Shri. Madappa vs State Of Karnataka
2022 Latest Caselaw 12239 Kant

                          1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 30TH DAY OF SEPTEMBER 2022

                       BEFORE

     THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

          CRIMINAL PETITION No.9828/2021

BETWEEN:

1.    SHRI MADAPPA
      S/O ADHUR MUNISWAMAPPA
      AGED ABOUT 83 YEARS
      R/A KALKERE VILLAGE
      HORAMAVU POST
      K.R.PURAM HOBLI
      BENGALURU EAST TALUK
      BENGALURU - 560 043.

2.    SHRI SHANKAR
      S/O RAMACHANDRAPPA
      AGED ABOUT 54 YEARS
      R/A MANJUNATHA NILAYA
      KACHARAKANA HALLI
      ST. THOMAN TOWN POST
      BENGALURU NORTH TALUK
      BENGALURU - 560 084.

3.    SHRI BASAVARAJU
      S/O ANJANAPPA
      AGED ABOUT 48 YEARS
      R/A BYRATHI VILLAGE
      BIDARAHALLI HOBLI
      BENGALURU SOUTH TALUK
                                   ... PETITIONERS

(BY SRI B.V.ACHARYA, SENIOR COUNSEL FOR
    SRI PRAKASH TIMMANNA HEBBAR, ADVOCATE)
                                 2


AND:

1.     STATE OF KARNATAKA
       BY K.R.PURAM POLICE STATION
       REP. BY SPP
       HIGH COURT BUILDING,
       BENGALURU - 560 001.

2.     SHRI A. MADAPPA
       S/O LATE ADHUR ANNAIAPPA
       AGED ABOUT 62 YEARS
       R/A KALKERE VILLAGE
       K.R. PURAM HOBLI
       BENGALURU EAST TALUK - 560 043.
                                     ... RESPONDENTS

(BY SRI ROHITH B.J., HCGP FOR R1;
    SRI M.T.NANAIAH, SENIOR COUNSEL FOR
    SRI T.M. VENKATA REDDY, ADVOCATE FOR R2)

                          *****

       THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE IMPUGNED ORDER DATED
09.09.2021 PASSED BY THE LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH-82) IN PCR. NO.50/2021 AND ORDER
DATED 25.11.2021 PASSED BY THE HON'BLE COURT XLII
ADDL.C.M.M. (SPECIAL COURT) IN PCR NO.19856/2021 IN C.C.
NO.33228/2021 AS PER ANNEXURES-A AND B RESPECTIVELY
AND CONSEQUENTLY BE PLEASED TO ACCEPT THE B-REPORT
DATED 25.01.2021 AS PER ANNEXURE-E.


       THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED     ON    16.08.2022       AND   COMING   ON   FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT, MADE
THE FOLLOWING:
                                       3


                                 ORDER

respectively have sought for setting aside of the impugned

order at Annexure-'A' dated 09.09.2021 passed by the

Court of LXXXI Addl. City Civil and Sessions judge,

Bengaluru (CCH-82) in PCR No.50/2021, which is the order

whereby 'B' report filed by the Police Inspector, K.R.Puram

Police Station was rejected and the second

respondent- complainant was reserved liberty to give his

further sworn statement and adduce statement of his

witnesses, if any. The petitioners have sought for

acceptance of 'B' report.

2. The petitioners have also assailed the validity of

the order at Annexure-'B' dated 25.11.2021 passed by the

Court of XLII Additional Chief Metropolitan Magistrate,

Bengaluru (CCH-42) in C.C.No.33228/2021

(PCR No.19856/2021) whereby cognizance was taken for

the offences punishable under Sections 120B, 420, 427,

465, 467 and 471 of IPC as against Accused Nos.1 to 5.

3. The parties are referred to by their rank as in the

trial Court for the purpose of convenience.

4. PCR No.58290/2018 came to be filed by the

complainant seeking taking of cognizance of the offences

alleged to have been committed by the accused under

Sections 120B, 420, 427, 465, 467, 468 and 471 of IPC and

to deal with the accused in accordance with law for the

stated offences.

5. It must be noted that the complaint under

Section 200 of Cr.P.C., came to be presented on

29.11.2018 and cognizance was taken on 13.12.2018 while

issuing summons to the accused. By order dated

07.09.2019, the trial Court invoking power under Section

202(1) of Cr.P.C., directed the Station House Officer of

K.R.Puram Police Station to conduct investigation and

submit the report by 05.01.2020. The report by the Police

Inspector came to be filed, which the trial Court has

referred to as 'B' report (the report under Section 202 of

Cr.P.C. has been wrongly referred to as 'B' report by the

trial Court). By order dated 09.09.2021 after considering

the objections filed to the said report, the report filed by the

Police Inspector came to be rejected, while liberty was

reserved to the complainant to give his further sworn

statement and adduce statement of the witnesses as well.

The complainant's sworn statement as well as sworn

statement of two witnesses was recorded and subsequently

cognizance was taken for the offences punishable under

Sections 120B, 420, 427, 465, 467 and 471 of IPC as per

the order dated 25.11.2021 and summons came to be

issued to the accused.

I. BRIEF FACTS:-

6. The complainant is the son of Adhur Annayappa.

Accused No.1 is the son of Adhur Muniswamappa and the

uncle (father's brother) of the complainant. Accused No.2 is

also related by blood to the complainant. The genealogical

tree for the purpose of convenience is as follows:

GENEOLOGICAL TREE:

ADHURU MUNISWAMAPPA ERMMA (Wife)

--------------------------------------------------------------------------------------------

Annayappa        Chinnanna (died) Thammannappa              Seethappa         M. Madappa
(died on           Muniyamma         (died)                  (died)        (Accused No.1)
26.04.2004)                                                                (Petitioner-1)

Pillamadamma          Pillamadappa
                     (Accused No.2)

1.   Akkayamma
2.   Gopalappa
3.   Munimadamma
4.   Madappa
     (Complainant)
5. Madamma

7. The Accused Nos.3 and 4 were stated to be in

Real Estate business and had entered into transactions with

the family members of the Complainant in the nature of

Agreements of Sale and General Power of Attorney

regarding which certain allegations were made. The

Accused No.5 was jurisdictional Sub-registrar against whom

also certain allegations were made.

8. The offences alleged are stated to have been

committed on 21.05.2003 as regards the following two

documents viz.,

(i) Registered Partition Deed dated 21.05.2003 amongst the members of the family of Annayappa;

(ii) Registered Sale Deed dated 21.05.2003 executed by Annayappa's family in favour of Accused No.3 in respect of Survey No.375/2 measuring 31.25 guntas.

II. PENDING CIVIL PROCEEDINGS:-

9. O.S.No.8051/2003:- The suit for partition was

filed by Annayappa and continued by his son, who is the

complainant, in which all the members of the extended

family have been arrayed as parties to the proceedings as

follows:-

               Accused        Rank before Trial Court
                                   (Defendant)

                 A1                     D5
                 A2                     D2
                 A3                     D6
                 A4                     D7

While seeking the relief of partition, there was a

challenge as regards to the validity of the Partition Deed

dated 21.05.2003 and issues were framed regarding validity

of the registered Sale Deed executed on the same day, i.e.

on 21.05.2003 by Annayappa in favour of Accused No.3 as

well as the registered Power of Attorney dated 20.01.1996

executed by Annayappa in favour of Accused Nos.3 and 4

[as well as sale deed executed pursuant thereto. The above

said documents were challenged alleging manipulation,

fabrication and forgery]. Such suit came to be dismissed on

merits by judgment and decree passed on 27.08.2015 with

specific findings recorded as regards to the documents

regarding which offence is stated to be have been

committed. As against such judgment and decree, an

appeal before this Court in RFA No.1738/2015 was filed and

the same is pending consideration.

III. PREVIOUS COMPLAINTS:

10. PCR Nos.110/2012, 112/2012, 113/2012 and

114/2012 were filed before the Magistrate against Accused

Nos.3 and 4 as well as others alleging commission of

offence of forgery as regards the Power of Attorney dated

20.01.1996 as also sale deeds executed on the strength of

Power of Attorney. It is made out from the facts as

narrated by the accused that pursuant to the order made

referring the matter for investigation under Section 156(3)

of Cr.P.C., 'B' report came to be filed which was accepted.

Though the complainant had filed Criminal Revision Petition

Nos.25017, 25018, 25019 and 25020 of 2018 which were

allowed by setting aside the order accepting the 'B' report

and remanding the matter for fresh consideration, the said

orders came to be set aside in Criminal Petition Nos.863,

866, 878 and 879 of 2020, while confirming the order of

acceptance of 'B' report, which has attained finality.

IV. SUBSEQUENT EVENTS:-

11. O.S.No.8704/2001 filed by the complainant

against his father was withdrawn and registered Release

Deed was executed by Annayappa's two daughters in favour

of Madappa, the complainant and the legal heirs of

Madappa's elder brother Gopalappa. The registered Release

Deed was also executed by children of late Akkayamma

(another daughter of late Annayappa) in favour of Madappa

(complainant) and legal heirs of late Gopalappa. In light of

the said registered Release Deeds, Madappa and the legal

representatives of late Gopalappa became the owners.

12. O.S.No.5972/2007 which was filed for partition

by Annayappa's daughters was withdrawn by them as

settled out of court.

13. On 02.07.2018, the registered Release Deed

executed between the complainant Madappa and legal

representatives of late Gopalappa stated to contain the

admission of execution and genuineness of the Partition

Deed dated 21.05.2003, which aspect is considered infra.

V. CONTENTIONS OF THE PETITIONER:

14. The complaint is filed after more than 15 years of

the commission of alleged offence, which delay is fatal to

the case of the complainant.

15. The offences are in relation to the Partition Deed

and registered Sale Deed dated 21.05.2003, the validity of

which was also subject matter in O.S.No.8051/2003. The

said suit came to be dismissed on 27.08.2015 upholding the

genuineness and validity of both the documents.

16. Earlier, four Private Complaints alleging forgery

were filed on 02.11.2012 wherein petitioner Nos.2 and 3

were arrayed as Accused Nos.1 and 2. The said complaint

related to the Power of Attorney, though Partition Deed and

Sale Deed were in existence as on such date, the same

were not made subject matter of the earlier complaint.

17. The private complaint, viz., PCR No.58290/2018

has been filed on 29.11.2018 after dismissal of the civil suit,

i.e. O.S.No.8051/2003 on 27.08.2015 which amounts to

abuse of process of law.

18. The delay in filing the complaint is not explained

and in fact deliberate. The complainant and his father had

admitted in para-7 of the complaint that they had obtained

Xerox copies of Partition Deed from the Revenue Inspector.

19. On the contention that delayed filing would

amount to abuse of process of law, particularly, when a

party has suffered adverse order before the Civil Court,

reliance is placed on the following judgments to

substantiate the said contention:-

(i)Babu Venkatesh and Others v. State of Karnataka1

(ii)Sardar Ali Khan v. State of Uttar Pradesh through Principal Secretary, Home Department and Another2

(iii) Kishan Singh (DEAD) THROUGH LRS. v. Gurpal Singh and Others3

(iv) Sardool Singh and Another v. Naseer Kaur (SMT.)4

20. Where the dispute is predominantly a civil

dispute, criminal complaint is not maintainable and reliance

is placed on the judgment of Apex Court in Paramjeet

Batra v. State of Uttarakhand and Others5.

21. It is submitted that in the order dismissing the

complaint filed regarding Power of Attorney which was

upheld by this Court in Criminal Petition No.863/2020, the

(2022) 5 SCC 639 - ̬¶ 18, 21 & 29

(2020) 12 SCC 51 - ¶ 8 & 9

(2010) 8 SCC 775 - ̬¶ 20, 21, 22 & 25

(1987) SCC (Cri) 672

(2013) 11 SCC 673.

said order contains observations which apply to the present

matter also.

22. The procedure relating to the submission of

Report under Section 202 of Cr.P.C. and construing it as a

'B' report being erroneous, the question of providing an

opportunity for further sworn statement and examination of

witnesses for the second time is impermissible in law.

VI. CONTENTIONS OF RESPONDENTS:-

23. The respondents have filed the statement of

objections and the summary of contentions are as follows:-

23.1. The reference to the Private Complaint in PCR

No.110/2012 and connected complaints with regard to the

creation of General Power of Attorney dated 20.01.1996 has

nothing to do with the present complaint and facts and the

allegations made in the previous complaint are entirely

different from the present complaint. Even otherwise, there

is no prohibition in law for filing a second complaint.

23.2. The Partition Deed as well as the Sale Deeds

executed on the same date, i.e. on 21.05.2003 are created

by Accused Nos.3 and 4, who are also witnesses in all the

Sale Deeds. The Accused Nos.3 and 4 are powerful

personalities and have prevailed upon the Sub-Registrar

and in collusion with him have committed the alleged

offences.

23.3. The question of delay is of no consequence as

long as the complaint is filed within the period stipulated

under Section 468 of Cr.P.C. The delay in filing the

complaint is due to the non-furnishing of Certified Copies of

the documents by the Sub-Registrar concerned.

23.4. There is no bar for simultaneous proceedings

before the Civil Court and Criminal Court though relating to

the same incident. Reliance is placed on the judgment of

Apex Court in the case of M.S.Sheriff, P.C. Damodaran

Nair v. State of Madras6 wherein it is contended that the

standard of proof required to prove a document before the

AIR 1954 SC 397

Civil Court is that of preponderance of probability, while the

burden of proof as regards proof before a Criminal Court is

beyond reasonable doubt.

23.5. The procedure followed with respect to the

registration of Sale Deeds by affixing of photographs

creates a doubt, as the procedure applicable during the

relevant period of time was different.

VII. CONSIDERATION:-

24. It must be noticed that the exercise of power to

quash the proceedings by invoking Section 482 of Cr.P.C. is

no doubt to be exercised in exceptional cases only where it

is necessary to "prevent abuse of process of any court or

otherwise to secure the ends of justice." The categories of

cases which would warrant exercise of power under Section

482 of Cr.P.C. has been enumerated by the Apex Court in

the case of State of Haryana and Others v. Bhajan Lal

and Others7. The categories enumerated which warrant

quashing though are not exhaustive has provided a useful

(1992) Supp(1) SCC 335

guideline of practical application. The following observations

relating to certain categories of cases would be of relevance

are extracted as hereinbelow:-

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised......"

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

25. The need for exercising such power in

appropriate cases to prevent 'Court time' from being

consumed by frivolous litigation has also been emphasized

by the Apex Court in the case of Krishna Lal Chawla And

Others v. State Of Uttar Pradesh And Another8.

The observations in Krishna Lal Chawla would

indicate the necessity to intervene and exercise power

under Section 482 of Cr.P.C. in appropriate cases to quash

the proceedings, are required to be taken note of, though

the observations have been made in the context of laying

down guidelines under the caption "Role of the lower

judiciary in preventing the abuse of Court process". The

said guidelines are to be applied while exercising power

under Section 482 of Cr.P.C. as well. The observations of

the Apex Court are as follows:-

"22. Frivolous litigation should not become the order of the day in India. From misusing the public interest litigation jurisdiction of the Indian courts to abusing the criminal procedure for harassing their adversaries, the

(2021) 5 SCC 435

justice delivery system should not be used as a tool to fulfil personal vendetta. The Indian judiciary has taken cognizance of this issue. In 2014, this Court elucidated as follows, the plight of a litigant caught in the cobweb of frivolous proceedings in Subrata Roy Sahara v. Union of India [Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470 : (2014) 4 SCC (Civ) 424 :

(2014) 3 SCC (Cri) 712] : (SCC p. 642, para

191) "191. ... One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his."

While the Court's ruling pertained to civil proceedings, these observations ring

true for the criminal justice machinery as well. We note, with regret, that 7 years hence, and there has still been no reduction in such plight. A falsely accused person not only suffers monetary damages but is exposed to disrepute and stigma from society. While running from pillar to post to find a lawyer to represent his case and arranging finances to defend himself before the court of law, he loses a part of himself.

23. As aforesaid, the trial courts and the Magistrates have an important role in curbing this injustice. They are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant. We are of the considered opinion that the trial courts have the power to not merely decide on acquittal or conviction of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, but would also protect the right to liberty that every person is entitled to under Article 21 of the Constitution. In this context,

the trial Judges have as much, if not more, responsibility in safeguarding the fundamental rights of the citizens of India as the highest court of this land.

26. It is a settled canon of law that this Court has inherent powers to prevent the abuse of its own processes, that this Court shall not suffer a litigant utilising the institution of justice for unjust means. Thus, it would be only proper for this Court to deny any relief to a litigant who attempts to pollute the stream of justice by coming to it with his unclean hands. Similarly, a litigant pursuing frivolous and vexatious proceedings cannot claim unlimited right upon court time and public money to achieve his ends."

Keeping in mind the above legal framework, the

present factual matrix is examined.

26. It must be noted that there is no quarrel as

regards to the principle laid down in the judgment of Apex

Court in M.S.Sheriff6 wherein it has been categorically held

that the simultaneous prosecution of criminal proceedings

as well as civil proceedings are not prohibited. It is further

laid down in the same judgment that the decision of the

Court in one set of proceedings would not bind the Court in

the other set of proceedings except for limited purposes.

27. However, in appropriate cases, taking note of the

various circumstances where it becomes apparent that the

proceedings before the Criminal Court are sought to be used

for the purpose of harassing a litigant even after having

failed in obtaining the relief before the Civil Court relating to

the common set of facts giving right to both the

proceedings, the Court would be justified in exercising the

power vested under Section 482 of Cr.P.C.

28. The entirety of all the facts are to be taken note

of while deciding to exercise power under Section 482 of

Cr.P.C.

The subject matter of the criminal complaint relate to

(a) Registered Partition Deed dated 21.05.2003 and

(b) Registered Sale Deed dated 21.05.2003 executed by the

family of Annayappa in favour of Accused No.3.

Though in the present complaint the allegations have

been made regarding the registered Partition Deed and

registered Sale Deeds dated 21.05.2003, the complaint has

been filed with inordinate delay in the year 2018.

No doubt, the delay by itself may not make the

complainant's case improbable or doubtful as long as the

delay is properly explained which may remove the doubts

regarding the genuineness of the belated version and

looking at the complaint as being an improvement could be

avoided. However, where the delay as made out from the

facts would indicate that the complaint was filed with

respect to the same factual matrix which was the subject

matter of civil suit and complaint is filed after the civil suit

has been dismissed, the said action would warrant a stricter

examination bearing in mind the question as to whether the

unsuccessful litigant before the Civil Court was attempting

to utilise the Court processes to settle scores by continuing

his attack on the other side.

29. The observations of Apex Court on this aspect in

the case of KISHAN SINGH3 are extracted hereinbelow:-

"21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. (Vide Sahib Singh v. State of Haryana [(1997) 7 SCC 231 : 1997 SCC (Cri) 1049 : AIR 1997 SC 3247] .)

22. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party.

Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (Vide Chandrapal Singh v. Maharaj Singh [(1982) 1 SCC 466 : 1982 SCC (Cri) 249 : AIR 1982 SC 1238] ; State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604] ; G. Sagar Suri v. State of U.P.

[(2000) 2 SCC 636 : 2000 SCC (Cri) 513 : AIR 2000 SC 754] ; and Gorige Pentaiah v. State of A.P. [(2008) 12 SCC 531 : (2009) 1 SCC (Cri) 446] )

30. In the present case, undoubtedly

O.S.No.8051/2003 was filed on 10.11.2003 and came to be

decreed on 27.08.2015. The suit for partition filed by the

father of the complainant Annayappa and continued by the

complainant as legal representative-1(B) also sought for the

specific relief to declare the Partition Deed dated

21.05.2003 as not binding on the plaintiffs and the said suit

came to be dismissed with a specific observation as regards

the Partition Deed as well as the Sale Deed.

31. The issues framed before the Civil Court relating

to Partition Deed and Sale Deeds would reveal that the

documents with respect to which offence has been

complained of were also subject matter of proceedings

before the Civil Court. The issues framed by the Trial Court

in that regard are as follows:-

"1. Whether the plaintiff proves that the registered partition deed dated 21.5.2003 entered into by the plaintiffs and original defendants 1 to 5 is null and void and not binding on the plaintiff?

2. Whether the plaintiff further proves that his signatures and thumb impressions were obtained on blank papers by playing fraud on him by the original defendants 1 to 5?

3. Whether the supplemental plaintiffs further prove that they are not bound by the

registered partition deed dated 21.5.2003 and subsequent sale transactions of suit schedule properties including of 21.5.2003?

4. Whether the supplemental plaintiffs further proves that the signature of original plaintiff was fabricated and fraudulently affixed the signatures and thumb impressions and the photo affixed on the sale deed dated 21.5.2003 as alleged at para-9 of the plaint?

5. Whether the plaintiffs further proves that the defendant Nos.1 to 5 created sale deed and agreements, power of attorneys in favour of one R.Basavaraju and got registered the sale deed at the time of registration of partition deed on 21.5.2003 itself?"

32. The trial Court while recording the findings on

issue Nos.1 to 5 has categorically held that the assertion of

concoction of documents including the Partition Deed were

false and were not proved. The Court at para-46 has

observed as follows:-

"46. ...In view of my foregoing discussion, I am of the opinion that the plaintiffs have failed to establish that the Ex.P.21/D.19 ............ is a

fabricated document by playing fraud on the deceased Annaiappa and failed to establish that the signatures and thumb impressions found on Ex.P.22 are not that of Annaiappa and they have also failed to establish that the power of attorney executed in favour of R.Basavaraju is a created document. Hence, I answer Issue Nos.1 to 5 in the negative."

33. It is to be noticed that Ex.P.21 is the certified

copy of the Partition Deed dated 21.05.2003 and Ex.P.22 is

the registered Sale Deed, which documents are a subject

matter of the complaint.

34. This Court is aware that the finding of the Civil

Court by itself cannot be stated to be binding on the

proceedings pending before the Court by way of criminal

proceedings, but reference is being made only to

demonstrate that initiation of proceedings before the

Criminal Court could be linked to the rejection of relief

before the Civil Court and the urge to settle scores with the

other parties, appears apparent, as made out from the

discussion hereinafter.

35. The civil suit filed in the year 2003, viz.,

O.S.No.8051/2003 came to be rejected on 27.08.2015 and

the complaint came to be filed on 06.12.2018. As pointed

out earlier, the Partition Deed as well as the Sale Deed

dated 21.05.2003 were subject matter of the suit instituted

in the year 2003 and the judgment and decree in the said

case was passed in year 2015.

36. Another aspect that requires to be noted is that

the Civil Court has also referred to the Power of Attorney

dated 20.01.1996 which was marked as Ex.P.65 which

again was the subject matter of distinct complaints in PCR

Nos.110/2012, 112/2012, 113/2012 and 114/2012, which

were closed upon acceptance of 'B' Report filed by the

Investigating Authorities and finally upheld in Criminal

Petition Nos.863, 866, 878 and 879 of 2020 by order dated

10.03.2020.

37. Though the Power of Attorney of 1996 was

challenged by way of complaint in 2012, in which

proceedings Accused Nos.3 and 4 were parties, the attack

to the Sale Deed executed in favour of Accused No.3 on

21.05.2003 and the Partition Deed dated 21.05.2003 by

way of criminal complaint was only in the year 2018.

38. The only explanation in the complaint regarding

belated filing of the complaint is found at para-14 which

reads as follows:-

           "14. ...The     delay    caused         by   the
      Complainant     is   bonafide one       as   he   was

perusing (sic) the civil remedies against the Accused and more over, the Complainant is an illiterate and a rustic villager."

39. It was the submission of learned Senior Counsel

Sri M.T.Nanaiah appearing for Sri T.M.Venkatareddy for the

respondent No.2 that the delay was due to non-obtaining of

copies of the documents due to the deliberate acts of

non-granting of copies of the Partition Deed and Sale Deed.

40. The said explanation may not be sufficient and is

liable to be rejected in light of the averments in para-7 of

the complaint which reads as follows:-

"7. It is submitted that the Complainant had obtained Xerox copies of the said partition deed from the Revenue Inspector including the schedule which was attached to the said Partition Deed thereafter the Complainant's father Late Annaiahppa made an application before Tahsildar requesting him not to affect the Khata on the basis of alleged Partition Deed dated 21.05.2003...."

This aspect of delay is one of the factors that needs to

be kept in mind alongwith the other aspects dealt with

below.

41. It is to be noted that on 02.07.2018, there was a

registered Release Deed executed by the members of

complainant's family, i.e. wife and children of late

Gopalappa, who is the brother of the complainant whereby

rights were conferred upon the complainant. The said

document expressly records reference to the Partition Deed

dated 21.05.2003 and the relevant recitals at page Nos.5

and 6 of the document. The same reads as follows:-

".......F jÃwAiÀiÁzÀ EgÀvÀPÀÌAvÀºÀ ¸ÀévÀÄU Û À¼ÀÄ ²æÃ. CtÚAiÀÄå¥Àà gÀªj À UÉ ¢£ÁAPÀ:21-05-2003 gÀAzÀÄ PÀȵÀÚgÁd¥ÀÄgÀ, G¥À- £ÉÆÃAzÀuÁ¢üPÁj gÀªÀgÀ PÀbÉÃjAiÀÄ°è MAzÀ£Éà ¥ÀĸÀPÛ À, ¹.r.£ÀA.88, 3195/2003-04£Éà £ÀA§gÁV £ÉÆÃAzÀ¬Ä¸À¯ÁVgÀĪÀ «¨sÁUÀ ¥ÀvÀæzÀ 'J' µÉqÀÆå¯ï ¥ÀvÀæzÀ ªÀÄÆ®PÀ §AzÀ ¸ÀévÁÛVgÀÄvÀz Û É. ¸ÀzÀj ²æà CtÚAiÀÄå¥Àà gÀªg À À ªÀÄgÀuÁ £ÀAvÀgÀ £ÀªÀÄäUÀ½UÉ ¦vÁæfðvÀªÁzÀ ¸ÀévÁÛVgÀÄvÀz Û É. vÀzÀ£ÀAvÀgÀ £ÀªÀÄäUÀ½UÉ «±ÉõÀ vÀºÀ²Ã¯ÁÝgï gÀªg À À £ÁåAiÀiÁ®AiÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ ¥ÀƪÀð vÁ®ÆèPÀÄ, PÉ.Dgï.¥ÀÄgÀA, ¨ÉAUÀ¼ÀÆgÀÄ, ¥ÀæPÀgÀt ¸ÀASÉå.Dgï.Dgï.n(r)33/2017-18, ¢£ÁAPÀ: 21-06-2017 gÀAvÉ £ÀªÀÄäUÀ½UÉ §AzÀ ¸ÀévÁÛVgÀÄvÀz Û É. F vÀºÀ®égÉ«UÀÆ ¸ÀzÀj ¸ÀévÀÄU Û À¼À£ÀÄß £ÀªÀÄä ¸Áé¢üãÁ£ÀĨsÀªÀ ºÁUÀÆ ºÀPÀÄÌzÁjPÉAiÀÄ°ègÀĪÀ ªÉÄîÌAqÀ ¸ÀévÀÄÛUÀ¼£ À ÀÄß £ÁªÀÅUÀ¼ÀÄ MlÄÖ PÀÄlÄA§zÀ D¹ÛAiÀÄ£ÁßV C£ÀĨsÀ«¹PÉÆAqÀÄ §A¢gÀÄvÉÛêÉ"

          F      jÃwAiÀiÁV    ªÉÄîÌAqÀ         ¸ÀévÀÄU
                                                      Û À¼À£ÀÄß   £ÀªÀÄäUÀ¼À    MlÄÖ
PÀÄlÄA§zÀ ¸Àév£

ÀÛ ÁßV C£ÀĨsÀ«¹PÉÆAqÀÄ §A¢gÀĪÀ 'J' µÉqÀÆå¯ï ¸ÀévÀÄU Û À¼À£ÄÀ ß £Á£ÀÄ £À£ßÀ PÀÄlÄA§zÀ ¨sÁUÀ¸ÀÜgÁzÀ ²æêÀÄw. ±ÉÆèsÀªÀÄä, ²æÃ. gÀ« PÀĪÀiÁgï, ²æÃ. ®PÀëöäuï, ²æÃ. ªÀiÁzÉÃ±ï ªÀÄvÀÄÛ ²æÃ. £ÁUÉñï, DzÀ ¤ªÀÄäUÀ½UÉ 'J' µÉqÀÆå¯ï ¸ÀévÄÀ U Û À¼À£ÄÀ ß F ¢£À F ºÀPÀÄÌ ©qÀÄUÀqÉ ¥ÀvÀæzÀ ªÀÄÆ®PÀ ¤ªÀÄä ¸Áé¢üãÀPÉÌ ©lÄÖPÉÆlÄÖ ªÀÄvÀÄÛ '©' µÉqÀÆå¯ï ¸ÀévÀÄU Û À¼À£ÀÄß £À£Àß ¸Áé¢üãÀPÉÌ vÉUÉzÀÄPÉÆAqÀÄ F ¢£À F ºÀPÀÄÌ ©qÀÄUÀqÉ ¥ÀvÀæªÀ£ÀÄß £ÉÆÃAzÀt ªÀiÁr¹PÉÆnÖgÀÄvÉÛãÉ.

F jÃwAiÀiÁV £À£ßÀ ¸Àé EZÉѬÄAzÀ ¤ªÀÄä ¸Áé¢üãÀPÉÌ ©lÄÖPÉÆnÖgÄÀ ªÀ 'J' µÉqÀÆå¯ï ¸ÀévÀÄU Û À¼À°è E£ÀÆß ªÀÄÄAzÉ '©' µÉqÀÆå¯ïzÁgÀgÁzÀ £À£ÀUÉ AiÀiÁªÀÅzÉà jÃwAiÀiÁzÀ

ºÀPÀĄ̈ÁzÀåvÉUÀ½gÀĪÀÅ¢®è ªÀÄvÀÄÛ 'J' µÉqÀÆå¯ï zÁgÀgÁzÀ ¤ªÀÄUÉ '©' µÉqÀÆå¯ï ¸ÀévÀÄU Û À¼À°è AiÀiÁªÀÅzÉà jÃwAiÀiÁzÀ ºÀPÀĄ̈ÁzÀåvÉUÀ½gÀĪÀÅ¢®èªÉAzÀÄ M¦à F ºÀPÀÄÌ ©qÀÄUÀqÉ ¥ÀvÀæªÀ£ÄÀ ß F PɼÀPÀAqÀ ¸ÁQëUÀ¼À ¸ÀªÀÄPÀëªÀÄ £ÉÆÃAzÀt ªÀiÁr¹PÉÆnÖgÀÄvÉÛãÉ.

µÉqÆ À å¯ï ¸ÀévÀÄU Û À¼ÀÄ ªÉÄïÁÌt¹gÀĪÀ jÃvÀå £À£Àß ¸Áé¢üãÀPÉÌ §A¢gÀĪÀ ¸ÀévÁÛzÀjAzÀ EzÀgÀ ªÉÄÃ¯É fêÀ£ÁA±ÀzÀ ºÀPÀÄÌ, ¨sÁUÁA±ÀzÀ ºÀPÀÄÌ, ªÉÄÊ£Àgï ªÁgÀ¸ÀÄzÁgÀgÀ ºÀPÀÄÌ, ¹ÛçÃzsÀ£ÀzÀ ºÀPÀÄÌ, ªÀÄÄAvÁzÀªÀÅUÀ¼À£ÀÄß ºÉÆA¢gÀĪÀªÀgÁUÀ°, ºÉÆAzÀvÀPÀ̪ÀgÁUÀ°Ã AiÀiÁgÀÆ EgÀĪÀÅ¢®è........."

42. Unequivocally, the complainant has admitted the

validity of Partition Deed by being a recipient of rights

under the Release Deed. The executants have derived

rights through the Partition Deed dated 21.05.2003. It is

interesting to note that after having derived the rights

under the Release Deed executed on 02.07.2018, the

complaint is on 29.11.2018 alleging commission of offences

with respect to the same Partition Deed dated 21.05.2003.

The complainant cannot be permitted to approbate and

reprobate as he has obtained the rights through a

document which relates to the release of rights traceable to

the Partition Deed dated 21.05.2003. The very institution

of the complaint after having derived rights under the

Partition Deed would amount to abuse of the process of

court.

43. In fact, the complainant has acted upon the

Partition Deed and derived benefits under it. The findings

of the Civil Court at para-38 in this regard are of relevance

and is extracted as below:-

"38. Let us consider whether Ex.P.21 is acted upon. In his cross-examination at page-21 para-14 PW.1 has admitted that he has constructed a house and dug a bore well in item no.10 of the suit schedule property i.e.,sl.no.6 of schedule-A allotted to plaintiff's father as per Ex.P.21. He has further stated in the said para that plaintiff no.1(f) to 1(n) are residing in another house situated at item no.10. In his cross-examination at page-22 at para-15, Pw.1 has further stated that he is in possession of 17½ gunats of land in Sy.no.422 i.e., item no.11 of the suit schedule property. Said property was allotted to the father of the plaintiff under Ex.P.21 mentioned in A-Schedule item no.8.

In his crossexamination at page-23 para-16, PW.1 has admitted that he had filed a suit in OS no.3647/2010 i.e., Ex.D.1 against Madappa i.e., defendant no.5 in respect of item no.12 of the suit

schedule property i.e., Sy.no.423, sl.no.6 of 'E' schedule allotted to defendant no.5 in Ex.P.21. In his cross-examination at page-24, PW.1 has admitted that defendant no.2 is in possession of item no.13 of the suit schedule property i.e., Sl.no.9 of 'B' schedule of Ex.P.21 allotted to defendant no.2. In his cross-examination at page- 25, para-18, PW.1 has admitted that the defendant no.4 & his sons are in possession of Sy.no.445 measuring 1 acre 29 guntas i.e., sl.no.10 of D- schedule allotted to defendant no.4 in Ex.P.21. In his cross-examination at page-25 para-19, PW.1 has admitted that he is running a nursery in item no.15 of the suit schedule property i.e., in sy.no.450 -sl.no.11 of A-schedule allotted to his father in Ex.P.21. In his cross-examination at page- 26 para-20, PW.1 has further admitted that defendant nos.2 to 5 are in possession of remaining extent of land in Sy.no.452 i.e., item no.16 of the suit schedule property i.e., sl.no.15 in B-schedule allotted to defendant no.2 in Ex.P.21, C-schedule in Ex.P.21 at sl.no.16 allotted to defendant no.3, D- schedule at sl.no.17 allotted to defendant no.4 and E-schedule at so.no.12 allotted to defendant no.5. In his cross-examination at page-27 para-21, PW.1 has admitted that he is in possession and enjoyment of item no.17 of suit schedule property i.e., Sy.no.139 and Sl.no.3 in A-schedule of

Ex.P.21. In his crossexamination at page-27 para- 24, PW.1 has further admitted that he and sons of his elder brother are in possession and enjoyment of item no.23 of suit schedule property i.e., Sy.no.136 allotted to his father under Ex.P.21 at schedule-A sl.no.1. Thus, the aforesaid version of PW.1 clearly discloses that Ex.P.21/D.19 registered partition deed is acted upon and the respective sharers in the said document are in possession and enjoyment of their respective shares. If really Ex.P.21/D.19 is a created document, the children of Aduru Munishamappa would not be in possession and enjoyment of the lands allotted to them under Ex.P.21/D.19...."

(emphasis supplied)

If that were to be so, the Complainant having acted

upon the Partition Deed and having benefited from it has

resorted to an inconsistent stand to file the complaint

attacking the same document, which in context of the other

facts including delay amounts to an abuse of process of

Court.

44. As regards the contention of the respondents

that affixing of photographs to the registered deeds was not

in force as on the relevant date leading to the inference

that the registration of Partition Deed and Sale Deed were

concocted documents, the petitioners in their written

submissions have pointed out that the requirement of

affixing of photographs was in force from 04.04.2002 and

the provision of registration by electronic mode came into

force only on 17.12.2003, only after which the practice of

taking photographs through digital mode was introduced.

Prior to that, i.e. as on 21.05.2003, the practice of affixing

photographs was in vogue, which has been followed as

regards the documents in question. Such explanation not

having been rebutted, deserves acceptance.

45. Accordingly, in light of the above discussion and

taking note; that the complaint was filed in the year 2018

relating to the offence alleged to have been committed in

the year 2003, that the complaint is filed after having

suffered a decree before the Civil Court rejecting the

specific contention of the respondents regarding the two

documents, that the complainant is the beneficiary of rights

under the Release Deed dated 02.07.2018 in which

document reference is made to the Partition Deed dated

21.05.2003, all of which in their entirety and in light of

discussion made above would clearly make out a classic

case of abuse of process of Court. It is clear that the

complainant has resorted to the proceedings before the

Criminal Court after having suffered the orders before the

Civil Court only to wreak vengeance against the accused

and to settle scores.

46. Accordingly, the order at Annexure-'B' dated

25.11.2021 passed by the Court of XLII Addl. Chief

Metropolitan Magistrate, Bengaluru (CCH-42) in

C.C.No.33228/2021 (PCR No.19856/2021) stands quashed

in its entirety as regards the petitioners / Accused Nos.1, 4

and 3.

Sd/-

JUDGE

NP/VGR