Sri N Dinesh vs State By Amruthahally P S
2022 Latest Caselaw 13177 Kant

                              1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF NOVEMBER, 2022

                           BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

          WRIT PETITION NO.1081 OF 2022(GM-RES)

BETWEEN

SRI N DINESH
S/O LATE NAGAPAIAH
AGED 47 YEARS
R/O NO 619/1, GKVK CROSS
BYATARANAYAPURA
BALLARY ROAD
BENGALURU 560092                       ... PETITIONER

(BY SRI SURESH S. LOKRE, SENIOR ADVOCATE
 FOR SRI VISHWANATH H M, ADVOCATE)

AND

1.    STATE BY AMRUTHAHALLY P S
      SAMPIGEHALLI SUB DIVISON
      BENGALURU
      REP BY STATE SPP
      HIGH COURT OF KARNATAKA
      BENGALURU 560001

2.    MUNILAKSHMAMMA
      W/O THAMMAIAH
      D/O CHIKKAMUNINANAJPPA
      AGED 72 YEARS
      R/O NO 1019
      DODDABAOMMSANDRA
      BENGALURU

      RAJAMMA
      SINCE DEAD BY HER LRS
                             2


3.   SRI MURALI N
     S/O THAMMAIAAH
     MAJOR

4.   PRAKASH N
     S/O THAMMAIAH
     MAJOR

     R3 AND R4 ARE R/O KOTHANUR VILLGE
     VENAKATEGOWDA LAYOUT
     SRK POST
     BENGALURU 560077
                                         ... RESPONDENTS
(BY SRI RAHUL RAI K., HCGP FOR R1
 SRI L. SUBRAMANI, ADVOCATE FOR R2)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 CR.P.C. PRAYING TO QUASH THE CRIMINAL
PROCEEDINGS IN CRIME NO.311/2021 ON THE FILE OF THE VII
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, NRUPATUNGA
ROAD, BENGALURU, PRODUCED AS ANNEXURE-A AS ILLEGAL,
IN SO FAR IT RELATES TO THE PETITIONER, QUASH THE PCR
NO.20497/2021 ON THE FILE OF THE VII ADDITIONAL CHIEF
METROPOLITAN      MAGISTRATE,    NRUPATUNGA       ROAD,
BENGALURU, PRODUCED AT ANNEXURE-B AS ILLEGAL, IN SO
FA IT RELATES TO THE PETITIONER, GRANT AN INTERIM
ORDER TO STAY ALL FURTHER PROCEEDINGS IN CRIME
NO.311/2021 ON THE FILE OF THE VII ADDITIONAL CHIEF
METROPOLITAN      MAGISTRATE,    NRUPATUNGA       ROAD,
BENGALURU, PRODUCED AT ANNEXURE-A, IN SO FAR IT
RELATES TO THE PETITIONER
                                  3


     THIS WRIT PETITION COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                               ORDER

This writ petition is filed by the petitioner-accused

No.2 under Articles 226 and 227 of the Constitution of

India read with Section 482 of Cr.P.C. for quashing the FIR

in Crime No.311/2021 registered by the Amruthahalli

Police Station, Bengaluru for the offences punishable under

Sections 420, 467, 468, 474 of IPC.

2. Heard the arguments of learned counsel for the

petitioner, learned High Court Government Pleader for

respondent No.1-State and learned counsel for the

respondent No.2.

3. The case of the prosecution is that the

complainant-Munilakshmamma filed a private complaint in

P.C.R No.20497/2021 under Sections 190 and 200 of

Cr.P.C. and got it referred to the Police under Section

156(3) of Cr.P.C. and in turn, the Police registered a FIR

wherein, it is alleged that there is a property in Sy.No.9/3

measuring 38 guntas and Sy.No.9/4 measuring 1 acre 13

guntas, situated at Jakkur Village, Yelahanka Hobli,

Bengaluru North Taluk which belongs to her father.

Thereafter, accused No.1 who is said to be the brother of

the complainant executed agreement of sale and GPA in

favour or third parties and later, she has filed a suit for

partition in O.S.No.842/2014 and case was decreed on

compromise. Subsequently, accused No.1 in collusion with

the advocate and accused No.2 created the Special Power

of Attorney (SPA) and said to be sold the property by

executing the sale deed and created the special power of

attorney and release deed. Therefore, prayed for

investigating the matter, which is under challenge.

4. Learned counsel for the petitioner has

contended that the complainant-Respondent No.2 as well

as the family members have executed SPA in favour of the

present petitioner-accused No.2 and also executed release

deed in favour of accused No.1 on 30.11.2017. Based upon

the SPA, the property was sold to one Lokesh where the

SPA holder including another sister Nagarathnamma and

family members were executed the sale deed, where

accused No.2 is also the confirming party and all the

documents were registered documents. Subsequently, one

Nagarathnamma and Subramanya-accused No.1 sold the

property by way of sale deed dated 03.08.2019. The entire

family members were confirmed the sale deed and signed

the documents. The respondent No.2 had already filed a

suit in O.S.No.5961/2022 for partition and to declare the

sale deed, the release deed are null and void. Therefore,

once they admitted the release deed and sale deed for

cancellation of the same, now, they cannot file a criminal

complaint without any basis. Plaintiff No.3-Suresh in the

original suit who is none other than the son-in-law of

accused No.1 and husband of defendant No.3-Anitha who

is the daughter of accused No.1 in this case, already there

was partition between the families. They have

compromised the suit and obtained the compromise decree

in O.S.842/2014 and once again the entire family

members after selling the property have filed the present

suit for partition, it is nothing but collusive suit and in

order to knock out the property which were already sold by

them and once again the entire family members filed this

criminal complaint only to harass the accused-petitioner

who is only a confirming party, whereas, the family

members of the complainant and accused No.1 were all

belong to the same family. They are playing fraud on the

Court and filed this false complaint to harass the

petitioner. The dispute between the parties are purely civil

in nature and contended that the expert opinion has been

issued where the experts have given opinion that signature

of the complainant and family members are matching and

it is not forged one. They wanted to convert the civil

dispute into criminal case which amounts to abuse of

process of law. Hence, prayed for quashing the FIR. In

support of his argument, the learned counsel has relied

upon the judgment of the Hon'ble Supreme Court in the

case of Prof.R.K.Vijayasarathy and another vs. Sudha

Seetharam and another reported in (2019) 16 SCC

739.

5. Per contra, learned High Court Government

Pleader objected the petition and contended that the

matter requires investigation. The allegation is forgery of

the documents. Hence, prayed for dismissing the petition.

6. Learned counsel for respondent No.2 has

contended that the SPA and other release deed were all

forged by the petitioner and accused No.1. If at all the SPA

is given by the complainant, once again question of

affixing signature on the sale deed as well as release deed

does not arise. The accused have forged the signature of

the complainant and the family members, they have not

received any money. Therefore, matter is required for

investigation. Hence, prayed for dismissing the petition.

7. Having heard the arguments and perused the

records, admittedly, accused No.1-Subramanya and the

complainant are brother and sister. They were holding

some lands belong to their ancestors. Subsequently,

accused No.1 said to be executed GPA and agreement of

sale and a suit in O.S.No.842/2014 came to be filed by the

complainant and there was settlement between the parties

and suit was decreed on the terms of the settlement.

Subsequently, this complainant and her sisters including

accused No.1 executed SPA in favour of accused No.2-

petitioner herein and based upon the SPA, once again the

sisters including the complainant were executed release

deed on 30.11.2017 in favour of accused No.1-

Subramanya. Subsequently, accused No.1 converted the

land and formed layout, thereafter, sold the properties to

some third party by executing the sale deeds on

03.08.2019 wherein, Nagarathnamma, Subramanya and

daughters of Subramanya were all first confirming parties

and the SPA holder, this petitioner is also a second

confirming party to the sale deeds. Both the sale deeds

are registered sale deeds. All the parties were signatory to

the sale deeds. Now the complainant also filed a suit in

O.S.No.5961/2022 along with the other plaintiffs by

making accused No.1 as party and another sister

Nagarathnamma as 2nd defendant, Anitha as 3rd

defendant who is the daughter of accused No.1 and wife of

the plaintiff No.3-Suresh. The suit was pending before the

Civil Court where they prayed for relief of canceling the

sale deed including the Special Power of Attorney and

release deed and to declare as null and void. The matter is

seized by the Civil Court in respect of deciding the issue of

whether accused No.1, his sister and family members were

executed the SPA and the release deed by the

complainant's family and the sale deed executed by all the

parties including SPA holder. Though the counsel for

respondent No.2 contended that the signature of the

respondent No.2-Munilakshmamma has been forged, but

there was an opinion of the handwriting expert which

reveals that the signature of Munilakshmamma on the

admitted documents and on the disputed documents are

matching. Therefore, it is a clear case of accused No.1 and

his family who are in the habit of selling the properties to

the third parties and thereafter filing the suits for canceling

the documents and once again they used to sell the

properties and tried to take back the properties by filing

the complaints stating that they have not executed the

sale deeds. That apart, they have also said to be

approached the Police, thereafter filed a private complaint

and they got it referred to the Police. But there is no

affidavit filed along with the private complaint to comply

the guidelines issued by the Hon'ble Supreme Court in the

case of Priyanka Srivastava and another vs. State of

Uttar Pradesh and others reported in (2015) 6 SCC

287. That apart, as per the judgment of the Hon'ble

Supreme Court in the case of Prof.R.K.Vijayasarathy

stated supra, the Hon'ble Supreme Court has taken similar

view that the Court can quash the criminal proceedings in

respect of complaint arising out of dispute which is civil in

nature. The complainant at stretch says that they have not

received money. If at all the complainant not received

money from her brother, she can claim the same in the

Civil Court and once she filed a suit for declaration and

injunction, she has to prove the same in the Court. On

bare reading of the complaint, which reveals that it is

purely civil dispute between the parties, but respondent

No.2 is trying to convert the same as criminal proceedings.

Therefore, considering the entire facts and circumstances

of the case, allowing the Police to investigate the matter in

this case is nothing but abuse of process of law, therefore,

petition is deserved to be allowed.

8. Accordingly, the petition is allowed.

The FIR against the petitioner in Crime No.311/2021

on the file of VII Additional Chief Metropolitan Magistrate,

Bengaluru is hereby quashed.

Sd/-

JUDGE

GBB