Karnataka High Court
Pashupati S/O. Veerappa Kerudi vs Bangarayya S/O. Gurayya Malimath on 21 July, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JULY, 2014
BEFORE:
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION NO.100116/2014
C/W.
CRIMINAL PETITION NO.100117/2014
IN CRIMINAL PETITION NO.100116/2014
BETWEEN
PASHUPATI S/O. VEERAPPA KERUDI
AGE: 72 YEARS,
OCC: ADVOCATE & AGRICULTURE
THE PRESIDENT OF M V PEETHA
HAUNSBHAVI,
R/O. HAUNSBHAVI, TQ: HIREKERUR
DIST: HAVERI ... PETITIONER
(BY SRI P G MOGALI, ADV.)
AND
1. BANGARAYYA S/O. GURAYYA MALIMATH
AGE: 75 YEARS
OCC: BUSINESS & AGRICULTURE
R/O. HAUNSBHAVI
TQ: HIREKERUR DIST: HAVERI
2
2. SHANMUKHAYYA S/O. BANGARAYYA MALIMATH
AGE: 34 YEARS,
OCC: AGRICULTURE
R/O. HAUNSBHAVI TQ: HIREKERUR DIST:
HAVERI
3. GURUBASAVARYA S/O. BANGARAYYA MALIMATH
AGE: 35 YEARS,
OCC: AGRICULTURE
R/O. HAUNSBHAVI TQ: HIREKERUR DIST:
HAVERI
... RESPONDENTS
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
PASSED BY THE SESSIONS JUDGE, HAVERI, IN
CRL.A.NO.23/2012 DATED 22.01.2013 AND THE
JUDGMENT PASSED BY THE CIVIL JUDGE (SR.DN.) &
CJM, HAVERI, DATED 26.10.2011, IN C.C.NO.1/2011,
INSOFAR AS IT RELATES TO NOT TAKING ACTION U/S
344 OF CR.P.C. AND DIRECT THE CIVIL JUDGE
(SR.DN.) & CJM, HAVERI, IN C.C.NO.1/2011 TO TAKE
ACTION U/S 34 OF CR.P.C. AS AGAINST THE PW1 TO
PW3 AND AWARD COMPENSATION FOR FILING FALSE
AND VEXACIOUS CASE.
***************
IN CRIMINAL PETITION NO.100117/2014
BETWEEN
1. PARAMESHAPPA S/O. MALLAPPA DESAI
AGE: 65 YEARS, OCC: RETIRED
2. VEERABHADRAPPA
3
S/O. CHANNABASAPPA KORI
AGE: 58 YEARS, OCC: TEACHER
3. HOLABASAPPA S/O. MAHALINGAPPA ANGADI
AGE: 61 YEARS, OCC: RETIRED
4. SOMANAGOUDA S/O. VEERANAGOUDA PATIL
AGE: 56 YEARS, OCC: ADVOCATE
ALL ARE R/O. HAUNSBHAVI,
TQ: HIREKERUR
DIST: HAVERI ... PETITIONERS
(BY SRI P G MOGALI, ADV.)
AND
1. BANGARAYYA S/O. GURAYYA MALIMATH
AGE: 75 YEARS,
OCC: BUSINESS & AGRICULTURE
R/O. HAUNSBHAVI, TQ: HIREKERUR
DIST: HAVERI
2. SHANMUKHAYYA S/O. BANGARAYYA MALIMATH
AGE: 34 YEARS,
OCC: AGRICULTURE
R/O. HAUNSBHAVI, TQ: HIREKERUR
DIST: HAVERI
3. GURUBASAVARYA S/O. BANGARAYYA MALIMATH
AGE: 35 YEARS,
OCC: AGRICULTURE
R/O. HAUNSBHAVI, TQ: HIREKERUR
DIST: HAVERI ... RESPONDENTS
4
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
PASSED BY THE SESSIONS JUDGE, HAVERI IN
CRL.A.NO.23/2012 DATED 22.01.2013 AND THE
JUDGMENT PASSED BY THE CIVIL JUDGE (SR.DN.) &
CJM, HAVERI DATED 26.10.2011, IN C.C.NO.1/2011,
INSOFAR AS IT RELATES TO NOT TAKING ACTION U/S
344 OF CR.P.C. AND DIRECT THE CIVIL JUDGE
(SR.DN.) & CJM, HAVERI IN C.C.NO.1/2011 TO TAKE
ACTION U/S 344 OF CR.P.C. AS AGAINST THE PW1 TO
PW3 AND AWARD COMPENSATION FOR FILING FALSE
AND VEXACIOUS CASE.
**********
THESE CRIMINAL PETITIONS COMING ON FOR
ORDERS, THIS DAY, THE COURT PASSED THE
FOLLOWING:
ORDER
The petitioners in both the petitions are the accused persons before the Civil Judge (Sr.Dn.) & CJM, Haveri in CC No.1/2011 registered against them for the offence punishable under Sections 143, 147, 323, 427, 451, 504 and 506 r/w. Section 149 of IPC.
2. After the appearance of the accused before the Trial Court, and after recording of the evidence, the 5 Court has come to the conclusion that there are doubtful circumstances in the case, giving benefit of boubts, acquitted the accused in the said case. Being aggrieved by the said order, the complainant - Bangarayya has preferred an Appeal in Crl.A. No.23/2012 on the file of the District and Sessions Judge, Haveri. The said appeal also came to be dismissed.
3. It is the contention of the learned Counsel for the petitioners in both the cases that the complainant has filed a false complaint against them and there are civil proceedings pending against each other and accused persons have succeeded in the civil proceedings and in order to file a counter case, a false case came to be lodged against them. Therefore, the Trial Court and the Appellate Court ought to have referred the matter to the Criminal Court for action u/s.344 of Cr.PC. to try 6 the complainant summarily and to punish him for having filed a false case against the accused.
4. The learned Counsel for the petitioners strenuously contended that there are material evidence before the Trial Court and the first appellate court, both the courts below have not properly appreciated the evidence on record and failed to refer the case for action u/s.344 of Cr.PC to try the complainant summarily for having filed a false complaint against the accused persons. Therefore, the accused persons being aggrieved by the order of the Trial Court and the Appellate Court, have come up before this Court u/s.482 of Cr.PC for several remedies.
5. I have carefully perused the provision of Section 344 of Cr.PC. On reading of the said provision, it clearly empowers the Court particularly a Criminal Court while delivering a judgment or final order 7 disposing of a judicial proceedings, a Criminal Court or the Magistrate of First Class, if expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or willfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees or with both.
6. The provision clearly indicates that the Magistrate or the Sessions Court while analysing the 8 material and appreciating the evidence on record, should come to a firm conclusion that the witnesses examined before court that, either the complainant or any other witness has given false evidence or have been fabricated false evidence with an intention that such evidence should be used by the Court. It goes without saying that on the basis of the material on record, appreciating the evidence, the Magistrate or the Sessions Court has got power to give a finding on this particular point, unless there is a finding, the court cannot take any action u/s.344 of Cr.PC.
7. Now, let me go through the judgment of the Trial Court as well as the Appellate Court. As could be seen from the records, the Trial Court has framed charges against all the accused persons for the offences noted above and the accused persons have not pleaded guilty. Therefore, the Court has recorded the evidence of the witnesses. The prosecution has examined as 9 many as eight witnesses and got marked 18 documents as Exhibits P1 to P18. The defence also got marked Exhibits D1 to D7 and marked MO1 Vibhuti brick pieces. The Trial Court has appreciated the evidence on record and in fact appreciated the evidence of PWs.1 to 3 [particularly against whom the allegations are made that they have actually given false evidence before the court and also fabricated false evidence], the Trial Court has observed that the evidence of these three witnesses particularly PWs.1 to 3 is doubtful and it is categorically considered at paragraph 23 of the judgment that -
"There is no clear evidence placed before the Court about the alleged assault or threat. Though in the complaint marked at Ex.P1 it was stated that property bearing VPC No.648/2B measuring 175x225 feet is the property of the complainant, but in the charge sheet it was shown that the alleged offence has been occurred in the property bearing 10 VPC No.648/3B. But, I.O. has not collected VPC extract of the property bearing VPC No.648/3B of Hansabhavi village to know that whether the same is also the property of complainant".
It is further held that -
"The complainant or the I.O. have not produced the evidence to show that whether complainant was obtained permission to construct the said building and to start Vibhuti preparation Center in his property as alleged by him. In the absence of same, it would be very difficult to accept that the complainant and his sons have constructed a building therein and started vibhuti preparation centre in the said building. The evidence also makes it clear that there was no enmity between the accused persons and PWs.1 to 3.
It was further observed that -11
"The evidence of PWs.1 to 6 discloses that the accused persons have no mensrea i.e., intention to commit the offences on them as alleged. The evidence placed before the Court did not clearly discloses that the accused persons have committed the aforesaid offences as alleged in the property bearing VPC No.648/3B. The evidence placed before the Court is doubtful in nature. Therefore, based on the doubtful evidence, it would be very difficult to accept that aforesaid accused persons have committed the offences as alleged. It is clearly discloses that PW8 has not been properly investigated this case. He has not properly traced that in what property the said incident has been occurred. The photos marked in Ex.P3 to P15 discloses that the said building is a school building and that no identification marks in the said building to show Vibhuti's have been prepared as alleged. The photo discloses that several boys and others have been transporting bricks towards outside from the said school building. Therefore, I am of the 12 opinion that accused persons are entitled to the benefit of doubt. It is clear that prosecution has failed to prove its case as alleged against the accused persons beyond reasonable doubt."
Therefore, the accused persons were acquitted.
8. Looking to the aforesaid observations made by the learned trial Judge, it reveals that the learned trial Judge has considered in detail the evidence of the prosecution witnesses and he has not acquitted the accused persons specifically holding that the entire case of the complainant as false and the complainant has given false or fabricated evidence before the Court for the purpose of laying a false claim against the accused persons. Therefore, in my opinion, based on the material on record, it cannot be said that the learned trial Judge could have tried the accused persons u/s.344 Cr.PC.
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9. Now, coming to the observations made by the lower appellate Court in Crl. Appeal No.23/2012 that the accused persons have also appeared before the court and raised the same plea. The learned Sessions Judge after re-appreciating the evidence on record, confirmed the order of acquittal passed by the Trial Court. The learned Sessions Judge has not deviated from any of the observations made by the learned trial Judge. Ultimately, the learned Sessions Judge has held at paragraph 40 of the judgment that -
"It is the contention of the respondent No.18 that a false case has been instituted and court has to take actin against the complainant. Here it has to be noted that an allegation is made that all of them entered the premises and caused loss and also assaulted. No doubt there are no documentary proof regarding injuries sustained by PWs.1 to 3 and it has to be noted that the statements are recorded by the 14 police and the said statements are not on oath. When such being the case, it is not a proper case to initiate the proceedings against the complainant and others as contended by the respondent No.18 by invoking Section 344 of the Cr.PC and hence, the contention of respondent No.18 also cannot be accepted."
10. Looking to the above said observation made by the learned Sessions Judge and when the case is ended in acquittal, particularly giving benefit of doubt to the accused persons, then there is no question of directing the Trial Court or the learned Sessions Court for re-appreciating the evidence on record to give a finding u/s.344 of Cr.PC. Therefore, in my opinion, these two petitions are devoid of merits and liable to be dismissed.
Accordingly, the petitions are dismissed. However, if the petitioners are aggrieved that the complainant has maliciously prosecuted them, the accused persons 15 are at liberty to approach the competent court by means of appropriate action, in such event any of the observations made by this Court shall not be taken into consideration.
Sd/-
JUDGE PL