Karnataka High Court
Narasimhan vs The State Of Karnataka on 28 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
R
DATED THIS THE 28 DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1652/2024
BETWEEN:
1. NARASIMHAN
AGED ABOUT 81 YEARS
S/O. MUNIVENKATAPPA
RESIDING AT NO.280
2ND MAIN, MUTHYALANAGAR
BANDAPPA COLONY
M.E.S. ROAD
BENGALURU-560 097. ... PETITIONER
(BY SRI. S.V.BHAT, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH YESHWANTHAPURA POLICE STATION
REPRESENTED BY ITS SPP
HIGH COURT BUILDING
BENGALURU-560 001
2. SRI. VENUGOPALA J.,
S/O LATE K. JAGANNATH
AGED ABOUT 49 YEARS
R/AT NO.50, 39TH CROSS
DODDABASTHI
BENGALURU-560079
NOW WORKING IN AUSTRALIA
(AMENDED VIDE COURT ORDER DATED 31.01.2025)
2
... RESPONDENTS
(BY SRI. CHANNAPPA ERAPPA, HCGP FOR R1;
SRI. VENUGOPALA J.,PARTY-IN-PERSON FOR R2 -THROUGH VC)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.PC (FILED U/S 438 R/W 442
BNSS) PRAYING TO SET ASIDE THE ORDER OF CONVICTION
AND EXECUTION OF SENTENCE RECORDED IN
C.C.NO.26147/2016 ON THE FILE OF HONBLE XXIV ADDL. CMM,
BENGALURU, DATED 06.08.2021 AS WELL AS THE ORDER OF
CONFIRMATION CRL.A.NO.543/2021 DATED 05.11.2024 ON THE
FILE OF THE LXVII ADDL. DISTRICT AND SESSIONS JUDGE.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 18.03.2025 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
1. Heard learned counsel for the petitioner, learned High
Court Government Pleader for respondent No.1 and party-in-
person respondent No.2.
2. This revision petition is filed by the accused praying
this Court to set aside the order of conviction and sentence
passed in C.C.No.26147/2016 on the file of XXIV Additional Chief
Metropolitan Magistrate dated 06.08.2021 and judgment of
confirmation passed in Crl.A.No.543/2021 dated 05.11.2024 on
the file of LXVII Additional City Civil and Sessions Judge,
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Bengaluru City and pass an order of acquittal and grant such
other relief.
3. The factual matrix of case of the prosecution is that the
accused had entered into a sale agreement with one
Smt. Sharada in respect of Site No.25, carved out of Survey
No.138, 80 Feet Road, Mathikere, Bengaluru. Subsequently, the
accused has filed the suit in O.S.No.4483/2005 and obtained an
exparte decree. It is also the case of the
complainant/prosecution that on 13.06.2016 at about 11.30
a.m., the accused came along with C.W.7 to the site of
C.W.1/complainant bearing No.24A, which consisted of building,
took possession of the same by suppressing the real fact that he
has obtained decree in respect of Site No.25 with an intention to
cause unlawful loss to the C.W.1/Complainant. Thereby, the
accused has committed the offence punishable under Section
177, 182 and 420 IPC.
4. Before filing the charge-sheet, complainant filed
private complaint invoking the offence under Sections 420, 467,
355 and 468 read with Section 120 IPC and learned Magistrate
referred the matter under Section 156(3) Cr.P.C. and the
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Investigating Officer having registered Crime No.333/2016 filed
the charge-sheet for the offence under Sections 177, 182 and
420 IPC. The learned Magistrate took cognizance for the above
offence and issued summons to accused and released the
accused on bail and the Trial Court framed charges, since the
accused did not plead guilty and claims for trial.
5. The prosecution, in order to prove the case examined
the witnesses as P.Ws.1 to 7 and got marked the documents as
Exs.P1 to P53. The accused was subjected to 313 statement and
accused examined himself as D.W.1 and got marked the
documents as Exs.D1 to D20.
6. The Trial Court having considered evidence of P.Ws.1
to 7 and documentary evidence i.e., Exs.P1 to P53 as well as
evidence of D.W.1 and documentary evidence of Exs.D1 to D20,
comes to the conclusion that the accused with an intention to
deceive the Complainant had indulged in taking possession of
the property belonging to P.W.1 bearing No.24A on the guise of
claiming right in respect of site No.25 and also taken note of the
fact that though decree was in respect of different property, got
amended the property of the accused i.e., as Municipal No.17,
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and mislead the Court Ameena identifying the property of P.W.1
as the property of the accused and forcibly thrown out the
tenants, who are in possession of the property of P.W.1. Having
considered the voluminous documents placed on record, P.W.4-
Court Ameena categorically deposed that he ought to have
delivered possession in respect of Site No.25, but the accused
showed the building as Site No.25 and he also deposed that in
view of the order passed by the Court to deliver possession with
the assistance of the Police, he had delivered the property to the
accused, since the accused identified the property No.24A as
property No.25 and hence Trial Court convicted and sentenced
him to undergo simple imprisonment for a period of one year for
the offence under Section 420 IPC with fine of Rs.5,000/- and in
respect of the offence under Sections 177 and 182 IPC, ordered
to undergo simple imprisonment for a period of one month.
7. Being aggrieved by the said order of conviction and
sentence, criminal appeal was filed in Crl.A.No.543/2021 and the
Appellate Court also having considered the factual aspects of the
case, evidence available on record and also the grounds urged in
the appeal memo, formulated the point whether the accused has
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made out sufficient grounds to interfere with the impugned
judgment and order of sentence passed by the Trial Court.
Having reassessed both oral and documentary evidence placed
on record, the Appellate Court confirmed the judgment of the
Trial Court having considered the documentary evidence,
particularly the order passed in Execution No.871/2008 on the
application filed by P.W.1 invoking Order 21 Rule 99 and also the
confirmation order passed by this Court in R.F.A and particularly
taking note of evidence of P.W.4-Bailiff, who gave the evidence
before the Court that the decree holder misled the description of
the property and obtained the possession of the property. P.W.4
also categorically deposed that accused had shown property
No.24A belonging to complainant and wrongfully got vacated the
tenants of P.W.1 from the building and obtained wrongful
possession of the property of Site No.25, even though accused
was fully aware that it is not property No.25 and he had entered
into an agreement of sale in respect of vacant property and not
in respect of the building and it is also not the case of the
accused that either he had constructed or his vendor had
constructed the building, he ought not to have obtained
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possession in respect of the building in which tenants were in
occupation and induced the Court Ameena and by deceiving, he
obtained delivery of the property which belongs to P.W.1. The
act of the appellant clearly goes to show that he has committed
deception, dishonest concealment of fact and cheating. The
Appellate Court comes to the conclusion that Magistrate has
rightly held that accused is guilty of the offences and confirmed
the judgment of conviction and sentence. Being aggrieved by
the concurrent finding, the present revision petition is filed
before this Court.
8. The main contention of learned counsel for the
petitioner is that he had filed a suit in O.S.No.4483/2005 against
his vendor for the relief of specific performance and the same
was decreed, since the defendant did not contest the matter and
the Court granted the relief directing the defendant to receive
the balance sale consideration within three months from the date
of judgment and if the defendant failed to comply the order, the
petitioner was permitted to move the Court to execute and
register the sale deed and accordingly, he had filed an execution
petition and notice issued to the judgment debtor was returned
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as not claimed and hence, petitioner deposited the balance
consideration and obtained the sale deed and thereafter, filed
the application seeking delivery of possession and took
possession subsequently and earlier it was returned that the
tenants have obstructed for delivery of possession and with the
police help only took possession of the property.
9. Learned counsel would contend that one
Sri Masilamani claiming to be power of attorney holder of one
Venugopal has filed an application claiming right in respect of
the property under Order 21 Rule 99 without producing power of
attorney and the same was entertained and the Executing Court
erroneously allowed the application and ordered for redelivery of
possession of the property to the objector and the same was
challenged in R.F.A.No.133/2018 and the same was dismissed.
Hence, appeal was filed before the Apex Court in Dairy
No.57172/2024 which is likely to be listed. Learned counsel also
would vehemently contend that P.W.1 has filed private complaint
before the Magistrate invoking several offences and matter was
referred under Section 156(3) Cr.P.C. and thereafter charge-
sheet was filed and Investigating Officer did not notice that
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dispute is civil in nature. The petitioner on receipt of summons
appeared and did not plead guilty. However, the Trial Court
considering the evidence of P.Ws.1 to 7 and documentary
evidence, even though no documents were produced to establish
title as claimed by P.W.1, committed an error in convicting and
sentencing and the Appellate Court also committed an error in
confirming the same.
10. Learned counsel for the petitioner in support of his
argument, mainly concentrated on the dispute with regard to the
identity of the property. He contend that he had purchased site
bearing No.25 measuring 38 x 14 which was formed in
Sy.Nos.60 and 138 for the sale consideration of Rs.2,50,000/-
and paid Rs.20,000/- and Rs.80,000/- and balance was
Rs.1,50,000/- and the vendor did not come forward to execute
the sale deed. Hence, he filed the suit in O.S.No.4483/2004 and
the same was not contested by his vendor and suit was decreed
and Execution Petition was filed and sale deed was also executed
by the Court and got amended the schedule. Learned counsel
also would vehemently contend that vendor's vendor of P.W.1
was also witness to agreement executed by Sharada and her
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children. Learned counsel also would vehemently contend that
identity of the property is doubtful and possession delivered by
Court Ameena is in respect of the property which he had
obtained the sale deed. Learned counsel also mainly relied upon
the document Ex.D3 and so also partition deed dated
22.03.1986 and contend that the same was tampered. Learned
counsel would contend that Atmaram, the vendor of P.W.1 was
not allotted any such property. Learned counsel would
vehemently contend that written statement was filed in detail
and site No.24A is not allotted to Atmaram and Ex.D13 sale deed
boundary is very clear and Ex.D14 is also in respect of the same
boundary and Atmaram not having right.
11. Learned counsel would vehemently contend that when
the application filed under Order 21 Rule 99 was pending, at that
juncture itself filed the complaint and cognizance was taken.
Learned counsel would vehemently contend that Magistrate has
no power to take cognizance for the offence under Sections 177
and 182 IPC.
12. Learned counsel for the petitioner, in support of his
argument, relied upon the judgment in DAULAT RAM VS.
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STATE OF PUNJAB reported in AIR 1962 SC 1206 and relied
upon paragraph No.3 and contend that question is therefore
whether under the provisions of Section 195, it was not
incumbent on the Tehsildar to present a complaint in writing
against the appellant and not to leave the Court to be moved by
the Police by putting in a charge-sheet. The words of Section
195 of the Criminal Procedure Code are explicit, "(1) No Court
shall take cognizance of any offence punishable under Sections
172 to 188 of the Indian Penal Code, except on the complaint in
writing of the public servant concerned, or of some other public
servant to whom he is subordinate." The words of the section,
namely, that the complaint has to be in writing by the public
servant concerned and that no Court shall take cognizance
except on such a complaint clearly show that in every instance
the Court must be moved by the appropriate public servant. The
words "no Court shall take cognizance" have been interpreted on
more than one occasion and they shown that there is an
absolute bar against the Court taking seisin of the case except in
the manner provided by the section. Now, the offence under
Section 182 of the Penal Code, if any, was undoubtedly complete
12
when the appellant had moved the Tehsildar for action. Section
182 does not require that action must always be taken if the
person who moves the public servant knows or believes that
action would be taken.
13. Learned counsel also relied upon the judgment in
PATEL LALJIBHAI SOMABHAI VS. THE STATE OF GUJARAT
reported in 1971 (2) SCC 376 and brought to notice of this
Court paragraph Nos.6 to 10, wherein discussion was made with
regard to prescribing the procedure in cases mentioned in
Section 195(1)(b) and (c), also bearing in mind that under
Section 476-A, a superior Court is empowered to complain when
the subordinate Court has omitted to do so and that Section
476-B confers on an aggrieved party a right of appeal from an
order refusing to make a complaint under Section 476 or Section
476-A as also from an order making such a complaint and
detailed discussion was made to that effect. In paragraph No.10,
it is observed that, broadly speaking we are inclined to agree
with the reasoning of the Allahabad Full Bench. The purpose and
object of the Legislature in creating the bar against cognizance
of private complainants in regard to the offences mentioned in
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Section 195(1)(b)(c) is both to save the accused person from
vexatious or baseless prosecutions inspired by feelings of
vindictiveness on the part of the private complainants to harass
their opponents and also to avoid confusion which is likely to
arise on account of conflicts between findings of the Courts in
which forged documents are produced or false evidence is led
and the conclusions of the criminal Courts dealing with the
private complaint.
14. Learned counsel also relied upon the judgment in
M/S. BANDEKAR BROTHERS PVT. LTD. AND ANR. VS.
PRASAD VASSUDEV KENI, ETC. ETC. reported in AIR 2020
SC 4247. The counsel referring this judgment brought to notice
of this Court principles laid down in the judgment as regards
maintainability of private complaint under Sections 191 and 192
is not maintainable, even if false evidence is created outside
Court premises.
15. Learned counsel also would vehemently contend that
both the Courts have not properly considered the title of P.W.1
in Execution Petition No.871/2008 and R.F.A. and the Trial Court
ought not to have taken cognizance and learned counsel would
14
contend that it requires interference of this Court by exercising
revisional jurisdiction.
16. Per contra, respondent No.2, party-in-person would
vehemently contend that private complaint was filed invoking
the offence under Section 420 IPC and other allied offences and
not invoked the offence under Sections 177 or 182 IPC in his
complaint and Investigating Officer filed the charge-sheet
invoking those offences leaving other allied offences, except
Section 420, 177 and 182 IPC. He would vehemently contend
that Ex.P51 is the letter to BBMP, Ex.P52 is the reply and Ex.P53
corresponds with regard to the said documents. He would
vehemently contend that evidence of P.W.4 was considered by
both the Courts as he deposed the wrong identification of the
property at the time of executing the warrant and he says that
property No.24A was identified by the accused as property
No.25. He would vehemently contend that the Trial Court taken
cognizance after filing of the charge-sheet for the offence under
Section 420 as well offence under Section 177 and 182 IPC and
he brought to notice of this Court order sheet dated 25.11.2016.
He also would vehemently contend that incident was taken place
15
on 13.06.2015 and both P.W.1 and also accused are strangers
and committing of the offence is the cause of action for initiating
the criminal case.
17. In support of his argument, the respondent No.2-
party-in-person relied upon the judgment in SYED ASKARI
HADI ALI AUGUSTINE IMAM AND ORS. VS. STATE (DELHI
ADMN.) AND ORS. reported in AIR 2009 SC 3232 and
contend that took possession within the jurisdiction of the Court
and contend that crime has taken place within Yeshwanthapur
Police Station and hence, learned XXIV Additional Chief
Metropolitan Magistrate has taken cognizance, since property
comes within the purview of the said Court and wrongly taken
possession by misleading the Court Official. He would
vehemently contend that accused entered into a sale agreement
in 2001 in terms of Ex.D4 and the same is also unregistered sale
agreement and he suppressed the earlier sale agreement and
suit is filed based on subsequent sale agreement. Ex.D4 is
signed by minor, who is 16 year old and mother also not taken
any permission to sell the property in favour of the accused. He
would vehemently contend that Ex.P55 is the deposition of the
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appellant in Execution No.871/2008 and there was an admission.
ExD7 was filed for amendment after the decree with an intention
to take property of P.W.1. He would further contend that Ex.P8
is the sale deed which is obtained after amendment through
Court, that too by misleading the Court. He also would contend
that Exs.P39 to P42 discloses that when an application was filed,
rejected to transfer the khatha.
18. It is contended that when the delivery warrant was
sought, the same was objected by judgment debtor No.3
contending that decree is in respect of vacant site and filed the
report saying that judgment debtor No.3 is objecting. But, says
that third party is objecting the same. Hence, reissued the
delivery warrant and took possession of the property belonging
to him on the ground that third party is in possession. He would
further contend that at the time of taking possession, he was in
Australia and also submits that from 2012 to 2016, he kept quiet
and fraudulently obtained possession within 30 days of
amending the schedule and wrongly mentioned the property
Number as Municipal No.17 which belongs to him and in
collusion with the Bailiff, obtained the report, inspite of objection
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was filed by judgment debtor No.3 and since third parties are in
possession, delivery was given to the accused. He also submits
that departmental enquiry was held against Court Ameena and
he was punished and 11 tenants were thrown out from the
premises. He would further submit that Ex.P13 is the bank letter
regarding mortgaging of the property by the complainant and
legal opinion is also given and he had availed the loan of Rs.30
lakhs.
19. In support of his argument, he also filed the written
submission in respect of contention of petitioner that cannot be
initiated where there is a civil dispute and relied upon the
judgment in MUKHTAR ZAIDI VS. THE STATE OF UTTAR
PRADESH arising out of SLP (CRL) NO.9122 OF 2021
delivered on 18.04.2024 and brought to notice of this Court
discussion made with regard to Section 2(d) the word 'complaint'
and brought to notice of this Court explanation, a report made
by a police officer in a case which discloses, after investigation,
the commission of a non-cognizable offence shall be deemed to
be a complaint; and the police officer by whom such report is
made shall be deemed to be the complainant;" and brought to
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notice of this Court paragraph No.11, wherein it is held that
Magistrate had already recorded his satisfaction that it was a
case worth taking cognizance and fit for summoning the
accused, we are of the view that the Magistrate ought to have
followed the provisions and the procedure prescribed under
Chapter XV of the Cr.P.C.
20. The respondent No.2-party-in-person also relied upon
the judgment passed by the Apex Court in B.N. JOHN VS.
STATE OF U.P. & ANR. reported in (2025) 1 S.C.R. 12 and
referring this judgment, he would contend that in paragraph
Nos.36, 37 and 38, detailed discussion was made what is evident
from the records is that the police entertained the FIR under
Section 353 of IPC and investigated the same by conferring
jurisdiction upon itself as if it is was a cognizable offence as
provided under Section 156 of the Cr.P.C., when commission of
any cognizable offence was not made out in the FIR, which is not
permissible in law. The police added Section 186 of the IPC and
took cognizance of the offence of Section 186 of the IPC along
with Section 353 of IPC when no complaint was made by any
public servant or any Court as required under Section 195(1) of
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the Cr.P.C. In paragraph No.37, it is held that during the
investigation of a cognizable or non-cognizable offence on the
basis of an FIR lodged, new facts emerge that will constitute the
commission of a non-cognizable offence under IPC, in which
event, the police can continue with the investigation of the non-
cognizable offence of which there cannot be any dispute. Thus,
even if it is assumed that in the course of the investigation of a
cognizable offence, the ingredients of a non-cognizable offence
are discovered when the police could have continued the
investigation without the written complaint to the Court or the
order of the Court in respect of such non-cognizable offence, as
it would also be deemed to be a cognizable offence under
Section 155(4) of the Cr.P.C., but where the investigation of the
cognizable offence itself suffers from legal infirmity and without
jurisdiction from the initial stage, the entire investigation would
be vitiated. For this reason, the police cannot seek the shield
under Section 155(4) of the Cr.P.C. when the FIR did not
disclose the commission of a cognizable offence and held that
the offence allegedly committed by the appellant as disclosed in
the FIR can, at best, be that of a non-cognizable offence under
20
Section 186 of IPC, though Section 186 IPC is not even
mentioned in the FIR.
21. The Party-in-Person also relied upon the judgment of
the Apex Court in SRINIVAS GUNDLURI & ORS. VS. M/S.
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION
& ORS. in CRIMINL APPEAL NO.1377 OF 2010, wherein
discussion was made with regard to judgment of TULA RAM &
ORS. VS. KISHORE SINGH against this Court considered order
for investigation under Section 156(3) on a complaint, where a
Magistrate chooses to take cognizance he can adopt any of the
following alternatives.
22. The Party-in-person also relied upon the order passed
in CRIMINAL PETITION NO.151/2024 dated 07.03.2024,
particularly paragraph No.25, wherein this Court relied upon the
judgment of the Apex Court in DALIP SINGH's case, in order to
meet the challenge posed by this new creed of litigants, the
Courts have, from time to time, evolved new rules and it is now
well established that a litigant, who attempts to pollute the
stream of justice or who touches the pure fountain of justice
with tainted hands, is not entitled to any relief, interim or final
21
and detailed discussion was made in paragraph No.27 i.e., the
judgment of the Apex Court in KISHORE SAMRITE VS. STATE
OF UTTAR PRADESH AND OTHERS reported in (2013) 2 SCC
398 and this Court extracted paragraph No.8 of the said
judgment and detailed discussion was made extracting
paragraph Nos.32.1, 32.2, 32.3 and 32.4, quests for personal
gains have become so intense that those involved in litigation do
not hesitate to take shelter of falsehood and misrepresent and
suppress facts in the Court proceedings. He also brought to
notice of this Court paragraph No.29, wherein discussion was
made with regard to the judgment of SCIEMED OVERSEAS
INC. VS. BOC INDIAN LIMITED AND OTHERS reported in
(2016) 3 SCC 70, wherein the Apex Court held that imposition
of exemplary costs filing of false or misleading affidavit,
imposition of cost fully justified of Rs.10 lakh on petitioner for
filing a false or misleading affidavit in Court and also observed
that there is no reason to interfere with the impugned judgment.
23. The Party-in-Person also relied upon the judgment of
the Apex Court in GAUTAM SARUP VS. LEELA JETLY & ORS.
in CIVIL APPEAL NO.1808 OF 2008, wherein discussion was
22
made in paragraph No.19 referring the judgment of
SANGRAMSINH P. GAEKWAR & ORS. VS. SHANTADEVI P.
GAEKWAD (DEAD) THROUGH LRS. & ORS. reported in
(2005) 11 SCC 314, admission made by respondent 1 were
admissible against her proprio vigore and admissions if true and
clear, are by far the best proof of the facts admitted. Admissions
in pleadings or judicial admissions, admissible under Section 58
of the Evidence Act, made by the parties or their agents at or
before the hearing of the case, stand on a higher footing than
evidentiary admissions. The Party-in-Person also brought to
notice of this Court paragraph No.218, wherein also discussion
was made that before an amendment can be carried out in terms
of Order 6 Rule 17 of the Code of Civil Procedure, the Court is
required to apply its mind on several factors including whether
by reason of such amendment the claimant intends to resile
from an express admission made by him and also discussion was
made in RAJESH KUMAR AGGARWAL & ORS. VS. K.K. MODI
& ORS. reported in (2006) 4 SCC 385, while emphasizing on
the underlined principles of Order VI Rule 17 of the Code of Civil
Procedure, in paragraph No.15, it was held that allow all
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amendments that may be necessary for determining the real
question in controversy between the parties provided it does not
cause injustice or prejudice to the other side.
24. The Party-in-Person also relied upon the judgment in
MOTI LAL SONGARA VS. PREM PRAKASH @ PAPPU AND
ANR. in CRIMINAL APPEAL NO.785 OF 2023 and brought to
notice of this Court with regard to taking of cognizance and also
suppression of fact and it was within the special knowledge of
the accused. Any one who takes recourse to method of
suppression in a Court of law, is, in actuality, playing fraud with
the Court, and the maxim supressio veri, expression faisi, i.e.,
suppression of the truth is equivalent to the expression of
falsehood, gets attracted. We are compelled to say so as there
has been a calculated concealment of the fact before the
revisional Court. It can be stated with certitude that the
accused-respondent tried to gain advantage by such factual
suppression. The fraudulent intention is writ large. In fact, he
has shown his courage of ignorance and tried to play possum.
25. The Party-in-Person also relied upon the judgment in
V. SENTHIL BALAJI VS. THE STATE REPRESENTED BY
24
DEPUTY DIRECTOR AND ORS. in CRIMINAL APPEAL
NOS.2284-2285 OF 2023 delivered on 07.08.2023 and
brought to notice of this Court paragraph No.326, wherein it is
observed that in A.R. ANTULAY VS. R.S. NAYAK reported in
(1988) 2 SCC 602, it is observed that it is a settled principle
that an act of the Court shall prejudice no man and also an
observation is made that once judicial satisfaction is reached
that the direction was not open to be made and it is accepted as
a mistake of the Court, it is not only appropriate but also the
duty of the Court to rectify the mistake by exercising inherent
powers. The learned High Court Government Pleader for
Respondent No.1-State would contend that both the courts have
considered the material on record and no grounds are made out
to exercise revisional jurisdiction.
26. In reply to the argument and citations referred by
respondent No.2, party-in-Person, learned counsel for the
petitioner would contend that cognizance is taken without
jurisdiction and ought not to have taken such cognizance and
Section 420 IPC cannot be invoked, when there is a civil dispute
and Court becomes functus officio and when the civil dispute is
25
with regard to identity of the property, there cannot be any
criminal prosecution.
27. Having heard learned counsel for the petitioner,
learned High Court Government Pleader for respondent No.1 and
respondent No.2, party-in-person and having considered the
principles laid down in the judgments referred by learned
counsel for the petitioner and respondent No.2-party-in-person,
the points that would arise for consideration of this Court are:
(1) Whether the Trial Court committed an error in
convicting the petitioner for the offence under
Sections 420, 172, 182 of IPC and whether the
Appellate Court committed an error in
confirming the same and it requires
interference of this Court by exercising the
revisional jurisdiction?
(2) What order?
Point No.(1)
28. Having heard the learned counsel for the revision
petitioner and counsel appearing for respondents and also
considering the grounds which have been urged in the revision
26
petition as well as during the course of argument by the
respective counsel and also Party-in-Person and also the
principles laid down in the judgments, this Court has to consider
the same, since this petition is a revision petition. The scope and
ambit of revision petition is very limited and if any perversity is
found in the finding, then Court can interfere by exercising the
revisional jurisdiction and only its legality and correctness of the
judgment to be considered by this Court.
29. Having considered the material on record, the case of
complainant/respondent before the Trial Court by filing a private
complaint made the accusation that the accused/revision
petitioner entered into a sale agreement with one Smt.Sharada
in respect of site No.25 carved out of Sy.No.138 which is located
at 80 feet road, Mathikere, Bengaluru. The accused had filed a
suit in O.S.No.4483/2004 and obtained a exparte decree. It is
the specific case of the complainant/respondent that while
executing the decree, he took the possession of the property
belongs to the complainant which is bearing No.24A suppressing
the real fact that he has obtained the decree in respect of site
No.25 with an intention to cause unlawful loss to the
27
complainant/PW1. Though complaint was filed invoking offence
under Section 420, 467, 355, 468 r/w 120 of IPC, the Trial Court
referred the matter under Section 156(3) of Cr.P.C. The Police
investigated the matter and filed the charge sheet only for the
offences punishable under Section 177, 182 and 420 of IPC.
30. The main contention of the counsel appearing for the
revision petitioner that the Trial Court ought not to have taken
the cognizance for the said offences. The Court was not having
the jurisdiction and ought not to have entertained the same as
there is a civil dispute and for other offences, private complaint
could not be entertained. The fact that property comes within
the jurisdiction of the Trial Court is not in dispute and the
possession was taken within the jurisdiction of the Trial Court is
not in dispute. The main contention that when the offences
invoked under Section 177 and 182 of IPC, the Trial Court ought
not to have invoked the jurisdiction and taken the cognizance
and taking cognizance is erroneous. The Party-in-Person who is
the complainant mainly contend that cognizance of offence
under Section 177 and 182 of IPC taken along with offence
under Section 420 of IPC. The judicial Magistrate did not tag
28
cognizance exclusively for those offence and also brought to
notice of this Court the discussion made in the judgment relied
by the Party-in-Person. The fact that offence invoked under
Section 420 of IPC is cognizable offence is not in dispute since
the offence of cheating was invoked and also admittedly the
complainant has not filed the private complaint invoking the
offences punishable under Section 177 and 182 of IPC and the
same were invoked by the I.O after the investigation and no
doubt the Trial Court taken the cognizance. It is settled law that
if cognizable offence could be investigated by the I.O and I.O
can also investigate even non-cognizable offences also and the
judgment relied upon by the Party-in-Person referred supra is
aptly applicable to the facts of the case on hand, since the Apex
Court also held in the judgment that a report made by a Police
Officer in a case which discloses, after investigation, the
commission of non-cognizable offence shall be deemed to be a
complaint and the Police Officer by whom such report is made
shall be deemed to be a complaint wherein also discussed the
definition of Section 2(d) of the code in the judgment of Mukhtar
Zaidi case referred by the Party-in-Person and so also in the
29
case of the B.N.John's case referred by the Party-in-Person
discussion was made with regard to even if it is assumed that in
the course of investigation of a cognizable offence, the
ingredients of a non-cognizable offence are discovered then the
Police could have continued the investigation without the written
complaint to the Court or the order of the Court in respect of
such non-cognizable offence, as it would also be deemed to be a
cognizable offence under Section 155(4) of the Cr.P.C, but where
the investigation of the cognizable offence itself suffers from
legal infirmity, but in the case on hand, it is very clear that
cognizable offence also invoked against the petitioner. When
such being the case, the judgment relied upon by the counsel
that is Daulat Ram's case, offence under Section 182 of IPC is
complete even if no action is taken on report and prosecution
under Section 182 of IPC must be on complaint in writing by
Tahasildar will not comes to the aid of the revision petitioner and
so also the judgment of Patel Laljibhai Somabhai referred by
the petitioner since counsel brought to notice of this Court
paragraph Nos.6 and 10 wherein discussed regarding scope is
concerned and here is a case of invoking of both the cognizable
30
offence and I.O invoked the other two offences having found the
material during the course of investigation. The judgment of the
Apex Court in M/s Bandekar Brother Pvt Ltd referred supra,
private complaint filed for offence under Section 191 and 192 is
not maintainable, even if false evidence is created outside Court
premises and the same is not applicable to the case on hand
since in the case on hand, the very case of the
complainant/respondent that committed an offence of cheating
by making fraudulently an application for amending the schedule
property of the complainant even though he got the decree in
respect of site No.25 and on his inception committed the offence
with an intent to knock of the property of the complainant and
hence, the said judgment also not comes to the aid of the
revision petitioner as contended by the counsel appearing for the
petitioner. This above discussion is made with regard to the
question of jurisdiction and taking of cognizance is challenged
before this Court in the revision petition as contended by the
counsel for the petitioner.
31. Now, the question before this Court is with regard to
entertaining the complaint and convicting the accused for above
31
offences. It is not in dispute that the revision petitioner entered
into a sale agreement in respect of vacant site bearing site No.
25 which is formed in part of Sy.No.60 and Sy.No.138 and
measurement is 38 feet, East-West and 14 feet, North-South
with a particular description of boundary and no dispute with
regard to the fact that he had filed the suit for specific
performance in respect of the very same property and obtained
the decree. It is also emerged in the evidence that after
obtaining the decree he has filed execution petition in the year
2008 and the same was pending for a longer period and also
material discloses that warrant was not executed when the 3rd
parties were in possession of the property.
32. It is important to note that subsequently an
application was filed for amendment that is after obtaining the
sale deed and the fact that delivery warrant was issued and the
same was returned unexecuted as the occupants of ground floor
portion were refused to vacate the premises and for a period of
4 years, the same was not executed from 2008 to 2012 and the
same was not vacated and in the year 2011 when the
obstruction was made, did not obtain any order, instead of that
32
an application is filed for amendment of schedule belatedly and
though decree was in respect of the suit schedule which was
disclosed in the original suit, but while amending the same
Municipal No.17 that is the property of the complainant was got
amended and took the possession with the assistance of bailiff
and Police and hence, a challenge was made taking of
possession by filing an application in the very same execution
proceedings under Order 21 Rule 99 of CPC. The Trial Court
having taken note of the material on record and having
dispossessed the complainant's property ordered to re-deliver
the property in favour of the complainant. It is also not in
dispute that the order passed by the Trial Court in Execution
Petition filed under Order 21 Rule 99 of CPC was challenged
before this Court in R.F.A and the same was dismissed and the
said order has been challenged before the Apex Court and the
same is pending for consideration.
33. It is important to note that the main contention of the
counsel appearing for the petitioner is that dispute is with regard
to the identity of the property and the said contention cannot be
accepted for the reason that the executing Court on an
33
application filed by the complainant restored the possession of
the property to the complainant that there was no any dispute
with regard to the identity of the property and the same has
been confirmed by this Court. It is also important to note that
the Trial Court taken note of evidence of PW3 regarding
confirmation of ownership and possession of site No.24A which
belongs to the complainant and also taken note of evidence of
PW1 and evidence of PW7 who speaks about the ingredients of
offence under Section 420, 177, 182 of IPC since there was an
admission and the Court Ameena who has been examined as
PW4 and categorically deposed before the Court that the accused
deliberately identified the property of the complainant and the
victim/complainant also re-iterates the same with an intention to
deceive the property to deliver to other which belongs to the
complainant, he represented before the PW4 and made him to
believe that property belongs to the revision petitioner even
though the same belongs to the complainant. The accused is not
having any right in respect of Municipal No.17 to his site No.25
and Municipal No.17 belongs to the complainant and the same is
spoken by the PW3 employee of BBMP who deposed before the
34
Court and also it is emerged during the course of evidence that
Property No.25 is Municipal No.16 and the same is in possession
of one Madusudhan even the petitioner admits that the vendor of
the complainant built the building and he is in possession of the
vendor of the complainant and document Ex.P39 to Ex.P41
discloses the same, but falsely claims that they were in
possession and obtained the delivery warrant and admittedly he
entered into an agreement of sale in respect of vacant site and it
is not the case that his vendor had constructed the building and
also it is not the case of the revision petitioner that he put up the
construction, but taken the possession of the premises which
consists of ground floor, first floor and second floor and thrown
out who were in occupation and who are the tenants of the
complainant and there is no any explanation on the part of the
petitioner with regard to taking of possession of constructed
building though he entered into an agreement of sale in respect
of vacant site. These are the materials taken note of by the Trial
Court while considering the material on record. The Trial Court in
depth discussed the case of the complainant and also the
accused and taken note of answer elicited from the mouth of
35
PW4, in paragraph No.33 discussed and even extracted the
evidence of PW4 that he ought to have delivered the possession
of site No.25 but decree holder claimed that the building belongs
to him and there is an order to break open the door and
possession was given to him and only as per the information
given by the accused he made believed the Court Ameena that
site No.24A is the site No.25 as per the orders of the Court,
possession was given. If the accused has not shown the property
as site No.25, definitely the Court Ameena would have ventured
to enquire the tenants and other neighbors about the identity of
the property and then he satisfied, he should have delivered the
property for variation of the property number, he should have
returned the warrant to the Court.
34. It is also important to note that earlier 3rd parties have
objected and he gone to the extent of amending that the
schedule mentioning the property number as No.17 and the
same has been discussed in detail and comes to the conclusion
that property Municipal No.17 and PID No.2.103-17 is in respect
of site No.24-A and new municipal number is No.17 and Trial
Court also taken note of this fact into consideration and also
36
observed that though the accused being the agreement holder of
the property bearing site No.25 and obtained the decree from
the Court at the time of taking the possession in execution
proceedings, he has induced the Court Ameena to deceive to
deliver the property of the complainant and hence, taken note of
ingredients of Section 415 of IPC and comes to the conclusion
that taken the possession with an intention to deceive the
complainant's property and also discussed in detail that the
accused being the decree holder legally bound to furnish the
information to the Court Ameena at the time of delivery of
property, but he has given false information to the Court
Ameena that property of complainant is the property obtained
under decree and made him to hand over its possession and also
taken note of giving of false information attracts the ingredients
of Section 177 of IPC and similarly Section 182 of IPC also, the
accused has given the false information to the Court Ameena
and made him to hand over the possession of the property of the
complainant and hence, taken note of ingredients of Section 182
of IPC attracts. The Trial Court taken note of the very conduct of
the accused who intentionally got it amended the judgment and
37
decree inserting the Municipal No.17 as the same is the property
belongs to the complainant even though his Municipal number is
16 and the same is also taken note of by the Trial Court in page
No.31, considering the evidence of PW3 who is the official of
BBMP, he has deposed about the same and also taken note of
unequivocal evidence of PW4 who gave the evidence before the
Trial Court that he only identified the property of the
complainant belongs to him and in a deceitful manner, taken the
possession that too in respect of constructed building though he
claims that he had purchased the vacant site. The Trial Court
also discussed the same with regard to the ingredients of Section
415 of IPC and also invoking of Section 420 of IPC and also
invoking of Section 420 of IPC and extracted the proviso of
Section 415 of IPC as well as 420 of IPC in paragraph No.23 and
24 and detailed discussion was made and finding was given
based on the material on record.
35. The First Appellate Court also having re-assessed both
oral and documentary evidence placed on record formulated the
point whether the appellant made out a ground to interfere with
findings of the Trial Court and taken note of evidence of each of
38
witnesses and particularly the finding given by the Trial Court in
execution petition No.871/2008 in page No.29 of the said order
and the same is also extracted in paragraph No.24 that decree
holder has obtained decree in respect of property which was not
existing as on the date of suit and also subsequent to decree,
the decree holder has got amended the schedule of the property
by misleading the Court and obtained the sale deed on the basis
of said schedule and he has obtained possession of the property
belonging to the objector and also an observation is made that
an objector is entitled for re-delivery of the property as prayed
and also taken note of the measurement of the property claimed
by the decree holder which measures East - West 38 feet and
North-South 40 feet whereas the objector property bearing site
No.24, Municipal No.17 measures in all 742 sq.ft and also an
observation is made that the decree holder on the basis of
misleading description of the property has obtained the
possession of the property in paragraph No.25 and also
discussed with regard to finding of Trial Court as well as the
judgment of this Court passed in R.F.A.No.133/2018 and this
Court held that judgments are not required to be consider since
39
the evidence and the documents are admitted documents and
admitted facts and the property claimed by the plaintiff through
is all together different from the property in possession of the
respondent No.4 which was purchased by him through his
vendor and hence, it does not requires interference of passing of
an order under Order 21 Rule 99 of CPC, the same also
discussed in paragraph No.26 of the First Appellate Court order
and even in paragraph No.27 also in detail discussed about
taking of wrongful possession of the property of site No.24-A
even though the accused was fully aware that it is not the
property No.25 for which he had entered into an agreement of
sale. The First Appellate Court also taken note of the
appellant/accused has not only misrepresented the Court
Ameena, even though he visited the spot, he intentionally
identified the wrong property as his own and also an observation
is made that the revision petitioner has not placed any evidence
to show that his vendors had built the building and had given for
rent and detailed discussion was made knowingfully well
obtained the possession of the property which is not belongs to
40
him and also sale agreement is in respect of vacant site and not
the building, but possession was taken in respect of the building.
36. Having considered the finding of the Trial Court and
also the finding of the First Appellate Court and particularly
taken note of both oral and documentary evidence placed on
record and PW3 categorically deposed that the possession of
property was taken belongs to the complainant and categorically
deposed that property Municipal number is 17 and not Municipal
No.16 and got amended the same as 17 by filing an application
for amendment and obtained the possession misleading the
Court and also the Court Ameena and it is nothing but fraud on
the Court in collusion with the Ameena. The fact that disciplinary
proceedings also taken against the Ameena is not in dispute and
held affirmative and the fraud and justice should not dwell
together. Having considered the material on record, it is nothing
but fraud on the Court by got amending the schedule of property
belongs to the complainant, though the decree was altogether is
different in respect of the property of the revision petitioner and
knowingfully well that he entered into an agreement of sale in
respect of vacant site and also obtained the decree in respect of
41
the same, but subsequently got amended the same when the
third parties have objected the same and did not bring to the
Court notice that when he had put up the constructions or
whether his vendor had put up the constructions, but possession
was taken in respect of the building and hence, it is clear that at
the inception with an intention to take the possession of the
property of the complainant, got amended the decree and for a
period from 2012 to 2016, he did not execute the decree when
the same was objected in 2011 itself by the third parties and
only in the year 2016 got the possession of the property,
subsequently got amended the schedule and taken note of all
these factors into consideration by the Trial Court and also the
First Appellate Court and detailed discussion was made and there
was no any perversity in the finding of the Trial Court and
finding was given based on both oral and documentary evidence
placed on record and hence, the scope of the revision is also
very limited and this Court already made it clear that in the
absence of any perversity, the scope of revision is very limited
and the finding is also given based on oral and documentary
evidence, particularly PW4 deposed before the Court
42
unequivocally that the accused/revision petitioner identified the
property at the time of execution of delivery warrant as the
same is property No.25 and even though knowingfully well that
the same belongs to the complainant and property is site No.24-
A and when such material available on record, the very
contention of the counsel that there is a dispute with regard to
the identity of the property cannot be accepted.
37. The other contention of counsel appearing for the
revision petitioner that Athmaram was witness to the agreement
in respect of agreement executed by Smt.Sharada and children,
even assuming that he was a witness and the same is in respect
of property No.25 and not in respect of property No.24A and the
very contention that Ameena has delivered the possession of the
property of the revision petitioner cannot be accepted. No doubt
he had obtained the sale deed and material also discloses that
the agreement is in respect of vacant site and Ex.D13 and
Ex.D14 relied upon by the counsel appearing for the revision
petitioner and also the other contention that pending application
under Order 21 Rule 99 of CPC, the Trial Court entertained the
complaint. There was no any bar to entertain the complaint
43
when the specific materials are placed before the Trial Court for
having committed the offence. The fact that Magistrate also
taken cognizance and he had invoked Section 156(3) of Cr.P.C
referring the matter to the I.O and I.O only investigated the
matter and filed the charge sheet after collecting the material
during the course of investigation. The very contention that the
Trial Court ought not to have taken cognizance cannot be
accepted for the reason that at the time of cognizance only the
Court has to take note of whether the material collected by the
I.O, prima facie shows a triable case and taken the cognizance
taking into note of material available on record since possession
of the property belongs to the complainant was taken and during
the course of evidence also before the Trial Court taken note of
by the Trial Court as well as the First Appellate Court and also
the first report of the bailiff is very clear that third parties are in
possession of the property and also case of complainant is that
at the time of taking the possession, he was not in India and he
was in Australia. The fact that the tenants who are in occupation
were thrown out from the premises is not in dispute and
document of sale agreement which is produced before the Court
44
is also very clear that the sale is in respect of vacant site and
sale agreement executed by Smt.Sharada and minor children
and also contend that mother was not taken the permission from
the Court to sell the property belongs to the minor and minor
who was aged about 16 years also signed the same and this
Court cannot go into the very title of the parties is concerned
and only Court has to look into the ingredients to invoke the
offence punishable under Section 420 of IPC and invoking of
other allied offences and Ex.D8 is very clear that the same is
obtained after the amendment and the fact that when the khata
was sought, the same was rejected in view of Ex.P39 to Ex.P42
is evident on record. Having considered the material on record
as re-analyzed by this Court, I do not find any error committed
by both the Courts in invoking Section 420 of IPC and other
offences under Section 177 and 482 of IPC in convicting and
sentencing the revision petitioner since the ingredients of the
offences which have been invoked against him were satisfied and
then only the Trial Court in detail discussed about the
ingredients of Section 420 of IPC and other offences, rightly
comes to the conclusion that accused committed the offences
45
and sentenced to undergo imprisonment. Hence, I do not find
any ground to interfere with the findings of the Trial Court and
hence, I answer the point as 'Negative'.
Point No.(2)
38. In view of the discussions made above, I pass the
following:
ORDER
The criminal revision petition is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
ST/RHS
