Karnataka High Court

Sri Ramanjaneya vs The State Of Karnataka on 18 November, 2023

Bench: M.Nagaprasanna

                           1



        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF NOVEMBER, 2023

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

            CRIMINAL PETITION No.1837 OF 2023

BETWEEN:

SRI RAMANJANEYA
S/O CHINNAPPA
AGED ABOUT 53 YEARS
R/AT NO.69, KUMBENA AGRAHARA
KADUGODI POST
BENGALURU - 560 067.
                                            ... PETITIONER
(BY SRI NANJUNDA GOWDA M. R., ADVOCATE)

AND:

1.   THE STATE OF KARNATAKA
     BY HALASURGATE POLICE
     BENGALURU.
     REPRESENTED BY
     STATE PUBLIC PROSECUTOR
     BENGALURU - 560 001.

2.   SRI LAKSHMANA M.,
     S/O LATE MUNIVENKATARAMANAPPA
     AGED ABOUT 62 YEARS
     NO.4, 4TH CROSS, KRISHNAPPA
     LAYOUT, NAGANATHAPURA
     BENGALURU - 560 100.
                                          ... RESPONDENTS
(BY SMT. K.P.YASHODA, HCGP FOR R-1;
                                  2



   SRI N.DEVARAJ, ADVOCATE FOR R-2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR AGAINST THE PETITIONER
IN CRIME NO.287/2022 OF HALASURGATE POLICE WHICH IS
PENDING ON THE FILE OF THE 1ST ADDL. C.M.M. COURT,
BENGALURU FOR THE OFFENCES P/U/S 120(B), 419, 420, 468 AND
471 OF IPC.

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


                                ORDER

Petitioner/accused No.4 is before this Court calling in question

registration of a crime in Crime No.287 of 2022 pending before the

I Additional Chief Metropolitan Magistrate, Bangalore registered for

offences punishable under Sections 120-B, 419, 420, 468 and 471

of the IPC.

2. Heard Sri M.R. Nanjunda Gowda, learned counsel

appearing for the petitioner, Smt. K.P. Yashodha, learned High

Court Government Pleader appearing for respondent No.1 and Sri

N.Devaraj, learned counsel appearing for respondent No.2.

3. The facts, in brief, germane are as follows:-

The genesis of the issue dates back to 1964. One Bellappa,

on an application filed, is granted occupancy rights in respect of

land in Sy.No.41/1 of Kumbena Agrahara in terms of an order

passed by the Special Deputy Commissioner in case No.1023 of

1962. The grantee along with his brother, who was granted such

occupancy rights, sold the land in favour of one

Munivenkataramanappa, father of the 2nd respondent and his

brother Anjinappa in terms of a sale deed executed on 29-07-1971.

Since then purchasers of the land have been in possession of the

property. After about 30 years of the said sale deed,

Munivenkataramanappa along with other land owners registers a

case before the Tahsildar with regard to revenue entries in

R.R.T.No.54 of 2006-07 which comes to be rejected in terms of the

order of the Tahsildar dated 29-09-2007. Then,

Munivenkataramappa prefers an appeal before the Assistant

Commissioner which is accepted partially only. This is called in

question before the Deputy Commissioner in Revision Petition

No.163 of 2011 alleging that the order of the Assistant

Commissioner does not reflect complete set of facts. During the

pendency of proceedings before the Deputy Commissioner, an

agreement to sell the subject property to one P.Lakshminarayana,

accused No.3 is said to have been executed for a consideration of

`27,00,000/- and at the time of the agreement it is averred that

the petitioner had received `7,50,000/- for which respondent No.2

is alleged to have executed a General Power of Attorney ('GPA') in

favour of accused No.3. After the aforesaid events,

Munivenkataramanappa dies. Since the proceedings were pending

before the Deputy Commissioner, legal representatives of the

deceased including the complainant filed an application before the

Deputy Commissioner to come on record and entrusted the matter

to one Sri J.Pattabhiram, Advocate. Long thereafter, a sale deed

emerges, said to have been executed by the

respondent/complainant and other family members through

accused No.3, holder of the GPA on 02-12-2021 selling the property

that was the subject matter of several disputes as afore-narrated.

It is averred that the counsel for the complainant forges the

signature of the complainant on the memo requesting modification

of the order of the Assistant Commissioner. The order of the

Assistant Commissioner is modified and all further proceedings take

place after such modification including change in revenue entries or

mutation.

4. Based upon these entries, an exchange deed is executed

by the petitioner in favour of one Bhaskaran and all the revenue

records are transferred in his name on 12-09-2022 pursuant

thereto. The role of transfer of records into the name of Bhaskaran

is attributed to accused No.4. The complainant and his family

members later claimed to have got knowledge of all the transaction

and registered a civil suit in O.S.No.2411 of 2022 seeking the relief

of declaration declaring that the sale deed or the exchange deed to

be null and void. After registration of the civil suit, the 2nd

respondent registers a complaint before the jurisdictional police

which becomes a crime in crime No.287 of 2022. It is the

registration of crime that has driven the petitioner/accused No.4 to

this Court in the subject petition.

5. The learned counsel appearing for the petitioner contends

that a matter which is purely civil in nature is sought to be given a

colour of crime. He would contend that the petitioner has no role to

play in any of the alleged incidents and the parties to the lis are

already before the civil Court seeking declaration of execution of

the sale deed or the exchange deed to be null and void. It is his

contention that the complainant cannot maintain two proceedings -

one before the civil Court on the same cause of action and the other

setting the criminal law into motion. He would seek quashment of

entire proceedings.

6. On the other hand, the learned counsel for the 2nd

respondent has filed detailed statement of objections and has

appended close to 30 documents all in an effort to demonstrate that

there is large scale forgery by all the accused including the

petitioner of a property which belongs to the 2nd respondent and his

family and today they have lost it all for the reason that they had

reposed faith in the Advocate who had represented them before the

Deputy Commissioner in the RRT proceedings and the signatures

have been forged from that stage onwards. He would also submit

that the disputed signatures are sent to the forensic examination

where it is emerged that the signatures are forged. Therefore, this

Court should not interfere at the least when prima facie guilt is

established against all the accused including the petitioner. He

would seek dismissal of the petition.

7. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

8. The afore-narrated genesis of the problem is not in

dispute. The 2nd respondent/complainant is the son of one

Munivenkataramanappa. The history of Munivenkataramanappa

coming in possession of the property is narrated hereinabove which

would not require any reiteration over again. Proceedings taken

place before the Tahsildar, for revenue entries sought by

Munivenkataramanappa, were rejected on 29-09-2007. An appeal is

preferred before the Assistant Commissioner who appears to have

passed certain vague orders and the matters are before the Deputy

Commissioner. One J.Pattabhiram is appointed as the counsel by

the members of the family i.e., the complainant and others of

Munivenkataramanappa. Munivenkataramanappa dies during the

proceedings before the Deputy Commissioner. Long thereafter, a

GPA emerges in favour of accused No.1 and subsequently exchange

deed/sale deed has also emerged thereafter.

9. The learned counsel for the 2nd respondent/complainant

who has filed his statement of objections has made elaborate

averments with regard to the forgery of the signatures of the family

members of the complainant and the forgery getting at the root of

the matter. If the alleged forgery has not resulted in any alleged

unjust enrichment, it would have been an altogether different

circumstance. What happens is that the signature of J.Patabhiram

who was appointed as the complainant's counsel is forged. The

property in which the petitioner is in possession of documents is the

subject matter of sale/exchange deed in favour of one Bhaskaran.

The revenue records or katha that was standing in the name of the

complainant and his family members are over night changed in the

name of Bhaskaran, accused No.1. All these happens on alleged

forgery committed by several of the accused. When the

complainant and his family lost their house or the property which

was in their possession, then they filed a civil suit seeking a

declaration of the exchange deed or the sale deed in favour of

Bhaskaran to be null and void. Since the signatures are different

even with a non-forensic observation, the complaint comes to be

registered before the jurisdictional Police.

10. The contention of the learned counsel for the petitioner is

that the matter is purely civil in nature and, therefore, the parties

are before the civil Court. The crime must not be permitted to be

continued is noted only to be rejected. It is no law that merely

because a civil suit is filed, criminal law that is set in motion should

not be permitted to continue. It depends on the facts and

circumstance of each case. In the case at hand, the relief before the

civil Court is that the sale deed or exchange deed is a product of

fraud and, therefore, it should be held to be null and void. The

criminal law is set in motion with regard to the procedure to arrive

at that fraud. The procedure is forgery. The allegation is criminal

conspiracy, forgery and using forged documents as genuine as

obtaining under Sections 120-B, 468 and 471 of the IPC and

consequent cheating under Section 420 of the IPC.

11. There are scores and scores of cases where the issue

being seemingly civil in nature will be dressed with a colour of crime

only to arm twist the civil case that is pending between the parties.

The case at hand is not the one of that kind. The matter is at the

stage of investigation. Alleging forgery, documents are produced by

the 2nd respondent/complainant which all prima facie demonstrate

that the matter would require investigation in the least.

Obliteration of the crime in the teeth of the allegation of forgery

would run counter to plethora of judgments rendered by the Apex

Court where the Apex Court holds that merely because the issue

appearing to be civil in nature, it could not result in obliteration of

the crime when the allegation is of forgery.

12. Reference being made to the judgment of the Apex Court

in the case of KAMAL SHIVAJI POKARNEKAR v. STATE OF

MAHARASHTRA1 in the circumstances would become apposite.

The allegation against the accused before the Apex Court was also

on forgery and the matter was only referred to investigation under

Section 156(3) of CrPC. The Police therein had submitted a report

(2019) 14 SCC 350

that the matter appears to be civil in nature. The High Court had

accepted the same. The complainant reaches the Apex Court and

the Apex Court upturns the order of the High Court. The

observations would become apposite. The Apex Court has held as

follows:

"2. It was alleged by the complainant that her father Shamrao Nalavade expired on 17-1-1994. The respondents were accused of forgery and preparing false documents on the basis of which a development agreement dated 11-12- 2002 came into existence. On the basis of the above facts, the complainant alleged that the respondents made themselves liable for being prosecuted under Sections 420, 465, 467, 468, 471 read with Section 34 of the Penal Code, 1860 (hereinafter referred to as "IPC"). The complaint that was filed on 18-11-2008 was sent for investigation under Section 156(3) of the Criminal Procedure Code, 1973. The police submitted a report stating that the matter appeared to be of a civil nature.

... ... ...

9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the trial court issuing summons to the respondents. A perusal of the complaint discloses prima facie, offences that are alleged against the respondents. The correctness or otherwise of the said allegations has to be decided only in the trial. At the initial stage of issuance of process it is not open to the courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the

complaint, the criminal proceeding shall not be interdicted."

(Emphasis supplied)

13. It further becomes apposite to refer to the judgment of

the Apex Court in the case of KAPTAN SINGH v. STATE OF

UTTAR PRADESH2 wherein the Apex Court holds as follows:

"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different

(2021) 9 SCC 35

footing and the Court is required to consider the material/evidence collected during the investigation.

Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.

9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1

SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.

9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27- 10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.

12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

13. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the

investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.

14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."

(Emphasis supplied)

The Apex Court in the afore-quoted judgment observes that if the

issue comes within the realm of seriously disputes questions of fact,

the High Court exercising its jurisdiction under Section 482 of the

CrPC should not interfere with such proceedings at the stage of

crime or even after filing of the final report. The facts narrated

hereinabove and the documents produced by the 2nd

respondent/complainant would all lead to one unmistakable

conclusion that the matter needs to be investigated into, as they

are a maze of seriously disputed question of facts.

14. In the result, finding no merit in the petition, the petition

stands rejected.