Karnataka High Court
Dr. Takkolu Sreeram Karthik vs Smt. G Vijaya Lakshmi on 25 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.11210/2024
BETWEEN:
DR. TAKKOLU SREERAM KARTHIK,
S/O. DR. T. SUDHAKAR REDDY,
AGED ABOUT 42 YEARS,
R/AT NOS.46 AND 47,
KHATHA NO.974/952/456/46,47,
AMRUTHAHALLI VILLAGE,
YELAHANKA, BENGALURU-560092.
PERMANENT RESIDENT
NO.42/80-8, NGO COLONY KADAPA,
ANDHRA PRADESH-515 001. ... PETITIONER
(BY SRI. TOMY SEBASTIAN, SENIOR COUNSEL FOR
SRI. PRASANNA D.P., ADVOCATE)
AND:
SMT. G. VIJAYA LAKSHMI,
W/O. RAMANA REDDY T.V.
AGED ABOUT 63 YEARS,
R/AT FLAT NO.01,
PLOT NO.46/47, 1ST CROSS,
4TH MAIN ROAD, A-SECTOR,
AMRUTH NAGAR,
BENGALURU - 560 092. ... RESPONDENT
(BY SRI. V.SRINIVASA RAGHAVAN, SENIOR COUNSEL FOR
SRI. M.V.CHANDRASHEKARA AND
SRI. GURU PRASAD C. REDDY, ADVOCATES)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.PC (FILED U/S 528 BNSS) PRAYING TO QUASH THE
PROCEEDINGS IN C.C.NO.21682/2024 ON THE FILE OF THE IV
ADDL. CHIEF JUDICIAL MAGISTRATE, BENGALURU FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 193, 405, 415, 419,
420, 463, 464 AND 468 OF IPC.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 17.01.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
Heard the learned Senior Counsel for the petitioner and
the learned Senior Counsel for the respondent.
2. This criminal petition is filed praying this Court to
quash the proceedings in C.C.No.21682/2024 on the file of the
IV Additional Chief Judicial Magistrate, Bengaluru for the
offences punishable under Sections 193, 405, 415, 419, 420,
463, 464 and 468 of IPC.
3. The factual matrix of the case of the
complainant/respondent before the Trial Court is that the
accused being the nephew and as well as brother's son of her
husband, herself and her husband believed the words of the
accused and without bothering about the specific verification of
the documents pertaining to the subject matter of flats and
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besides the same both her husband and herself were staying in
Hyderabad and they were also not well-versed with Bengaluru,
trusted the accused. It is also an allegation that pursuant to
purchase of the said flats, without her knowledge, the accused
himself forged her signature and has applied for the khatha
before the BBMP authorities and filed an application to his
convenience by changing the number of the flats, which is
contrary to the flats purchased in the sale deed registered by
him in collusion with the revenue officers and got the khatha,
which is contrary to the sale deeds by misrepresentation. Based
on the said allegation, a private complaint was filed and the Trial
Court after recording the sworn statement has taken the
cognizance against the accused and issued process vide order
dated 05.07.2024 and hence challenge is made before this
Court.
4. It is the contention of the learned counsel for the
petitioner that the petitioner who intended to construct a
residential apartment has got converted the agricultural property
into non-agricultural purpose and also obtained the sanction plan
and after having obtained the sanction plan constructed the
flats. It is contended that by considering the relationship, the
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petitioner has agreed to sell and entered into an agreement of
sale and executed three sale deeds on 21.01.2013, 17.10.2013
and 03.05.2014 in respect of flat Nos.1 and 2 in first floor and
flat No.3 in second floor. The BBMP authorities have also issued
the khatha and taxes are also paid and respective owners are
having khatha in their respective properties. It is also an
allegation in the complaint that the petitioner has obtained the
khatha in respect of GF-1 and GF-2 for which the respondent is
the owner and the petitioner has misrepresented the authority
concerned in order to cheat the respondent and has obtained the
khatha of FF-1, FF-2 and SF-1 and the same is contrary to the
sale deeds. But as per the sale deeds executed by the petitioner
in Annexures-G, H and J, the respondent has purchased the flats
in first Floor (FF-1 and FF-2) and second Floor (SF-3), but there
were only two flats in the second floor and the authorities have
transferred the khatha of SF-1 to the name of the respondent.
It is contended that during the course of construction itself, the
respondent insisted to handover the physical possession of the
apartment for her personal stay. By considering the
relationship, the petitioner has put her in possession of GF-2
which was the only flat which was completed at that time, with a
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condition that after completion of her flat she has to move to her
flat, but after completion of her flat also she has refused to move
and on contrary she has occupied GF-1 also. Hence, the
petitioner has issued a notice to the respondent to quit and
vacate and the respondent started foisting false case against the
petitioner.
5. The petitioner approached the Civil Court in
O.S.No.816/2017 for declaration and possession and the same
came to be dismissed and RFA is filed and the same is pending
for consideration. The petitioner has initiated the civil
proceedings and the respondent filed an appeal challenging the
khatha and the same has been cancelled. It is contended that
the respondent has locked the main gate to the apartment and
threatened to put some construction as per her wish to restrain
the petitioner to enter the apartment and hence the petitioner
was forced to file a suit in O.S.No.26292/2020 and the same is
pending for consideration. It is contended that the respondent
has caused one more notice to the petitioner by claiming that
the petitioner has not maintained the apartment by violating the
Court order and also initiated a suit in O.S.No.3974/2021
seeking mandatory injunction.
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6. The learned counsel for the petitioner contend that
initially private complaint was dismissed and the same was
challenged before the City Civil Court in Crl.R.P.No.360/2019
and the same was allowed and the said order was challenged
before this Court in Crl.P.No.3996/2020 and the same was also
dismissed and accordingly the complaint filed by the respondent
was restored and the Trial Judge was pleased to take cognizance
against the petitioner for the offences which have been invoked
in the complaint and hence challenged the same before this
Court. The learned counsel contend that the dispute between
the petitioner and the respondent is purely civil in nature and
registration of the complaint and taking of cognizance is bad in
law. The learned counsel contend that the allegations made by
the complainant will not attract the offences which have been
invoked in the complaint and issuance of summons is perverse.
It is contended that the respondent has suppressed the facts and
misled the Court for taking cognizance. The learned counsel
contend that the Trial Court committed an error in taking the
cognizance and issuing the process. The learned counsel
contend that in terms of the sale deed it is clearly mentioned
that the respondent had purchased the flats in FF-1, FF-2 and
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SF-3 and khatha was also transferred to her name in respect of
FF-1, FF-2 and SF-3. Since there is only two apartments are
sanctioned and built by the petitioner, first flat in second floor is
transferred to the respondent as such there is no cheating to the
respondent. However, the respondent made false allegations
and got issued the process. It is contended that after
construction of flats, the petitioner has applied for khatha in
respect of all the 7 flats and he has affixed his signature in all
the applications and he never put the signature of the
respondent or forged any documents and as such there is no
ingredient for the offence of forgery. The Trial Court failed to
take note of these facts and erroneously taken cognizance and
issued the process and hence it requires interference of this
Court.
7. The learned counsel contend that nothing is
discussed by the Trial Court while taking cognizance and issuing
the process with regard to the ingredients of offences which
have been invoked in the complaint and a bald order has been
passed by the Trial Court in coming to the conclusion that
specific allegation is made in the complaint that the accused has
created the documents as per their wish in order to infringe over
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the right of the complainant in collusion with the revenue
authorities and committed breach of trust, fraud, tampering,
forgery of signatures, cheating, misrepresentation and created
false documents in respect of flats contrary to the purchase. The
Trial Court issued the process in coming to the conclusion that
looking into the contents of the complaint, sworn statement and
documents produced by the complainant, the complainant has
made out a prima facie case to proceed against the accused for
the offences alleged in the complaint and nothing is discussed
with regard to attracting the offences and not found any prima
facie material to proceed against the petitioner and hence it
requires interference of this Court.
8. Per contra, the learned counsel for the respondent
would contend that this is a successive petition and successive
petition invoking Section 482 of Cr.P.C. is not maintainable. The
learned counsel contend that in terms of the sanction plan only
four flats are permitted, but he made it as ground floor, first
floor, second floor and constructed a flat in third floor also. The
learned counsel contend that applications which are filed before
the BBMP produced along with the memo is clear that application
is given in the name of the respondent, but the petitioner herein
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had signed the document in the place of the respondent and not
in place of the property was sold by the owner and mislead the
BBMP and obtained the khatha in respect of the properties. The
learned counsel would contend that the khatha is also obtained
in favour of ground floor premises and there was no any sanction
plan in respect of ground floor and only sanction is with regard
to the stilt and hence the Trial Court has not committed any
error in taking the cognizance and issuing the process. The
learned counsel would contend that though the complaint was
dismissed earlier, the same was challenged and the said order
was set aside by the District Court and the said order is also
challenged before this Court and this Court also confirmed the
same in Crl.P.No.3996/2020 and thereafter the Trial Court
proceeded to pass such an order and hence it does not require
interference of this Court.
9. The learned counsel for the respondent in support of
his arguments relied upon the judgment of the Apex Court in the
case of BHISHAM LAL VERMA v. STATE OF UTTAR PRADESH
reported in AIR ONLINE 2023 SC 1140, wherein the Apex
Court has held that subsequent petition challenging charge sheet
and cognizance order was not maintainable under Section 482 of
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Cr.P.C. on grounds that were available for challenge at the time
of filing first petition.
10. The learned counsel also relied upon the order
passed by this Court in W.P.No.12/2022 dated 26.05.2022,
wherein this Court made an observation that there can be no
qualm at the enunciation of law by the Apex Court as to the
maintainability of the second petition under Section 482 of
Cr.P.C., but only in exceptional cases where there are changed
circumstances. The learned counsel referring this judgment
would contend that there is no changed circumstances.
11. The learned counsel also relied upon the judgment of
the Apex Court in the case of C.P. SUBHASH v. INSPECTOR
OF POLICE, CHENNAI AND OTHERS reported in 2013 AIR
SCW 4014 and contend that question as to whether or not
respondents had forged documents and what offence was
committed by the respondents was a matter for investigation
which could not be prejudged or quashed by the High Court in
exercise of its powers under Section 482 of Cr.P.C. or under
Article 226 of Constitution of India.
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12. The learned counsel also relied upon the judgment of
the Apex Court in the case of MISSU NASEEM AND ANOTHER
v. STATE OF ANDHRA PRADESH AND OTHERS reported in
(2022) 4 SCC 807 wherein it is held that quashment of FIR by
High Court against private respondents on ground that
fabrication of documents is permissible if it does not cause loss
to the revenue, is completely unsustainable.
13. The learned counsel also relied upon the order
passed by this Court in Crl.P.No.12452/2023 dated
03.06.2024, wherein quashing of FIR is sought and the Court
comes to the conclusion that FIR or the complaint cannot be
quashed. There is cognizable case made out in the FIR for
investigating the matter by the police and at this stage, the
Court cannot quash the FIR as there is criminal breach of trust
as well as cheating made by the accused persons in collusion
with each other.
14. The learned counsel also relied upon the judgment of
the High Court of Uttarakhand at Nainital in the case of
COMMERCIAL TOYOTA v. STATE OF UTTARKHAND AND
ANOTHER reported in 2019 SCC Online Utt 749, wherein
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challenge is made to set aside the Revisional Court order
remitting the matter back to the Trial Court to reconsider the
application under Section 156(3) of Cr.P.C. and pass an
appropriate order and the Court held that it is a curable defect
and does not find any merit in the revision and dismissed the
same.
15. The learned counsel referring these judgments would
contend that when the complaint was dismissed earlier, the
same was challenged and set aside and this Court also confirmed
the said order and now the petitioner cannot find fault with the
order of taking cognizance and there is no merit in the petition.
16. In reply to the arguments of the learned counsel for
the respondent, the learned counsel for the petitioner would
contend that there is no forgery in the case on hand and it is not
the case of the respondent that the petitioner had forged her
signature. Even on perusal of the memos which have been
produced, this petitioner has only signed the application and the
same is not in the name of the respondent and he had signed
the document as he is the owner of the property and the fact
that he is also the owner of remaining flats is also not in dispute
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and it does not attract the offence of forgery and hence it
requires interference of this Court.
17. Having heard the learned Senior Counsel for the
petitioner and the learned Senior Counsel for the respondent and
also considering the principles laid down in the judgments
referred supra, this Court has to look into whether the same are
applicable to the facts of the case on hand. Now the question
before this Court is:
(i) Whether this Court can exercise the revisional
jurisdiction against the order of the Trial Court
in taking cognizance and issuance of process?
(ii) What order?
18. Having perused the case of the complainant and also
the grounds urged in the petition and so also the contentions of
the respective learned counsel, first this Court has to see the
impugned order which is under challenge. Before that this Court
would like to make a mention of the earlier order of the Trial
Court and the Trial Court vide order dated 13.03.2019 dismissed
the complaint in coming to the conclusion that there are no
sufficient grounds made out by the complainant to issue process
against the accused. Admittedly, the same was challenged and
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the said order was set aside and this Court also confirmed the
order of the Revisional Court in coming to the conclusion that
there is an allegation of forgery in the complaint and thereafter
the Trial Court proceeded to pass the impugned order.
19. This Court would like to see the reasoning of the
Trial Court while issuing the process by taking the cognizance
against the petitioner. No doubt, the contents of the complaint,
sworn statement and also the copy of the sale deeds are taken
note of in paragraph No.10. In paragraph No.11, the Trial Court
has taken note of the sale deed as well as challenging the
khathas issued by the BBMP authorities and also transferring of
the flats in favour of the petitioner in respect of GF-1 and GF-2
and also transferring of the khatha in respect of FF-1, FF-2 and
SF-1 in favour of the respondent. The Trial Court also taken
note of the dismissal of the suit filed by the petitioner in
O.S.No.816/2017. In paragraph No.12, the Trial Court having
taken note of the contention of the complainant that the accused
has created the documents in collusion with the revenue
authorities comes to the conclusion that the accused has
committed breach of trust, fraud and tampering, forgery of
signatures, cheating, misrepresentation and created false
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documents and also comes to the conclusion looking into the
contents of the complaint, sworn statement and documents
produced by the complainant that the complainant has made out
a prima facie case. This Court would like to extract paragraph
No.12 of the Trial Court's order which reads as follows:
12. It is the contention of the complainant that,
the accused has created the documents as per their
wish in order to infringing over her right. The
accused in collusion with the revenue authorities has
committed breach of trust, fraud and tampering,
forgery of signatures, cheating, misrepresentation
and created false documents in respect of her flats
contrary to the purchase. So looking to the contents
of the complainant, sworn statement and documents
produced by the complainant, I am of the opinion
that, the complainant has made out prima-facie case
to proceed against the accused for the offences
alleged in the complaint. So, there are sufficient
grounds made by the complainant to issue process
against the accused. Hence, I answer point No.1 in
the affirmative."
20. Having perused the above paragraph, except stating
the allegations made in the complaint and coming to the
conclusion that the complainant has made out a prima facie
case, nothing is discussed while taking the cognizance for all the
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offences which have been mentioned in the complaint. Whether
the act of the petitioner attracts the ingredients of Sections 193,
405, 415, 419, 420, 463, 464 and 468 of IPC or not, nothing is
discussed. A cryptic order has been passed by just mentioning
that looking into the contents of the complaint, sworn statement
and the documents produced by the complainant, the
complainant has made out a prima facie case. What are the
material looked into to invoke all of these offences, nothing is
discussed and while coming to such a conclusion, atleast would
have mentioned the offences which could be invoked against the
petitioner and no reasoned order has been passed. Taking of
cognizance and issuance of process is subjecting a person to
face criminal prosecution and while subjecting him for criminal
prosecution, there must be a prima face material and to that
effect, a discussion should be made in the order of the Trial
Court and no need to pass a detailed order, but there must be
some reference for invoking of such offences to take cognizance
and proceed against the petitioner. Having perused the order
impugned, it suffers from legal infirmity and no discussion at all
to invoke all the offences and a bald statement is made that
sufficient grounds are made out by the complainant to issue
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process against the accused for the offences alleged in the
complaint. Hence, the order impugned requires interference to
set aside the order and the Trial Court to pass an order
considering the material on record to issue process against the
accused.
21. It is important to note that the offences invoked are
under Sections 193, 405, 415, 419, 420, 463, 464 and 468 of
IPC. Admittedly, the documents which have been produced
before this Court i.e., Annexures-G, H and J are clear that the
respondent purchased the flats in F-1 and F-2 and the same is
described in the sale deed itself and in respect of third sale deed
dated 03.05.2014, flat No.3 is mentioned in second floor.
Admittedly, there is no flat No.3 in the second floor and there
are only two flats. Annexure-K letter issued by the BBMP dated
02.05.2015 discloses the flats and the same is in respect of
ground floor, first floor and second floor and one flat in third
floor. Annexure-K discloses that the name of the
respondent/complainant is mentioned in respect of FF-1, FF-2
and SF-1 and mistakenly flat No.3 is mentioned in respect of
second floor and the same is transferred in respect of second
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floor flat No.1. If any mistake in the sale deed, the same can be
rectified. The Trial Court also take note of whether it amounts to
invoking the offences which have been invoked in the complaint
and nothing has been discussed. The documents Annexures-Z1
to Z4 which have been produced by the learned counsel for the
petitioner is also produced by the learned counsel for the
respondent along with the memo and the said applications are in
respect of FF-1, FF-2, SF-1 and SF-2 and one flat in third floor.
Admittedly, these applications are signed by the original owner
and not by the complainant/respondent and ought not to have
signed these documents in the place wherein the purchaser has
to sign. Instead of he ought to have signed the same in the
present khathedhar and who sold the property, but there is a
mistake in seeking for transfer of khatha on behalf of the
purchaser Smt.G.Vijaya Lakshmi i.e., the respondent. Though it
is alleged that the petitioner herein signed and forged the
signature of Smt.G.Vijaya Lakshmi, but the documents reveals
that it is the signature of the earlier khatha holder and also the
owner and not purchaser. It appears that the petitioner has not
signed the document as Smt.G.Vijaya Lakshmi, but he has
signed in the place where the purchaser name ought to have
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been shown and signed by the purchaser and got transferred the
khatha and the same amounts to forgery or not, has to be
looked into by the Trial Court to invoke the offence of forgery.
There is a force in the contention of the learned counsel for the
petitioner that the petitioner had not forged the signature of the
complainant/respondent, but he had signed the said application
by mistake in the place of the purchaser and the fact that other
flats are standing in the name of the owner is not in dispute.
22. It is important to note that the
respondent/complainant approached the BBMP and got cancelled
the khatha made in favour of the petitioner as well as in favour
of the respondent. Admittedly, the khatha is made in respect of
FF-1 and FF-2 which the complainant had purchased, but only
correction in respect of flat No.3 in second floor and the same is
made as flat No.1 of second floor and admittedly there is no
existence of flat No.3 in the second floor. When such being the
case, whether the allegations made in the complaint amounts to
initiation of criminal proceedings or not, ought to have been
taken note of by the Trial Court and no detailed order has been
passed and general reference was made in the order that prima
facie case is made out to proceed against the accused. This
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Court has already observed that setting of criminal motion
against the petitioner and directing the petitioner to face the
criminal prosecution is a serious matter and the Trial Court has
to apply its mind and pass appropriate order in view of the
observations made by this Court.
23. No doubt, the learned counsel for the respondent
relied upon the judgment of the Apex Court in the case of
Bhisham Lal Verma (supra), wherein it is held that subsequent
petition challenging charge sheet and cognizance order was not
maintainable under Section 482 of Cr.P.C. on grounds that were
available for challenge at the time of filing first petition. It has
to be noted that earlier petition is filed challenging remanding
the matter for fresh consideration when the complaint was
dismissed and not challenged the very initiation of the
proceedings and now only the petition is filed against taking of
cognizance and issuance of process and the same cannot be
termed as second petition as contended by the learned counsel
for the respondent. The order passed by this Court in
W.P.No.12/2022 (supra) also does not come to the aid of the
respondent, wherein it is held that Section 482 of Cr.P.C. can be
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invoked in second petition in exceptional cases where there are
changed circumstances. In the case on hand also there are
changed circumstances, earlier approach is with regard to
setting aside of the order of dismissal of the complaint and now
the changed circumstance is taking of cognizance and issuance
of process. The judgment of the Apex Court in the case of
C.P.Subhash (supra) is with regard to investigation is
concerned which could not be prejudged. But in the case on
hand, the sworn statement was recorded by the Trial Court
taking cognizance and thereafter proceeded for issuance of
process. Hence, the said judgment is also not applicable to the
facts of the case on hand. The judgment of the Apex Court in
the case of Missu Naseem (supra) is with regard to quashing of
the FIR. But in the case on hand, it is not with regard to
quashing of FIR. In the order passed by this Court in
Crl.P.No.12452/2023 (supra), prayer is sought for quashing of
FIR and so also in the judgment of Uttarkhand High Court in the
case of Commercial Toyota (supra) also for quashing of FIR.
In the case on hand, at the first instance the complaint was
dismissed and the same was challenged and the same has been
set aside and confirmed by this Court. Now the Trial Court after
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having recorded the sworn statement and considering the
material on record, taken the cognizance and proceeded to issue
process by summoning the accused. Hence, these judgments
will not come to the aid of the respondent. Hence, I answer the
point in the affirmative.
24. In view of the discussions made above, I pass the
following:
ORDER
(i) The criminal petition is allowed.
(ii) The impugned order is set aside and the
matter is remitted back to the Trial Court for
fresh consideration in accordance with law in
view of the observations made hereinabove.
Sd/-
(H.P. SANDESH)
JUDGE
MD
