Karnataka High Court
Amaregowda @ Amareshgowda vs Smt.Gowramma W/O Maregowda Malipatil on 6 November, 2024
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CRL.P No. 101897 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL PETITION NO.101897 OF 2018
(482(Cr.PC)/528(BNSS))
BETWEEN:
AMAREGOWDA @ AMARESHGOWDA
S/O. MAREGOWDA MALIPATIL,
AGE. 40 YEARS, OCC. AGRI AND ADVOCATE,
R/O. J.P. NAGAR, KARATAGI, TQ. GANGAVATHI,
DIST. KOPPAL,
NOW RESIDING AT PLOT NO.16, VINEET BUILDING,
FIRST FLOOR, 2ND CROSS, ADITYA PARK, GOA ROAD,
DHARWAD, PIN CODE.580 008.
...PETITIONER
(BY SRI SHRINAND A. PACHHAPURE, ADVOCATE)
AND:
1. SMT. GOWRAMMA W/O. MAREGOWDA MALIPATIL,
AGE. 71 YEARS, OCC. HOUSEWIFE,
R/O. KARATAGI, NOW RESIDING AT
C/O. BASANAGOWDA
S/O. VEERABHADRAPPA SUNKAD,
SUNKAD ONI, SIDDAPUR, TQ. GANGAVATHI,
Digitally signed by DIST. KOPPAL.
MOHANKUMAR B
SHELAR
Location: HIGH
2. SHIVAKUMAR S/O. VEERAPPA SUNKAD,
COURT OF AGE. 48 YEARS, OCC. AGRICULTURE,
KARNATAKA
R/O. KARATAGI, TQ. GANGAVATHI,
DIST. KOPPAL.
3. CHANNABASAPPA S/O. VEERAPPA SUNKAD,
AGE. 46 YEARS, OCC. AGRICULTURE,
R/O. KARATAGI, TQ. GANGAVATHI,
DIST. KOPPAL.
4. TAYAPPA S/O. HRELINGAPPA KABBER,
AGE. 45 YEARS, OCC. AGRICULTURE, KOTEONI,
R/O. KARATAGI, TQ. GANGAVATHI,
DIST. KOPPAL.
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CRL.P No. 101897 of 2018
5. GANGAPPA S/O. VEERABHADRAPPA SUNKAD,
AGE. 47 YEARS, OCC. AGRICULTURE,
R/O. SUNKAD ONI, SIDDAPUR,
TQ. GANGAVATHI, DIST. KOPPAL.
6. BASANAGOWDA S/O. VEERABHADRAPA SUNKAD,
AGE. 33 YEARS, OCC. AGRICULTURE,
R/O. SUNKAD ONI, SIDDAPUR, TQ. GANGAVATHI,
DIST. KOPPAL.
7. BASAVARAJ S/O. VEERUPAKSHAPPA BIJAKAL,
AGE. 43 YEARS, OCC. AGRICULTURE,
R/O. KARATAGI, TQ. GANGAVATHI,
DIST. KOPPAL.
8. MAHANTESH S/O. VEERAYYA KALLOORMATH,
AGE. MAJOR, OCC. RTD. TAHASHILDAR,
GANGAVATHI, DIST. KOPPAL,
NOW RESIDING AT 1ST CROSS, SAMPIGE NAGAR,
KELAGERI ROAD, DHARWAD-580008.
9. B.M. SOMASHEKHAR S/O. MAHALINGAYYA,
AGE. MAJOR, OCC. SURVEY SUPERVISOR,
LAND SURVEY DEPARTMENT,
TAHASHILDAR OFFICE, GANGAVATHI,
DIST. KOPPAL,
NOW RESIDING AT TURUVEKERE,
DIST. TUMKUR, PIN-572227.
10. SMT. SHOBHA B. W/O. SHIVASHANKAR,
AGE. MAJOR, OCC. LAND SURVEYOR,
LAND SURVEY DEPARTMENT,
TAHASHILDAR OFFICE, GANGAVATHI,
DIST. KOPPAL
NOQ RESIDING AT ADLR OFFICE TUMKUR,
DIST. TUMKUR, PINCODE-572101.
11. NAVAKOTI S/O. GANGANNA,
AGE. MAJOR, OCC. LAND SURVEYOR,
LAND SURVEY DEPARTMENT,
TAHASHILDAR OFFICE, GANGAVATHI,
DIST. KOPPAL, PINCODE-582227.
...RESPONDENTS
(BY SRI B. SHARANABASAWA, ADVOCATE FOR R8;
SRI A.B. PATIL, ADVOCATE FOR R9 AND R10;
SRI ANAND R.KOLLI, ADVOCATE FOR R11)
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CRL.P No. 101897 of 2018
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. SEEKING TO QUASH THE ORDER DATED 13.12.2017 IN SO
FAR AS IT RELATES TO DISMISSAL OF COMPLAINT IN RESPECT OF
RESPONDENTS NO.8 TO 11 IN P.C. NO.182 OF 2013 NOW C.C.
NO.1350/2017 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
167, 192, 420, 463, 464, 465, 467, 468, 471, 107 R/W SECTION 34
OF IPC PRODUCED AT ANNEXURE-F PASSED BY THE ADDITIONAL
CIVIL JUDGE AND JMFC, GANGAVATHI AND TO TAKE THE
COGNIZANCE IN RESPECT OF RESPONDENTS NO.8 TO 11 IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS CRIMINAL PETITION, COMING ON FOR DICTATING
ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
ORAL ORDER
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI)
Petitioner who is complainant before the trial court
has filed this petition under Section 482 of Cr.P.C.
challenging the order dated 13.12.2017 passed by the trial
court dismissing the complainant as against accused Nos.8
to 11, by which the trial court has ordered for issuance of
process against accused Nos.1 to 7, but refused to
proceed against accused Nos.8 to 11 who are revenue
officials.
2. For the sake of convenience, the parties are
referred to by their ranks before the trial court.
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3. In support of the petition, complainant has
contended that the refusal by the trial court to take
cognizance against the accused Nos.8 to 11 is opposed to
law, facts and probabilities of the case. The trial court has
failed to appreciate that accused Nos.8 to 11 have failed to
act in accordance with law. They have altered the
boundaries of the property of the complainant in a manner
advantageous to accused Nos.1 to 7, without issuing
notice to the complainant. There are specific allegations in
para 8 of the complaint regarding illegal acts of accused
Nos.8 to 11 which is sufficient to take cognizance against
them. Not only accused Nos.8 to 11 guilty of not providing
opportunity to the complainant by issuing notice, but also
in altering boundaries of the property of the complainant
contrary to the documents. Complainant is required to be
provided with an opportunity to establish the allegations
made against accused Nos.8 to 11 and hence, the petition.
4. After due service of notice, accused Nos.8 to 11
have appeared through the counsel.
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5. Heard the arguments and perused the records.
6. Complainant filed a complaint under Section
200 of Cr.P.C. against accused Nos.1 to 11 alleging
offenses punishable under Sections 167, 192, 420, 463,
464, 465, 467, 468, 471, 107, r/w Section 34 of IPC
contending that his father Maragouda Malipatil had three
wives, i.e., accused No.1 Gouramma is the first wife, one
Anasuyamma is the second wife and and Girijamma is the
third wife. Complainant is the son of Girijamma. During
the lifetime of Maregouda, there were no disputes with
regard to the common use and occupation of the family
properties. He died on 24.08.2003. After his death, the
family properties were divided between all the sharers as
per registered partition deed dated 12.07.2004. In the
said partition, Sy.No.378/D measuring 3 acres 20 guntas,
378/A measuring 10 guntas out of total extent of 5 acres
10 guntas and 378/B measuring 10 guntas out of 5 acres
10 guntas fell to the share of accused No.1.
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acres (out of total extent of 5 acres 10 guntas),
Sy.No.129/1A+1B+2K measuring 3 aces 18 guntas (out of
5 acres 10 guntas) and house property bearing Panchayat
No.3-3-83 measuring 35x60 feet fell to the share of
second wife Anasuyamma.
acres (out of total extent of 5 acres 10 guntas),
Sy.No.129/1A+1B+2K measuring 1 aces 30 guntas (out of
5 acres 10 guntas) and house property bearing panchayat
No.5-4-102 measuring 45x12.5 feet fell to the share of the
complainant.
9. At the outset, it is relevant to note that there is
no dispute between complaint and accused Nos.1 to 7
regarding the partition that has taken place between them
as per the registered partition deed dated 12.07.2004. It
is also relevant to note that after accused No.1 executed
sale deed 23.07.2010 with regard to the property fallen to
her share in Sy.No.378, complainant and others filed suit
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against accused No.1 and others in O.S.No.220/2010
alleging that in the said sale deed the accused
No.1/defendant No.1 has sold property including the
property that has fallen to the share of the
complainant/plaintiff No.1 and sought for declaration that
they are owners in possession Sy.No.378/B measuring 5
acres as per the family partition and the sale deed
executed by accused No.1/defendant No.1 dated
23.07.2010 is not binding on them. After detailed trial, the
same came to be decreed.
10. In fact, in the said suit, the GPA holder of
accused No.1 who is examined as DW1 has admitted that
the contents of the registered partition deed at Ex.P1 and
the schedule allotting properties to the share of each
sharers and their boundaries are correct. He has also
admitted that from the date of partition, the respective
sharers have become owners and entered into exclusive
possession. He has also admitted that Sy.No.378/D
measuring 3 acres 20 guntas and Sy.No.378/A,
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Sy.No.378/B each measuring 10 guntas has fallen to the
share of defendant No.1/accused No.1 and it is situated on
the western side of the property fallen to the share of
plaintiff No.1/complainant in the same survey number
(this portion of the evidence of DW1 is culled out in the
judgment in O.S.No.220/2010).
11. In the said judgment, it is also noted that
during his cross-examination DW2 Tayappa a witness
examined on behalf of defendant No.1/accused No.1 has
admitted that he has purchased the property in Sy.No.378
which has fallen to the share of defendant No.1/accused
No.1 as per the partition deed.
12. Perusal of the documents produced by the
complainant, it is evident that as per the said partition
deed, the revenue sketch, Form no.10 and Akarbandh are
prepared as per documents 1 to 3. Similarly, sketch (Gutt
plan) showing the property fallen to the share of
complainant is as per document No.4. However,
subsequently, without issuing notice to the complainant,
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accused Nos.8 to 11 have created documents as per
document No.5, 7 and 8 and on the basis of it, the sale
deed dated 23.07.2010 has come into existence in respect
of Sy.No.378/4 and 378/5 including the property fallen to
the share of the complainant.
13. This is done to enable accused Nos.1 to 7 to
deal with the property of the complainant and showing her
share elsewhere. This was possible due to the collusion
with accused Nos.8 to 11. Had accused Nos.8 to 11 not
involved and changed the Gutt plan and other documents
favouring accused Nos.1 to 7, it was not possible to sell
the portion of the property fallen to the share of the
complainant. The boundaries given in the sale deed are
contrary to the boundaries of the property fallen to the
share of the accused No.1/defendant No.1. The earlier
revenue records were prepared in accordance with the
registered partition deed showing the property in
Sy.No.378 fallen to the shares respective sharers, whereas
the subsequent revenue documents are contrary to the
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registered partition deed. In fact, they are prepared
showing the different portions in Sy.No.378 fallen to the
share of different sharers elsewhere which is in accordance
with the sale deed dated 23.07.2010, which itself go to
show that it is manipulated so as to favour accused
No.1/defendant No.1.
14. It is submitted by the learned counsel for the
complainant that the property in Sy.No.378 fallen to the
share of complainant was the eastern most portion and
the one fallen to the share of accused No.1 is in the middle
and towards western side of it, the portion fallen to the
share of Anasuyamma-second wife of Maregouda is
situated. The learned counsel for the complainant would
submit that the property situated towards eastern side of
the property fallen to the share of the complainant is
acquired by the KHB and thereby it is attracting higher
value and therefore, by manipulating the revenue records,
accused No.1/defendant No.1 has claimed the property
fallen to the share of the complainant and sold it.
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Appreciating the oral and documentary evidence on
record, the civil court has decreed the suit and the matter
has attained finality, after the purchaser withdrew the
second appeal i.e., RSA No.100317/2015 filed by him.
15. In the light of the boundaries specified to the
portions of the property fallen to the respective sharers as
per the registered partition deed dated 12.07.2004 and
preparation of the revenue records on that basis, there
was no reason or justification for accused No.8 to 11 for
changing the revenue records. This itself goes to show
that they have favoured accused No.1/defendant No.1 to
enable her to execute the sale deed in question for ulterior
motive. Had accused Nos.8 to 11 issued notice to the
complainant, they would have come to know the actual
situation and refused to change the revenue records. The
very fact that they have chosen not to issue notice itself
indicate their malafide intention. Of course, the offence
alleged against accused Nos.8 to 11 is not of their part of
their duty so as to require sanction to prosecute them.
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16. In the light above facts and circumstances, the
citations relied upon by the accused Nos.8 to 11 are not
applicable to the case on hand. On the other hand, in the
light of the ratio in the decisions relied upon by the
learned counsel for the complainant, the trial court has
erred in not examining the entire issue involved and
simply on the ground that non issue of notice to the
complainant does not attract penal provisions and
dismissing the complainant against them. Therefore, the
impugned order is liable to be set aside so far as accused
Nos.8 to 11 are concerned and accordingly, the following;
ORDER
i) The petition is allowed.
ii) The order dated 13.12.2017, so far as it
relates to dismissal of the complaint as
against accused Nos.8 to 11 in
P.C.NO.182/2013 now C.C.No.1350/2017 for
the offences punishable under Section 167,
192, 420, 463, 464, 465, 467, 468, 471, 107
r/w Section 34 of IPC on the file of the
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Additional Civil Judge and JMFC, Gangavathi
is quashed.
iii) The trial court is directed to take cognizance
against accused Nos.8 to 11 and issue
summons.
Sd/-
(J.M.KHAZI)
JUDGE
MBS, CT: UMD
