Karnataka High Court
Shri. Arun Kalgujjikar vs State Of Karnataka on 15 December, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2023:KHC:45723
CRL.P No. 8410 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 8410 OF 2023
BETWEEN:
SHRI. ARUN KALGUJJIKAR,
S/O VENKATARAMANA KALGUJJIKAR
AGED ABOUT 71 YEARS,
R/AT SARASWATHI NILAYA,
VAKWADI ROAD,
KUMBASTHI
UDUPI-576257
...PETITIONER
(BY SRI. PRAKASH TIMMANNA HEBBAR, ADV.)
AND:
1. STATE OF KARNATAKA
BY K R PURAM POLICE STATION,
REP BY SPP
Digitally signed by
PADMAVATHI B K HIGH COIURT BUILDING,
Location: HIGH BENGALURU-560001
COURT OF
KARNATAKA 2. SHRI A MADAPPA
S/O LATE ADHUR ANJANAPPA
AGED ABOUT 62 YEARS,
R/AT KALKERE VILLAGE,
K R PURAM, HOBLI
BENGALURU EAST TALUK-560043
...RESPONDENTS
(BY SRI. B.N.JAGADEESH, ADDL. SPP FOR R1;
SRI. HIRAN KRISHNA SWAMY, ADV. FOR R2)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET
ASIDE THE IMPUGNED ORDER DATED 09.09.2021 PASSED BY
-2-
NC: 2023:KHC:45723
CRL.P No. 8410 of 2023
THE HONBLE LXXXI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CITY (CCH-82) IN PCR NO.50/2021
(SPECIAL COURT EXCLUSIVELY TO DEAL WITH CRIMINAL CASE
RELATED TO MPs/MLAs IN THE STATE OF KARNATAKA) AND
ALSO THE ORDER DATED 25.11.2021 PASSED BY THE HONBLE
COURT X ACMM AT BENGALURU IN PCR NO.58290/2018 IN
C.C.NO.33228/2021 ON THE FILE OF THE XLII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE (SPECIAL COURT
EXCLUSIVELY TO DEAL WITH CRIMINAL CASES RELATED TO
MPs/MLAs) TRIABLE BY THE MAGISTRATE IN THE STATE OF
KARNATAKA) AS PER ANNEXURE A, B AND C RESPECTIVELY.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel Sri. Prakash Timmanna
Hebbar, appearing for the petitioner, Sri.B.N.Jagadeesh, the
learned Additional State Public Prosecutor appearing for
respondent No.1 and the learned counsel Sri.Hiran Krishna
Swamy, appearing for respondent No.2.
2. The petitioner is before this Court, seeking for the
following prayer:
" PRAYER
WHEREFORE, it is prayed that this Hon'ble Court
may be pleased to admit this criminal petition, call
for the records from the Hon'ble Special Court XLII
Addl. C.M.M., Bengaluru in C.C.No.33228/2021,
peruse the records, here the parties and further
pleased:-
NC: 2023:KHC:45723
(a) To set aside the impugned order dated
09.09.2021 passed by the Hon'ble LXXI Addl.
City Civil & Sessions Judge, Bangalore City
(CCH-82) in PCR No.50/2021 (Special Court
exclusively to deal with criminal cases related
to MPs/M.L.As, in the State of Karnataka);
and also the order dated 25.11.2021 passed
by the Hon'ble Court X ACMM at Bangalore in
PCR No.58290/2018 in C.C.No.33228/2021 on
the file of the XLII Additional Chief
Metropolitan Magistrate (Special Court
exclusively to deal with criminal cases related
to MPs/M.L.As, triable by the Magistrate in the
State of Karnataka) as per Annexures-A, B &
C respectively.
AND
(b) TO grant such other order/s as this Hon'ble
Court deems fit to pass in the facts and
circumstances of the case including the cost,
in the interest of justice."
3. Learned counsel appearing for the petitioner would
submit that the issue in the lis stands covered by the judgment
rendered by the Co-ordinate Bench of this Court in
Crl.P.No.423/2022 disposed on 02.06.2023, wherein it has held
as follows:
" ORDER
1. The petitioner is before this Court calling in
question the proceedings in CC No.33228/2021,
NC: 2023:KHC:45723
which arose out of PCR No.19836/2021 registered
for offence punishable under Sections 120B, 420,
427, 465, 467, 471 of IPC.
2. Heard Sri. B.S. Prasad, learned Advocate
for the petitioner and Smt. K.P. Yashoda, learned
HCGP for Respondent No.1 as well as ri. T.M.
Venkata Reddy, learned Advocate for Respondent
No.2.
3. The petitioner is Accused No.2. The
issues that are before this Court in the subject
petition need not detain this Court for long or delve
deep into the matter as the Co-ordinate Bench of
this has quashed the proceedings in respect of other
accused ie., Accused Nos. 1, 3 & 4, in Criminal
Petition No.9828/2021 [Madappa and Others Vs.
State of Karnataka and Another] in terms of its
order dated 30.09.2022.
4. The quashment of proceedings was
tossed by the very same complainant before the
Apex Court in SLP No.2724/2023 and the said
Special Leave Petition was dismissed by an order of
Apex Court dated 05.04.2023. Therefore, the
findings recorded by the Co-ordinate Bench of this
Court in Criminal Petition No.9828/2021 by
quashing the proceedings as against Accused Nos. 1,
3 & 4 has attained finality. The petitioner in the case
NC: 2023:KHC:45723
at hand is Accused No.2. Accused Nos. 1, 3 & 4 in
favour of whom the orders were passed in the
aforesaid Criminal Petition are the members of the
same family of present petitioner. The issues are
identical as they are alleged of what was alleged in
Criminal Petition No.9828/2021. The finding of Co-
ordinate Bench considering the entire spectrum of
the facts and law in the aforesaid order, has quashed
the proceedings by rendering following reasons:-
"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 Others1. The categories
enumerated which warrant quashing though are
not exhaustive has provided a useful 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
(1992) Supp(1) SCC 335
NC: 2023:KHC:45723
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 Another2.
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
(2021) 5 SCC 435
NC: 2023:KHC:45723
adversaries, the 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
NC: 2023:KHC:45723
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.
NC: 2023:KHC:45723
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
- 10 -
NC: 2023:KHC:45723
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
- 11 -
NC: 2023:KHC:45723
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
- 12 -
NC: 2023:KHC:45723
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.
- 13 -
NC: 2023:KHC:45723
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
- 14 -
NC: 2023:KHC:45723
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 along with 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 ¸ÀévÀÄÛUÀ¼ÀÄ ²æÃ. CtÚAiÀÄå¥Àà gÀªÀjUÉ
¢£ÁAPÀ:21-05-2003 gÀAzÀÄ PÀȵÀÚgÁd¥ÀÄgÀ, G¥À-£ÉÆÃAzÀuÁ¢üPÁj gÀªÀgÀ
PÀbÉÃjAiÀÄ°è MAzÀ£Éà ¥ÀĸÀÛPÀ, ¹.r.£ÀA.88, 3195/2003-04£Éà £ÀA§gÁV
£ÉÆÃAzÀ¬Ä¸À¯ÁVgÀĪÀ «¨sÁUÀ ¥ÀvÀæzÀ 'J' µÉqÀÆå¯ï ¥ÀvÀæzÀ ªÀÄÆ®PÀ §AzÀ
¸ÀévÁÛVgÀÄvÀÛzÉ. ¸ÀzÀj ²æà CtÚAiÀÄå¥Àà gÀªÀgÀ ªÀÄgÀuÁ £ÀAvÀgÀ £ÀªÀÄäUÀ½UÉ
¦vÁæfðvÀªÁzÀ ¸ÀévÁÛVgÀÄvÀÛzÉ. vÀzÀ£ÀAvÀgÀ £ÀªÀÄäUÀ½UÉ «±ÉõÀ vÀºÀ²Ã¯ÁÝgï
gÀªÀgÀ £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 ¸ÀévÁÛVgÀÄvÀÛzÉ. F vÀºÀ®égÉ«UÀÆ ¸ÀzÀj
¸ÀévÀÄÛUÀ¼À£ÀÄß £ÀªÀÄä ¸Áé¢üãÁ£ÀĨsÀªÀ ºÁUÀÆ ºÀPÀÄÌzÁjPÉAiÀÄ°ègÀĪÀ ªÉÄîÌAqÀ
¸ÀévÀÄÛUÀ¼À£ÀÄß £ÁªÀÅUÀ¼ÀÄ MlÄÖ PÀÄlÄA§zÀ D¹ÛAiÀÄ£ÁßV C£ÀĨsÀ«¹PÉÆAqÀÄ
§A¢gÀÄvÉÛêÉ"
F jÃwAiÀiÁV ªÉÄîÌAqÀ ¸ÀévÀÄÛUÀ¼À£ÀÄß £ÀªÀÄäUÀ¼À MlÄÖ PÀÄlÄA§zÀ
¸ÀévÀÛ£ÁßV C£ÀĨsÀ«¹PÉÆAqÀÄ §A¢gÀĪÀ 'J' µÉqÀÆå¯ï ¸ÀévÀÄÛUÀ¼À£ÀÄß £Á£ÀÄ £À£Àß
PÀÄlÄA§zÀ ¨sÁUÀ¸ÀÜgÁzÀ ²æêÀÄw. ±ÉÆèsÀªÀÄä, ²æÃ. gÀ« PÀĪÀiÁgï, ²æÃ.
®PÀëöäuï, ²æÃ. ªÀiÁzÉÃ±ï ªÀÄvÀÄÛ ²æÃ. £ÁUÉñï, DzÀ ¤ªÀÄäUÀ½UÉ 'J' µÉqÀÆå¯ï
¸ÀévÀÄÛUÀ¼À£ÀÄß F ¢£À F ºÀPÀÄÌ ©qÀÄUÀqÉ ¥ÀvÀæzÀ ªÀÄÆ®PÀ ¤ªÀÄä ¸Áé¢üãÀPÉÌ
©lÄÖPÉÆlÄÖ ªÀÄvÀÄÛ '©' µÉqÀÆå¯ï ¸ÀévÀÄÛUÀ¼À£ÀÄß £À£Àß ¸Áé¢üãÀPÉÌ vÉUÉzÀÄPÉÆAqÀÄ
F ¢£À F ºÀPÀÄÌ ©qÀÄUÀqÉ ¥ÀvÀæªÀ£ÀÄß £ÉÆÃAzÀt ªÀiÁr¹PÉÆnÖgÀÄvÉÛãÉ.
F jÃwAiÀiÁV £À£Àß ¸Àé EZÉѬÄAzÀ ¤ªÀÄä ¸Áé¢üãÀPÉÌ ©lÄÖPÉÆnÖgÀĪÀ 'J'
µÉqÀÆå¯ï ¸ÀévÀÄÛUÀ¼À°è E£ÀÆß ªÀÄÄAzÉ '©' µÉqÀÆå¯ïzÁgÀgÁzÀ £À£ÀUÉ AiÀiÁªÀÅzÉÃ
jÃwAiÀiÁzÀ ºÀPÀĄ̈ÁzÀåvÉUÀ½gÀĪÀÅ¢®è ªÀÄvÀÄÛ 'J' µÉqÀÆå¯ï zÁgÀgÁzÀ ¤ªÀÄUÉ
'©' µÉqÀÆå¯ï ¸ÀévÀÄÛUÀ¼À°è AiÀiÁªÀÅzÉà jÃwAiÀiÁzÀ
ºÀPÀĄ̈ÁzÀåvÉUÀ½gÀĪÀÅ¢®èªÉAzÀÄ M¦à F ºÀPÀÄÌ ©qÀÄUÀqÉ ¥ÀvÀæªÀ£ÀÄß F PɼÀPÀAqÀ
¸ÁQëUÀ¼À ¸ÀªÀÄPÀëªÀÄ £ÉÆÃAzÀt ªÀiÁr¹PÉÆnÖgÀÄvÉÛãÉ.
- 15 -
NC: 2023:KHC:45723
µÉqÀÆå¯ï ¸ÀévÀÄÛUÀ¼ÀÄ 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 cross-
examination at page-23 para-16, PW.1 has
- 16 -
NC: 2023:KHC:45723
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
- 17 -
NC: 2023:KHC:45723
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
- 18 -
NC: 2023:KHC:45723
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.
5. In the light of quashment of proceedings
qua Accused Nos. 1, 3 & 4 and the SLP filed against
him having been dismissed, the Court need not hold
its hands and further hear the petitioner or the
respondents.
For the aforesaid reasons, following:
ORDER
i) Criminal Petition is allowed.
ii) The proceedings in CC No.33228/2021 (PCR
No.19856/2021) on the file of XLII Additional
Chief Metropolitan Magistrate at Bangalore for
the offence punishable under Sections 120B,
420, 427,465, 467, 471 of IPC."
- 19 -
NC: 2023:KHC:45723
4. In the light of the order passed by the Co-ordinate
Bench of this Court (supra) and for the very reasons
aforementioned, the following:
ORDER
i) The Criminal Petition is allowed.
ii) The impugned order dated 09.09.2021 passed by
the Hon'ble LXXXI Additional City Civil and Sessions
Judge, Bengaluru in PCR No.50/2021 and the order
dated 25.11.2021 passed by the Hon'ble
X ACMM at Bengaluru in PCR No.58290/2018 are
set aside and the proceeding in C.C.No.33228/2021
on the file of the XLII Additional Chief Metropolitan
Magistrate, Bengaluru is quashed.
Sd/-
JUDGE
KG
