Karnataka High Court
Sri Nayaz Khan vs The State Of Karnataka on 28 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.P No. 399 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL PETITION NO. 399 OF 2025
BETWEEN:
1. SRI. NAYAZ KHAN
S/O. AMJAD KHAN
AGED ABOUT 37 YEARS
R/O.125, HALLIM NAGAR
BANNI MANTAPA
MYSURU-570 007.
...PETITIONER
(BY SRI. NANJUNDA SWAMY N., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY MANDI POLICE STATION, MANDI MOHALLA
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
Digitally signed
by DEVIKA M BENGALURU-560 001.
Location: HIGH
COURT OF 2. SRI. V.CHANDRA
KARNATAKA
S/O. LATE K.V.VARADARAJ
AGED ABOUT 59 YEARS
R/AT NO.H-3,
SHAKTHI SUNSHINE APPARTMENTS
8TH CROSS, 10TH MAIN
MARUTHINAGAR, MALLESHPALYA
BENGALURU-560 075.
...RESPONDENTS
(BY SRI. M. DIVAKAR MADDUR, HCGP FOR R1;
SRI. UMAPATHI S., ADVOCATE FOR R2)
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CRL.P No. 399 of 2025
THIS CRL.P IS FILED UNDER SECTION 482 OF CR.PC
(FILED U/S 528 BNSS) PRAYING TO SET ASIDE THE ORDER
DATED 23.10.2024 FOR TAKING OF COGNIZANCE OF THE
OFFENCES PUNISHABLE UNDER SECTIONS 468, 469, 470, 420,
447, 120(b) AND 201 OF IPC AND QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.5997/2024 ON THE FILE OF THE
HON'BLE PRL. CIVIL JUDGE AND JMFC, MYSURU, IN RESPECT
OF PETITIONER. THE ENTIRE ORDER SHEET AT ANNEXURE-D
AND TO QUASH THE CHARGE SHEET DATED 29.08.2024, FILED
BY THE MANDI POLICE STATION, MYSURU, IN CRIME
NO.97/2020, CHARGE SHEET AT ANNEXURE-C.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
Heard learned counsel for petitioner, learned HCGP
for respondent No.1 and learned counsel for respondent
No.2.
2. This petition is filed under Section 482 Cr.P.C.
praying this Court to quash the order dated 23.10.2024 for
taking cognizance for the offence punishable under
Sections 468, 469, 420, 470, 420, 477, 120B and 201 IPC
and quash the entire proceedings in C.C.No.5997/2024 on
the file of Principal Civil Judge and JMFC, Mysuru in
respect of petitioner and also quash the charge-sheet
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dated 29.08.2024 filed by Mandi Police Station, Mysuru in
Crime No.97/2020 at Annexure-C and pass orders as
deems fit in the circumstances of the case.
3. The factual matrix of the prosecution based on
the complaint filed by respondent No.2 is that accused
No.1 had indulged in creation of Will and also conspired
with this petitioner and entered into a lease agreement
creating the documents and this petitioner, having had the
knowledge that property belongs to C.Ws.3 and 5, entered
into a lease agreement. At the first instance, the petitioner
entered into a fake partition and subsequently, created
lease deed dated 21.05.2018 which is produced at
Annexure-E, wherein reference is made with regard to
payment of advance amount of Rs.15,00,000/- and also
payment of additional amount of Rs.25,00,000/-. Hence,
based on the complaint, police investigated the matter and
filed charge-sheet and offence against this petitioner is
under Sections 447 and 420 IPC.
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4. Learned counsel for petitioner brought to notice
of this Court complaint dated 03.10.2020 Annexure-A,
wherein allegation is made against accused No.1 that he
had fabricated the Will dated 22.09.1991 and also forged
the signature of Sri V. Chinnagiriyappa and projected the
same as a genuine document. Hence, invoked the offence
under Sections 468, 469, 470 and 429 IPC. Learned
counsel also brought to notice of this Court that allegation
made against this petitioner is that during Covid-19 and
March, 2020, accused No.1 along with this petitioner
conspired together to trespass into the property with an
object to illegally cause loss, mischief and caused nuisance
and both of them committed offence under Sections 447
read with Section 120B IPC Learned counsel would
contend that this petitioner is a tenant and he had entered
into a lease agreement as at Annexure-E and not indulged
in the act of trespassing the property. Learned counsel
would vehemently contend that though allegation is made
in the charge-sheet that he had knowledge that property
belongs to C.Ws.3 and 5, but he was not having any
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knowledge and not committed any offence and this
petitioner has been falsely implicated as accused and this
Court has to exercise the power under Section 482 Cr.P.C.
or otherwise, it would amount to clear abuse of process, if
proceedings are continued against him. Learned counsel
also would submit that taking cognizance is erroneous and
Trial Court failed to take note of the material, while taking
cognizance and brought to notice of this Court passing of
cognizance order. Hence, the charge-sheet is required to
be quashed.
5. Per contra, learned counsel for respondent No.2
would contend that he had filed detailed statement of
objection that the petitioner was having knowledge about
creation of document with accused No.1 and also
conspired with accused No.1 and trespassed the property.
Learned counsel brought to notice of this Court Annexure-
R2 which is produced along with statement of objections
i.e., lease deed dated 18.06.2019. He also brought to
notice of this Court Annexure-R3, since this petitioner had
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filed O.S.No.670/2020, wherein he has denied execution
of lease agreement dated 18.06.2019 and having received
an amount of Rs.15,00,000/- and the very document of
Annexure-R2 is placed before this Court in the writ petition
along with affidavit and when the document dated
18.06.2019 is also confronted, he denies the very
document. Hence, matter requires to be adjudicated
before the Trial Court. Learned counsel also would
contend that while taking cognizance, the Court failed to
take note of the material collected by the Investigating
Officer and the Trial Court has not passed a detailed order
and prima facie the material discloses the fact that matter
requires trial.
6. Learned counsel for respondent No.2 also in
support of his argument, relied upon the judgment of the
Apex Court in BHUSHAN KUMAR AND ORS VS. STATE
(NCT OF DELHI) AND ORS. reported in
MANU/SC/0297/2012 and brought to notice of this
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Court paragraph No.7, wherein discussion was made with
regard to cognizance is taken of cases and not of persons.
7. The counsel also brought to notice of this Court
judgment of the Apex Court in R.P. KAPUR VS. THE
STATE OF PUNJAB reported in MANU/SC/0086/1960
and brought to notice of this Court paragraph No.10,
wherein observation is made that the appellant no doubt
very strongly feels that on the relevant evidence it would
not be reasonably possible to sustain the charge but that
is a matter on which the appellant will have to satisfy the
magistrate who takes cognizance of the case. However,
would like to emphasize that in rejecting the appellant's
prayer for quashing the proceedings at this stage we are
expressing no opinion one way or the other on the merits
of the case.
8. The counsel also relied upon the judgment in
RATHISH BABU UNNIKRISHNAN VS. THE STATE
(GOVT. OF NCT OF DELHI) AND ORS. reported in
MANU/SC/0542/2022 and brought to notice of this
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Court paragraph Nos.16 and 17, wherein also discussion
was made with regard to what is also of note is that the
factual defence without having to adduce any evidence
need to be of an unimpeachable quality, so as to
altogether disprove the allegations made in the complaint.
In paragraph No.17, the Apex Court observed that the
consequences of scuttling the criminal process at a pre-
trial stage can be grave and irreparable. Quashing
proceedings at preliminary stages will result in finality
without the parties having had an opportunity to adduce
evidence and the consequence then is that the proper
forum i.e., the Trial Court is ousted from weighing the
material evidence. Learned counsel for respondent No.2
referring these judgments would contend that this Court
cannot quash the proceedings without considering the
material on record.
9. Learned HCGP for respondent No.1 would
contend that the Investigating Officer investigated the
matter and collected material and also recorded the
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statement of witnesses. With regard to the allegation of
creation of document, learned counsel for respondent No.2
brought to notice of this Court Annexure-R3-deposition,
wherein the very documents which have been relied upon
by the petitioner are denied. Hence, the matter requires
trial.
10. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
on record, it discloses that in the complaint, a specific
allegation is made against accused No.1 that he had
indulged in creating of document of Will and hence,
invoked offences punishable under Sections 468, 469,
470, 420, 120B, 201 of IPC against him. In respect of this
petitioner is concerned, allegation is made that during
COVID-19 i.e., in the year 2020, this petitioner along with
accused No.1 conspired with each other and created the
document with an intention to cause loss and nuisance and
also trespassed into the property and hence, invoked the
offence punishable under Section 447, 420 read with
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Section 120B of IPC against him. The specific allegation
made in the complaint is with regard to conspiracy and
trespassing of the land. Apart from that, column No.17 of
the Charge sheet discloses that accused No.2 knowingfully
well that this property belongs to CW3 and CW5, entered
into the document of lease by paying an amount of
Rs.40,00,000/- having the knowledge that the said
property not belongs to accused No.1 and hence, charge
sheet accusation is also with regard to conspiracy and
trespassing of the land against this petitioner.
11. No doubt, the learned counsel for respondent
No.2 brought to notice of this Court the order sheet of the
Trial Court wherein it discloses that the Trial Court applied
its mind and perused the papers and found prima facie
material to proceed against this petitioner as well as other
accused persons and taken the cognizance. Admittedly,
when cognizance is taken by the Trial Court, the Court
only have to look into the material collected by the IO and
no need to pass any detail order and the Trial Court has to
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form an opinion that whether prima facie material
discloses to go for trial. Hence, I do not find any error
committed by the Trial Court in taking the cognizance is
concerned.
12. The other relief is sought to quash the charge
sheet in respect of this petitioner. I have already pointed
out that in the complaint and charge sheet, the specific
allegation against this petitioner that this petitioner along
with accused No.1 have indulged in creation of document
and also trespassed into the property. The learned counsel
for respondent No.2 also brought to notice of this Court to
Ex.R2 as well deposition of this petitioner which is marked
as Ex.R3 wherein he has denied the very execution of
Ex.R2 as well as document dated 18.06.2019. The counsel
for the petitioner contend that document at Annexure-R2
not belongs to this petitioner and same is created. But
learned counsel for respondent No.2 brought to notice of
this Court that the very document was placed by this
petitioner along with the affidavit in W.P.No.8977/2020.
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When such material is placed before the Court, this Court
is of the opinion that the matter requires trial with regard
to the conspiracy as well as trespassing of the property is
concerned. No doubt, it is settled law that taking of
cognizance is against the offences, not against the person
and so also in free trial stage, the Court cannot look into
the defence and also cannot prevent the prosecution in
placing the material or otherwise, it amounts to curtailing
and weighing the material evidence collected by the IO.
Under such circumstances, the judgments relied upon by
the learned counsel for respondent No.2 are aptly
applicable to the case on hand since there is a force in the
contention of the counsel for the State that if the charge-
sheet is quashed, it is nothing but come in the way of
conducting of the trial and what is also of note is that the
factual defence without having to adduce any evidence
need to be of an unimpeachable quality, so as to
altogether disprove the allegations made in the complaint
and same has to be considered at the time of trial. Hence,
I do not find any ground to quash the proceedings as
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sought by the petitioner and also not found any abuse of
process.
13. The learned counsel for the petitioner also
submits that there is a delay in lodging the complaint.
With regard to the delay is concerned, the matter requires
to be tried before the Trial Court and only on the ground of
delay, this Court cannot invoke the provision under
Section 482 of Cr.P.C. Accordingly, the petition is
dismissed.
14. The observation made by this Court shall not
influence the Trial Court while considering the matter on
merits.
Sd/-
(H.P.SANDESH)
JUDGE
ST,SN
