Karnataka High Court
Mr. Gundurao Dyneshwar Kadam vs State Of Karnataka, on 9 October, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO.100824/2017
BETWEEN:
1. Mr. Gundurao Dyneshwar Kadam,
Age 32 years, Occ: Agriculture,
2. Mr. Vittal Dyneshwar Kadam,
Age 34 years, Occ: Floor Mill Owner,
Both the petitioners are
R/o. Morab, Tq. Raibag, Dist. Belagavi.
... Petitioners
(By Sri. Neelendra D. Gunde, Advocate)
AND:
1. State of Karnataka,
Kudachi Police Station,
Reptd. By the State Public Prosecutor,
High Court Building, Dharwad - 580001.
2. Sri. Kumar Ganapathi Kadam,
Age 55 years, Occ: Agriculture,
R/o. Morab, Tq. Raibag, Dist. Belagavi.
...Respondents
(By Sri. Praveen Uppar, HCGP for R1;
Sri. A.P.Murari, Advocate for R2)
:2: Crl.P.No.100824/2017
---
This Criminal Petition is filed under Section 482 of
Cr.P.C. seeking to call for the relevant records and to set
aside the order dated 16.03.2017 in C.C.No.225 of 2017
passed by learned Addl. Civil Judge and JMFC, Raibag,
thereby taking cognizance for the offences punishable under
Section 78(iii) of K.P. Act and Registering the Criminal Case
in Registering the Criminal Case in Register No.III for the
offences punishable under Sections 465, 468, 471, 420 of
IPC insofar as petitioners are concerned.
This petition coming on for Admission through physical
hearing/video conferencing hearing this day, the court made
the following:
ORDER
The present petitioners are the complainants against whom the present respondent No.2 has instituted a complaint in the 1st respondent police station in Crime No.244/2013 for the offences punishable under Sections 465, 468, 471 & 420 of Indian Penal Code (for brevity referred to as 'IPC').
2. The summary of the complaint is that the complainant and the accused in the said crime are cousin brothers. The accused by forging and tampering :3: Crl.P.No.100824/2017 the revenue documents pertaining to the property bearing No.868, in Ward No.4 of Moraba village, had falsely obtained an electricity supply sanction and installed and started operating a Flour Mill in the land measuring 2 acres which is said to be belonging to the complainant. The 1st respondent police after investigation have filed the charge sheet for the alleged offences, with respect to which, the learned Addl. Civil Judge & JMFC Court, Raibag (for brevity 'the Trial Court') has taken cognizance. However, in his impugned order dated 16.03.2017, the learned Trial Court Judge has mentioned that the cognizance is taken for the offences punishable under Section 78(iii) of Karnataka Police Act, 1963 (for short 'K.P.Act') and the case was registered for the offences punishable under Sections 465, 468, 471 & 420 of IPC. It is seeking setting aside the said order dated 16.03.2017 passed by the Trial :4: Crl.P.No.100824/2017 Court in C.C.No.225/2017, the accused in the Trial Court have preferred this petition.
3. Learned counsel for the petitioners and the learned HCGP for the respondent No.1 are appearing physically in the Court. Learned counsel for the respondent No.2 is appearing through video conference.
4. Though this matter is listed for admission, however, with the consent from both side, the matter is taken up for its final disposal.
5. The main contention of the learned counsel for the petitioners is that, when there is no whisper about any of the offences falling under Karnataka Police Act, the Trial Court has prima facie committed an error in taking the cognizance among other offences even for the one punishable under Section 78(iii) of K.P.Act. He further submits that, the charge sheet materials and more particularly, the documents furnished by Hubli :5: Crl.P.No.100824/2017 Electricity Supply Company (HESCOM) Authorities to the Investigating Officer, nowhere reveals the alleged forgery or tampering of the document, much less, the revenue records. Learned counsel further submits that, though the complainant claims that even the local panchayat has issued the certificate certifying that he is the owner in possession of the disputed property, but the same is obtained by misusing his capacity as a Member of the very same Panchayat, with this he prays for allowing the petition.
6. Learned High Court Government Pleader appearing for the respondent No.1 fairly concedes that the Trial Court has wrongly included Section 78(iii) of K.P.Act and has taken cognizance for the said offence, even though no whisper is made about the attraction of the said offence in the charge sheet. However, with respect to the other offences, he submits that, the Investigating Officer has collected sufficient materials to :6: Crl.P.No.100824/2017 subject the accused for the trial, as such, there are no grounds for quashing the proceedings which is pending before the Trial Court.
Learned counsel for the respondent No.2 while continuing the submission made by the learned HCGP for respondent No.1, further submits that, admittedly the Investigating Officer among various other documents has also collected a certificate issued by none else than the Panchayat Development Officer of Moraba Gram Panchayat, which specifically and clearly certifies that the complainant is the owner in possession of the property bearing No.868 of Moraba village and the said property comes under Ward No.4. The said certificate further says that the accused herein have tampered the revenue records to show that their property bearing No.1169 comes under Ward No.4 and tampering the incidental documents have obtained a false electricity supply from the HESCOM. The said :7: Crl.P.No.100824/2017 document since issued by a public authority plays an important role in adjudication of the matter. He further submits that, if the said document is disputed by the accused, the same has to be adjudicated in a full-fledged Trial, as such, there are no grounds to allow the petition by quashing the proceeding.
7. It is not in dispute that the complainant and the accused are the cousin brothers. According to the complainant, he is the owner who was in possession of the property bearing No.868 in Ward No.4 of Moraba village, however, the accused who is the cousin brother and who owns a property bearing No.1169 of Ward No.2 have tampered the revenue records to show that their property is located in Ward No.4 and with the tampered documents, could able to obtain an electricity sanction from the HESCOM Authorities. Even though the documents said to have been furnished by the HESCOM Authorities, towards which the learned counsel for the :8: Crl.P.No.100824/2017 petitioner drew the attention of this Court, prima facie go to show that the HESCOM Authorities have verified those documents about the alleged survey number of the property and its alleged location, but it cannot be ignored that the very basic contention of the petitioners is that those documents submitted by the accused to the HESCOM Authorities themselves were tampered or forged documents. So, that being the case, by merely having a glance at the documents submitted by the accused to the HESCOM Authorities, it cannot be concluded at this stage that no case is prima facie made out against the petitioners/accused. On the other hand, the alleged certificate said to have been furnished by the Panchayat Development Officer to the Investigating Officer, which prima facie supports the contention of the complainant cannot be ignored at this stage.
8. Therefore, I am of the view that, there is nothing before this Court to hold that there is abuse of :9: Crl.P.No.100824/2017 process of law by the complainant, resulting in injustice to the petitioners, warranting any interference at the hands of this Court under Section 482 of Cr.P.C. However, since HCGP fairly concedes that there is no whisper about Section 78(iii) of the K.P.Act, still the Trial Court has taken cognizance for the alleged offence, it is limited to the extent of quashing the impugned order confining to Section 78(iii) of K.P.Act alone, the petition deserves to be allowed.
9. Accordingly, I proceed to pass the following:
ORDER The petition is allowed in-part. The impugned order passed by the learned Addl. Civil Judge & JMFC Court, Raibag, in C.C.No.225/2017, dated 16.03.2017 is partially quashed confining it to the Trial Court taking cognizance for the offence punishable under Section 78(iii) of K.P.Act. However, no interference is made in : 10 : Crl.P.No.100824/2017 the impugned order of the Trial Court which on the same day has ordered for registering in Register No.3, against the accused for the offences punishable under Sections 465, 468, 471 & 420 of IPC.
Sd/-
JUDGE *Svh/-