Karnataka High Court
Sri Srinivas vs Sri Ramesh on 19 September, 2018
CRL.P. No.4683/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
CRIMINAL PETITION NO.4683 OF 2016
BETWEEN:
Sri. Srinivas
S/o. late Venkatarayappa,
Aged 66 years,
R/o. Madanahalli Village,
Sugutut Hobli,
Kolar Taluk - 563101.
... PETITIONER
(By Sri. G.A.Srikante Gowda, Advocate)
AND:
Sri. Ramesh
S/o. Late M.B.Anathachar,
Aged about 41 years,
R/o. Madanahalli Village,
Sugutut Hobli,
Kolar Taluk - 563101.
...RESPONDENT
(By Sri. Deepak J, Advocate - Absent)
This Crl.P is filed under Section 482 Cr.P.C. praying
to quash the proceedings in (PCR.NO.354/2009)
C.C.No.426/2010 pending on the file of the I Additional
Civil Judge, Junior Division and JMFC, Kolar.
CRL.P. No.4683/2016
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This Crl.P coming on for Admission, this day, the
Court made the following:
ORDER
Petitioner is facing trial in C.C.No.426/2010 on the file of the I Addl. Civil Judge (Jr. Dn.) and JMFC, Kolar for the offences punishable under Sections 465 and 471 of IPC. He is seeking quashing of the said proceedings.
2. Petitioner filed an application before the Deputy Commissioner, Kolar (competent authority) for grant of occupancy rights of land bearing Survey No.43/1 measuring 2 acres 13 guntas situated within the limits of Madanahalli village of Kolar taluk. The Deputy Commissioner exercising his power of delegation, referred the matter to the Assistant Commissioner, Kolar. The said application was filed against Bheemachari.
3. The petitioner claimed before the competent authority that he is the tenant of the property. 2nd respondent was impleaded in the said case as the legal representative of Bheemachari. Along with 2nd CRL.P. No.4683/2016 3 respondent, the other heirs of Bheemachari were also the respondents in the said case. The competent authority, vide order Annexure-A dated 20.10.2009, exercising the powers under Section 77A of Karnataka Land Reforms Act, 1961, granted the occupancy rights to the petitioner.
4. Thereafter, on 02.12.2009, the 2nd respondent filed PCR No.44/2009 against the petitioner before the Civil Judge (Jr. Dn.) and JMFC, Kolar, seeking prosecution of the petitioner for the offences punishable under Sections 463, 465, 470 and 471 of IPC. Learned Magistrate took cognizance and registered the case in C.C.No.426/2010 for the offences punishable under Sections 465 and 471 of IPC.
5. The Trial Court, after hearing the petitioner regarding framing of the charge as per order Annexure-F, proceeded to hold that there is material to frame the charge for the offences punishable under Sections 465 and 471 of IPC.
CRL.P. No.4683/20164
6. The charges framed are as follows:
"That you being the accused has obtained orders from the Deputy
Commissioner by producing forged documents by inserting the name of grand father of accused in the RTC with respect to the survey No.43/1 measuring 2 acres 13 guntas of Madanahalli village, Kolar Taluk without the knowledge of complainant and after obtaining the order, you the accused is interfering with the complainant's peaceful possession and enjoyment over the said property and thereby you accused have committed an offence punishable under section 465 of IPC and within my cognizance.
Finally, on the aforesaid date, time and place, you being the accused furnished forged documents using as genuine document and thereby committed the offence punishable under section 471 of IPC and within my cognizance."
(Emphasis Supplied) CRL.P. No.4683/2016 5
7. Sri.G.A.Srikante Gowda, learned counsel for the petitioner seeks quashing of the proceedings on the following grounds:
i) The occupancy rights were granted to the petitioner by the competent authority following the due procedure of law. The 2nd respondent has challenged the said order before the Karnataka Appellate Tribunal in Appeal No.977/2009. After pursuing that civil remedy, the 2nd respondent has filed the present complaint suppressing those proceedings which is an abuse of process of Court.
ii) The dispute is civil in nature. Paragraph 7 of the complaint states that the complainant is not in a position to resist the attempt of the petitioner to interfere in the possession of the complainant and therefore, the aid of the Court is required to prevent that. If that is the case, the complainant's remedy was by way of a civil suit and not by way of a criminal case.
8. Counsel for respondent did not appear to represent respondent.
CRL.P. No.4683/20166
9. Learned counsel for the petitioner produced the copy of the appeal memo in Appeal No.977/2009 on the file of the Karnataka Appellate Tribunal, Bengaluru.
10. According to the complaint averments, the petitioner has inserted the name of his grand-father in cultivator's column by manipulation. The other allegation is that the petitioner has fabricated the mahazar and agreements of sale purportedly executed by his parents in his favour.
11. On examining the said documents, the competent authority has granted the occupancy rights on 20.10.2009 vide Annexure-A. The appeal memo in Appeal No.977/2009 shows that the 2nd respondent has challenged the order of the competent authority on 25.11.2009 exercising his right of appeal under Section 118(2) of the Karnataka Land Reforms Act. Suppressing that fact, he has filed complaint before the Magistrate making allegations of forgery.
CRL.P. No.4683/20167
12. The grounds of appeal are that he has not been given proper/adequate opportunity of hearing. Apart from that, if name of a person is wrongly mutated in the record of rights, the civil remedy is open to the complainant. Having invoked the remedy of appeal before the Karnataka Appellate Tribunal suppressing the said fact the complaint is filed.
13. The Hon'ble Supreme Court in Chandrashekar Vs. K.C.Palaniswamy and others (AIR 2013 SC 1952) has held that when the dispute is civil in nature and adjudicated by the competent authority, it would be unfair to try a person in criminal proceedings. Paragraphs 53 and 54 of the said Judgment in this regard read as follows:
"53. Neither the High Court nor the Magisterial Court have ever applied their mind and considered the conduct of the respondent and continuance of criminal proceedings in respect of the disputes, which are civil in nature and finally adjudicated by the competent authority i.e., the Company Law Board and the High Court in appeal.CRL.P. No.4683/2016 8
54. We are of the definite opinion that the complainant has manipulated and misused the process of Court so as to deprive the appellants from their basic right to move free anywhere inside or outside the country.
Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of the alleged breach of Joint Venture Agreement specially when such disputes have been finally resolved by the Court of competent jurisdiction. Hence, allowing the Criminal proceedings arising out of FIR No.7 of 2007 to continue would be an abuse of process of the Court and, therefore, for the ends of justice such proceedings ought to be quashed. Since the High Court failed to look into this aspect of the matter while passing the impugned order, in our opinion, the same could not be sustained in law."
(Emphasis supplied)
14. Having regard to the aforesaid facts and Judgment, this Court is of the considered view that the proceedings in C.C.No.426/2010 before the I Addl. Principal Civil Judge (Jr.Dn.) and JMFC, Kolar, are abuse of CRL.P. No.4683/2016 9 the process of the Court and the trial before the said Court in this regard has caused injustice and depravation of personal liberty of the petitioner. Therefore, the Petition is allowed.
The proceedings in C.C.No.436/2010 on the file of the I Addl. Civil Judge (Jr. Dn.) and JMFC, Kolar for the offences punishable under Sections 465 and 471 of IPC, are hereby quashed.
Sd/-
JUDGE bnv*