Karnataka High Court

Moyinuddin Sayyad Hasan vs D. Shnkar Bhat on 15 December, 2023

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                                                        NC: 2023:KHC-D:14743
                                                      CRL.RP No. 100220 of 2017
                                                  C/W CRL.RP No. 100219 of 2017



                      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                           DATED THIS THE 15TH DAY OF DECEMBER, 2023

                                             BEFORE
                       THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
                    CRIMINAL REVISION PETITION NO. 100220 OF 2017 (397-)
                                               C/W
                       CRIMINAL REVISION PETITION NO. 100219 OF 2017


                   IN CRL.RP NO. 100220/2017
                   BETWEEN:

                   MOYINUDDIN SAYYED HASAN,
                   AGE: ABOUT 66 YEARS,
                   OCC: AGRICULTURE,
                   R/O: YELLAPUR TOWN,
                   DIST: KARWAR.
                                                                       ...PETITIONER

                   (BY SRI. V.M. SHEELAVANT AND
                   SRI M.L. VANTI, ADVOCATES)

                   AND:

                   D. SHANKAR BHAT,
YASHAVANT          AGE: 63 YEARS,
NARAYANKAR         OCC: AGRICULTURE,
                   R/O: NEAR BUS STAND,
Digitally signed   YELLAPUR, DIST: KARWAR.
by YASHAVANT                                                          ...RESPONDENT
NARAYANKAR
Date: 2023.12.20
11:19:18 +0530     (BY SRI. A.P. HEDGE JANMANE AND
                       SRI. VIJAY M. MALALI, ADVOCATES)

                          THIS CRIMINAL REVISION PETITION IS          FILED UNDER
                   SECTION 397 R/W 401 OF THE CODE OF CRIMINAL PROCEDURE,
                   PRAYING TO SET ASIDE THE ORDER DATED: 19-07-2017 PASSED BY
                   THE LEARNED I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
                   UTTAR     KANNADA,   SITTING         AT   SIRSI,   IN   CRL.REV.
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                                     NC: 2023:KHC-D:14743
                                   CRL.RP No. 100220 of 2017
                               C/W CRL.RP No. 100219 of 2017



PETITION.NO.5007/2017 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 420, 463, 477, 201 R/W. 34 OF IPC IN THE INTEREST OF
JUSTICE.
IN CRL.RP NO. 100219/2017
BETWEEN:

MOYINUDDIN SAYYED HASAN,
AGE: ABOUT 66 YEARS,
OCC: AGRICULTURE,
R/O: YELLAPUR TOWN,
DIST: KARWAR.
                                                      ...PETITIONER

(BY SRI. V.M. SHEELAVANT AND SRI M.L. VAMTI, ADVOCATES)

AND:

NARAYAN RAMCHANDRA BHAT,
AGE: 65 YEARS,
OCC: AGRICULTURE,
R/O: NEAR KALAMMA NAGAR LAKE,
YELLAPUR, DIST: KARWAR.
                                                     ...RESPONDENT

(BY SRI. A.P. HEDGE JANMANE AND
    SRI. VIJAY M. MALALI, ADVOCATES)

       THIS   CRIMINAL   REVISION    PETITION   IS   FILED    UNDER
SECTION 397 R/W 401 OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING TO SET ASIDE THE ORDER DATED: 19-07-2017 PASSED BY
THE LEARNED I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
UTTAR      KANNADA,      SITTING     AT   SIRSI,     IN      CRL.REV.
PETITION.NO.5006/2017 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 420,463, 477, 201 R/W. 34 OF IPC IN THE INTEREST OF
JUSTICE.

       THESE PETITIONS HAVING BEEN HEARD AND RESERVED
COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE
COURT PASSED THE FOLLOWING:
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                                        NC: 2023:KHC-D:14743
                                      CRL.RP No. 100220 of 2017
                                  C/W CRL.RP No. 100219 of 2017



                                ORDER

These two revision petitions arise out of order passed in

Crl.R.P.5006/2017 and Crl.R.P.5007/2017 on the file of the I-

Additional District and Sessions Judge, Uttar Kannada, Karwar

sitting at Sirsi (for short "Revisional Court"). The complainant

being aggrieved by the order of allowing revision petitions and

setting aside an order of taking cognizance for the offence

punishable under Section 463, 477, 420, 201 read with Section

34 IPC has preferred these revision petitions.

2. For the purpose of convenience, the parties to these

revision petitions are referred to as per their rank before the

Trial Court.

3. As both these criminal revision petitions arise out of

common order passed in the aforesaid revision petitions and

since they are connected, these two petitions are heard

together and common order is passed.

4. The facts narrated by the complainant in brief are

as under:

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That, the complainant by name Moyinuddin S/o. Sayyad

Hussain lodged a private complaint before the Principal

J.M.F.C., Sirsi (for short "the Trial Court") in P.C.No.10/2014

alleging that, the accused persons named in the private

complaint are involved in the commission of offences under

Section 463, 477, 420, 201 read with Section 34 of IPC. It is

his allegation that, he is a resident of Yallapur, his father

expired about 25 years back and his mother is residing with

him. He specifically stated that, his father Sayyad Hussain was

possessing landed property bearing Survey No.104/1 situated

at Yallapur taluk in Sahasralli village. It was a granted land to

his father. On demise of his father, his name came to be

entered in the revenue records. As such, the complainant being

legal heir of his father, he is having right in the said property.

He has stated that, to earn his livelihood, he was in Kuwait

country for about twenty years. He returned to India about two

years prior to filing of the complaint. His brother Sayyad

Mohammad Shafi was addicted to alcohol. He was doing

contract business. He died on 05.06.1997.

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It is alleged that, accused No.2 being rich and shrewd

person, having properties and person with political influence,

misused the innocence of his brother and created fraudulent

documents in respect of properties by forging the signature of

his brother. He got created power of attorney fraudulently to

gulp the properties of the complainant's family. According to

the complainant, neither he nor his mother executed any such

power of attorney in favour of the accused. It is specifically

alleged that, these accused No.1 and 2, in collusion with each

other, have created documents styled as "power of attorney"

and they have no right, title or interest over the property

owned by the complainant's family.

It is alleged that, these illegal acts of the accused persons

have affected the rights of the complainant. To that effect, suit

is also filed.

Therefore, he filed a private complaint to take necessary

legal action against accused No.1 and 2 named in the

complaint. The Trial Court, after recording the sworn statement

of the complainant, as per procedures in case of private

complaints, took cognizance of the offence under Sections 463,

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477, 420, 201 read with 34 of IPC. The Trial Court passed the

said order on 05.01.2017.

This order of taking cognizance and registering the criminal

case against the accused persons was challenged by accused

No.1 and 2 by filing separate criminal revision petitions i.e.

Crl.R.P.No.5006/2017 and Crl.R.P.No.5007/2016 before the

Revisional Court. The learned Revisional Court, by orders dated

19.07.2017 allowed both the revision petitions and the order

passed by the Trial Court dated 05.01.2017 came to be set-

aside. This is how the complainant has preferred these revision

petitions before this Court challenging the order of setting aside

the orders dated 05.01.2017 passed by the Revisional Court.

5. Heard the arguments of both the sides. Perused the

records. The points that would arise for consideration are as

under:

"Whether the order of Revisional Court in setting aside the taking cognizance of the offence and issuing summons by the Principal JMFC, Sirsi, which is now under challenge by the petitioner suffers from illegality, perversity and infirmity and same is called for interference by this Court?"

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6. As could be seen from the records made available

by the complainant-revision petitioner and also the Trial Court

records being secured in these revision petitions, it is alleged

by the complainant in his private complaint, which was ordered

to be registered in C.C.No.4/2017 by virtue of order dated

05.01.2017, that, he filed a complaint against both accused

No.1 and 2 alleging the offence under Section 463, 477, 420,

201 read with Section 34 of IPC. It is specifically alleged by the

complainant that, for about 25 years, this complainant gone

abroad from Sahasralli village of Yallapur Tauk to Kuwait for the

purpose of his livelihood. His father Sayyad Hussain was

owning and possessing the landed property bearing Survey

No.104/1 at Sahasralli village. It was a granted land from the

government. On demise of his father, it was his mother and the

complainant succeeded to the said property. He specifically

alleged that, his brother Sayyad Mohammed Shafi addicted to

alcohol. He was doing a petty contract business during his

lifetime but unfortunately, he died on 05.06.1997.

7. It is alleged that, accused No.2 being a shrewd

person having properties and political influence and being a rich

person, misused the innocence of his brother and created

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documents styled as power of attorney said to have been

executed by complainant and his mother. Based upon that, by

creating fraudulent documents, they got a decree from the Civil

Court depriving the rights of the complainant in the properties

owned by his family. When the complainant returned to his

native place about two years back prior to filing of the

complaint, he came to know about the illegal acts of the

accused persons. Thereafter, he lodged a private complaint

against the accused persons.

8. In support of his complaint, the complainant has

produced various documents such as the evidence of one

Sumangali Nagesh Bhat recorded in O.S.No.108/2006, a copy

of the judgment passed in O.S.No.108/2006 filed by Shankar

Bhat, who is arrayed as accused No.1 in the complaint filed by

Smt.Maryambi, the mother of the complainant and others, and

also the title document and entire documents being certified

copies produced in civil proceedings. It is an admitted fact that,

O.S.No.53/2008 is still pending as per the submission of the

counsel for the respondent.

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9. In addition to the facts narrated in the compliant, it

is argued by the counsel for the complainant-revision petitioner

that, the Trial Court on going through the records so produced

by the complainant and after recording sworn statement of the

complainant has taken cognizance of the offence. He submits

that the Trial Court has taken into consideration all the aspects

of the case and has come to the conclusion that, the allegations

require adjudication and hence, took cognizance of the offences

and registered the criminal case against the accused persons.

10. According to his submission, the Revisional Court

has not considered all these aspects and has simply passed an

order setting aside the order of taking cognizance by stating

that a civil suit is pending and no case has been made out by

the complainant so as to prove the offence under Sections 463,

477, 420, 201 read with Section 34 of IPC. According to the

learned Revisional Court, the very taking cognizance of the

offence is a mistake being committed by the Trial Court.

Therefore, he submits that, the revision petitions so filed by the

complainant deserve to be allowed and the orders passed by

the Revisional Court has to be set-aside and the order of the

learned Magistrate has to be restored.

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11. In support of his submissions, he relies upon

various documents so produced in this case and also the

reasons being assigned by the learned Magistrate, which

according to him, are sound reasons and he relied upon the

documents produced.

12. As against this submission, the learned counsel for

the respondents in both these revision petitions relied upon the

allegations made in the suit as well as the complaint. According

to him, no offences were committed by any of the accused.

Accused No.1 is an advocate by profession and the main

allegations of the complaint is against accused No.2. As per his

submissions, so as to harass the accused, he has alleged that

he is a rich and influenced person and has misused the

situations, business and innocence of the brother of

complainant, who was addicted to alcohol, got the documents,

the complainant has filed complaint and because of that the

complainant's family is suffering. According to him, the

Revisional Court has rightly applied its mind.

13. To this submission, the learned counsel for the

revision petitioner in both these petitions, submits that as the

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Revisional Court without applying its mind has passed the

order, which requires interference by this Court.

14. In a case of present nature, when complaint so filed

by the complainant is dismissed and the order of taking

cognizance is set aside by the Revisional Court, we have to

read the provisions of Section 203 of Cr.P.C. The provisions

regarding dismissal of the complainant's case as provided

under Section 203 of Cr.P.C. reads as under:

"203. Dismissal of complaint. If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."

15. Under this section, the learned Magistrate may

summarily dismiss the complaint, after considering the

statements on oath of the complainant and his witnesses and

the result of investigation under Section 202 of Cr.P.C., if he is

of the opinion that there is no sufficient ground for proceeding

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against the accused, the Magistrate must take into

consideration the previous proceedings, if any.

16. In Nirmaljit Singh Hoon v. The State of West

Bengal and Another1 the Hon'ble Apex Court has held that

the words 'sufficient ground" means the satisfaction that a

prima faice case is made out against the person accused by the

evidence of witnesses entitled to a reasonable degree of credit,

and not sufficient ground for the purpose of conviction.

17. Now the impugned order passed by the Revisional

Court has to be considered in the light of the statutory

provisions as laid by the Hon'ble Apex Court to find out whether

the impugned order was legally passed. It has been mentioned

by the Trial Court in the order which is being supported by the

counsel for the complainant that, the learned Magistrate has

taken cognizance after satisfaction that, there was prima facie

case made out against the accused persons. It is his

submission that, the impugned order passed by the Revisional

Court that as per the statement of the complainant and his

witnesses, these accused persons alleged that accused were

AIR 1972 SC 2639

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involved in preparation of power of attorney by taking undue

advantage of innocence of the brother of the complainant, but

the Revisional Court has not considered the said aspect.

18. Considering the reasons given by the Trial Court in

taking cognizance and also the orders passed by the Revisional

Court in setting aside the order under Section 203 of Cr.P.C.

and the records of the complainant's case including the

complaint, statement of complainant recorded under Section

200 of Cr.P.C., and also the allegations made in the complaint,

as per his submission, the illegality has been committed by the

Revisional Court. But on perusal of the records so produced by

the complainant, which are voluminous in nature, do establish

that, there are so many civil proceedings being initiated by

showing persons including accused No.2. But unless the Civil

Court comes to the conclusion about the commission of fraud

on the complainant, the complainant cannot proceed with the

accused persons. The every allegations made against advocate

by the clients would not constitute offence.

19. Evidently, complainant was away and staying in

Kuwait for about 25 years. He says, his brother was addicted to

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alcohol and that both accused No.1 and 2 have taken

advantage of innocence of his brother and created fraudulent

power of attorney. To claim rights in the properties, suit is filed

and civil suit is pending in O.S.No.108/2006. The power of

attorney was produced in the said civil suit. It is stated that,

the said power of attorney was produced by his brother on

02.08.1997. There is no endorsement to that effect.

20. The learned Revisional Court has observed that

there is an endorsement on the order sheet of O.S.No.1/1996

to show that complainant received the said special power of

attorney. On that day, Mohammad Shafi was not alive. It is

alleged that, in collusion with each other, accused have created

forged documents and committed offence, the complaint was

lodged. It was opined by the revisional Court that, on perusal of

the records reveal that, the present complaint himself has

executed the special power of attorney authorizing his

deceased brother Mohammad Shafi to enter into compromise in

O.S.No.1/1996. A copy of the general power of attorney is

found in records maintained in O.S.No.1/1996. The said copies

are also produced at the time of filing of private complaint. The

said special power of attorney was executed on 15.05.1996 on

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a stamp paper of Rs.50/-. In paragraph 15 and 17 of the

orders, the Revisional Court has observed as under:

"15. If at all the documents as alleged are forged one, initial burden of proving the same is one the Complainant. The Complainant though had contended that, for a period of 20 years, he was working in Kuwait, now he has returned in to his native place. But copy of the passport of the Complainant is also found in the lower court records. A perusal of the passport goes to show that, on 14.03.1996 the complainant left Kuwait and on 16.06.1996 he returned to Kuwait. This is evident from the exit and entry stamps of the State of Kuwait at the Airport.

17. In the authority relied by the Respondent reported in 2017(1) Kar.L.J. page 792 at head note B observed and "directed to court below to firstly ascertain from the complainant and evidentiary material collected by the Investing Officer as to the jurisdiction of the Special court to entertain the complaint and then to take the matter to its logical end". This observation of the Hon'ble High Court clearly makes out a case that the Lower Court has erred in registering a case against Revision Petitioner on the basis of incomplete material. "

21. Even on perusal of the documents produced by the

complainant as well as the observation made by the Revisional

Court, it do demonstrates that, the Revisional Court has not at

all committed any illegality or infirmity in disbelieving the

allegations made in the complaint. Even it is an admitted fact

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that, the suit in O.S.No.108/2006 is still pending for disposal on

the file of Additional Senior Civil Judge, Yallapur. It is opined by

the Revisional Court that, unless and until the Senior Civil

Judge, Yallapur gives a finding regarding genuineness or

forgery of the documents, as alleged in the complaint, the

learned Magistrate cannot take cognizance of the offence of

forgery. Therefore, it opined that the complaint so filed by the

complainant is premature.

22. It is argued by the counsel for the respondents

that, if at all it is opined by the Civil Court in the aforesaid suit

that, there was a forgery of the said power of attorney, the

other course is open to the complainant to have a recourse for

forgery of the document by the accused persons by invoking

appropriate provisions. The learned counsel for the respondents

relied upon the judgment of the Hon'ble Apex Court in the case

of Professor R.K.Vijayasarathy and another v. Sudha

Seetharam and another (Criminal Appeal No.238 of 2019

Special Leave Petition (Criminal) No.1434 of 2018). In the said

case, allegation was made against accused persons in the first

information report for commission of offence under Section

405, 406, 416 read with section 34 of IPC. The Hon'ble Apex

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Court has relied upon the provisions of Section 482 of Cr.P.C. in

paragraph 10, which reads as under:

"10. Section 482 of Code of Criminal Procedure saves the inherent power of the High Court to make orders necessary to secure the ends of justice. In Indian Oil Corporation v. NEPC India Ltd.2 A two judge Bench of this Court reviewed the precedents on the exercise of jurisdiction under Section 482 of the Code of Criminal procedure 1973 and formulated guiding principles in the following terms.

(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with

(2006) 6 SCC 736

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malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence."

23. Learned counsel has also relied upon the judgment

of the Hon'ble Apex Court in the case of Professor R. K.

Vijayasarathy (stated Supra) in paragraphs 23 and 24,

wherein the Hon'ble Apex Court held as under:

"23. The jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised with care. In the exercise of its jurisdiction, a High Court can examine whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence. Where the ingredients required to constitute a criminal offence are not made out from a

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bare reading of the complaint, the continuation of the criminal proceeding will constitute an abuse of the process of the court.

24. In the present case, the son of the appellants has instituted a civil suit for the recovery of money against the first respondent. The suit is pending. The first respondent has filed the complaint against the appellants six years after the date of the alleged transaction and nearly three years from the filing of the suit. The averments in the complaint, read on its face, do not disclose the ingredients necessary to constitute offences under the Penal Code. An attempt has been made by the first respondent to cloak a civil dispute with a criminal nature despite the absence of the ingredients necessary to constitute a criminal offence. The complaint filed by the first respondent against the appellants constitutes an abuse of process of court and is liable to be quashed."

24. The principles laid down in the aforesaid judgment

are applicable to the present case on hand. When the matter is

ceased before the Civil Court in original suit on the file of Senior

Civil Judge, Yallapur in O.S.No.108/2006, as allegations are

civil in nature, recourse is very much available to the

complainant to get his grievance redressed before the Civil

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Court, where the suit is pending. The petitioner has filed a

complaint against the accused persons after lapse of sufficient

time, alleging execution of power of attorney by his brother,

which is fraudulent document according to him. He has filed a