Karnataka High Court
Mr Mahaboob Jan vs The State Of Karnataka on 25 April, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
WRIT PETITION NO.6636 OF 2023 (GM RES)
BETWEEN:
1 . MR. MAHABOOB JAN
AGED ABOUT 58 YEARS,
S/O GHOUSE MOHIUDDIN,
2 . MS. NAZHATH ARA BEGUM
AGED ABOUT 53 YEARS,
W/O MAHABOOB JAAN,
BOTH THE PETITIONER NO.1 AND
PETITIONER NO.2 ARE
R/AT NO.10 AND 11,
5TH 'B' CROSS, KAVERINAGAR,
R. T. NAGAR POST,
BENGALURU - 560 032.
3 . MR. KALEEM BAIG
AGED ABOUT 56 YEARS,
R/AT NO.B-8, 2ND FLOOR,
SILVER MANOR, MM LAYOUT,
BENGALURU - 560 032.
...PETITIONERS
(BY SRI. V. S. HEGDE, ADVOCATE FOR
SRI. S. N. THYAGARAJ, ADVOCATE)
2
AND:
1 . THE STATE OF KARNATAKA
REPRESENTED BY
ASHOK NAGAR POLICE STATION,
BENGALURU CITY,
REPRESENTED BY S.P.P
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2 . SRI. A. G. KESHAVKUMAR
S/O LATE ASHWATHNARAYANA,
AGED ABOUT 36 YEARS,
GOVINDPURA, NO.25,
1ST CROSS,
SHIVAMUT ROAD,
ARABIC COLLEGE POST,
BENGALURU - 560 045.
...RESPONDENTS
(BY SMT. RASHMI PATEL, HCGP FOR R1;
SRI. MITHUN GERAHALLI A., ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C. PRAYING TO
QUASH THE FIR IN CRIME NO.166/2021 REGISTERED BY
THE ASHOK NAGAR POLICE STATION FOR THE OFFENSES
PUNISHABLE UNDER 193, 196, 209, 419, 420, 465, 468,
471, 473 OF THE INDIAN PENAL CODE, 1860 PENDING IN
THE FILE OF THE 29TH ADDL. CMM COURT MAYO HALL,
BENGALURU CITY IN PCR NO.52209/2021 (ANNEXURE-A).
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 02.04.2024 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
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RESERVED FOR ORDERS ON: 02.04.2024
PRONOUNCED ON : 25.04.2024
ORDER
This writ petition is filed by the petitioner/accused Nos.1 to 3 under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. for quashing the FIR in Crime No.166/2021 registered by the Ashok Nagar Police Station for the offences punishable under Sections 193, 196, 209, 419, 420, 465, 468, 471, 473 of Indian Penal Code.
2. Heard Sri.V.S.Hegde, for Sri.S.N.Thyagaraj, learned counsel for the petitioners, Smt.Rashmi Patel, learned High Court Government Pleader for the State/respondent No.1 and Sri.Mithun Gerahalli.A, learned counsel for the respondent No.2.
3. The case of the prosecution is that, respondent No.2/complainant filed a private complaint under Section 200 of Cr.P.C. registered in PCR 4 No.52209/2021 for taking cognizance against the accused persons.
4. The learned magistrate registered the complaint under section 156(3) of Cr.P.C, and referred the matter to the Ashok Nagar Police Station for investigation. Accordingly, the Ashok Nagar Police registered the FIR, which is under challenge.
5. It is alleged by the complainant, in his complaint that, the complainant is the owner of the land in possession bearing Sy. No.45/3 measuring 10 Guntas out of 1 Acre 14 Guntas and 6 Guntas Karab in Nagavara Village, Kasaba Hobli, Bengaluru. Originally belongs to his grandfather and thereafter, the portion took place through Court decree in O.S.No.25013/2007 dated 11.02.2009. It is more fully described as a suit schedule property. He is in possession and enjoyment of the said portion of the suit schedule property as an owner, the compromise petition and registered court 5 decree have been produced. The accused who is a stranger to the property has filed a frivolous suit against the complainant through General Power of attorney holder one Kaleem Baig/accused No.3 is residing in Dubai by setting up a falls claim using forged and fabricated documents to snatch the portion of the property with an intention to grab the property about 2400 Sq. feet. Accused No.1 has filed the suit for permanent injunction in O.S. No.25795/2011 by creating and using forged and fabricated documents. The complainant has denied the Agreement of Sale and General Power of attorney. However, accused No.1 has cleverly and wilfully not produced original documents along with the plaint. The said suit was still pending. The General Power of attorney holder of the complainant submits that accused No.3 has filed examination-in-chief on 23.03.2017 on behalf of accused No.1 and has not produced those fabricated 6 documents. Subsequently, filed the complaint with an additional examination-in-chief along with the additional examination chief affidavit. The documents were marked as Ex.P54, P55 and P56. These documents were forged and created documents. One Mr.R. Narayanaswamy, who is said to be the executor of the General Power of attorney was no more. Accused No.1 has intentionally not produced original documents but produced the certified copies of the same and during the evidence, he has given an evasive answers. Accused No.1 set up accused No.3 by giving forged documents which were produced to the Court in O.S.No.25795/2011. It is further alleged that the accused intentionally knock of the property of the complainant. Accused No.1 in collusion with accused Nos.2 to 3 has created sale deed dated 25.10.1997. Based on the fabricated documents, thumb impression of grandmother and signature of the complainant father 7 was also forged. All the documents were created documents and they have been produced before the Court. Accused No.1 with his fabricated documents shows that accused persons tried to grab the land. Accused No.3 has executed the Sale Deed in favour of accused No.1 through fabricated and forged General Power of attorney. Accused No.3 has given false evidence before the Court. The Complainant tried to give a complaint to the police, but they refused to register the FIR they registered the NCR vide No.165/2020 and issued an endorsement on 12.03.2020. Hence, there is no other option for the complainant to file the complaint to the Court. Even though the complainant obtained the information from the Treasury Department, the stamp papers which were not issued by the Treasury Department but it was fake stamp paper. Therefore, he prayed for taking action against accused persons. After receipt of the complaint 8 from the Court, the police register the FIR, which is under challenge.
6. The learned counsel for the petitioner has contended that the complainant/respondent No.2 filed the private complaint directly to the Court without approaching the Police under Section 154 (1) and (3) of Cr.P.C. Thereby, violated the guidelines issued by the Hon'ble Supreme Court in the case of PRIYANKA SRIVASTAVA AND ANOTHER Vs. STATE OF U.P. AND OTHERS reported in (2015) 6 SCC 287. During the year 2004, the accused No.1 filed the suit for injunction against one N.Tejaswi Reddy in O.S.No.5285/2004 which came to be dismissed. In the said suit, all the original documents, General Power of attorney, Sale Agreement and an affidavit are filed. Subsequently, after dismissal of the said suit, RFA No.402/2009 was filed the petitioner. The respondent No.2 trespassed the property and threatened the 9 petitioners to vacate the said property. Hence, accused No.1 has filed the suit for permanent injunction in O.S.No.25975/2011 by appointing accused No.3 as General Power of Attorney holder to the suit. Till Today, the petitioners are under the protection of temporary injunction against respondent No.2. The vendor of the petitioner also gave self-declaration on a 50 Rs. stamp paper by stating that for having received full settlement and that he has executed General Power of attorney. Now petitioner No.1 is the owner of the two sites and he also filed the complaint to the D.J. Halli Police Station on 02.11.2011 registered the FIR No.0102 for the offence punishable under Section 447 of Indian Penal Code and a final report was filed in C.C.No.24978/2011. The BBMP also issued the documents in favour of the petitioners stating that it is not agricultural land. The petitioner also came to know that, O.S.No.25013/2007 came to be compromised, the 10 petitioners are not a party to the same, fraud was committed in the Court and the decree is not enforceable upon the petitioner. He further contended that respondent No.2 has filed suit against the vendor of the petitioners i.e., R.Narayana Swamy in O.S. No.798/2012 for permanent injunction which came to be dismissed and stated the land does not belongs to him.
7. It is further contended that respondent No.2 has mastered a way to create a sense of fear and high- handedness and compelled the petitioners to face the criminal case. The petitioner litigated from 2004 and the respondent claimed the property through a compromised decree in O.S.No.25013/2007, where the petitioners are not a party to the suit. The respondent No.2 also mislead the Court by not following the guidelines of Priyanka Srivastava case, supra, directly filed suit where he filed complaint and referred the 11 matter to the D.J.Halli Police Station under Section 156(3) of Cr.P.C.
8. The learned Magistrate also failed to implement the order of the Hon'ble Supreme Court or rather take the view from the angle specified in the case of Paramjith Bhatra vs. State of Uttarakhand reported in 2013 11 SCC 673 and in the case of Randheer Singh vs State of Uttar Pradesh reported in 2021 SCC OnLine SC 942, where the Hon'ble Supreme Court held that the Magistrate has to see if the civil dispute is coloured as a criminal offence emphasis on the ingredients of the crime must be applied correctly.
9. In order to constitute the offence under Section 420 of Cr.P.C, they should not only be cheating but accused should have induced the person or deceived the person to deliver the property. In the present case, respondent No.2 claims that the 12 petitioners have forged the signature of the consenting witnesses in the documents which are alleged by respondent No.2 to be fake. The petitioners are the owners of the property and the vendors also stated and admitted that he had executed an unregistered sale agreement, General Power of Attorney and an affidavit. The complaint filed by respondent No.2 is to extort the money from the petitioners. Registering the FIR against the petitioners is not considering that the complainant does not disclose the allegations against the petitioner to attract the Sections alleged in the complaint. The complaint does not disclose any legally admissible material and which any FIR could be registered. There is a bar under Section 195(b)(ii) of Cr.P.C. Hence, he prayed for quashing the FIR.
10. Per contra, learned counsel for the respondent has contended that the documents were created by the petitioners. Thereafter, it is produced 13 before the Court and the said documents produced by the petitioners which were marked as Ex.P54, P55 and P56, where the information obtained from the Treasury Department. These stamp papers were not issued by the Treasury Department are forged and fabricated documents. Therefore, the matter is required for investigation.
11. The suit filed by the petitioner was to be dismissed, and also RFA was also dismissed. The complaint was filed by the complainant to the police, as the police have issued the NCR. The alleged offences are punishable under Sections 193, and 196 of IPC, where the learned Magistrate is required to take cognizance, therefore, the complaint has been filed to the police. Even, it is not a barred/bar for going to the police as well as the Court to file the complaint. The complaint came to be filed as per the provisions of Section 195(1)(b)(ii) of Cr.P.C and the learned 14 Magistrate passed the order by following the judgment of the Hon'ble Supreme Court and rightly learned Magistrate referred the case to the police for investigation for the purpose of getting opinion from the FSL, hence, he prayed for dismissing the petition.
12. Having heard the arguments and perused the records. On perusal of the same, the main allegation against the petitioners in the complaint is that the petitioners have created a fake Agreement of Sale, General Power of Attorney and an affidavit, where the stamp papers were not at all issued by the Treasury Department to us. Fake stamp papers and false documents were created for the purpose of filing the suit for producing the Court and marked as documents during the evidence. The main contention of the petitioner's counsel is that there is a violation of guidelines issued by the Hon'ble Supreme Court in Priyanaka Srivastava case, where the complainant 15 approached the police under Section 154(1) of Cr.P.C.. Thereafter, he shall approach the higher authorities under Section 154(3) of Cr.P.C as per the judgment of the Hon'ble Supreme Court in the case of PRIYANKA SRIVASTAVA AND ANOTHER Vs. STATE OF U.P. AND OTHERS reported in (2015) 6 SCC 287.
13. However, here there are some offences which were required to be file the complaint to the learned Magistrate under Section 200 of Cr.P.C. There is a bar for taking cognizance and the police report. In this regard, learned counsel for respondent No.2 has relied upon the judgments of the Coordinate Bench of this Court reported in the Coordinate Bench of this Court reported in ILR 2017 KARNATAKA 4397 (Dharwad Bench) in the case of BALAJI TRADING COMPANY AND OTHERS VS SAIFULLA KHAN, GAFARKHAN SAVUKAR AND ANOTHER.
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14. The Hon'ble Supreme Court in Criminal Appeal No.211/2019 in the case of NARENDRA KUMAR SRIVASTAVA VS STATE OF BIHAR AND OTHERS reported in (2019) 3 SCC 318 decided on 04.02.2019 and para Nos.14, 22 and 23 held as under;
"14. On the reading of these sections, it can be easily seen that the offences under Section 195(1)(b)(i) and Section 195(1)(b)(ii) are clearly distinct. The first category of offences refers to offences of false evidence and offences against public justice, whereas, the second category of offences relates to offences in respect of a document produced or given in evidence in a proceeding in any court.
22. In Sachida Nand Singh [Sachida Nand Singh v. State of Bihar, (1998) 2 SCC 493 :
1998 SCC (Cri) 660] relied on by the learned counsel for the appellant, this Court was considering the question as to whether the bar contained in Section 195(1)(b)(ii) CrPC is applicable to a case where forgery of the document was committed before the document 17 was produced in a court. It was held: (SCC pp. 497 & 501, paras 6 & 23) "6. A reading of the clause reveals two main postulates for operation of the bar mentioned there. First is, there must be allegation that an offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471, 475 and 476 IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made by that court. There is also no dispute that if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. If so, will its production in a court make all the difference?
23. The sequitur of the above discussion is that the bar contained in Section 18 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court. Accordingly we dismiss this appeal."
23. In Sachida Nand Singh [Sachida Nand Singh v. State of Bihar, (1998) 2 SCC 493 : 1998 SCC (Cri) 660] , this Court had dealt with Section 195(1)(b)(ii) CrPC unlike the present case which is covered by the preceding clause of the section. The category of offences which fall under Section 195(1)(b)(i) CrPC refer to the offence of giving false evidence and offences against public justice which is distinctly different from those offences under Section 195(1)(b)(ii) CrPC, where a dispute could arise whether the offence of forging a document was committed outside the court or when it was in the custody of the court. Hence, this decision has no application to the facts of the present case."
15. In another case IQBAL SINGH MARWAH AND ANOTHER VS MEENAKSHI MARWAH AND ANOTHER reported in (2005) 4 SCC 370, the Hon'ble 19 Supreme Court, where which is held at para No.7 (A), (B) and (C) held as under:
"7. The Five Judges' Bench of the Hon'ble Apex Court, had an occasion to deal with this particular legal question in a decision reported in IQBAL SINGH MARWAH V. MEENAKSHI MARWAH [(2005) 4 SCC 370], wherein it is meticulously observed that,--
"A. Criminal Procedure Code, 1973 - S. 195(1)(b)(ii) - Commission of forgery in respect of a document produced or given in evidence in a proceeding in any court-Bar under S. 195(1)(b)(ii) that no court shall take cognizance of any such offence except on the complaint in writing of the court concerned - Scope and applicability of - Private complaint in such matter - Maintainability - Held, the said bar would be attracted only when the offences enumerated in S. 195(1)(b)(ii) have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e., during the time when the document was in custodia legis - If such offence is committed prior to its production giving in evidence in 20 Court, no complaint by Court would be necessary and a private complaint would be maintainable - Scheme of S. 195, taken note of- Heading of Ch.XXVI Cr.PC - Consideration of- Further held, complaint as to offence referred to in S. 195(1)(b) was to be made by the Court concerned only if it was expedient in the interests of justice and not in every case - Thus, broad view of clause
(b)(ii) of S. 195(1) ie. Extending it to cases where forgery of a document is committed prior to that document being produced or given in evidence in a proceeding in any Court would render the victim of such forgery or forged document remediless in cases where the court may not consider it expedient in the interest of justice to make a complaint - Further, the procedure for filing a complaint by Court was such that it may delay the trial and thus lead to loss of evidence - Hence, broad view of S. 195(1)(b)(ii) not acceptable - Contention that due to above interpretation by Supreme Court there was possibility of conflicting findings being recorded by the civil or revenue court where the document had been 21 produced or given in evidence and that recorded by the criminal court on the basis of private complaint, not sustainable.
B. Criminal Procedure Code, 1973 - S. 195(1)(b)(ii) - Expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court" - Meaning of - Held, would normally mean commission of such an offence after the document has actually been produced or given in evidence in court.
C. Criminal Procedure Code, 1973 - Ss. 340 and 195(1)(b) - Making complaint regarding commission of an offence referred to in S. 195(1)(b) - Power of the court concerned in respect of- Held, the court is not bound to make such complaint - Complaint will be made only if it is expedient in the interest of justice and not in every case - This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by the offence, but having regard to the effect or impact of that offence upon administration of justice."
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In view of the judgment of the Hon'ble Supreme Court when the documents were forged or created by a person or accused prior to filing the same before the Court in evidence, there is no bar under Section 195(1)(b)(ii) of Cr.P.C. is not attracted and the private complaint is maintainable.
16. Relied upon the judgment of the Hon'ble Supreme Court in the case of Iqbal Singh, (supra), the Coordinate Bench of this Court reported in ILR 2017 KARNATAKA 4397 (Dharwad Bench) in the case of BALAJI TRADING COMPANY AND OTHERS VS SAIFULLA KHAN, GAFARKHAN SAVUKAR AND ANOTHER in Crl.P.No.101070/2016 decided on 01.02.2017, where which is held at para Nos. 8. 9, 9.1 and 12 reads as under:
8. The above said observation and guidelines of the Hon'ble Apex Court makes it abundantly clear that, the offences enumerated under Section 195(1) of Cr.PC are committed in respect of any document prior to the production of the documents or before giving evidence before the Court, then the bar under Section 195(1)(b)(ii) is not 23 attracted. Therefore, it goes without saying that the documents which are forged or concocted prior to production of the same before the Court or giving in evidence, the private complaint can be maintained by the aggrieved party. It also clears out the doubt that, after production of the said documents, if the documents are tampered with or forgery or concoction takes place when the documents are in the custody of the Court and if those documents are given in evidence, under such circumstances, the bar under Section 195(1)(b)(ii) of Cr.PC is attracted and in such circumstances, except on the complaint in writing by that Court before which the offences under Sections 463 or 471 or 475 or 476 are committed, the Criminal Court cannot entertain the complaint.
The above said ruling of the Hon'ble Apex Court also makes it abundantly clear that it is not only the offence pertaining to the documents and also against a private individual, but it amounts to the offence affecting 24 administration of justice by the Courts. Therefore, it is made clear that, under the said provision, when the documents are in the custody of the Court, and such offences are committed, with reference to those document, it becomes expedient to the said Court to refer the said offences to the competent Court having jurisdiction to deal with the matter.
9. As I have already stated, Learned Counsel for the petitioner has tried to distinguish the provision and the judgment of the Hon'ble Apex Court by arguing that, if the documents are forged or tampered prior to filing of any civil proceedings, a private complaint cannot be filed on the basis of such disputed documents, if they are used in giving evidence, then the Civil Court itself has to take note of that and refer a complaint to the competent Court having jurisdiction to deal with such criminal offences. But the said argument of the Learned Counsel cannot be accepted. A correct and meaningful interpretation is made to Section 195(1)(b)(ii) one can 25 understand that such offences should have been taken place before the Court after production of such documents or at the time of giving evidence before the Court.
9.1. Some times it may happen before the Civil Court that the documents which are tampered or forged prior to production of the said documents, are produced before the Court. Though the Civil Court finds that those documents are forged, but it may not be in a position to give its verdict as to whether those documents are forged prior to production or after production before the Court. Under such circumstances also, the Court having sesin of those documents may not feel it expedient to refer the offences to the competent Criminal Court. In such an event, if the Civil Court does not refer the complaint to the competent Civil Court, the party who suffered due to the forgery or tampering of these documents prior to their production before the Court should not be made without any remedy.
26Therefore, it can be clarified that, if such an offence is committed with reference to the documents produced before the Civil Court and if those offences are prior to production of those documents before the Court or giving evidence before the Court, in such an eventuality, the private complaint is maintainable before the competent Criminal Court.
12. Under the above circumstances, with all certainty, this Court can say that, when the offences with reference to those documents (Exs.D1 to D10) were alleged to have been committed prior to production of those documents before the Civil Court, then a private complaint is very well maintainable before the Criminal Court by the aggrieved party.
Therefore, there is no question of quashing such criminal proceedings
initiated before the competent Criminal Court when the allegations made in the complaint clearly attract the provisions under the penal provisions of any law for the time being in force and that rider 27 under Section 195(1)(b)(ii) of Cr.PC is not attracted.
17. In view of the judgment of the Coordinate Bench of the Hon'ble Supreme Court in the case of Iqbal Singh (supra), the complaint is required to be filed before the Magistrate by filing the private complaint and he needs not to file the first information report before the Police. Therefore, the contention of the learned counsel for the Petitioners is not acceptable that the petitioner is required to follow the guidelines of the Hon'ble Supreme Court in the case of Priyanka Srivastava (supra), approaching the Police under Section 154(i) and 154(iii) of Cr.P.C., does not arise. Though the complaint came to be filed by the Complainant before the Police they have issued an endorsement with the Magistrate stating that the case is pending before the Civil Court and the dispute is civil in nature. Therefore, the private complaint was filed. 28 In fact, they need not go to the police to file the first information but they have to file the private complaint before the Magistrate. Therefore, the bar under Section 195(1)(b)(ii) is not attracted.
18. In view of the judgment of the Coordinate Bench of this Court where in similar case in Balaji Trading Company (supra), the criminal petition which came to be dismissed.
19. On perusal of the case on the record there is an allegation against the petitioners that they created fake documents and produced before the court and marked as Ex.P54, 55 and 56 i.e., Agreement of Sale, General Power of Attorney and an Affidavit and the said stamp papers were not at all issued by the Treasury Department. In view of the fake stamp papers, the forgery is committed.
20. Such being the case, the matter is required for investigation and the learned Magistrate has rightly 29 contended that the Court requires the documents to be referred to FSL for comparison etc., Therefore, considering the facts and circumstances of the judgments of Iqbal Singh and Balaji Trading Company, the learned Magistrate is referred the matter to the Police under Section 156(3) of Cr.P.C. for investigation by 202 Cr.P.C. Therefore, the guidelines issued by the Hon'ble Supreme Court in the Priyanka Srivastava, are not applicable case at hand. Looking to the facts and circumstances of the case, I am of the considered view, that the petitioners have not made out any good ground for quashing the criminal proceedings. Accordingly, I pass the following.
ORDER The writ petition is filed by the Petitioners/accused Nos.1 to 3, is hereby dismissed.
Sd/-
JUDGE SMC_CT:SK