Karnataka High Court
Smt. Chandrakala Reddy vs State Of Karnataka on 20 December, 2023
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CRL.P No. 5941 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL PETITION NO. 5941 OF 2019
BETWEEN:
SMT. CHANDRAKALA REDDY,
W/O RAGHUPATHI REDDY,
NOW AGED ABOUT 45 YEARS.
#61, SOUTH END ROAD,
NAGASANDRA, BASAVANAGUDI,
BENGALURU CITY,
KARNATAKA - 560 004.
PRESENTLY RESIDING AT
NO.71, PRESIDENT ROAD,
KELLYVILLE NEW SOUTH WALES (NSW)
2121, AUSTRALIA.
Digitally R/BY HER SPECIAL POWER OF ATTORNEY
signed by
SUMA SRI. SHIVALINGA S.
Location: ...PETITIONER
HIGH
COURT OF (BY SRI. HALASHETTI JAGADISH SIDRAMAPPA, ADVOCATE)
KARNATAKA
AND:
1. STATE OF KARNATAKA
BY BASAVANAGUDI POLICE STATION,
BENGALURU,
NOW R/BY STATE P.P.,
HIGH COURT,
BENGALURU - 560 001.
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CRL.P No. 5941 of 2019
2. SRI. MANJUNATHA REDDY,
S/O LATE SUNDAR RAMA REDDY,
AGED ABOUT 47 YEARS,
R/AT NO. 207, 2ND STAGE,
"BINDIYA RESIDENCY"
24TH MAIN, J P NAGAR,
6TH PHASE,
BENGALURU - 560 078.
...RESPONDENTS
(BY SMT. WAHEEDA M.M., HCGP FOR R1;
SRI. MAHESH Y.L., ADVOCATE FOR
SRI. AJIT KALYAN, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S 482 OF CR.PC PRAYING TO
QUASH THE FIR IN CR.NO.211/2018 DATED 16.08.2018 FOR
THE OFFENCE P/U/S 468,406,471,420 R/W SECTION 34 OF IPC
AND THE CONSEQUENT CHARGE SHEET IN C.C.NO.6701/2019
PENDING ON THE FILE OF THE IV A.C.M.M, AT BENGALURU
FOR THE OFFENCE P/U/S 406, 418, 419, 420, 465, 468, 471,
120B R/W 34 OF IPC WHICH ARE MARKED AS ANNEXURE-A IN
SO FAR AS PETITIONER IS CONCERNED.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has challenged the prosecution launched
against her by respondent No.1 in C.C.No.6701/2019 pending
trial before the IV Addl. Chief Metropolitan Magistrate Court,
Nrupatuga Road, Bangalore City for the offences punishable
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under Sections 406, 418, 419, 420, 465, 468, 471, 120B read
with 34 of IPC.
2. A private complaint was lodged by respondent No.2
herein in PCR No.10136/2018 alleging the commission of
cognizable offences by the petitioner and others. He alleged
that the property bearing No.97 situated at TATA Silk Form,
Basavanagudi, Bengaluru belonged to his father. He claimed
that the petitioner herein and he were the two children who
succeeded to aforesaid property, upon the death of their father
on 18.10.2015. He alleged that the property was entrusted to
accused No.2, who is the husband of the petitioner herein. He
alleged that the accused Nos.1, 2 and the petitioner had
colluded and entered into a Sale Agreement with accused No.4
in respect of which information was provided to the
Basavanagudi Police Station who issued NCR No.144/2018
dated 17.07.2018. Respondent No.2 alleged that the petitioner
and accused Nos.1 and 2 had conspired and created a general
Power of Attorney by forging his signature and on the basis of
such a forged General Power of Attorney had executed an
Agreement of Sale of the aforesaid property in favour of the
accused No.4. He therefore, prayed that suitable action be
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initiated against the accused. The private complaint was
referred for investigation and report under Section 156(3)
Cr.P.C. After investigation a charge-sheet was filed against
accused Nos.1, 2 and the petitioner for the offences punishable
under Sections 406, 418, 419, 420, 465, 468, 471, 420B read
with Section 34 of IPC. The trial Court took cognizance for the
offences aforesaid and issued process to the petitioner and
other accused. The petitioner was shown as absconding and
hence the case was split up against her and
C.C.No.29768/2019 was registered. The petitioner being
aggrieved by the proceedings initiated against her has filed this
petition through her Power of Attorney.
3. Learned counsel for the petitioner submitted that
the petitioner is a citizen and a permanent resident of Australia
and she was not in India, when the incriminating General Power
of Attorney dated 11.08.2017 was brought about. He submits
that respondent No.2, who knew fully well that the petitioner
was a citizen and resident of Australia had deliberately
described her as a resident of Bengaluru. He submits that the
Investigating Officer did not make any effort before filing a
charge-sheet and showing petitioner as an absconder, to verify
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whether the petitioner was in Bengaluru when the alleged
Power Attorney was brought about. He therefore contends that
the prosecution vis-a-vis the petitioner is liable to be halted. He
further contends that a perusal of the private complaint
discloses that the allegations were primarily directed against
accused No.2 and not against the petitioner. He contended that
except the self serving statements which are part of the
charge-sheet, there is no material to indicate that the petitioner
was involved in the commission of the alleged offences. He
further contends that the Trial Court committed an error in
issuing process to the petitioner without considering the fact
that the petitioner was not a resident within the jurisdiction and
therefore it was incumbent upon it to comply with the provision
of Section 202 of Cr.P.C. He further contends that the alleged
forged power of attorney was forwarded to a private forensic
lab to investigate whether alleged forged Power of Attorney
contained forged signatures of respondent No.2, though there
is no justification in doing so.
4. Per contra, learned counsel for respondent No.2
submits that this criminal petition filed through a power of
attorney is not maintainable. He referred to the judgment in
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the case of T.C.Mathai and another V/s District and
Sessions Judge, Thiruvananthapuram, Kerala reported in
(1999) 3SCC 614.
5. He also referred to the judgment of Co-ordinate
Bench of this Court in the case of Samantha Christina
Delfina Willis and Another V/s State of Karnataka and
Others in WP No.24602/2021 where following the judgment of
the Hon'ble Apex Court in the case of T.C.Mathai (supra) this
Court has held that;
"Therefore I hold that the present petition filed by
the power of attorney holder of the accused, without
seeking any permission at the hands of this Court, and
without even narrating the petition that he is personally
aware of the facts of this case, the writ petition was filed
under Article 226 and 227 of the Constitution of India
read with Section 482 of Cr.P.C is per se not
maintainable, as the accused cannot be represented by a
power of attorney holder and thus, maintain the subject
petition"
6. He also contends that the special power of attorney
which is placed on record by the petitioner does not disclose
that the attorney had any personal knowledge about the facts
of this case and therefore, the petitioner is not entitled to be
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represented through a power of attorney. He next contended
that though accused No.1 had executed an agreement of sale
in favour of accused No.4 and in the said agreement, it was
specifically mentioned that the petitioner had executed a power
of attorney in favour of accused No.1 on 18.08.2017. He
therefore contends that it is possible that the petitioner was in
India to fabricate the incriminating power of attorney
containing the forged signatures of respondent No.2. He
contends that the forensic examination of the incriminating
power of attorney through private forensic lab is not fatal to the
prosecution as the prosecution can always secure the presence
of the witness who examined the documents and therefore, the
prosecution cannot be vitiated on that ground. Even otherwise
he contends that if the petitioner was not in India, the very fact
that she has brought about the power of attorney at a point of
time when she was not in India and based on such a power of
attorney an agreement was executed in favour of the accused
No.4, indicates the complicity of the petitioner and other
accused to deprive respondent No.2 of his share in the
property. He further contends that for an offence under Section
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120(B) of IPC, it is not necessary that the petitioner should be
in India.
7. In reply, the learned counsel for the petitioner
submitted that the judgment of the Hon'ble Apex Court in the
case of T.C.Mathai (Supra) was in the peculiar facts and
circumstances of that case as in that case, the power of
attorney tried to represent a couple who had received a notice
in criminal revision petition filed before the Sessions Court. He
submitted that the Sessions Court declined permission as the
request to appear through an agent did not emanate from the
respondents. He submitted that in those facts and
circumstances, the Hon'ble Apex Court held that the personal
appearance of the accused cannot be made through a power of
attorney. He contends that the Co-ordinate Bench of this Court
while relying upon the judgment of Punjab and Haryana High
Court in the case of Amit Ahuja V/s Gian Parkash Bhambri
reported in 2010(3) R.C.R. (Criminal) 586, did not notice
that the said judgment was over ruled by the Division Bench of
the Punjab and Haryana High Court in the case of Mangal
Dass Goutham V/s State of Haryana reported in 2020(2)
R.C.R. (Criminal) 382 where the Division Bench held that the
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view taken in the case of Amith Ahuja cannot said to be correct
for the reasons stated above. The questions in reference is thus
answered as follows:
1. Criminal Proceeding under Section 482 of Cr.P.C. 1973
can be filed by an accused through power of Attorney but
the circumstances under which it can be so filed and
would be maintainable would be dependent upon various
factors including facts and circumstances of that particular
case, which is better left at the wisdom and discretion of
the Court.
2. In the light of the answer to question No.1 mentioned
above, question No.2 does not survive to be answered as
it was dependent upon the answer of question No.1 and
an offshoot of the question in a particular eventuality.
8. He contended that the Co-ordinate Bench of this
Court also referred to the judgment of the Delhi High Court in
the case of Amrinder Singh V/s State of NCT of Delhi in
Crl.M.C.1571/2021 which also referred to the judgment of
Punjab and Haryana High Court in the case of Amit Ahuja V/s
Gian Parkash Bhambri 2010(3) RCR(Criminal)586 and
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thus contends that the judgment of Co-ordinate Bench of this
Court does not declare the correct position of law. He further
contends that Chapter 12 Rule 3 of the Karnataka High
Court Rules, provide as follows:
Rule 3. "Except in cases hereinafter mentioned every
appeal, petition, application or other document presented
to the High Court, shall be presented by party making
such appeal, petition or application or by his recognized
agent as defined under Order III, rule 2 of the Code of
Civil Procedure or by his Advocate or his registered clerk
or by another Advocate deputed by such Advocate. No
paper intended to be presented to the High Court in any
judicial matter or proceeding shall be presented by post
or be presented otherwise than is provided for by this
rule".
Rule 4 is an exception to Rule 3 which reads as
follows:
Rule 4. "Rule 3 shall not apply to appeals or petitions
by a person in jail or in duress or restraint, or to petitions
by or on behalf of Courts Martial or Commissioners under
clause (d) of sub-section (1) of section 491 of the Code of
Criminal Procedure or to any petition, reference or other
matter made or presented to the High Court by or on
behalf of any Court, Tribunal or Authority, exercising
judicial or quasi-judicial functions".
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9. He contends that the petitioner has appointed her
power of attorney to present this petition as she is a citizen and
permanently residing in Australia and the power of attorney is
her relative who is residing in Bengaluru and also an advocate.
He further contends that Order 3 Rule 2 of CPC which reads as
follows:
2. Recognised agents.--The recognized agents of
parties by whom such appearances, applications and acts may
be made or done are--
(a) persons holding powers-of-attorney, authorizing them
to make and do such appearances, applications and
acts on behalf of such parties;
(b) persons carrying on trade or business for and in the
names of parties not resident within the local limits of
the jurisdiction of the Court within which limits the
appearance, application or act is made or done, in
matters connected with such trade or business only,
where no other agent is expressly authorized to make
and do such appearances, applications and acts.
10. Thus he contends that the judgment of the Co-
ordinate Bench of this Court was without reference to the
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Karnataka High Court Rules, which provided that a petition
could be filed through a power of attorney. Even otherwise he
contends that there is no need for a power of attorney to have
personal knowledge of the facts as the petition is filed on the
premise that the charge-sheet does not disclose any offence
against the petitioner. He therefore contends that the
submission of the learned counsel for respondent No.2 does not
warrant interference.
11. Learned High Court Government Pleader on the
other hand submitted that the signatures of the incriminating
power of attorney purportedly affixed by respondent No.2 is
found to be forged as per the report of the forensic examiner.
He therefore, submits that there is ample evidence to indicate
that the accused are all involved in the commission of offence.
12. I have considered the submission made by learned
counsel for the petitioner as well as learned counsel for
respondent No.2.
13. In so far as the threshold contention that the
criminal petition under Section 482 of Cr.P.C is not
maintainable, it is relevant to note that the petitioner claims to
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be a citizen and a permanent resident of Australia. The special
power of attorney executed by the petitioner reads as follows:
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT -
I Smt. Chandrakala W/o Sri.Raghupathi Reddy, age 45
years, Occ. Accounting at New South Wales Education
Department, R/at 71, President Road, Kellyville New
South Wales (NSW), 2121, Australia.
WHEREAS, I am an Indian by birth and for job
requirement I am residing in Australia at the above said
address. Further, my father late Sundararam Reddy
acquired several properties, during his life time, in
Bengaluru, India, and now after his demise on
18.10.2015, there is family dispute over partitioning of
the immovable properties and I have learnt through my
mother Smt.Anasuyamma and my husband
Sri.Raghupathi Reddy, who are currently in India, that
my brother Dr.Manjunath Reddy has filed civil and
criminal cases seeking partition and necessary action in
accordance with law against out family members
including me. I submit that, I am residing in Australia in
the above address for the last several years and it has
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become very difficult for me to look after the court cases
being filed by my said brother and I am not in a position
to attend the court cases effectively.
Accordingly, I do hereby appoint, nominate, and
constitute Sri.Shivalinga.S S/o H.V.Somashekar, aged
about 33 years, Occupation Advocate R/at #23, 6th
cross, Venkateshwara layout, Bangalore - 560 029, as
my lawful attorney to do, execute, perform all or any of
the following act/s etc., for and on my behalf or in my
name in respect of the court cases (civil or criminal) that
is to say:-
1. To file suit, petition, appeal or application or
complaint before any Court of law or
authority/police in respect of the any civil or
criminal cases, especially in
CC NO.6701/2019 pending on the file of 2nd
ACMM Court at Bengaluru and O.S. or to defend
any case that may be instituted against me and
give evidence;
2. To engage Advocates on my behalf to file suit,
petition, appeal or application or to defend any
suit, petition or application in respect of any civil
or criminal cases, especially in CC No.6701/2019
pending on the file of 2nd ACMM Court at
Bengaluru, in any court of law including High Court
of Karnataka, Bengaluru.
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3. To issue any notice, answer/reply may be issued
against me in any civil or criminal cases,
4. To seek legal opinion if the attorney to consider it
necessary while dealing with the civil or criminal
cases or any other matter connected there with;
5. To apply for certified copy of the documents
necessary in respect of civil and criminal cases
filed by me or filed against me by any person,
6. To do all and every other act that is incidental to
carry out or any other powers granted in the
above said clauses.
IN WITNESS WHEREOF, I Smt.Chandrakala W/o Sri
Raghupati Reddy, put my hand and signed these presents
on this the 16th day of May 2019 at Parramatta Australia.
WITNESSES
EXECUTANT
14. As rightly contended by the learned counsel for the
petitioner under Chapter 12 of the Karnataka High Court Rules,
there is no embargo under Rule 3, that a petition cannot be
filed before this Court by a power of attorney. The petitions
that cannot be filed through a power of attorney is specifically
enumerated in Rule 4 of the Karnataka High Court Rules, which
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is not applicable to a petition under Section 482 of Cr.P.C. Even
otherwise, the facts in T.C.Mathai's case was entirely different
and is not an authority for the proposition that a petition under
Section 482 of Cr.P.C cannot be filed by a power of attorney. It
is trite that a judgment is an authority for what it decides and
the judgment of the Hon'ble Apex Court in the case of
T.C.Mathai only dealt with the appearance of the accused
through power of attorney and nothing more. The Co-ordinate
Bench of this Court while holding that a petition under Section
482 of Cr.P.C cannot be filed through a power of attorney,
inadvertently did not notice Chapter-XII of the Karnataka High
Court Rules and therefore, the reliance placed by the learned
counsel for respondent No.2 in support of the proposition that
the petition under Section 482 of Cr.P.C is not maintainable
through a power of attorney is unacceptable. Having regard to
the fact that the petitioner is not a resident of India, she is
entitled to file a petition under Section 482 of Cr.P.C to
challenge the prosecution launched against her, through her
power of attorney and therefore, this petition is perfectly
maintainable.
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15. It is unnecessary for a power of attorney to be
conversant with the facts of the case, having regard to the fact
the charge-sheet is challenged on various grounds in law. In so
far as the challenge to the prosecution by the petitioner is
concerned, the petitioner claims that she is a citizen and
resident of Australia and the same is evident from the power of
attorney which is placed on record. The citizenship certificate of
the petitioner is also placed on record. In view of this, the High
Court Government Pleader was called upon to secure
instruction from Investigating Officer whether any effort was
made to ascertain the residence of the petitioner as she was
shown as absconding in the charge-sheet. However, till date
there is no response to the aforesaid. Be that as it may, it was
incumbent upon the Investigating Officer to verify the details of
the petitioner before laying a charge-sheet for the offences
punishable under Sections 406, 418, 419, 420, 465, 468, 471
read with Section 34 of IPC and also Section 120B of IPC. It
was for the Investigating Officer to investigate the meeting of
minds between the accused and petitioner to invoke Section
120B of IPC. A perusal of the material placed on record does
not show any material collected by the prosecution to indicate
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that the petitioner was in any way involved in the offence
punishable under Section 468 or 471 of IPC. Furthermore,
perusal of the private complaint discloses that all the
allegations were directed not against the petitioner but against
accused No.2, who was residing in India and who was looking
after the property in question. Therefore, it is difficult to hold
that there was any material for the Trial Court to take
cognizance of offences against the petitioner mentioned above.
The respondent No.2 has ingeniously brought about a false
prosecution against the petitioner by showing her address in
Bengaluru and he is therefore guilty of abusing the process of
law.
16. In that view of the matter, the impugned order
passed by the Trial Court taking cognizance of the offences
against the petitioner deserves to be interfered with.
Consequently, the same is quashed and therefore the
registration of split up C.C.No.29768/2019 against the
petitioner is quashed and the matter is remanded back to the
Trial Court, which shall apply its mind and direct the
Investigating Officer to ascertain whether the petitioner was a
citizen and resident of Australia and whether she was present
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in India when the alleged power of attorney was brought about
and also whether there was enough material against her for the
offences punishable under Section 468, 471, 120B read with 34
of IPC. The Trial Court shall also consider whether the act of
the Investigating Officer in referring the incriminating power of
attorney to a private lab was just and proper and whether that
was a mere irregularity that could be cured by a forensic
examination under Section 73 of the Evidence Act.
Sd/-
JUDGE
KBM
CT:SNN
