Karnataka High Court
Smt. Sarojamma vs State Of Karnataka on 5 November, 2024
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CRL.P No. 9373 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL PETITION NO. 9373 OF 2017
BETWEEN:
1. SMT. SAROJAMMA
WIFE OF LATE T.V. MAYANNA GOWDA
AGED ABOUT 70 YEARS,
RESIDING AT HOSAKOTE VILLAGE,
THAMASANDRA DHAKLE
KASABA HOBLI,
KANKAPURA TALUK,
RAMANGARA DISTRICT - 562 117.
2. MARIYAPPA
SON OF LATE KARIGOWDA
AGED ABOUT 56 YEARS
RESIDING AT KALLAHALLI
KASABA HOBLI,
KANAKAPURA TALUK,
RAMANGARA DISTRICT - 562 117.
Digitally 3. T.M. PRAKASH
signed by SON OF LATE T.V. MAYANNA GOWDA
NANDINI B G
AGED ABOUT 50 YEARS, ADVOCATE
Location: high
court of NO.630, 12TH CROSS,
karnataka GIRINAGAR, 2ND PHASE,
BSK III STAGE,
BENGALURU - 560 085.
...PETITIONERS
(BY SRI. A.V. RAMAKRISHNA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY JAYANAGARA POLICE STATION
REP BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
HIGH COURT BUILDING,
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CRL.P No. 9373 of 2017
BENGALURU - 560 001.
2. B. BHANU PRASAD,
SON OF B.M. BUSAPPA
AGED ABOUT 50 YEARS,
RESIDING AT NO.286/21,
11TH CROSS, 2ND BLOCK,
JAYNAGAR, BENGALURU - 560 011.
...RESPONDENTS
(BY SRI. RAJAT SUBRAMANYAN, HCGP FOR R1
SRI. ANANDA K., ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE
ORDER DATED 22.10.2016 PASSED BY THE II ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU IN
C.C.NO.26783/2016 ARISING OUT OF, IN CRIME NO.432/2009 AND
ALL FURTHER PROCEEDINGS IN THE SAID CASE.
THIS CRL.P, COMING ON FOR FINAL HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL ORDER
The petitioners being accused Nos. 1 to 3 are seeking to
quash the order dated 22.10.2016 passed by the learned II
Additional Chief Metropolitan Magistrate, Bangalore in
Cr.No.432/2009 of Jayanagar Police Station, taking cognizance
of the offence and registering C.C.No.26783/2016 against them
for the offences punishable under Sections 465, 468, 471 and
420 of Indian Penal Code (for short 'the IPC').
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2. Brief facts of the case are that, respondent No.2 as
complainant filed the information with Jayanagar police against
accused Nos. 1 to 3, alleging commission of the above said
offences. On the basis of the first information, the FIR in
Cr.No.432/2009 came to be registered. The Investigating
Officer investigated the matter and filed the B-report. It is
stated that the original GPA deed is not produced by accused
No.1 and there is no basis for investigating into the matter. The
complainant filed the protest petition, examined himself as PW-
1 and produced several documents, requesting the Trial Court
to reject the B-report and to take cognizance of the offence.
The Trial Court passed the impugned order directing
registration of the criminal case by rejecting the B-report.
Being aggrieved by the same, the petitioners are before this
Court.
3. Heard Sri. A.V. Ramakrishna, learned counsel for
the petitioners, Sri Rajat Subramanyam, learned High Court
Government Pleader for respondent No.1 and Sri. Ananda K.
learned counsel for respondent No.2. Perused the materials on
records.
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4. Learned counsel for the petitioners contended that
the petitioners have approached this Court mainly on two
grounds. Firstly, the Trial Court has no jurisdiction to try the
criminal case. Secondly, a civil suit is filed by the complainant
in O.S.No.335/2009, which is pending consideration before the
Trial Court and therefore, criminal complaint is not
maintainable.
5. Learned counsel submitted that the property in
question is situated at Kanakapura. But the complaint came to
be filed in Jayanagar police station. No part of cause of action
had arisen in Jayanagar at Bangalore. Even the sale deed
executed by accused No.1 in favour of accused No.2 was in
Kanakpura. Under such circumstances, the Trial Court should
have accepted the B-report. As per Section 177 of Cr.PC, the
enquiry and trial is to be held within whose jurisdiction the
offence was committed. The complainant has not stated
anything about the jurisdiction and therefore, the complaint is
liable to be dismissed.
6. Learned counsel further submitted that after filing
the present complaint, respondent No.2 filed the suit
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O.S.No.335/2009 for declaration and for permanent injunction.
Issue No.2 in the said suit pertains to the very same GPA deed,
placing burden on the complainant to prove GPA deed dated
24.11.2008 as a forged document. When the Civil Court is
ceased off the matter, the Trial Court could not have taken
cognizance of the offence and registered the criminal case.
7. Learned counsel placed reliance on the decision of
the Hon'ble Apex Court in Sardar Ali Khan v/s State of Uttar
Pradesh through Principal Secretary Home Department
and Anr 1 and Mukul Agrawal and Ors v/s State of UP and
Anr 2 in support of his contention that when the Civil Court has
ceased off the matter, no criminal proceedings could be
initiated. He placed reliance on the decision of the Hon'ble Apex
Court in Swaati Nirkhi and Others v/s State (NCT of
Delhi) and Others3 and Mohd. Khalid Khan v/s State of
Uttar Pradesh & Another4 to contend that the criminal
complaint filed with Jayanagar police station, now pending
before the Court at Bangalore have no jurisdiction to entertain
AIR 2020 SCC 626
AIR 2020 SCC 1877
(2021) 11 SCC 163
AIR 2015 SCC 3656
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the complaint. Placing reliance on these decisions, learned
counsel for the petitioners prays for allowing the appeal.
8. Per contra, learned counsel for respondent No.2 and
learned High Court Government Pleader submit in unison that
as per the disputed document i.e., the GPA deed dated
24.11.2008, it was executed in Bangalore in the house of the
complainant, who resides in Jayanagar. It is said to have been
notarized in Jayanagar, Bangalore. Even according to the
petitioners, the GPA deed was executed by respondent No.2 at
Jayanagar. Under such circumstances, the complaint was
rightly filed in Jayanagar police station and the Trial Court has
jurisdiction to try the same.
9. Learned counsel for the respondent also contended
that even in the written statement filed before the Trial Court,
the petitioners have taken the specific defence that the GPA
deed was executed at Jayanagar. When it is the specific
contention of the petitioners that the disputed document was
executed in Jayanagar, the police station and the Court having
jurisdiction over Jayanagar will entertain the criminal case.
Hence, the contention of the learned counsel for the petitioners
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that the police station and the Trial Court has no jurisdiction
will have to be rejected.
10. Learned counsel submitted that the decisions relied
on by the learned counsel for the petitioners were rendered
under different set of facts, which are not applicable to the
present case. Under such circumstances, pray for dismissing
the petition.
11. Learned counsel further submitted that initially, the
complainant filed the criminal complaint before the police,
making specific allegations regarding fabricating the GPA deed
by accused No.1 in collusion with other accused. On the basis
of the fabricated GPA deed, he executed the sale deed in favour
of accused No.2. Since, the Criminal Court has no authority to
annul the registered sale deed that was executed by accused
No.1 in favour of accused No.2 on the basis of the fabricated
GPA deed, he was advised to file the suit for declaration and for
permanent injunction. Accordingly, filed O.S. No.335/2009
before the learned Civil Judge (Jr.Dn) & JMFC, Kanakapura,
which is still pending consideration. Learned counsel contended
that the conduct of the petitioners have to be considered while
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forming the opinion as to whether the petition is to be allowed
or not. He submitted that O.S.No.335/2009 was filed in the
year 2009. The petitioners were served with the summons. The
complainant examined himself as PW-1 before the Trial Court in
the year 2015. But till date, he is not cross examined by the
petitioners. They have managed to drag on the matter
indefinitely.
12. Learned counsel submitted that as per the B-report
submitted by the Investigating Officer, the petitioners have not
produced the original GPA deed. That is the only reason why
the B-report was submitted. If the GPA deed was executed by
the complainant, the petitioners would have produced the
original document before the police. He further submitted that
the petitioners have taken inconsistent stand regarding the GPA
deed said to have been executed by the complainant in favour
of the petitioner No.1.
13. Initially, as per the statement of petitioner No.1
before the police, the original GPA deed was kept in her house
and the same was misplaced. But while filing the written
statement in O.S.No.335/2009, it is stated that petitioner No.3
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is in possession of the GPA deed after execution of the sale
deed. Subsequently, an application was filed before the Trial
Court in O.S.No.335/2009 contending that the original GPA
deed is given by the petitioners to the complainant. Now the
learned counsel for the petitioners is contending that original
GPA deed was given by the petitioners to the Investigating
Officer who deliberately concealed the same. This inconsistent
stand taken by the petitioners and the conduct of the
petitioners in conducting the civil suit disclose that they are
deliberately dragging on the matter by withholding the original
document. The Trial Court considered all these facts and
circumstances to reject the B-report and took cognizance of the
offence. There are no illegality or perversity in the order.
Hence, prays for dismissal of the petition.
14. In view of the rival contentions urged by the
learned counsel for both the parties, the point that would arise
for my consideration is:
"Whether the Petitioners have made
out any grounds to allow the petition and
to quash the criminal proceedings initiated
against him?"
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My answer to the above point is in 'Negative' for the
following:
REASONS
15. Respondent No.2 as complainant filed the complaint
making specific allegations. It is his categorical statement in
the complaint that he never executed any GPA deed in favour
of petitioner No.1. It was petitioner No.1 who concocted the
GPA deed with the help of the co-accused and on the basis of
such fabricated document, managed to execute the registered
sale deed in favour of accused No.2. It is brought to the notice
of the Court that accused No.2 during the pendency of the suit
O.S.No.335/2009, sold the property in favour of the
Government under the registered sale deed. It is also brought
to the notice of the Court that the complainant in
O.S.No.335/2009 was examined as PW-1 way back in the year
2015. It is stated that till date PW-1 is not cross examined by
the petitioners. This conduct on the part of the petitioners gives
raise to a reasonable doubt regarding their contentions.
16. My attention was drawn to the contention taken by
the petitioners before the Investigating Officer as it is stated in
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the B-report that the petitioners said to have stated that the
GPA deed was kept in the house of petitioner No.1 and same is
misplaced. But while filing the written statement in the suit
O.S.No.35/2009 a contention was taken that the GPA deed is in
the possession of petitioner No.3, as the sale deed is already
executed in favour of petitioner No.2. It is stated by the learned
counsel for respondent No.2, that an application is filed before
the Trial Court, summoning the complainant to produce the
GPA deed by contending that the original GPA deed is in
possession of the complainant. But strangely, learned counsel
for the petitioner contended before this Court that the original
GPA deed was in fact produced by petitioner No.1 before the
Investigating Officer, who in order to help the complainant has
hushed up the same by stating that the GPA deed is not
produced by the petitioners. But there is absolutely no reason
as to why no such contention was raised by the petitioners
earlier in any of the proceedings.
17. The complaint was filed by the complainant with
Jayanagar police contending that the GPA deed was fabricated
by the petitioners. The copy of the GPA deed is produced for
perusal of the Court. According to which, it is executed in
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Bangalore, where the complainant is residing. Subsequently,
while filing the written statement in O.S.No.335/2009, specific
defence was taken by the petitioners that the GPA deed was
executed by the complainant in his house at Jayanagar. The
document discloses that the GPA deed was notarized at
Bangalore. Under these circumstances, the contention raised by
the petitioners that the complaint could not have been
entertained by Jayanagar police and the Trial Court could not
have taken cognizance in view of Section 177 of Cr.PC cannot
be accepted.
18. The decisions relied on by the learned counsel for
the petitioners in support to his contention that the complaint
was filed without jurisdiction is not applicable to the facts of the
present case. Therefore, I am of the opinion that the police
station and the Trial Court both are having jurisdiction to
entertain the complaint and the criminal case.
19. The second contention raised by the learned
counsel for the petitioners is with regard to pendency of the
civil suit in O.S.No.335/2009. The suit was filed for declaration
and for permanent injunction by the complainant regarding the
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sale deed that was executed by petitioner No.1 in favour of
petitioner No.2 on the basis of so-called forged and fabricated
GPA deed. The suit is pending since 2009. It is stated that PW-
1 is not cross examined till date. Even though issue No.2 is
framed by the Trial Court placing burden on the complainant to
prove that the GPA deed is a fabricated document, it is for the
Civil Court to decide the matter on the basis of the materials
that will be placed before it by both the parties. Since there is
specific allegations regarding concoction and fabrication of the
document and committing cheating, it gives rise to criminal
cause of action and therefore, the Trial Court can proceed to
consider the averments made against the petitioners.
20. In K.G. Premshanker v/s Inspector of Police5
and Balaji Trading Co., and others v/s Saifulla Khan
Gaffar Sahukar and another6, similar contention was raised
before the Hon'ble Apex Court seeking to quash the criminal
proceedings, as civil suit is pending before the competent court
of civil jurisdiction. The Hon'ble Apex Court referring to its
earlier decisions, categorically held that, if the criminal case
(2002) 8 SCC 87
ILR 2017 KAR 4397
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and civil proceedings are for the same cause, the judgment of
the Civil Court would be relevant, if conditions of any of
Sections 40 to 43 of Evidence Act are satisfied. It also
categorically held that it cannot be said that the same would be
conclusive proof. It further held that there cannot be any hard
and fast rule that could be laid down and that possibility of
conflicting decision in civil and criminal courts is a relevant
consideration.
21. The Co-ordinate Bench of this Court in Balaji
Trading Co.,(supra) after referring to the decision of the
Constitution Bench in M S Sheriff Vs State of Madras7,
recorded a categorical finding that the criminal proceedings
cannot be stalled, merely because, the civil suit is pending with
reference to same set of documents. However, it has observed
that it is not a hard and fast rule that both the cases can
continue together, but for special consideration and on any
special circumstances, if the civil case and the criminal
proceedings which are so near for disposal and if a ground is
made out, the Civil Court can stay its proceedings till the
criminal proceedings are concluded or vice versa as the case
AIR 1945 SC 397
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may be under the special and peculiar circumstances of the
case. Therefore, pendency of the civil suit seeking declaration
in respect of the same documents cannot be a ground to quash
the criminal proceedings.
22. Thus the position of law is very well settled that
even if the civil case is pending for consideration before the
Court of competent jurisdiction, the same can not be the
ground to quash the criminal proceedings, as the object of suit
and the criminal proceedings are entirely different.
23. In view of the above, I am of the opinion that the
petition is liable to be rejected as the same is devoid of merits.
Accordingly, I answer the above point in the Negative and
proceed to pass the following:
ORDER
The petition is dismissed.
Sd/-
(M G UMA)
JUDGE
SPV
