Karnataka High Court
Jayaprakash M R vs State Of Karnataka on 23 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.2947/2023
BETWEEN:
1. JAYAPRAKASH M.R.
S/O REVANNASIDDAIAH,
AGED ABOUT 47 YEARS,
SULEDEVARAHALLI VILLAGE,
MADHIHALLI HOBLI, BELUR TALUK,
HASSAN DISTRICT-573 216.
... PETITIONER
(BY SRI SANDESH J. CHOUTA, SENIOR COUNSEL FOR
SRI G.S.PRASANNA KUMAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
BELUR POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-560 001.
2. NAVEEN M.S.K.
S/O KALYAN KUMAR,
R/AT SULEDEVARAHALLI VILLAGE,
MADHIHALLI HOBLI, BELUR TALUK,
HASSAN DISTRICT-573 216.
... RESPONDENTS
(BY SRI DEVADAS, AAG A/W
SRI GOPALKRISHNA SOODI, AGA FOR R1;
SRI. SREE HARSHA A.K., ADVOCATE FOR R2)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER
DATED 23.12.2022 PASSED BY THE LEARNED SENIOR CIVIL
JUDGE AND J.M.F.C AT BELUR, HASSAN, IN C.C.NO.452/2019,
AND DISCHARGE THE PETITIONER FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 419, 420, 465 AND 468 OF IPC,
REGISTERED BY THE RESPONDENT POLICE.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 06.11.2024, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV ORDER
Heard the learned counsel for the petitioner, the learned
AAG for respondent No.1 and the learned counsel for respondent
No.2.
2. This criminal petition is filed praying this Court to set
aside the impugned order dated 23.12.2022 passed by the
learned Senior Civil Judge and JMFC at Belur, Hassan, in
C.C.No.452/2019 rejecting the discharge application filed by this
petitioner, who is arrayed as accused No.3, for the offences
punishable under Sections 419, 420, 465 and 468 of IPC,
registered by the respondent police.
3. The factual matrix of the case of the
complainant/respondent No.2 is that, in the complaint he has
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made an allegation that this petitioner along with other accused
persons have indulged in creation of documents. Based on the
complaint dated 02.08.2019, the police have registered the FIR
in Crime No.156/2019. The main allegation in the complaint is
that one Siddegowda S/o Chandregowda, who is the father of
accused No.1 and grandfather of the complainant died on
25.04.1996. However, accused No.1, father of the complainant,
after the death of his father by impersonation executed a
relinquishment deed dated 06.02.2007 in favour of accused
No.2, who happens to be the father of this petitioner in respect
of the land bearing Sy.No.65/3 measuring 15 guntas. Accused
No.2 based on the said relinquishment deed got the revenue
records mutated in the name of this petitioner. The police based
on the complaint allegations, investigated the matter and filed
the charge sheet for the offences punishable under Sections 419,
420, 465 and 468 of IPC and the same is registered as
C.C.No.452/2019.
4. The petitioner submits that he filed
Crl.P.No.2717/2020 along with his father and other accused
persons for quashing of the criminal proceedings and this Court
was pleased to reject the same vide order dated 12.02.2021.
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The learned counsel for the petitioner submits that this petitioner
had filed an application under Section 239 of Cr.P.C seeking for
his discharge on the ground of alibi contending that the
petitioner has been out of India and working as Engineer at
Hamburg in Germany since 27.06.2005. It is contended that
between 19.06.2006 to 01.12.2008, he never visited India. The
Trial Judge has committed an error in dismissing the same
without giving credence to the said contention.
5. The learned counsel for the petitioner reiterating the
grounds which have been urged in the discharge application
contend that as per the allegations made in the complaint,
specific allegation is made that accused Nos.2 to 4 together have
induced accused No.1 to commit the alleged offence of creating
of relinquishment deed. The learned counsel contend that the
petitioner was not in India and also produced the passport
details and the Trial Court failed to appreciate the documents
available on record. The learned counsel contend that
O.S.No.102/2019 is pending in respect of the subject property
instituted by respondent No.2/complainant against the petitioner
and others. When a civil suit is pending, ought not to have
initiated the criminal proceedings and the same is only with an
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ulterior motive to harass the petitioner and others for illegal
demand. It is contended that the petitioner is innocent and has
not involved in the alleged offence and hence it requires
interference of this Court.
6. Per contra, the learned counsel for respondent
No.2/complainant would contend that he has filed the statement
of objections and in the statement of objections, in detail set out
the factual aspects of the case. It is a clear case of fraud and
with an intention to cheat the complainant/respondent No.2, all
of them have indulged in creation of document of relinquishment
deed and also produced topography of the property bearing
Sy.Nos.65/3 and 58/2, copy of the sale deed dated 28.03.1987,
encumbrance certificate, copy of mutation register, copy of RTC,
copy of the death certificate of Siddegowda, copy of the
registered release deed dated 06.02.2007, copy of the MR, copy
of the RTC, copy of Crl.P.No.2717/2020, copy of the order dated
12.02.2021 dismissing Crl.P.No.2717/2020, copy of the RTCs,
copy of the invitation of house warming ceremony, copy of the
bail order of the petitioner in Cri.Misc.No.844/2022 and copy of
the order passed W.P.No.22015/2022. All these documents are
referred in statement of objections.
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7. The learned counsel for respondent No.2 would
contend that this petitioner has suppressed the true facts. The
petitioner has falsely contended that he was not in India, but in
Germany from the year 2005 till 2022. But the petitioner built a
home for himself and his family in Bengaluru in the year 2019
and performed house warming ceremony and the contention that
he was permanently staying in Germany is erroneous. It is
contended that this petitioner is instrumentally instigating his
brother and sister-in-law in filing a false complaint and the police
are harassing at the instance of this petitioner. The Trial Court
has given reasons for rejection of the application on the ground
that alibi has to be proved in the trial and not while considering
the discharge application. The discharge application will be
considered based on the material available on record and the
material clearly discloses that this petitioner is the beneficiary
and got changed the property in his name on the strength of the
alleged relinquishment deed and hence the matter requires trial.
8. The learned AAG appearing for respondent No.1
State would contend that this petitioner is a beneficiary and he
has to explain what made him to get transferred the property in
2013 and the property stands in his name based on the created
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document of relinquishment deed and while getting the property
relinquished, the person relinquished is impersonated as the
original owner Siddegowda though Siddegoweda died in the year
1996 itself and the matter requires full fledged trial.
9. Having heard the learned counsel for the petitioner,
the learned AAG for respondent No.1 State and the learned
counsel for respondent No.2, the points that arise for the
consideration of this Court are:
(i) Whether the Trial Court committed an error in
dismissing the discharge application and
whether it requires interference of this Court
by exercising the review jurisdiction?
(ii) What order?
10. Having considered the grounds which have been
urged in the petition as well as the statement of objections filed
by the complainant/respondent No.2 and also the submissions of
the respective learned counsel, it is not in dispute that one
Siddegowda was the original owner of the property. The
petitioner also not disputes the fact that Siddegowda died in the
year 1996 and to evidence the said fact, respondent No.2 also
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placed on record the death certificate of Siddegowda, who
passed away on 25.04.1996. The material discloses that a
relinquishment deed was executed in favour of accused No.2 in
the name of Siddegowda, allegedly executed by the father of this
petitioner and the same is executed in the name of Siddegowda
on 06.02.2007 and on that day, the said Siddegowda was no
more. It is the specific case of the complainant that they took
his father i.e., accused No.1 and got the relinquishment deed
registered in the name of accused No.2 by impersonation. The
registered document is evident that the person who was no more
has signed the document and specific allegation is made that
they took accused No.1 and got released the property by
impersonation. It is important to note that respondent No.2
relies upon Annexure-R8, wherein the property is mutated in
favour of this petitioner and the date of mutation is 01.01.2013
in respect of Sy.No.65/3 to an extent of 15 guntas.
11. The learned counsel for the petitioner relied upon the
memo along with the documents of entire copy of the passport
along with the details of visa stamping. The learned counsel
submits that as on the date of creation of the document of
relinquishment deed, the petitioner was not in India. But the fact
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is that on 01.01.2013, the property was mutated in favour of
this petitioner. On the date of mutation, this petitioner was very
much present in India and also the passport details discloses
that he had traveled from Germany to Bengaluru on 15.12.2012
and he had traveled back from Bengaluru to Germany on
07.01.2013 and as on the date of mutation i.e., 01.01.2013, he
was very much present. It is important to note that in document
Annexure-R8 mutation, a reference is made that a personal
letter was given for mutating the property and on perusal of the
mutation there was a reference of partition among the family
members of accused Nos.2 to 4 and accused No.2 gave the
consent for transfer of mutation. This Court having noticed the
mutation, called for the records from the Taluk Office of Belur
through the Investigating Officer and the Investigating Officer
was not able to get the records and it was mentioned that the
same was missing.
12. Having taken note of the said submission and
noticed the sorry state of affairs in the State that when fraud has
been alleged, the files are missing and unable to get the records
from the concerned department. Under the Karnataka State
Public Records Act, 2010, for missing of Government records, a
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penal provision has been made and punishment is also severe in
view of the missing of the records. Hence, directed to initiate
appropriate action against the concerned officials.
13. This Court summoned the Tahsildar as well as the
Deputy Commissioner of Hassan District, under whose custody
the revenue records are there and they appeared before the
Court and expressed their inability to produce the same. On the
intervention of the Court about the missing of the records,
criminal case was also registered and the police have
investigated the matter and filed the charge sheet against some
of the officials of Belur Taluk. It is also reported by the Deputy
Commissioner that already they have enquired the matter and
submitted the report that though explanation is called from 23
officials, material is found against only 4 persons. To that effect,
a report is also filed before this Court by the learned AAG along
with affidavit of the Under Secretary to Government, DPAR,
wherein it is specifically stated that report submitted by the
Deputy Commissioner only points out the role of Sri B.K.
Nagaraj-Shirastedar; Sri Ravi-SDA; Sri Nagarajappa N.M.-
Attender; and Sri Manjunatha B.M.-'D' group employee and
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action was taken against them and Annexure-R4 produced
before the Court by the Deputy Commissioner discloses the role
of those persons. The learned AAG submits that the matter is
pending before the DPAR for taking decision on the report of the
Deputy Commissioner, which is marked as Annexure-R4. It is
made clear that if no such material is found against other
officials, they cannot be penalized and decision has to be taken
forthwith and no need of keeping hanging sword on these
officials.
14. Having considered the material available on record,
it is not in dispute that earlier this petitioner along with accused
No.2 and 4 approached this Court by filing Crl.P.No.2717/2020
and this Court after filing of the charge sheet, comes to the
conclusion that when material is available before the Court to
invoke the offence against the petitioner, it is not a fit case to
exercise the powers under Section 482 of Cr.P.C. The disputed
question has to be answered only after the trial and this Court
cannot ascertain the truthfulness of the statement of the
witnesses sitting under Section 482 of Cr.P.C. It is important to
note that admittedly the document of relinquishment deed was
created on 06.02.2007 and the same was registered document
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and apparently it was a deed of relinquishment of impersonation
and specific allegation is made by the complainant against his
own father, who has been arraigned as accused No.2. It is
important to note that accused No.2, who is father of the
petitioner and who is the beneficiary under the relinquishment
deed is no more and accused Nos.3 and 4, who have also got the
very same property by mutating the same are facing the criminal
trial. This Court has already pointed out that as on the date of
creation of the relinquishment deed, the petitioner was not in
India, but on the date of mutating the property in his favour on
01.01.2013, he was very much present in India. Apart from
that, when the mutation records are called for to prove before
this Court, this Court also taken note of the fact that mutation
proceedings was taken place based on the personal letter and
this Court also wanted to know whether the petitioner has given
personal letter, called the records and in a suspicious manner
the record was missing and hence the proceedings was initiated
against the concerned officials in a criminal proceedings as well
as departmental enquiry. When such material is available on
record, the very contention of the petitioner that he is innocent
and he is not involved in such transfer cannot be accepted, since
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the very property stands in the name of the petitioner based on
MR proceedings and the very MR proceedings are missing and all
steps have been taken to secure the same and till date the same
has not been secured and proceedings are initiated against the
concerned officials and the role of this petitioner in missing of
records also to be ascertained since the property is transferred in
his favour.
15. It is important to note that law is settled that while
exercising the power under Section 239 of Cr.P.C for discharge,
the Court has to take note of the material on record. In the case
on hand, in the complaint specific allegations are made against
all the accused persons that all of them have joined hands
together in getting the relinquishment deed and the
complainant's father was taken to Sub-Registrar office, who was
not having any worldly knowledge as alleged and also specific
allegation is made that khatha was transferred in the name of
this petitioner and also his other brother and all of them have
allegedly joined hands together with an intention to knock off the
property. Based on the complaint, case has been registered and
police have investigated the matter and filed the charge sheet
and column No.17 of the charge sheet is clear that accused
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Nos.1 to 4 all of them joined together in order to cheat the
complainant and inspite of original owner passed away on
25.04.1996, obtained the signature of the complainant's father
on impersonation in the name of Siddegowda on 06.02.2007 and
accused Nos.2 to 4 with an intention to defeat the right of the
complainant got transferred the land in the name of accused
No.2 and thereafter got transferred in the name of this petitioner
and the same is evident from the records. When specific
accusation is made, the Trial Court has to see whether there is
material or not. If no material, can discharge invoking Section
239 of Cr.P.C. The Trial Court also having taken note of the
material on record and the principles laid down in the judgments
which have been referred, comes to the conclusion that plea of
alibi put forth by the petitioner has to be proved during the trial.
It is important to note that when the plea of alibi is taken, the
same has to be proved by the accused during the trial and
burden shifts on him to prove the defence of alibi. This
petitioner has to prove his alibi defence before the Trial Court
only. The Trial Court cannot consider the defence while
considering the discharge application. The Trial Court has to
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only consider whether there is material against the petitioner or
not.
16. The main contention of the learned counsel for the
petitioner is that offences of Sections 465 and 468 of IPC does
not attract against the petitioner. Specific allegations are made
that all the accused persons have joined together and with an
intention to knock off the property indulged in such a act and
offence under Sections 419 and 420 of IPC, ingredients of
cheating and intentional cheating is made out and prima facie
record also discloses that property at the first instance was
standing in the name of the father of this petitioner after
relinquishment deed, who is accused No.2 and also a document
was created among themselves that there was a partition and on
the strength of the said partition, property was transferred in the
name of the petitioner. This Court has already observed that the
records were missing and other criminal prosecution and
department enquiry are also held against the concerned officials.
All these disputed facts are to be considered only during the full-
fledged trial. The Trial Court having perused the material on
record comes to the conclusion that final report discloses an
allegation that accused Nos.1 to 4 have committed the offence
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and comes to the conclusion that different contentions raised by
this petitioner can be appreciated only after conclusion of the
trial. The Investigating Officer found the material to file the
charge sheet and when the Trial Court comes to the conclusion
that prima facie case is made out against the petitioner, grounds
which have been urged before the Trial Court that he was in
Germany and not in India, cannot be a ground. This Court
already pointed out that as on the date of mutating the property
in favour of the petitioner, he was very much in India and
whether he has played the role to invoke offences in getting the
property transferred also to be considered at the time of trial.
The Trial Court cannot discharge him on the ground that he was
not present at the time of execution of relinquishment deed and
this petitioner has played a role in getting the property
transferred in his name has to be considered only in trial.
17. This Court would like to refer to the judgment of the
Apex Court with regard to scope of discharge in the case of
STATE OF RAJASTHAN v. ASHOK KUMAR KASHYAP reported
in (2021) 11 SCC 191, wherein it is held that duty of the Court
is to find out whether there is sufficient material or not. In other
words, the sufficiency of grounds would take within its fold the
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nature of the evidence recorded by the police or the documents
produced before the Court which ex facie disclose that there are
suspicious circumstances against the accused so as to frame a
charge against him. It is further observed that if the Judge
comes to a conclusion that there is sufficient ground to proceed,
he will frame a charge under Section 228 Cr.P.C., if not, he will
discharge the accused. It is further observed that while
exercising its judicial mind to the facts of the case in order to
determine whether a case for trial has been made out by the
prosecution, it is not necessary for the Court to enter into the
pros and cons of the matter or into a weighing and balancing of
evidence and probabilities which is really the function of the
Court, after the trial starts. It is also held that while framing of
charge and/or discharge application, consideration of defence of
the accused on merits impermissible and defence on merits is
not to be considered at the stage of framing of charge.
18. This Court would also like to refer to the judgment of
the Apex Court in the case of STATE OF GUJARAT v.
DILIPSINH KISHORSINH RAO reported in 2023 SCC Online
SC 1294 regarding exercise of discharge as well as review
jurisdiction and so also Section 482 of Cr.P.C. In paragraph
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No.14 it is held that the High Court should not unduly interfere.
No meticulous examination of the evidence is needed for
considering whether the case would end in conviction or not at
the stage of framing of charge or quashing of charge. Only to
see whether there is sufficient material on the basis of which the
case would end in a conviction; the Court is concerned primarily
with the allegations taken as a whole whether they will
constitute an offence and, if so, is it an abuse of the process of
court leading to injustice. The Revisional Court cannot sit as an
Appellate Court and start appreciating the evidence by finding
out inconsistency in the statement of witnesses and it is not
legally permissible.
19. This Court would like to rely upon the judgment of
the Apex Court in the case of STATE OF TAMIL NADU v. N.
SURESH RAJAN AND OTHERS reported in (2014) 11 SCC
709, wherein in paragraph No.32.4 it held that while passing the
impugned orders, The court has not sifted the materials for the
purpose of finding out whether or not there is sufficient ground
for proceeding against the accused but whether that would
warrant a conviction. This was not the stage where the Court
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should have appraised the evidence and discharged the accused
as if it was passing an order of acquittal.
20. The Apex Court in the judgment in the case of
STATE OF TAMIL NADU v. R. SOUNDIRARASU AND
OTHERS reported in (2023) 6 SCC 768 has held that Cr.P.C.
contemplates discharge of the accused by the Court of Session
under Section 227 of Cr.P.C and the Trial Judge is required to
discharge the accused if the Judge considers that there is no
sufficient ground for proceeding against the accused and
obligation to discharge the accused under Section 239 arises
when the Magistrate consider the charge against the accused to
be groundless. Whether the charge has to be framed or not is
required to be made on the basis of the record of the case,
including the document and oral hearing of the accused. The
scope of framing of charge or refusal of discharge also clarified in
the judgment that revisional power cannot be exercised in a
casual or mechanical manner and it can be exercised to correct
manifest error of law or procedure which would occasion
injustice, if it is not corrected.
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21. Having considered the scope of revision and also the
reasons assigned by the Trial Court, the Trial Court has taken
note of the material on record, particularly there is a document
of relinquishment deed and also subsequently the properties are
transferred in the name of this petitioner and also he has taken
the plea of alibi and plea of alibi is a matter of trial and on the
ground of alibi, he cannot be discharged and the defence cannot
be considered at the stage of considering the material on record.
Hence, I do not find any error committed by the Trial Court in
rejecting the application filed for discharge and this Court has
already taken note of the material for filing of the charge sheet
against him in the earlier petition and rejected the petition filed
under Section 482 of Cr.P.C. Hence, I do not find any ground to
interfere with the findings of the Trial Court.
22. In view of the discussions made above, I pass the
following:
ORDER
(i) The criminal petition is dismissed.
(ii) In view of the submission of the learned AAG
that the matter is pending before the DPAR for
consideration of report submitted by the
Deputy Commissioner for initiating the
proceedings against the concerned employees
for missing of the records and that the report
will be submitted within four weeks, the
learned AAG is directed to submit the report to
that effect before this Court within four weeks
from today. It is made clear that if no such
material is found against other officials, they
cannot be penalized and decision has to be
taken forthwith and no need of keeping
hanging sword on these officials.
Sd/-
(H.P. SANDESH)
JUDGE
MD
