Karnataka High Court
Smt Vanaja vs Sri V Vibhu on 10 January, 2022
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION No.4777/2021
BETWEEN
SMT VANAJA
W/O RAJAN
AGED ABOUT 58 YEARS
R/AT NO.5/1
OPP. ACHALA SADGURU SEVASHARAM COLONY
GEDDALAHALLI
RAJ MAHAL VILAS 2ND STAGE
BENGALURU - 560 094. ... PETITIONER
(BY SRI K S MALLIKARJUNAIAH, ADVOCATE (VIDEO CONFERENCE))
AND
1. SRI V VIBHU
S/O VASUDEVAN NAIR
AGED ABOUT 63 YEARS
R/A NO.5, 4TH CROSS
2ND MAIN
NEAR ACHALA SADGURU SEVASHRAMA COLONY,
GEDDALAHALLI
RAJ MAHAL VILAS 2ND STAGE
BENGALURU-560094
2. THE STATE BY
SANJAYNAGARA POLICE STATION
BENGALURU-560 094
SPP REPRESENTING STATE
HIGH COURT BUILDING
HIGH COURT
... RESPONDENTS
(BY SRI MADHUKAR NADIG, ADVOCATE FOR R1
SRI MAHESH SHETTY, HCGP FOR R2)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.8771/2017 ON THE FILE OF THE VIII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE AT BENGALURU AND
OFFENCE PUNISHABLE UNDER SECTION 420 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THROUGH VIDEO CONFERENCING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for quashing the criminal proceedings against the petitioner pending in C.C.No.8771/2017 in respect of P.C.R.No.5536/2011 for the offences punishable under Sections 420 and 361 of IPC.
2. Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader for respondent No.2-State.
3. The case of the petitioner before the trial Court is that respondent No.1 has filed a private complaint in P.C.R.No.5536/2011 under Section 200 of Cr.P.C. for the above said offences and got referred to the Police under 3 Section 156(3) of Cr.P.C., it is alleged that the Police have filed 'B' final report and subsequently, the 'B' final report has been challenged by the complainant-respondent No.1, sworn statement was recorded and accordingly, the Magistrate took cognizance for the offences on 06.03.2017, issued summons to the petitioner-accused and also said to be appeared and filed a discharge application which is not yet disposed of by the trial Court and the petitioner being aggrieved with taking cognizance has filed the petition before this Court.
4. Learned counsel for the petitioner has contended that the wife of respondent No.1-Smt.Shylaja is none other than the sister of the petitioner and the sister has executed a will in favour of her son and this petitioner was appointed as guardian. Subsequently, the same was challenged by the respondent No.1-complainant by filing a suit in O.S.No.3320/2013 by challenging the will on the ground of forgery which came to be dismissed and an appeal also filed before this Court which is pending in 4 R.F.A.No.1430/2017. Such being the case, the Police have also filed 'B' final report, but the trial Court without looking to the documents, taking cognizance of the offence against the petitioner is not correct. When the competent civil court took the decision that there is no forgery of the will and the Police also taken a same view, such being the case, filing and taking cognizance is abuse of process of law. Hence, prayed for quashing the same.
5. Per contra, learned counsel appearing for respondent No.1 has contended that the civil court did not properly consider the suit without filing of written statement and the defendant has not participated and in spite of the same, the Civil Court dismissed a suit which is under challenge before the High Court. There is a document to show that the will was created by the petitioner. Hence, prayed for dismissing the petition.
6. Upon hearing the arguments and on perusal of the records, which reveals that it is an admitted fact that the petitioner is none other than the sister-in-law of 5 respondent No.1. The wife of respondent No.1-Smt. Shylaja is said to have executed a will in favour of her son- Anantha Padmanabhan and shown this petitioner has guardian. After coming to know about this fact after death of the wife of respondent No.1-complainant, he has filed a suit in O.S.No.3320/2013 by taking contention that the will was not executed by his wife, but it is forged by this petitioner and the said case ended in dismissal of the suit and it is also an admitted fact that respondent No.1 has filed first appeal before this Court pending in R.F.A.No.1430/2017. In the meanwhile, the respondent has also filed G & WC case seeking custody of the child in the Family Court, Bengaluru which also came to be rejected by the VI Additional Prl. Judge, Family Court, Bengaluru in G & WC No.77/2008. Respondent No.1- complainant has filed a P.C.R before the Magistrate which was referred to the Sanjaynagar Police and Sanjaynagar Police after due investigation have filed 'B' final report on the complaint. Admittedly, the complainant has offered his sworn statement and marked some documents especially 6 the will and the trial Court took cognizance against the petitioner for the offences punishable under Sections 420 and 361 of IPC.
7. In my considered opinion, when the Family Court, Bengaluru which is the competent court has rejected the custody of the respondent No.1-complainant which was filed under Section 25 of the Guardians and Wards Act, 1890 and rejected the prayer for custody, the question of considering the petitioner abducted his son does not arise. That apart, the competent civil court has given findings that there is no manipulation or forgery of the will in the civil case, the decision of civil court which is binding on the criminal court and though, respondent No.1 already has filed an appeal challenging the decree of the civil court for having dismissing the suit which is pending, such being the case, until the High Court adjudicate the matter holding that there is a forgery of the will by the parties i.e., the petitioner till that the Magistrate has no authority to take decision against the judgment of the civil 7 court which is a competent court which was already held that there is no forging of the will. Such being the case, conducting the proceedings against the petitioner on the ground that she has forged the will in the name of the wife of the complainant cannot be acceptable. Therefore, the complaint is liable to be quashed.
8. Accordingly, the criminal petition is allowed. The entire proceedings in C.C.No.8771/2017 on the file of VIII Additional Chief Metropolitan Magistrate, Bengaluru is hereby quashed.
Sd/-
JUDGE GBB