Karnataka High Court
K Nagabhushan S/O. Late Karnam ... vs Akki Vishwanath S/O. Late Doddabasappa on 22 October, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22nd DAY OF OCTOBER 2020
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO.101026/2015
BETWEEN:
1. K. NAGABHUSHAN,
S/O LATE KARNAM KRISHNAMURTHYRAO
AGE 63 YEARS, OCC: RETIRED GOVT. SERVANT,
R/O 14TH WARD, MAIN ROAD NEAR SRIRAM TEMPLE,
KAMPLI, TQ. HOSPET, DIST. BELLARY.
2. KOLKAR MALLESH,
S/O KOLKARAPPA, AGE 52 YEARS,
OCC:AGRICULTURAL COOLIE
R/O KAMPLI KOTE, KAMPLI VILLAGE,
TQ. HOSPET, DIST. BELLARY.
3. KOLKAR DODDA VENKATESH,
S/O KOLKARAPPA,
AGE 50 YEARS, OCC: AGRICULTURAL COOLIE
R/O KAMPLI KOTE, KAMPLI VILLAGE,
TQ. HOSPET, DIST. BELLARY
4. BAGLI SURESH, S/O B. MARIBASAPPA
AGE 32 YEARS, OCC: AGRICULTURAL COOLIE
R/O KAMPLI KOTE, KAMPLI VILLAGE,
TQ. HOSPET, DIST. BELLARY.
5. PHANI HULAGAPPA,
AGE 52 YEARS, OCC: AGRICULTURAL COOLIE
Crl.P. No.101026/2015
2
R/O KAMPLI KOTE, KAMPLI VILLAGE,
TQ. HOSPET, DIST. BELLARY.
... PETITIONERS
(BY SRI. LAXMAN T. MANTAGANI, ADV.)
AND:
1. AKKI VISHWANATH
S/O LATE DODDABASAPPA
AGE 67 YEARS, OCC:AGRIL.
R/O RAMSAGAR, TQ. HOSPET
DIST. BELLARY.
2. STATE OF KARNATAKA,
BY SUB-INSPECTOR OF POLICE
KAMPLI POLICE STATION
KAMPLI, DIST. BELLARY
REPRESENTED BY SPP
HIGH COURT PREMISES,
DHARWAD.
.. RESPONDENTS
(BY SRI. K.L. PATIL, ADV. FOR R1,
SRI. PRAVEEN UPPAR, HCGP FOR R2.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. SEEKING TO QUASH THE ORDER DATED
5.6.2015 PASSED BY THE ADDL.SENIOR CIVIL JUDGE AND
JMFC COURT, HOSPET IN P.C. NO.8/2013 (C.C.
NO.334/2015) FOR THE OFFENCES PUNISHABLE UNDER
SECTION 447, 427 READ WITH SECTION 34 OF IPC
REGISTERING THE CRIMINAL CASE AND ISSUING PROCESS
AGAINST THE PETITIONER AND ALLOW THE ABOVE
CRIMINAL PETITION.
THIS CRIMINAL PETITION COMING ON FOR HEARING
THROUGH PHYSICAL HEARNG/VIDEO CONFERENCING
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
Crl.P. No.101026/2015
3
ORDER
The present petitioners are accused Nos.1 to 5 in P.C. 8/2013 pending on the file of the learned Additional Senior Civil Judge and JMFC, Hospet (hereinafter for brevity referred to as 'trial Court') for the offence punishable under Sections 447 and 427 read with Section 34 of the Indian Penal Code (hereinafter for brevity referred to as 'IPC'). The present respondent is the complainant in the said case.
2. The summary of the case of the complainant in the trial Court is that the land in Sy.No.180 measuring 1 acre 33 cents of Ramasagar village originally belong to one Smt.Hanumakka. The father of the complainant was cultivating the said land since 50 years. The said Smt. Hanumakka agreed to sell the said property in favour of the complainant for a sum of `16,000/- and accordingly executed an agreement. Before she could execute a registered sale deed, she Crl.P. No.101026/2015 4 died. After the death of Hanumakka, her three grand children by name Srinivas, Prahaladachar and Ramamurthy executed a consent letter agreeing to execute a registered sale deed in favour of the complainant on 25.04.1993. Even though the accused were aware of all these facts, still, they got executed a registered sale deed from the wife of said Srinivas, Prahaladachar and Ramamurthy on 21.12.2012. It is the further contention of the complainant in his complaint that in spite of the alleged development, the complainant continued to be in possession of the land and cultivate the same since he was the purchaser of the land at the earliest though pending execution of the registered sale deed. He was cultivating plantain saplings (banana) in his land and it was growing up. That being the case, on 31.07.2013 in the morning at about 8.30, accused No.1 joined with accused Nos.2 to 5 forming an unlawful assembly, illegally and criminally Crl.P. No.101026/2015 5 trespassed into the said land which was under the cultivation of the complainant and started destroying the grown up crops there. One Hulugappa, who was working in the land, witnessed the act of the accused and requested them not to commit such an act and also requested them to vacate the place. Without acceding to his request and protest, they continued their alleged act of destruction and thus caused damage to an extent of `1,40,000/-. While accused were destroying the banana plant, the said Hulugappa rushed to the complainant and informed him about the incident which was at about 11'O clock in the morning. The complainant also rushed to the place only to see the alleged incident. On the next day i.e., on 01.08.2013, the complainant approached the police at Kampli and requested them to take appropriate action. The complainant also filed a private complaint in the trial Court alleging offence under Sections 425, 447 and 423 Crl.P. No.101026/2015 6 read with Section 34 of the IPC. The private complaint was referred for investigation. The police, after investigation, filed 'B' report. The complainant filed a protest petition against the said 'B' report. The Magistrate, after recording the sworn statement given by the complainant and also the evidence led by the witness (Hulugappa) for the complainant, by his detailed order dated 05.06.2015 took cognizance of the offence and issued summons to the accused. It is against the said PC No.8/2013 and particularly, the order of taking cognizance dated 05.06.2015, the accused therein have preferred the present petition.
3. The respondent/complainant is being represented by his learned Counsel.
4. Heard the arguments from the learned counsel who are physically present in the Court.
5. Learned counsel for the petitioners in his arguments submitted that, undisputedly, the present Crl.P. No.101026/2015 7 petitioners are the registered sale deed holders with respect to the said property from the legal representatives of deceased Hanumakka for valuable consideration. Further, the revenue records including the record of rights and the mutation entries have been passed in favour of petitioner No.1. As such, under all circumstances and even under any the stretch of imagination, it is the present petitioners, who are the lawful owners in possession of the property. However, the complainant, who claims to be a mere agreement holder and at whose instance a civil suit for specific performance is said to be pending, in order to overpower the petitioners, has attempted through various means to deter them and one such being a false complaint in the form of the present private complaint in the trial Court.
6. Learned counsel for the respondent in his argument submitted that it is not in dispute that the complainant has filed a suit for specific performance Crl.P. No.101026/2015 8 against his alleged vendor's legal representatives seeking for execution of the registered sale deed and the said suit is still pending. Further, he submits that since six decades, the complainant and his family members and his ancestors have been in actual and physical possession and cultivation of the property and the said fact is made clear in the very first complaint filed by the complainant before the Magistrate. He further submits that merely because the investigation is ended in filing a 'B' report, it does not mean that the 'B' report is a reflection of the truth. It is for the said reason that the complainant has filed a protest petition and also got examined witness in his support. He submits that the Magistrate by his detailed reasoned order has taken cognizance of the offence and issued summons to the accused, which order dated 05.06.2015 does not warrant any interference.
Crl.P. No.101026/20159
7. It is not in dispute that both the complainant and the accused/petitioner are agitating their alleged ownership and possession with respect to the very same piece of immoveable property. According to the complainant, they are the agreement holder. However, before execution of the sale deed, the original vendor was said to be dead. According to the complainant, even though original vendor's legal representatives have given a letter consenting for execution of the registered sale deed, still, the accused appears to have overpowered them and got the sale deed executed in their favour. Learned counsel further submits that assuming that the petitioners/accused have got the registered sale deed in their favour but ipso facto could not establish that they are in possession of the property. If at all they have got a valid sale deed registered in their favour and wanted the possession of the property, they should have followed due process of law, even to vacate Crl.P. No.101026/2015 10 the complainant, who is in actual possession and cultivation of the land.
8. The undisputed fact show that with respect to the very same land both the complainant and the accused are asserting their ownership and more particularly, the possession of the said property. According to the complainant, since about six decades, his family has been in actual possession and cultivation of the property. On the other hand, the accused claim to have purchased the said property under a registered sale deed dated 21.12.2012 and claim that they are in possession of the property. Admittedly, a civil litigation is said to be pending for the relief of specific performance instituted by the complainant herein as against the alleged vendor. Simultaneously, the accused claim that they are the holder of the registered sale deed in their favour. No doubt Section 133 of the Land Revenue Act mentions that entries made in the Crl.P. No.101026/2015 11 revenue records are to be presumed to be true until the contrary is proved, and the mutation entry and the record of rights are said to be showing the name of the petitioners herein but, for the alleged criminal act, reliance upon the said revenue record cannot be made as a sole basis to totally dismiss the complaint of the alleged aggrieved person at the threshold. Thus, when the alleged possession of the property is seriously in dispute, the alleged revenue records and the alleged agreement of sale, all would be the subject matter of trial.
9. What matters now in the case on hand is the alleged incident said to have taken place on 31.07.2013. According to the complainant, on the said date, the accused were said to have criminally trespassed into his land and caused damage to an extent of `1,40,000/- by destroying the grown up Banana plants(plantain plantation) in the land. The Investigating Agency has Crl.P. No.101026/2015 12 filed 'B' report which later made the complainant to continue his complaint against the accused through protest petition. In support of his complaint, apart from giving his sworn statement, he has already examined a witness by name Hulugappa as PW-2, who appears to have stated before the Magistrate that he was an eyewitness to the alleged incident and despite his several request and protest, the accused has committed the alleged criminal act. Though it is at the preliminary stage, still based on the sworn statement of the complainant and his witness, suffice it to hold that the complainant has prima facie made out a case that there are material for the Magistrate to take cognizance of the alleged offence and to proceed further in the matter. Accordingly, the Magistrate after appreciating the sworn statement and the evidence of PW-2 and the material placed before him, in its proper perspective, has rightly come to the Crl.P. No.101026/2015 13 conclusion directing the registry to register a criminal case against the accused (petitioners herein) for the offence punishable under Section 427 and 447 read with Section 34 of the IPC and ordered for issuance of summons to the accused.
10. I do not find any perversity, illegality or error in the said order warranting interference at the hands of this Court. I do not find any element of abuse of process of criminal law by the Magistrate warranting exercise of power under Section 482 of the Code of Criminal Procedure.
Accordingly, I proceed to pass the following order:
ORDER The Criminal Petition is dismissed.
Sd/-
JUDGE kmv