Karnataka High Court
Shrihari M Parande vs Vasant Madhav Kristacharaya Athani on 3 February, 2010
1
IN THE HIGH COURT OF KARNATAKA CIRCUIT E,]E'N,CH
AT DHARWAD
DATED THIS THE 03"' DAY OF FEBRUAECK
BEFORE ,w-, "Ni. ii
THEIKDTBLERHLIusTHn3ARALINAGARAIffifu
CRL.P. NO. Z'iiv(ii"8.i4/'?.(V)0S'Vii I
BETWEEN:
Shrihari M. Parande.» .
Age: 46 Years, 000:"Ai§ivoG_E1t*3y"x , V
R/o.Behind N'ag21r-eshfvI{§I_r'Te1j1p.I_e,-.3' V
Hospet, Bagalkiot. 5 » ' *
_ ____ ...Petiti0ner.
(By Sri.Jag,adisht'Pia_tii,'?AdvD'e;Ite.)
AND: E y in,» 1
1. Vasant Maelhevv'Kirisitaciiaraya Athani
Ag_e:'.,.6Qiyemars,iO~cC..:..retired Govt. Service,
"R,/V0"." Dliiéirvvagi, Tq: & Dist: Dharwad.
_ 2. A 'P.ra.'r_nDd= Gu_ruij'aj" Athani
A'ge':'48 _yealI'st', Occ: Private Service,
_ R/0I"'-Hofusev'N0.375/I, 375/2, ward No.4,
<,Near Shirurgate, Bagalkot,
Dist: Bagalkot.
I<i';'.-illiilioili Rao Gururaj Athani
Age: 54 years, Occ: Bijapur Grameena
"«_Bank employee,
I' R/0. Gaddanakeri Extension, Saptagiri,
W
Near Khadi Gramodyoga, Bagalkot,
Tq: & Dist: Bagalkot.
4. Aravind Gururaj Athani
Age: 46 years, Occ: Private Service, = *
R/o. House No.3"/5/1, 375/2, ward .
Near Shirurgate, Bagalkot, I *
At: & Dist: Bagalkot.
(Sri.Hemant Chandanagoudar, And-vgocatleslfor Rt..'1"}_:
(R.2 to R4 ~ Notice served & un1r.ej::resented'.)V..gfg
This Criminal Petitio-rrfis f';ll6§dvU}I.S'.'48'2 CI'.P.C. by the
Advocate for the petitioner s_eek~i.1~i'g" t_o_"set.Vi'aside the order
dated 28/10/2009 passed 7.4.3/2'0v,06 by the Court
of I Addl. JM'FC.,"Ba_'gallg_ot:, on'«..app_'l.icatfion filed by the
petitioner U/Sec4...2.455fof Cr«.P.;-C. and. atlolw the application
and also quash ithe_,."enlfire p'roj:ce'ed.ing's against the petitioner
concerned. .... ._ ";"'5' '* " *. 3
This petition dictating orders this day,
the Court made'Lthefo'llowi"ng.:'
'gi"TThe-l7pegt=itioner herein who is accused No.4 in
on the file of the learned 1*" Addl.
5JMFC,n_B'a~galkot, (hereinafter referred to as 'Trial Court'
l.fgfo..rV':'lshlort), has challenged in this petition U/Sec.482 of
correctness ofthe order dated 28/10/2009 passed in
'.,.»....r"'*"'-"'
..i o«.nd--e11.tls'; ,
the said case rejecting his application filed U/Sec,--24>5 of
Cr.P.C., seeking his discharge from
U/Secs.465, 418, 120-8 and 511 ofIPC.
2) Heard the arguments erse:.;eigeeieieijcgeetdait. the
learned counsel for the petitioir1_e'r:acc.i,i'se_dand S.ri';"}lejmant"
Chandanagoudar, the learned gco--al:n'g'selI"~-.lfortll"""»re.spondent~
complainant. The respectively,
Pramod, 'remained absent
despite receipt"4"ofV:li'olt--ice':C'oif"A'vthr--isil":,Ep'eitition. Perused the
impugned on record by the
learned cou n'sel* for tVh'eA:_ijpet'i'tii:oner.
3) ,.Ǥ1lSt'ated the facts leading to the present
pétit»iQra--» are as u.nde__r:
an), respondent herein namely
lg__Vasantll's_/[adhav Krishtacharya Athani filed his ill'll..fl.ciomplallnt U/Sec.2()O of Cr.P.C. against the .l resp'ondent Nos.2 to 4 herein and also the
-mpresent petitioner for the offences U/Se-cs.465, 418, 120-13 and 511 of IPC. The (N-e-..r...('--\°"""'"'\-»---u..m.« said complaint was referred U/Sec.l56(3) of Cr.P.C. to the police for investigation. i
b) The police submitted 8 report. The same was contesteVd;""()--nA the of the averments in the said coinppliaitnit a'n~d"'th'e sworn statements of the coo-map1aillrr»arit witness, the Trial Court Before the charges.'e'at:ld':"ble" aglainsit this petitioner and the said case, the":pe'.titio'he'r' V'-apipillication U/Sec.245 % .llhlsWdischaFg3 from the "T'riaf.1llCourt, by its impugneldi thevlslaid application.
Hencell"-_the U/Sec.482 of Cr.P.C. A it it ._'f<S;»:.atewd inlbr"i--ef" the case of the complainant as averr_edVi_f1'»h:i'Ei_;:conip'l..aint filed U/Sec.200 of Cr.P.C. before 7_'--tli.e "friai.__Court _is,as under:
~ Accused Nos.I to 3 are the sons of e._lc.o1"np'llainant's elder brother namely late __Gt1ruraj Athani. The complainant has two other brothers namely Gopal Athani and r----§¥'"\-7.
Anand Athani. Some property belonging to the family was acquired by the Governmentfi l The complainant, along with his Anand Athani and Srnt.Leela Athani, of complainant's another :'brother Athani, executed a General Povslferilo.fA.Attoi=_ney '~ ii in favour of accused No.1 Plfaymodh, theson the complainant's eldest brotl~,.er'V.1_ate.'Gururaf Athani, for repre;.s.e:ntir;i:g the acquisition proceedingsi tEi~ev.3';v--i.I1vg,yé.71~e not happy with the.,:a'ttitu,ldebf' they got the "Pout/eierl of Attorney cancelled byrisl«suing_j"11:otice::,,t,o,Eaccused No.1 and who has been an Advocate. 4' The, s'aAi'd,_"'no'tice was issued on i 9/2/2001. -» jlllfltccuseldllll No.1 Pramod Gururaj to cause wrongful loss to the conipllainant falsely created a .V 'Rellinquislhllment Deed', in collusion with and ,_.con'nivance of accused Nos.2 to 4, _l'pur»p.olrting to have been executed jointly by complainant, his brother Sri.Anand r._.__,__(""\-"""'\...»-at
5) Sec.244 Cr.P.C. provides that, in any warrarzt case instituted otherwise than on a police r.ep40rft;-i';tph'e Magistrate after appearance of the to hear the prosecution and take alt' such jei*tdeArtc_e'~a'S_it'itQ)?i be produced in support of the p.rosecuit'zToirI.
Cr.P.C. provides that, if evidence referred to in Sec.244,i considers, for reasons to be recorded, accused has been made .o.dt, warrant his conviction, the A/fag'ts'1.t;j_a/a_a'ili di.s_c_hiarge him.
6) Th«1is"it the provisions of Secs.244 and 245 of Cr.P.iC.w-.t_'hat', after the appearance of the accused iii._aii"case otherwise than on police report, the Magi"St_r'a't_e.1sha'i.li__have to take all such evidence as may be Vi'v:g:pro.duced"by"-the"complainant (prosecution) in support of his it.e'a'se=,ai:d--,_theh, after considering the said evidence, if the i"-i"_V-Magrisiitrate is of the opinion that no case against the V"--..acic'used is made out, which, if unrebutted, would warrant WW his conviction, the Magistrate shall discharge the aceugsed. If the Magistrate declines to discharge the accuse'ci',.lsh'elf;has to frame charge against the accused as of Cr.P.C.
7) On careful reading ofvnlthe av'cr_mehts_ i'n;"'t"hie"lsaid"'i complaint as stated supra itis quii--t--e..'c-1e'a-rpthhat;'it..is~:lthe very case of the compiainant thlatllthei in collusion with accused created the 'Relinquishmen'tl"I3:e'e:d"'lipurpioirptiedmtol"ha've been executed by the complai'inlalnt',il..:i;5jV's lathani and his ahother brother's and, on the basis of the said falseiiys crelahteldV"Reli'nd.uishment Deed', accused No.1 lt'he_liisiltgfgylljbtttged eiilclllusively in his name and thereby caused w_rongfuxl_ to the complainant.
l;__8) l Infsupport of his case the complainant has got i._l_e;<.am"i;i.ed""_«as PW.2, one witness as namely Mahantesh i'C-hlagnnfleéyya Hiremath, Advocate and Notary. PW.2 has lifipistatled in his evidence that _Ex.P.9 is the document which '____/"'*'~x....»---
came to be notarised by him on 31/7/2001 and that since he was not knowing the parties to the said docu:nen't;"'»t.hey were identified by Sri.S.M.Parande, Advocate;"'Bpaglaiellfiiot_ (who is petitioner herein). He has further de.pes.e:d. th_is'~» petitioner Advocate made endoi*.sen_ien:it 'Rein. document that he knows the e'xec_utanite.i It the-...svpecific..i' say of as PW.1 that, he did notp..ei)ii§A'eVcu't.e th.e"s-aid_document Ex.P.9 which is purported' b:eei_1i.lV:ie»xVecuted by him along with the saidAnancfjiiAth_a:ni_:an"d.._Sn1t:;{,eela Athani.
9) above evidence of PWs.I that who is accused No.4, being Ad;'v'oc.atel; iidentifiedlithis complainant as one of the though the complainant did not iexe~}c__d.te'vt'h.e_ sarrie. If this evidence is left unrebutted, it could wiarraht "conviction of this petitioner--accused for the cffencies. Therefore I am of the opinion that the ii'-lf~._le--a'z'nied 'Trial Court did not commit any error in declining to f___"""\r*~\.'_'~ IO allow the application of this petitioner filed U/Sec.V2~4_>5 of Cr.P.C. and thereby discharge him from the said
10) Sri.}agadish Patil, the learned touns:atrr~oi» petitioner has relied upon the deci'3ioii"oif la-I_ig~h_:i'C:oiii'i=t.i'o.f Orissa reported in 2002 _VV1'iv:l_i."5i"':._:"({)V1'issa)*ii [Dhobeidhar Naik vs. State] whe1?e~ih"pv--i.si"oohserV'ed..asviiunder:
Penal Code (4§_:1o__f M Forgery ~»~ on record orgly 1,, Si'f;;g:2.atures were forged,ibsL;f"w..rieii':!;_er expert nor witnesrs were forged by the accuseai' "eharge, liable to be quashed.
'Fihi.s"deei'siioi'ri'*isiof no to the petitioner for the reason thatthie~.;;;oimp'l--axirianwt"has stated in his evidence that he did sign the diocuinent Ex.P.9.
"ii_i"'lii.l)i"A_.Sri.Jagadish Patil, the learned counsel for the . i-i:pe.titior§er has also relied upon the decision_._of High Court iitei.j_Aii'o»f.4ii.iBombay in the case of State of Maharashtra vs. (_.,___,_fM""'\./' 13 Ramczchandra Keshav Bhala reported in 2004 Cri.L..VI.--___2823 and another decision of Hon'b1e Supreme Court 'ind-thef'ca'se of Ram Jas vs. State of UP reported in 1974 HC"'i«.j:.Li;_J:iii' m AIR 1974 Supreme Court decisions before the High Court of Bombay appieai'; against acquittal, no wrongful by the complainant and no made by the accused. On. those facts intention to deceive is not Whether the complainant is a matter to be found by the recording the evidence of both the sides: decision of Bombay High C-ourt is._':pa'~1so__pVof__no hiielpto' the petitioner herein. before the Horfibie Supreme Court in Cii'*!.L=;.:fi.1vi:i£'i61 referred to supra, there was wrong of the persons but in the present case the i'*i.'*.._guestionihis not of wrong identification but it is the iif=._id'er1tiification ofthe person who was not present and did not ".._______1"""?..z*-"*\...r* 12 sign the document in question. Therefore the said deci'é{i--on of Hon'bIe Supreme Court is aiso of no heIp~~-.iitowi.__f'ii.'o_:i"
petitioner.
13) For the reasons aforesaid, fhe ipireisent. pi.{:s--3°,iV[.i..OIi'1_:iii~.S.5'2 hereby dismissed as being dev0ir!_:@f.n1eri.is.._' ' -- 1 Mrk/--