Karnataka High Court
Sri R Vinod Kumar vs State By Haalsurgate Police on 6 December, 2023
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CRL.P No. 5802 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL PETITION NO. 5802 OF 2021
BETWEEN:
1. SRI. R. VINOD KUMAR
S/O RADHAKRISHNA
AGED ABOUT 41 YEARS,
R/AT NO.5/20, 4TH CROSS,
VENKATESHWARA LAYOUT,
S.G. PALYA,
BANGALORE-560029
2. V. SUJATHA
W/O SRI. R. VINOD KUMAR,
AGED ABOUT 35 YEARS,
R/AT NO.5/20, 4TH CROSS,
VENKATESHWARA LAYOUT,
S.G. PALYA,
BANGALORE-560029
3. SRI. V. PRASANNA KUMAR
S/O VENKATESH,
Digitally AGED ABOUT 38 YEARS,
signed by
SUMA R/AT NO.38, 1ST MAIN ROAD,
Location: 'A' STREET, NEW GUDDADAHALLI,
HIGH BANGALORE-26
COURT OF
KARNATAKA
4. SRI. M. MURUGAN
S/O G. MATHAIYAN,
AGED ABOUT 51 YEARS,
NO.57, 2ND MAIN ROAD,
VINAYAKANAGAR,
SHANTHINAGAR,
BANGALORE-30.
...PETITIONERS
(BY SRI. SRINIVAS V., ADVOCATE)
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CRL.P No. 5802 of 2021
AND:
1. STATE BY HAALSURGATE POLICE
BANGALORE
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
2. NAGARATHARA S HANUMANTHARAYA SHETTAR DHARMA
CHATRA
REPRESENTED BY ITS
MANAGING TRUSTEE,
SRI. T. RAJANNA,
S/O LATE T.S. KRISHNA SETTY,
AGED ABOUT 83 YEARS,
R/AT NO.1057, VINODHA ROAD,
SHIVARAMPET, MYSORE-570001.
...RESPONDENTS
(BY SRI. DIVAKAR MADDUR, HIGH COURT GOVERNMENT PLEADER
FOR RESPONDENT NO.1;
SRI. B.N.MAHESH CHANDRA, ADVOCATE FOR SRI. NAVEEN
GUDIKOTE S., ADVOCATE FOR RESPONDENT NO.2)
THIS CRL.P IS FILED UNDER SECTION 482 OF THE CODE OF
CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE ORDER
DATED 21.06.2021 PASSED IN C.C.NO.13239/2021 ON THE FILE OF
I ADDL.C.M.M., BENGALURU REGISTERED PURSUANT TO
P.C.R.NO.3186/2018 AND CONSEQUENTLY QUASH ALL FURTHER
PROCEEDINGS IN C.C.NO.13239/2021 REGISTERED FOR AN
OFFENCE PUNISHABLE UNDER SECTIONS 120(B), 188, 420, 465,
466, 471 OF IPC AS AGAINST THESE PETITIONERS BY 1ST
RESPONDENT POLICE.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioners have challenged the prosecution launched
against them in C.C.No.13239/2021 pending trial before the I
Additional Chief Metropolitan Magistrate, Bengaluru (henceforth
referred to as 'Trial Court') for the offences punishable under
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Sections 120B, 188, 420, 465, 466, 471 read with Section 34 of
IPC. The petitioners have also challenged the order dated
21.06.2021 passed by the Trial Court taking cognizance of the
aforesaid offences and issuing process to them.
2. The respondent No.2 filed PCR No.3186/2018
alleging commission of cognizable offences by the accused.
The Trial Court referred the case for investigation and report
under Section 156(3) of Cr.P.C. The respondent No.1 after
conducting an investigation filed a charge-sheet for the
offences punishable under Sections 120B, 188, 420, 465, 466,
471 read with Section 34 of IPC. The Trial Court took
cognizance of the offences and issued process.
3. Being aggrieved by the same, the petitioners are
before this Court.
4. The learned counsel for the petitioners contends
that respondent No.2 claimed to be the Managing Trustee of a
Trust/Nagarathara S. Hanumantharaya Shettara Dharmachatra,
which owned the property bearing New Nos.109, 110 and 111
situated at Chowdeshwari Temple Street, Chickpet, Bengaluru.
He contends that accused No.1 was the son of T.S. Krishna
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Setty, whose uncle was the founder trustee of the said Trust.
He contends that accused Nos.1 to 3 conveyed the property to
accused Nos.4 to 6 and that thereafter, they transferred it to
accused No.7. He contends that the alienation made by
accused Nos.1 to 3 in favour of accused Nos.4 to 6 and the
consequent sale in favour of accused No.7 is challenged by
respondent No.2 in O.S.No.7908/2015, which is pending
consideration before the City Civil Court, Bengaluru. He
submits that in the meanwhile, the tenants, who are occupying
two portions of the property appeared in O.S.No.7908/2015
and handed over the possession to accused No.7, which was
subject to the outcome of O.S.No.7908/2015. He contends
that even though the suit filed by respondent No.2 herein for
declaration and other reliefs is pending consideration before the
Court, he invoked the criminal process by filing a private
complaint and alleging that all the accused committed offences
punishable under Sections 107, 177, 188, 415, 416, 417, 420,
423, 463, 465, 466, 468, 467 read with Section 34 of IPC. He
contends that respondent No.2 has given a criminal colour to a
dispute, which is already pending before the Civil Court and the
Trial Court without looking into the documents and the fact that
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the civil suit is pending before the Court involving the very
same fact, cursorily took cognizance of the offences under
Sections 120B, 188, 420, 465, 466, 471 read with Section 34 of
IPC. He contends that the Trial Court committed an error in not
applying its mind to the fact that the offence under Sections
465, 466, 471 of IPC are not at all made out as there is no
offence of forgery as defined under Section 464 of IPC. He
therefore, contends that the Trial Court did not apply its judicial
mind before taking cognizance. At any rate, he submits that
since the parties are before the Civil Court litigating over the
question whether the sale deed executed by accused Nos.1 to 3
in favour of accused Nos.4 to 6 and the consequent sale deed
in favour of accused No.7 was just and proper, the order taking
cognizance as well as criminal proceedings initiated against the
petitioners deserve to be set at naught. The learned counsel
for the petitioners contends that respondent No.2 did not
comply with requirement of Sections 154(1) and 154(3) of
Cr.P.C and also did not file an affidavit as directed by the
Hon'ble Apex Court in the case of Mrs. Priyanka Srivastava
and another vs. State of U.P. and others [(2015) 6 SCC
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287] and therefore, the entire proceedings are liable to be
quashed.
5. Per contra, the learned counsel for respondent No.2
submits that accused No.1 had filed O.S.No.172/2001 before
the Civil Judge, Mysuru, against his brother and others for
partition and separate possession of various properties of the
family including the property, which belonged to the Trust and
the said suit was dismissed in so far as Trust property is
concerned in terms of the judgment and decree dated
25.01.2010. He therefore, submits that accused No.1 did not
have any subsisting right, title or interest in the Trust property.
Similarly, he submits that after he lost the litigation, he set up
his daughter who filed O.S.No.8167/2010 before the Additional
City Civil Judge, Bengaluru, which was contested and
apprehending an adverse outcome, the said suit was also
withdrawn. He therefore, contends that the title of the Trust to
the property aforementioned stood redeemed. Nonetheless, he
contends that accused No.1 had brought about fraudulent
documents in favour of accused Nos.4 to 6 and made attempts
to get the revenue documents transferred to their names.
Therefore, respondent No.2 being the Trustee of the Trust
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thought it fit to file a civil suit for declaration of its title to the
property and the consequent relief for declaration that the sale
deed executed by accused Nos.1 to 3 in favour of accused
Nos.4 to 6 and the consequent sale deed in favour of accused
No.7 are all fraudulent and not binding upon the Trust. He
contends that the conduct of the accused in bringing about the
valuable deeds in respect of the properties, which were not
owned by accused Nos.1 to 3 itself was a fraudulent act as
accused No.1 was also one of the heirs of the trustee of the
Trust and therefore, he was bound to protect the interest of the
Trust, but on the contrary, he misused the symbolical
entrustment of the Trust property by entering into
unconscionable sale deed in favour of accused Nos.4 to 6 and
the consequent sale deed in favour of accused No.7. He
therefore, contends that they have committed an offence under
Sections 420 and 120B and 188 read with Section 34 of IPC.
He contends that accused Nos.4 to 6 cannot feign ignorance of
the claim of the Trust to the property in question as the
documents placed on record clearly indicated an antecedent
title of the Trust and the fact that accused Nos.1 to 3 had no
subsisting right, title or interest in the property. He therefore,
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contends that the Trial Court was justified in taking cognizance
of the offences punishable under Sections 120B, 420, 188 read
with Section 34 of IPC . The learned counsel contended that
the Trial Court had perused the records and only after being
satisfied that an offence was made out, directed the
registration of the case against the accused and issued process.
He therefore, submits that on all counts, the petitioners are not
entitled to any indulgence by this Court.
6. The learned High Court Government Pleader for
respondent No.1 submitted that the investigating officer has
collected various materials, which indict accused Nos.1 to 7 in
the offences mentioned above and therefore, this Court may
not exercise jurisdiction to halt the prosecution.
7. I have considered the submissions made by the
learned counsel for the petitioners as well as the learned
counsel for respondent No.2 and the learned High Court
Government Pleader for respondent No.1.
8. The fact that the property in question belongs to
the Trust cannot be disputed by any of the accused in view of
the decree passed by the Court of competent jurisdiction in
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O.S.No.172/2001, where the Court held that the property
bearing Nos.109, 110 and 111 situated at Chowdeshwari
Temple Street, Chickpet, Bengaluru belongs to the Trust
namely, Nagarathara S. Hanumantharaya Shettara
Dharmachatra. Accused No.1 was a party to the said suit and
therefore, he cannot contend that he had any subsisting right,
title or interest in the aforesaid property. Nonetheless, accused
No.1 along with accused Nos.2 and 3 had conveyed the trust
property in favour of accused Nos.4 to 6 in terms of sale deed
dated 27.08.2014. It is not known how the municipal khatha of
the property stood in the name of accused No.1 though it is
stated by respondent No.2 that khatha was manipulated in the
name of accused No.1 and based on this, a transaction was
brought about by accused Nos.1 to 3 in favour of accused
Nos.4 to 6. Therefore, the contention of accused Nos.4 to 7
that they were bonafide purchasers of the property from
accused Nos.1 to 3 is a defence that they have to establish
before the Trial Court. The contention of the learned counsel for
the petitioners that respondent No.2 did not comply with the
requirement stipulated by the Hon'ble Apex Court in the case of
Mrs. Priyanka Srivastava and another, supra, while filing
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the private complaint is of no consequence since the
investigating officer after investigating the offence has found
that the private complaint lodged by respondent No.2 was
genuine and the Court had also taken cognizance of the offence
alleged against the petitioners. Therefore, the requirement of
complying with Sections 154(1) and 154(3) of Cr.P.C. would
not arise and the fact situation in Mrs. Priyanka Srivastava
and another, supra, does not obtain in the present case.
Therefore, this contention of the learned counsel for the
petitioners does not survive for consideration.
9. In so far as the contention that the Trial Court did
not apply its judicial mind, it is relevant to note that the Trial
Court passed the following order for the purpose of taking
cognizance:-
"Perused the records.
Cognizance is taken in respect of the offence
punishable U/s 120(B), 188, 420, 465, 466, 471 r/w
34 of IPC. Hence, register the case against the
Accused in Register No.III in respect of the above said
offence. Issue NBW to A1 to 7. Call on 07.07.2021."
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10. The aforesaid order is liable to be set aside on more
than one ground namely, (i) that the Trial Court must have
demonstrably applied its mind by considering the material
placed on record before taking cognizance. Mere mentioning
the words "Perused the records" may not be sufficient, more
particularly having regard to the fact that the parties are
already before the Civil Court. The Trial Court must have
therefore, considered the question whether notwithstanding
pendency of the civil suit, an offence under Sections 420, 120B,
188 read with Section 34 of IPC was committed by the accused.
(ii) The Trial Court did not consider whether an offence under
Sections 465, 466, 471 of IPC was committed more
particularly, where there was no offence of forgery committed
by the accused. It is not even the case of respondent No.2 that
the petitioners had forged the signatures of any of the trustees
of the Trust, which owned the property in question. Therefore,
palpably an offence under Sections 465, 466, 471 of IPC was
not committed and the Trial Court lost sight of this matter but
mechanically took cognizance of the said offence. Thus, the
order taking cognizance does not instill confidence in the mind
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of the Court that the Trial Court had applied its judicial mind
before taking cognizance.
11. In view of the above, this petition is allowed in
part. The order dated 21.06.2021 passed by the I Additional
Chief Metropolitan Magistrate, Bengaluru, in
C.C.no.13239/2021 taking cognizance of the offences under
Sections 120B, 188, 420, 465, 466, 471 read with Section 34 of
IPC is quashed. The case is remitted back to the I Additional
Chief Metropolitan Magistrate, Bengaluru with a direction to re-
appreciate the material placed on record along with the charge-
sheet before taking cognizance and thereafter, take further
steps in accordance with law.
12. In order to expedite the process, the Trial Court
shall consider the aforesaid within a period of three months
from the date of receipt of a certified copy of this order.
Sd/-
JUDGE
PMR
