Karnataka High Court

Mrs T Malathi vs The State Of Karnataka on 24 January, 2025

Author: H.P.Sandesh

Bench: H.P.Sandesh

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                                                          NC: 2025:KHC:3207
                                                     CRL.RP No. 707 of 2016




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 24TH DAY OF JANUARY, 2025

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                          CRIMINAL REVISION PETITION NO.707 OF 2016

                   BETWEEN:

                   MRS T MALATHI
                   D/O T SHAMANNA,
                   AGED ABOUT 53 YERARS,
                   R/O DHANASHREE, 18/33,
                   1ST FLOOR, VINAYAKANAGAR,
                   HAGADUR, WHITEFIELD,
                   BENGALURU - 560066
                                                               ...PETITIONER
                   (BY SRI PUNITH S, ADVOCATE)
                   AND:

Digitally signed   1.    THE STATE OF KARNATAKA
by DEVIKA M              BY WHITEFIELD POLICE STATION,
Location: HIGH           BENGALURU - 560066
COURT OF
KARNATAKA                (REP. BY SPP, HIGH COURT BUILDINGS,
                         BENGALUR - 560001)

                   2.    A N HARIPRASAD
                         S/O NAGARATHNAM,
                         AGED ABOUT 42 YEARS,
                         R/O NO 18/1, 1ST BLOCK,
                         VINAYAKANAGARA,
                         HAGADUR,
                         BENGALURU - 560066
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                                       NC: 2025:KHC:3207
                                  CRL.RP No. 707 of 2016




3.   SARALA H
     W/O A N HARIPRASAD,
     AGED ABOUT 34 YEARS,
     R/O NO 18/1, 1ST BLOCK,
     VINAYAKANAGARA, HAGADUR ,
     BENGALURU - 560066

4.   R KRISHNAPPA
     S/O RAMAIAH
     AGED ABOUT 56 YEARS,
     R/O VINAYAKANAGARA
     HAGADUR,
     BENGALURU - 560066

5.   P LAKSHMINARAYANA
     S/O PUTTAPPA, MAJOR,
     R/O NO 6, PRUTHVIL NILAYA,
     RAMAIAH GARDEN, KADIGODI
     BENGALURU - 560067
                                    ...RESPONDENTS
(BY SRI M DIVAKAR MADDUR, HCGP FOR R1;
 SRI V N KUMAR, ADVOCATE FOR R2-R4;
 SRI N SRINIVAS, ADVOCATE FOR R5)

     THIS CRL.RP IS FILED U/S.397 AND 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 15.04.2015 PASSED BY THE I A.C.J.M.,
BENGALURU     RURAL   DISTRICT,   BENGALURU   IN
C.C.NO.120/2008 AND ETC.

     THIS PETITION, COMING ON FOR FINAL HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE H.P.SANDESH
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                                                   NC: 2025:KHC:3207
                                              CRL.RP No. 707 of 2016




                         ORAL ORDER

Heard the learned counsel appearing for the

respective parties.

2. This petition is filed before this Court

challenging the order of acquittal and confirmation order

passed by the Trial Court as well as the First Appellate

Court.

3. The counsel for the petitioner would vehemently

contend that at the first instance, charge sheet was filed

against the accused for the offence punishable under

Section 420 of IPC and subsequently, an application is

filed under Section 216 of Cr.PC to alter the charge sheet.

The Trial Court passed an order on 22.07.2014 allowing

the application filed under Section 216 of Cr.P.C and

permitted the prosecution to invoke the offences

punishable under Sections 463, 471, 120A and 204 read

with Section 34 of IPC and thereafter additional charges

are also framed.

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4. The main contention of the counsel for the

petitioner that inspite of charges are altered except further

examination of PW1 on 09.12.2014, not examined any of

the witnesses inspite of production of the documents

before the Trial Court in order to prove the additional

charges framed by the Trial Court but the Trial Court

erroneously acquitted the accused persons. The counsel

also would vehemently contend that once the charge was

altered, ought to have further examined the prosecution

witnesses in order to prove the charges in the absence of

evidence, question of acquitting the accused does not arise

and an opportunity has to be given to the prosecution to

lead evidence to prove the charges.

5. The counsel for the respondents/accused Nos.1

and 2 in whose favour there was a GPA and sale deed

would vehemently contend that the Trial Court after

framing of additional charges, further examined PW1, but

not placed any material before the Trial Court by the

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prosecution while considering the matter on merits and

acquitted the accused. The First Appellate Court also

having reassessed the material available on record,

particularly in respect of offence punishable under Section

420 of IPC, in paragraph 41 comes to the conclusion that

it is not the case of the prosecution that the accused

induced either the complainant or anyone else to deliver

any property to them or to make, alter, or destroy the

whole or any part of a valuable security hence, the

registration of case under Section 420 is erroneous and

Trial Court also wrong in framing the charge for the

offence punishable under Section 420 of IPC.

6. The learned counsel for the State also contend

that after the alteration of the charge, PW1 has been

further examined and other witnesses have not been

examined. Even other witnesses who have been examined

before the Trial Court also not further examined and IO

also not further examined.

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7. Having heard the learned counsel appearing for

the respective parties and also on perusal of the material

available on record, the points that would arise for the

consideration of this Court are:

1. Whether both the Courts have committed an error in

acquitting for the offences and confirming the same

and whether it requires exercising of revisional

jurisdiction since the order passed by both the

Courts suffers from legality and correctness?

2. What order?

Point No.1:

8. Having heard the learned counsel appearing for

the respective parties and on perusal of the material

available on record, it discloses that it is not in dispute

that at the first instance, charge sheet was filed for the

offence punishable under Section 420 of IPC. The records

reveal that the prosecution filed an application under

Section 216 of Cr.P.C wherein prayer is sought that

Parvathamma who is the original owner of the property

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died long back and also in the application it is stated that

in the year 1997 got created GPA after the death of

Parvathamma and based on the said GAP, executed the

bogus sale deed in favour of accused No2 who is none

other than his wife, even though the Parvathamma died

much prior to the date of said alienation and document

was created and sought for alteration of the charge. The

Trial Court considering both oral and documentary

evidence placed on record allowed the said application vide

order dated 22.07.2014 and permitted the prosecution to

invoke the penal provision of Sections 463, 471, 120A,

204 read with Section 34 of IPC.

9. It is settled law that once charges are altered,

in view of invoking of additional offences, the Court has to

give an opportunity to prove the charges. On perusal of

the records i.e., the depositions of witnesses, no doubt,

while filing such an application already evidence was

commenced and cross-examined the witnesses and PW1

was examined on 09.12.2014 with regard to the allegation

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made in the application filed under Section 216 and the

same was narrated in the cross-examination of PW1. On

perusal of the records, it discloses that PW2 who has been

examined on 02.01.2010 and cross-examined on

18.01.2010 and not further examined in view of altering of

charge sheet. PW3 also examined on 02.01.2010 and

cross-examined on 18.01.2010 and not further examined

so also PW4 also examined on 11.03.2010 and cross-

examined on the same day and he was also not further

examined. In view of altering of charge also, except

further examination of PW1, not examined any of the

witnesses. Hence, there is a force in the contention of the

petitioner counsel that once the charge was altered to

invoke other penal provisions, the Court ought to have

examined the witnesses in that regard in order to prove

the charges giving an opportunity to the accused to defend

the said charges. No such materials are placed before the

Court and the Trial Court proceeded to dispose of the

matter only after examination of PW1 subsequent to the

alternation of charge and the First Appellate Court also

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fails to consider the fact with regard to the alternation of

charge and only discussion was made with regard to

invoking of offence under Section 420 of IPC and the First

Appellate Court though framed the point for consideration

in respect of other offences also i.e., 471, 204, 420, even

not discussed anything about the offences invoked under

Section 463, 464, 120A and no point for consideration also

raised by the First Appellate Court while disposing of the

appeal and not discussed with regard to the evidence

available on record. When the charge was framed for the

other offences i.e., Section 420 read with 34 of IPC, 471,

463 read with 34 of IPC and 204, 120B read with 34 of

IPC, nothing is discussed in the appeal also and even not

pointed out with regard to further evidence consequent

upon alternation of charge. When such error apparent on

record, both the Courts orders suffer from its legality and

correctness. Hence, it requires interference of this Court.

Hence, I answer the above point as affirmative.

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Point No.2:

10. In view of the discussions made above, I pass

the following:

ORDER

The revision petition is allowed. The impugned order dated 15.04.2015 passed in C.C.No.120/2008 by the Trial Court and the impugned order dated 29.02.2016 passed in Crl.A.No.39/2015 by the First Appellate Court are set aside.

The matter remanded to the Trial Court to proceed in accordance with law in view of the observations made by this Court giving an opportunity to the complainant's side as well as accused side to defend the charges levelled against them in view of alteration of charges.