petition

No.2816 of 2017 decided on 25-11-2021, wherein this Court has

held as follows:

"What can be gathered from Section 3 of the Transfer of Property Act is that two or more witnesses have seen the executant sign the instrument and in affirmation of this fact each of them have signed the instrument in the presence of the executant. Therefore, the witness cannot be seen to be privy to the contents of the document. The Apex Court in the case of M.L. ABDUL JABBAR SAHIB v. M.V. VENKATA SASTRI AND SONS1 delineates the role of the witness to a document interpreting Section 3 of the Transfer of Property Act as follows:

"7. Section 3 of the Transfer of Property Act gives the definition of the word "attested" and is in these words:

" 'Attested' in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall

1969 (1) SCC 573

have been present at the same time and no particular form of attestation shall be necessary."

In the light of the judgment of the Apex Court an

attesting witness need not be privy to the contents of

the document unless he is signing the document in any

other capacity.

14. The Apex Court in the latest judgment reported in M.SRIKANTH v. STATE OF TELANGANA2 while affirming the finding of the High Court of Telangana which had quashed proceedings against attesting witnesses holds as follows:

"26. We fail to understand, as to how after observing the aforesaid, the learned Judge could have refused to quash the proceedings against Accused 4. Not only that, but on the basis of the said observations, the learned Judge himself has observed that it will not be in the interest of justice to permit the police authorities to arrest the accused for the purposes of investigation. We are of the considered view, that the learned Judge, having found that the entire allegations with regard to forgery and fabrication and Accused 1 executing the lease deed on the basis of the said forged and fabricated documents were only against Accused 1, ought to have exercised his jurisdiction to quash the proceedings qua Accused 4 also. We find that the learned Judge ought to have applied the same parameters to the present Accused 4, which had been applied to the other accused whose applications were allowed.

(2019) 10 SCC 373

27. Insofar as the criminal appeals arising out of the special leave petitions filed by the original complainant is concerned, we absolutely find no merit in the appeals. The learned Single Judge has rightly found that there was no material to proceed against Accused 5 -- HPCL and its officers Accused 6 and 9 as also Accused 7 and 8, who have been roped in, only because they were the attesting witnesses. The learned Single Judge has rightly exercised his jurisdiction under Section 482 CrPC.

28. Insofar as original Accused 4 is concerned, we have no hesitation to hold, that his case is covered by categories (1) and (3) carved out by this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . As already discussed hereinabove, even if the allegations in the complaint are taken on its face value, there is no material to proceed further against Accused 4. We are of the considered view, that continuation of criminal proceedings against Accused 4, M. Srikanth, would amount to nothing else but an abuse of process of law. As such, his appeal deserves to be allowed."

(Emphasis supplied)

The Apex Court holds that HPCL and its officers/accused 6 and 9 as also accused 7 and 8, who have been roped into a criminal proceeding only because they were attesting witnesses. The Apex Court affirms the order passed by the High Court of Telangana quashing proceedings against attesting witnesses.

15. It is also germane to notice the judgment of the Apex Court in the case HEMKUNWAR BAI v. SUMERSINGH AND OTHERS3 with regard to the role of attesting witnesses in the execution of a document. The Apex Court holds as follows:

"The main issue is whether Ratankuwarbai, who was an illiterate lady and suffering from cancer, has executed these documents or not. The defendants examined Antar Singh and Laxman Singh who are witnesses to all the three documents. As far as Laxman Singh is concerned, he clearly stated that at the time of registration of the sale deeds and the Will, the sub- Registrar concerned had read out the subject matter of the three documents in short to Ratankuwarbai. He also heard the sub-Registrar at that time. It has been contended that both these witnesses have stated that they were not aware of the contents of the documents, when they signed as witnesses. The witnesses need not necessarily know what is contained in the documents. Furthermore, when these witnesses state that the Sub-Registrar had told the gist of the documents to the deceased then they become aware of the nature of the documents at the time of registration thereon. In fact both Antar Singh and Laxman Singh had deposed with regard to transfer of the consideration."

(Emphasis supplied)

16. The Apex Court clearly holds that the witnesses need not necessarily know what is contained in the document except what was brought out in the evidence. But, the evidence in the case at hand even

Civil Appeal No.8827 of 2011 decided on 25th September, 2019

during the investigation does not divulge any other role of the petitioner beyond that is indicated in Column 17 of the charge sheet which no where mentions the name of the petitioner. The revisional Court also holds that no witness has stated that the petitioner is a party to any of the proceedings of crime. Having said so, the revisional Court ought to have discharged the petitioner for the offences punishable under Section 379 and 149 of the IPC, as without doubt the incidents narrated will not and cannot link the petitioner with the offence punishable under Section 379 or Section 149 of the IPC as he is only an attesting witness. Permitting the trial to continue against the petitioner would without doubt result in miscarriage of justice and an abuse of the process of law. Abuse of the process of law has several hues and forms.

17. The Apex Court in the case of CHANDRAN RATAN SWAMY V. K.C.PALANI SWAMY4 while quoting the judgments rendered by the Supreme Court of England, has held as follows:

"35. In Hui Chi-ming v. R. [(1992) 1 AC 34 :

(1991) 3 WLR 495 : (1991) 3 All ER 897 (PC)] , the Privy Council defined the word "abuse of process" as something so unfair and wrong with the prosecution that the court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case.

(2013)6 SCC 740

36. In the leading case of R. v. Horseferry Road Magistrates' Court, ex p Bennett [(1994) 1 AC 42 : (1993) 3 WLR 90 : (1993) 3 All ER 138 (HL)] , on the application of abuse of process, the court confirms that an abuse of process justifying the stay of prosecution could arise in the following circumstances:

(i) where it would be impossible to give the accused a fair trial; or

(ii) where it would amount to misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.

37. In R. v. Derby Crown Court, ex p Brooks [(1984) 80 Cr App R 164 (DC)] , Lord Chief Justice Ormrod stated:

"It may be an abuse of process if either (a) the prosecution has manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation of conduct of his defence by delay on the part of the prosecution which is unjustifiable."

.... .... .... .... .....

39. This Court in State of Karnataka v. L.

Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404] , observed that the wholesome power under Section 482 CrPC entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both

in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. It was held in this case: (SCC p. 703, para

7)

"7. ... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."

(Emphasis supplied) The principal laid down in the aforesaid case has been followed in plethora of judgments by the Apex Court.

18. In the light of the facts obtaining in the case at hand, the afore-quoted judgments of the Apex Court and the principles laid down therein, continuing the impugned proceedings against the petitioner would degenerate into harassment. This Court in exercise of its jurisdiction under Section 482 of Cr.P.C., would not permit such proceedings to continue which would result in miscarriage of justice or be an abuse of the process of the law."

5. In the light of the undisputed facts obtaining in the

case and the fact that the petitioners were only attesting

witnesses, the judgment rendered by this Court would cover the

issue in the case at hand in all its fours.

6. Following the judgment rendered by this Court in

Crl.P.No.2816/2017 dated 25.11.2021, I pass the following:

ORDER

i. Criminal Petition is allowed.

ii. The proceedings in C.C.No.78/2014 pending before the Senior Civil Judge and JMFC, Malavalli, stand quashed qua the petitioners.

iii. The observation made in the course of this order is only for the purpose of consideration of the case under Section 482 of Cr.P.C. and the same shall not bind or influence the criminal Court in the conduct of trial against any other accused.

Sd/-

JUDGE

SJK