Karnataka High Court
Charan S/O Datta Naik vs The State Of Karnataka on 21 January, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2025:KHC-D:1093
CRL.P No. 100499 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.100499 OF 2024
(482(Cr.PC)/528(BNSS)
BETWEEN:
CHARAN S/O. DATTA NAIK,
AGE: 42 YEARS, OCC: LEGAL PRATICE,
R/O: KESHAVNAIK WADA,
KODIBAG, KARWAR,
DIST: UTTARA KANNADA - 5813 03.
...PETITIONER
(BY SRI GIRISH A. YADAWAD, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
R/BY ITS HCGP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, THROUGH KARWAR
TOWN POLICE STATION KARWAR,
DIST: UTTARA KANNADA - 581 301.
Digitallysigned
signedby
Digitally
by VISHAL
VISHAL 2. SMT. SAMRUDDHI W/O. BHUSHAN KADAM,
NINGAPPA
NINGAPPA
PATTIHAL
PATTIHAL AGE: 49 YEARS, OCC: BUSINESSMAN,
Location:High
Location: High
CourtofofKarnataka
Court
Karnataka
R/O: 1743, KALYAN, NEAR COSTA FACTORY,
AQUEEM, ALTO, MARGO, GOA - 403 601.
...RESPONDENTS
(BY SRI SHARAD V. MAGADUM, AGA FOR R1;
SRI PRAVEEN P. TARIKAR, AGA FOR R2)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
1973, SEEKING TO QUASH THE COMPLAINT DATED 03.03.2023 FILED
BY THE RESPONDENT NO.2 AND THE CONSEQUENT REGISTRATION OF
FIR IN CRIME NO. 0022/2023 REGISTERED BY THE KARWAR TOWN
POLICE STATION AGAINST THE PETITIONER FOR THE OFFENCES
P/U/SEC. 506, 34, 420, 465, 468, 471 AND 417 OF IPC IN SO FAR AS
THE PETITIONER/ACCUSED NO.3 IS CONCERNED. ON THE FILE OF
THE PRL. SR. CIVIL JUDGE AND CJM COURT KARWAR AND ETC.,
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NC: 2025:KHC-D:1093
CRL.P No. 100499 of 2024
THIS WRIT PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)
1. The petitioner - accused No.3 is knocking at the
doors of this Court in the subject petition calling in question
the registration of a crime in Crime No.22 of 2023.
2. The petitioner is an Advocate by profession. This
Court qua accused No.4 who was a Notary, allowed the
petition by its order dated 14th September 2023. The
petitioner being an Advocate would become entitled to the
finding so rendered by this Court in the aforesaid petition.
Therefore, it would suffice, if the observations made in the
said order is paraphrased to the subject order as well. This
Court has held as under:
"7. The afore-narrated facts are not in dispute. The
private complaint is registered by the 2nd respondent
alleging forgery of a GPA and its benefit being taken by
accused No.1. The averment in the complaint is that accused
Nos.1 to 3 are friends and they are known to the complainant
as well. While accused No.1 gets all the benefits, accused
Nos.2 and 3 have been in active support of acts of accused
NC: 2025:KHC-D:1093
No.1. The benefit of the forgery is the sale deed. The sale
deed is also appended to the petition. A perusal at the sale
deed would indicate that the petitioner is an attesting witness
to the sale deed. Except this allegation of the petitioner
acting as an attesting witness and a friend of accused No.1,
there is no other allegation against the petitioner that would
touch upon any of the ingredients of the alleged offences.
8. In the teeth of the aforesaid facts and the
allegations, it becomes necessary to notice what the police
had to say in the product of investigation i.e., the charge
sheet. The summary of the charge sheet, as obtaining in
column No.17, reads as follows:
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9. A perusal at the summary of the charge sheet would
also indicate what is narrated hereinabove i.e., the fact that
NC: 2025:KHC-D:1093
the petitioner being a friend and an attesting witness to the
sale deed. It is therefore necessary to consider whether an
attesting witness to a sale deed can be hauled up in the web
of crime, notwithstanding the fact thatthe petitioner is not the
beneficiary of any of the alleged fraud played by accused
No.1.
10. The issue whether an attesting witness can be
dragged into the web of crime need not detain this Court for
long or delve deep into the matter. The Ape Court in the case
of M. Srikanth Vs. State of Telangana and another
reported in 2019(10) SCC 373, wherein it is held as
follows:
"18. Let us consider the case of the
complainant on its face value without going into the
truthfulness or otherwise thereof. It is the case of
the complainant that the property originally
belonged to her grandmother. After her death, it
devolved upon her father, Afzaluddin Hassan and
after his death on 28.05.1996, it devolved upon
accused No. 1 and his three sisters, namely, Karima
Siddiqua, Saleha Asmatunnisa and Sadika
Khairunnisa. Their father had entered into a
development agreement with M/s Banjara
Construction Company Pvt. Ltd., however, the same
was cancelled during his lifetime. After the death of
their father on 28.05.1996, accused No. 3 tried to
trespass into the property for which, on the basis of
her complaint a crime was registered. That the said
M/s Banjara Construction Company Pvt. Ltd. had
NC: 2025:KHC-D:1093
executed some document alleging assignment of its
rights in favour of M/s NRI Housing Company Pvt.
Ltd. of which accused No. 3, Abid Rasool Khan was
the Managing Director. In respect of the same
action, Crime No. 177/1996 had been registered at
the instance of the complainant. With respect to
thesaid transaction, two original suits were already
filed, one by the complainant and another by her
sisters.
19. It is further the case of the complainant,
that accused No.1 created a will in Urdu purported
to be executed by her grandmother bequeathing the
property in favour of her parents, namely,
Afzaluddin Hassan and Liaquathunnisa Begum for
their lifetime and vesting the remainder to accused
No. 1. The said will is created on a nonjudicial stamp
paper of Nizamat Jung and has been allegedly
executed on 02.04.1950. According to the
complainant, accused No. 1, her brother, had
created another forged and fabricated document
styled as deed of confirmation (Hiba Bil Musha)
dated 08.03.1990 confirming the oral gift to accused
No. 1 and also recording handing over of physical
possession. It is her case, that on the basis of these
fabricated documents, accused No. 1, posing himself
to be an absolute owner of the property, executed a
lease deed in favour of accused No. 4 (the appellant
herein in one of the appeals) on 01.12.2008. It is
further the case of the complainant, that thereafter
accused No. 4 executed a sublease in favour of
NC: 2025:KHC-D:1093
accused No. 5 HPCL represented by accused Nos. 6
and 9 within a period of two months i.e. on
30.01.2009 and that accused Nos. 7 and 8 are the
attesting witnesses. That is all the case of the
complainant.
runs into 26 pages and 26 paragraphs. As already
discussed hereinabove, it reveals a disputed
property claim based on inheritance between the
complainant, her sisters and her brother, accused
No. 1. A perusal of the complaint would further
reveal, that the complainant also disputes with
regard to the area of the property including
themanner of its devolution upon the parents of the
complainant and her competing interest with that of
her siblings. There is not even a whisper in the
complaint that the present appellant, i.e., accused
No. 4 was fully aware that accused No. 1 was not
the sole beneficiary by inheritance and that the
property had devolved upon the complainant and
her sisters. Also there is nothing to show that
knowing this he has collusively entered into the
lease agreement with accused No. 1, by creating a
false and fabricated will. Though, there is a mention
with regard to conspiracy, but there is not even a
suggestion with regard to manner of such
conspiracy."
11. The said judgment of the Apex Court in the case of
M.Srikanth (Supra) is also followed by a learned single Judge
NC: 2025:KHC-D:1093
of the High Court of Chattisgarh in the case of Nishanth
Agarwal and another Vs. State of Chhattisgarh, Through the
Superintendent of Police Batouli and another reported in
(2021) SCC OnLine CHH 436 wherein the Court has held as
follows:
"14. Thereafter, finally the Collector directed
to lodge FIR by holding as under:--
15. On the basis of the aforesaid
order/direction passed by the Collector, Sarguja, the
above-stated offences have been registered against
the petitioners and they are being prosecuted for the
offences as noticed herein-above. It is the case of
the prosecution that the petitioners have attested
the two sale deeds as witnesses and as such, the
aforesaid offences have rightly been
registeredagainst them along with the sellers and
the purchaser of the subject sale deeds.
16. At this stage, it would be appropriate to
notice Section 3 of the Transfer of Property Act,
1882 which defines the word "attested", which
states as under:--
""attested", in relation to an instrument,
means and shall be deemed always to have
meant attested by two or more witnesses each
of whom has seen the executant sign or affix
his mark to the instrument, or has seen some
other person sign the instrument in the
presence and by the direction of the executant,
NC: 2025:KHC-D:1093
or has received from the executant a personal
acknowledgement of his signature or mark, or
of the signature of such other person, and each
of whom has signed the instrument in the
presence of the executant; but it shall not be
necessary that more than one of such
witnesses shall have been present at the same
time, and no particular form of attestation shall
be necessary;"
17. A careful reading of the aforesaid
definition of the word "attested" would show that the
essential conditions of a valid attestation under
Section 3 of the Transfer of Property Act are: (i) two
or more witnesses have seen the executant sign the
instrument of have received from him a personal
acknowledgement of his signature; (ii) with a view
to attest or to bear witness to this fact each of them
has signed the instrument in the presence of the
executant.
18. It is essential that the witness should have
put his signature animo attestandi, that is, for the
purpose of attesting that he has seen the executant
sign or has received from him a personal
acknowledgement of his signature.
19. The Supreme Court in the matter of M.L.
Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons
while considering the definition of the word
"attested" as provided under Section 3 of the
Transfer of Property Act has held that to attest is to
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bear witness to a fact and if a person puts his
signature on the document for some other purpose,
e.g. to certify that he is a scribe or an identifier or a
registering officer, he is not an attesting witness.
20. In the matter of Banga Chandra (supra),
the Privy Council has held that attestation by itself
would neither create estoppel nor imply consent. It
proves no more than that the signature of an
executing party has been attached to a document in
the presence of a witness.
21. Similarly, in the matter of Pandurang
Krishnaji (supra), it has been held by the Privy
Council that attestation of a deed by itself estops a
man from denying nothing whatsoever expecting
that he has witnessed the execution of the deed. It
conveys, neither directly nor by implication, any
knowledge of the contents of the document and it
ought not to be put forward alone for the purpose of
establishing that a man consented to the transaction
which the document effects.
22. The Lahore High Court in the matter of L.
Suraj Bhan v. Hafiz Abdul Khaliq has held that
recitals in a deed do not bind the attesting
witnesses, for, an attestation pure and simple is not
enough to fix, the attestator with a knowledge of the
contents of the deed.
23. Likewise, in the matter of Surjeet Singh v.
State of U.P. the Allahabad High Court has held that
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recitals in a deed do not bind the attesting witnesses
and thereafter quashed the proceedings against the
attesting witnesses. Similar is the decision rendered
by that High Court in the matter of Suraya Bali v.
State of U.P.
24. In the matter of M. Srikanth v. State of
A.P. the Telangana High Court quashed the
prosecution of the petitioners therein (A-7 and A-8)
who were attestors of the lease deed relying upon
the decision of the Supreme Court in the matter of
M.L. Abdul Jabbar Sahib (supra) by holding as
under:--
"8. So far as A.7 & A.8 concerned they
are mere attestors of the lease deeds or sub
lease deeds of the year 2008 & 2009 executed
by A.1 in favour of A.4 and in turn by A.4 in
favour of A.5. It is their contention of they
have no knowledge of the contents and they
have no knowledge of the transactions of
source of title of A.1 and claim with reference
to will dated 02.04.1950 and deed of
confirmation dated 08.03.1990. The law is
fairly settled at least from the 3 Judge
expression of the Apex Court in M.L. Abdul
Jabhar Sahib (supra) that attestation no way
fixing attesting witness with knowledge of
contents of the document or implying consent
for contents of of documents, unless it is
established by any independent evidence that
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to the signature was attached the express
condition that it was intended to convey
something more than mere witnessing to the
execution or attestation. The attestation mainly
to mean executing, signing or affixing in the
presence of 2 or more witnesses each of whom
has seen the executantsigning and vice versa
and not necessarily more than one of such
witness shall present and no particular form of
attestation is necessary. From the private
complaint averments so far as A.7 and A.8
concerned, there is nothing specifically
mentioned of theiractive role either in
committing any offence of cheating or forgery
or forgery for purpose of cheating or using as
genuine a forged document or the like. Having
regard to the above, even on the face value of
complaint averments, there is no any offence
made out against A.7 & A.8 therefrom of mere
attestation in view of the settled position of
law, for nothing to presume any knowledge of
them to the contents of the documents leave
apart from no duty caste upon them to verify
genuineness of source of title of executant of
the document for their attesting.
a). Thus, the proceedings of crime
No. 311 of 2010 in so far as A.7 & A.8
are liable to be quashed and accordingly,
quashed by allowing the Crl.P. No. 6047
of 2013.
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b). Though it is the contention of
A.9 that he is also placed in same
position from attestation of the sub lease
dated 30.01.2009, it requires further
discussion in considering any further role
of A.9., so also of A.6 being the
employees of the entityA.5, for the sub
lease is in favour of A.5 executed by A.4
the lessee from A.1."
25. The decision rendered by the Telangana
High Court in the matter of M. Srikanth (supra) was
against whom the proceeding was not quashed. The
Supreme Court took up the matter of M. Srikanth v.
State of Telangana and quashed the proceeding
against accused No. 4 also and upheld the order
quashing the proceeding against the attesting
witnesses in paragraphs 27 and 28, which state as
under:--
"27. Insofar as the criminal appeals
arising out of the special leave petitions filed
by the original complainant is concerned, we
absolutely find no merit in the appeals. The
learned single Judge has rightly found that
there was no material to proceed against
accused No. 5 - HPCL and its officers accused
Nos. 6 and 9 as also accused Nos. 7 and 8,
who have been roped in, only because they
were the attesting witnesses. The learned
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single Judge has rightly exercised his
jurisdiction under Section 482 of the Cr.P.C.
28. Insofar as original accused No. 4 is
concerned, we have no hesitation to hold, that
his case is covered by categories (1) and (3)
carved out by this Court in the case of Bhajan
Lal (supra). As already discussed hereinabove,
even if the allegations in the complaint are
taken on its face value, there is no material to
proceed further against accused No. 4. We are
of the considered view, that continuation of
criminal proceedings against accused No. 4, M.
Srikanth, would amount to nothing else but an
abuse of process of law. As such, his appeal
deserves to be allowed.".
12. The High Court of Chattisgarh has followed the
judgment of the Apex Court in the case of M.Srikanth (supra)
and an earlier judgment in the case of M.L.Abdul Jabbar
Sahib Vs. M.V. Venkata Sastri & Sons and others reported in
1969(1) SCC 573. The Apex Court and the High Court of
Chattisgarh have elucidated the fact that an attesting witness
cannot be hauled into the web of crime, if there is no other
allegation except that he is an attesting witness. In the case
at hand as well, a perusal at the complaint or the summary of
the charge sheet (supra), would indicate no other allegation
except the fact that the petitioner was a friend of accused
No.1 and an attesting witness to the sale deed. The sale deed
is alleged to be the subject of fraud. Therefore, the
submission of the learned counsel for the petitioner would
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merit acceptance and outweigh the submissions made by the
learned HCGP for the State.
13. In the teeth of the aforesaid facts, if further
proceedings are permitted to continue, it would become
anabuse of the process of the law and result in miscarriage of
justice.
14. For the aforesaid reasons, the following:
ORDER
(i) The petition is allowed.
(ii) The proceedings in C.C. No.804/2022 before the
concerned Court stands quashed qua the
petitioner.
(iii) It is made clear that the observations made in
the course of the order are only for the purpose
of consideration of the case of the petitioner
under Section 482 of Cr.P.C. and the same shall
not bind or influence the proceedings against the
other accused pending before the concerned
Court."
3. For the aforesaid reason, the following:
ORDER
(i) The petition is allowed.
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(ii) The FIR in Crime No.22/2023 registered by
the Karwar Town Police Station stands
quashed qua the petitioner.
(iii) It is made clear that the observations made
in the course of the order are only for the
purpose of consideration of the case of the
petitioner under Section 482 of the Cr.P.C.
and the same shall not bind or influence the
proceedings against the other accused,
pending before the concerned Court.
Sd/-
(M.NAGAPRASANNA)
JUDGE
VNP/CT-ASC
