Karnataka High Court
Mr Jaikishan Virwani vs The State Of Karnataka on 8 October, 2012
Author: H N Nagamohan Das
Bench: H.N. Nagamohan Das
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 08th DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE H.N. NAGAMOHAN DAS
CRIMINAL PETITION No. 3436/2012
BETWEEN :
----------------
Mr. JAIKISHAN VIRWANI
S/O MOHAN VIRWANI
AGED ABOUT 43 YEARS
No.101/102, EMBASSY CHAMBERS
VITTAL MALLYA ROAD,
BANGALORE - 560 001.
... PETITIONER
(By Sri.SAJJAN POOVAYYA, ADV., FOR
M/S ADLAW PARTNERS, ADVS.)
AND :
-------
1. THE STATE OF KARNATAKA
REPRESENTED BY
THE STATION HOUSE OFFICER
ULSOOR POLICE STATION
BANGALORE.
2. Smt HEMALATHA
W/O Mr.PRAKASH
AGED MAJOR
No.D2, CHARTERED SANNIDHI
APARTMENT, No.17, SANNIDHI
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ROAD, BASAVANGUDI,
BANGALORE.
KARNATAKA.
... RESPONDENTS
(By Sri P.KARUNAKAR, HCGP, FOR R1
Sri.T.P.RAJENDRA KUMAR SUNGEY, ADV., FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C.BY THE ADVOCATE FOR THE PETITIONER
PRAYING THAT TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.No.22370/2009 ON THE FILE OF THE X ADDL.CM.M.,
BANGALORE.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, THIS DAY, H.N.NAGAMOHAN DAS. J,
PRONOUNCED THE FOLLOWING;
ORDER
In this petition the petitioner has prayed for quashing the entire proceedings in C.C.No.22370/2009 on the file of the X Addl.Chief Metropolitan Magistrate, Mayohall, Bangalore city.
2. The second respondent filed a complaint on 01.10.2007 with the first respondent police as per Annexure-B interalia contending that she is the co-owner of immovable property bearing No.13, Magrath Road, Civil Station, Bangalore. In the year 3 1993 there came to be a joint development agreement between the second respondent, other co-owners and the builders by name M/s.Virwani Builders Pvt. Ltd now called as M/s.Embassy Classic Private Limited. In connection with this joint development agreement second respondent executed a power of attorney along with her father and other members of the family in favour of one S.Jagadeesh Kumar regarding the property referred to above. On account of some differences, second respondent revoked the power of attorney under a Deed of Revocation dated 8.5.2004. Thereafter a notice was also issued on 10.05.2004 to S.Jagadeesh Kumar, the holder of Power of attorney intimating that the power of attorney is revoked. It was also published in the newspapers on 11.05.2004. Despite the revocation of power of attorney the said Jagadeesh Kumar in collusion with the developers and with an intention to cheat the second respondent executed sale deeds as power of attorney holder. The said power of attorney holder S.Jagadeesh Kumar is none other than the brother of the second respondent. 4
3. The developers M/s.Embassy Classic Private Limited filed a suit in OS No.16677/2005 for recovery of money against the second respondent. In the complaint it is averred that the second respondent had given her acceptance for the rates quoted in the letter dated 29.09.2003. According to the second respondent she never signed the letter dated 29.09.2003 and the same was forged. On coming to know that her signature was forged the second respondent lodged a complaint with the first respondent Police as per Annexure- B dated 01.10.2007. The police registered a case in Cr.No.451/2007 for the offences punishable under Sections 468, 471, 420, r/w Section 34 IPC. The police have now completed the investigation and filed charge sheet in C.C.No.22370/2009 on the file of the Magistrate. In this C.C.No.22370/2009 petitioner is accused no.2. Petitioner is before this court to quash the proceedings under Section 482 Cr.P.C.
4. Sri.Sajjan Poovaiah, learned counsel for the petitioner contends that in order to escape the liability to pay money in O.S.No.16677/2005, the second respondent has filed a false 5 complaint with an intention to intimidate the petitioner and others. It is contended that the complaint lodged by the second respondent is only as a counter blast to the civil suit instituted by the petitioner in O.S.No.16677/2005. The entire controversy between the parties is of civil nature and it has no criminal angle. Therefore it is contended that the proceedings are liable to be quashed. Reliance is placed on the following decisions:
i) V.P.Shrivastava v. Indian Explosives Limited and others (2010) 10 SCC 361
ii) Inder Mohan Goswami v. State of Uttaranchal AIR 2008 SC 251
iii) Kishan Singh (D) v. Gurpal Singh AIR 2010 SC 3624
iv) G.Sagar Suri & another v. State of UP and others (2000) 2 SCC 636
v) Thelapalli Raghavaiah v. Station House Officer 2007 Crl.LJ 1813
vi) Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre AIR 1998 SC 709
vii) M/s. Indian Oil Corporation v. M/s. NEPC India Ltd AIR 2006 SC 2780
viii) Parminder Kaur v. State of UP (2010) 1 SCC 322 6
ix) Hydru Haji v. State of Kerala 2011(1) KLT 63
x) Satpal Singh v. State of Haryana (2010) 8 SCC 714
xi) State of Andhra Pradesh v. M.Madhusudhan Rao JT 2008 (11) SC/ST(Prevention of Atrocities)Act 454
5. Per contra, Sri T.P.Rajendra Kumar Sungay, learned counsel for the second respondent contends that after entering appearance in O.S.No.16677/2005, the second respondent came to know about the alleged letter dated 29.09.2003. This letter is a forged one. The forgery had taken place before filing O.S.No.16677/2005. Therefore the pendency of civil suit is not a legal impediment for the second respondent to initiate criminal action for the forgery. Now the investigation is completed and charge sheet is filed. Therefore, the Trial Court has to screen, assess and appreciate evidence collected by the investigating agency. He supports the impugned order passed by the Magistrate registering the case and issuing summons.
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6. Heard arguments on both the side and perused the entire petition papers.
7. At this stage it is necessary to examine under what circumstances inherent powers specified under Section 482 Cr.P.C. can be exercised by this Court. The word `inherent power' specified in Section 482 is not defined in the Code. But through several judicial pronouncements the Apex Court held as to when the High Court can exercise inherent powers. If the Court is satisfied that there is a great miscarriage of justice or abuse of process of Court or the required statutory provisions had not been complied with or to secure the ends of justice, in that event it is but the duty of the Court to have it corrected at the inception by exercising its inherent powers. Therefore the amplitude of inherent power of this Court under Section 482 Cr.P.C. can be exercised at any stage. But this inherent power shall not be exercised as a matter of rule but exceptionally, sparingly and rarest of rare cases. The Supreme Court in the case of D. Venkatasubramaniam Vs. M.K. Mohan Krishnamachari, (2009) 10 SCC 488 held that the inherent power 8 under Section 482 of the Code can be exercised by the High Court either suo motu or on an application (i) to secure ends of justice; (ii) to give effect to any order under Cr.P.C.; (iii) to prevent abuse of process of any Court.
8. Keeping the above principle in view, it is necessary to examine the fact situation in the present case. According to the petitioner, the second respondent gave her acceptance and affixed her signature to the rates quoted in the letter dated 29.09.2003. On the other hand, second respondent contends that her signature is forged on the letter dated 29.09.2003 and she has not accepted for the rates quoted therein. As against this rival controversy between the parties there is a document relied on by the petitioners dated 12.11.2003 wherein it is stated as "So far as the deployment of amount towards the FF&E pertaining to your share, we have by our letter dated September 29, 2003 requested to confirm the cost of the interiors, indicated in the said letter. So far you have not confirmed the cost of FF&E Sq.ft of area indicated therein. We repeat and reiterate that the cost of interiors (air-conditioning, work station, 9 Cabins, Carpet, Light fittings, Net working, Chairs, Sofa sets & Vertical Blinds) is Rs.1,100/- per sq.ft and for Generator & Sprinkler expenses is Rs.185/- per Sq.ft.". This letter dated 12.11.2003 is subsequent to the alleged acceptance letter dated 29.09.2003. In addition to this material the investigating officer recorded the statement and gathered the evidence and the same is now pending before the Magistrate. It is not appropriate for this court to screen, assess and appreciate the evidence gathered by the investigating agency. Without expressing any opinion on the merits of the case, this petition is hereby dismissed. All contentions are left open. Ordered accordingly.
Sd/-
JUDGE.
LRS.