Karnataka High Court
Annappa S/O Basappa Dasyal vs The State Of Karnataka on 15 November, 2024
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CRL.P No. 102498 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL PETITION NO. 102498 OF 2024
(482(Cr.PC)/528(BNSS)
BETWEEN:
1. ANNAPPA S/O. BASAPPA DASYAL,
AGE. 47 YEARS, OCC. FARMER,
R/O. TUBACHI VILLAGE,
NOW AT RAMESHWA
COLONY, JAMAKHANDI ,
TQ, BAGALKOT DIST-587301.
2. SHIVALINGAPPA
S/O. BASAPPA MIRJI,
AGE. 35 YEARS,
OCC. BANK EMPLOYEE,
Digitally signed
by JAGADISH T R
Location: High
R/O. TUBACHI VILLAGE,
Court of
Karnataka,
Dharwad Bench
NOW AT RAMESHWA
Dharwad.
COLONY, JAMAKHANDI ,
TQ, BAGALKOT DIST-587301.
...PETITIONERS
(BY SRI. SUHAS K. HOSAMANI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
(THROUGH SAVALGI P.S),
REPRESENTED BY ITS
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CRL.P No. 102498 of 2024
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD-580011.
2. SMT. SHOBHA SHIVANAND
W/O. SHIVANANDGOUD,
OCC. HOUSE HOLD,
R/O. VIVEKNAGAR, VIJAYAPUR,
VIJAYAPUR DIST-586101.
...RESPONDENTS
(BY SRI. ABHISHEK MALIPATIL, HCGP FOR R1;
NOTICE TO R2 SERVED)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO ALLOW THIS PETITION BY QUASHING IMPUGNED
COMPLAINT DATED 31.12.2021 AS PER ANNEXURE-A, SUBSEQUENT
REGISTRATION OF IMPUGNED FIR IN CRIME NO.123/2021
REGISTERED BY SAVALAGI PS AS PER ANNEXURE-B, FILING OF
IMPUGNED CHARGE SHEET DATED 08.01.2024 AS PER ANNEXURE-C
AND SUBSEQUENT ORDER OF COGNIZANCE DATED 29.06.2024 AS
PER ANNEXURE-D BY THE TRIAL COURT FOR THE OFFENCE
PUNISHABLE U/S. 420, 465, 468, 471, 177 R/W. 34 OF IPC AGAINST
THE PETITIONERS IN CC NO.32/2024 PENDING ON THE FILE
PRL.SENIOR CIVIL JUDGE AND JMFC, JAMKHANDI IN SO FAR AS TO
PETITIONERS/ACCUSED NO.2 AND 3 ARE CONCERNED ONLY AND IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.P No. 102498 of 2024
CORAM: THE HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
The petitioners-accused Nos.2 and 3 are before this
Court seeking quashing of proceedings in C.C.No.32/2024
(Crime No.123/2021) on the file of learned Principal Senior
Civil Judge and JMFC, Jamkhandi, registered for the
offences punishable under Sections 420, 465, 468, 471
and 177 read with Section 34 of Indian Penal Code, 1860
(for short 'IPC').
2. Brief facts of the prosecution case are as under;
a) The complainant Smt. Shobha Shivanand married
to one Shivanand. She along with her family was living at
Vijayapur; after the death of her father, her mother
started living with her. Her brother Subhas is a Soft
Engineer working in USA. From her brother, she learnt
that her father had a bank account in PKPS and there are
some FDs' also, due to some work they could not collect
the monetary transactions of their father. Hence, her
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mother wrote a letter to the Bank Manager to provide the
account details of her father. The bank had sent a letter
about the particulars of her father's account and also one
FD particulars in which the name of nominee mentioned as
'Shantha Balappannavar'. It is found that signatures in the
column of account holder and depositor of her father are
fake. It is seen that nominee is accused No.5, and
petitioners/accused Nos.2 and 3 are the witnesses to the
nominee papers.
b) It is further alleged that the complainant, her
husband, mother and brother approached the bank and
requested the Bank Manager to give all the details of FD
account, they informed the complainant that Smt. Shantha
who is accused No.5 being nominee had withdrawn entire
amount. The complainant after going through the bank
documents sent her, found that seven loan accounts have
been opened on the FD Accounts on different dates.
c) It is further alleged that the petitioners without
the knowledge of father of the complainant opened loan
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accounts and made transactions to the extent of 32 lakhs
for their own use. Thereafter, sugar cane bills of
Rs.13,30,618/- deposited in the Account No.664
transferred to loan No.2623, she did not know the
transaction made through loan account Nos.1698, 1767
and 1900 and she suspected that there may be fraud on
the said accounts also. According to the complainant,
accused No.1 by name Shankar Balappanavar being the
Secretary of the Bank, forged the signature of her father,
made his wife as nominee to the said accounts, withdrawn
the amount of Rs.28,87,268/-, thereafter, opened seven
loan accounts of her father, utilized the amount, however
closed the said accounts by repaying amount. Hence, the
complaint came to be lodged on 31.12.2021 before the
concerned police. Taking exception of the same,
petitioners /accused Nos.2 and 3 have filed this petition.
3. Learned counsel for the petitioners-accused
Nos.2 and 3 contended that the petitioners are only
attesting witnesses to the nominee papers and they are
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not beneficiary to the entire transactions and there was no
conspiracy on the part of the petitioners. Hence, he prayed
to allow the petition.
4. Learned High Court Government Pleader has
taken contention that there is prima facie material against
the accused Nos.2 and 3 and they are involved in the
alleged offences, thus, he prayed to dismiss the petition.
5. It is a matter of fact and narration in the
complaint that the petitioners were the attesting witnesses
to the fixed deposit nominee papers which are subject
matter of criminal case. It appears that these petitioners
are only witnesses and not beneficiary to the fixed deposit.
It is trite law that unless the witnesses are confirming
witnesses and beneficiary under the documents and the
allegation being of conspiracy under Section 120(B) of
IPC, the attesting witness cannot be hauled into criminal
proceedings, as they are not certifying the recitals or
contents in the documents. The issue with regard to
whether the attesting witness can be hauled into criminal
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proceedings is considered by this Court in Criminal Petition
No.2816/2017 decided on 25.11.2021 and Criminal
Petition No.39/2020 decided on 08.03.2022, considering
the ratio laid down in the case of M.L. ABDUL JABBAR
SAHIB VS. M. V. VENKATA SASTRI AND SONS
reported in 1969 (1) SCC 573.
6. Insofar as these petitioners are concerned, they
are attesting witnesses to the fixed deposit nomination
form. Even if the allegations in the complaint are taken on
its face value, there is no material to proceed further
against these petitioners.
7. Unless, the witnesses are beneficiary to the
transaction, the allegation being of conspiracy or the
ingredients of Sections 420, 465, 468, 471 and 177 read
with Section 34 of IPC, cannot be hauled into criminal
proceedings. The issue with regard to whether the
attesting witnesses can be hauled into criminal
proceedings is considered in Criminal Petition
No.2816/2017 decided on 25.11.2021. Following the said
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judgment, the Co-Ordinate Bench in the case of
Kalegowda and Others Vs. The State of Karnataka
and Others1, has held that the petitioners were only
attesting witnesses and they are not beneficiary and
hence, the judgment rendered by the Co-Ordinate Bench
would cover by the judgment in the case in hand.
8. Following the judgment passed in Criminal
Petition No.2816/2017 decided on 25.11.2021 and the
decision taken in the case of Kalegowda and Others
(supra) which was disposed off on 08.03.2022, I proceed
to pass the following:
ORDER
i) The criminal petition is allowed.
ii) The proceedings in C.C.No.32/2024
(Crime No.123/2021) on the file of learned
Principal Senior Civil Judge and JMFC,
Jamkhandi, registered for the offences
MANU/KA/0996/2022
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punishable under Sections 420, 465, 468,
471 and 177 read with Section 34 IPC
stands quashed for the petitioners/accused
Nos.2 and 3.
iii) The observation made in this order
shall not influence the Trial Court while
conducting trial.
Sd/-
(VENKATESH NAIK T)
JUDGE
SMM/ct-an
