Karnataka High Court
Dr C B Murthy @ Chingategere Basappa ... vs Sri C R Vishwaprakash on 24 August, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2023:KHC:30366
CRL.A No. 937 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 937 OF 2022
BETWEEN:
DR C B MURTHY
@ CHINGATEGERE BASAPPA MURTHY
AGED ABOUT 81 YEARS
S/O LATE C H BASAPPA
R/AT No.2630, 2nd MAIN
VANI VILAS MOHALLA
VONTIKOPPAL, BEHIND RAMKRISHNA ASHRAM
MYSURU - 570 002.
...APPELLANT
(BY SRI. DINESH NEELKANT GAONKAR, ADVOCATE)
AND:
1. SRI C R VISHWAPRAKASH
Digitally signed by
AGED ABOUT 61 YEARS
LAKSHMINARAYANA S/O C.RAMAPPA
MURTHY RAJASHRI
Location: HIGH
COURT OF 2. SMT. R. YOGINI
KARNATAKA
AGED ABOUT 58 YEARS
W/O C.R VISHWAPRAKASH
BOTH 1 & 2 ABOVE ARE
RESIDING AT # 215, 3rd MAIN,
3rd CROSS, JAYALAKSHMIPURAM
MYSURU - 570 012.
...RESPONDENTS
(BY SRI. S J MADHWARAJ, ADVOCATE FOR
SRI ARUN KUMAR D N., ADVOCATE)
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NC: 2023:KHC:30366
CRL.A No. 937 of 2022
THIS CRL.A. IS FILED U/S.341 CR.P.C PRAYING TO SET
ASIDE THE IMPUGNED ORDERS DATED 19.04.2021
(ANNEXURE-A) AND FINDINGS PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE MYSURU IN
CRL.MISC.No.22/2021 ON ISSUE No.4 DATED 10.02.2021 FOR
REJECTING TO TAKE ACTION FOR PUNISHING THE
RESPONDENTS FOR OFFENCE P/U/S.282 OF INDIAN
SUCCESSION ACT R/W SECTION 193 IPC AND SECTION 340
CRPC AND ETC.,
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed under Section 341 of Cr.P.C praying to set-aside the order dated 19.04.2021 and the findings passed by the III Additional District and Sessions Judge, Mysuru in Mis.No.22/2021 on point No.4 dated 10.02.2021, rejecting to take action against the respondents for the offence under Section 282 of the Indian Succession Act, 1925 (for short hereinafter referred to as 'the Act') r/w Section 193 of the Indian Penal Code, 1860 (for short hereinafter referred to as 'IPC') and Section 340 of Code of Criminal Procedure, 1973 (for short hereinafter referred to as 'Cr.P.C'). Consequentially, -3- NC: 2023:KHC:30366 CRL.A No. 937 of 2022 prayed to direct the III Additional District and Sessions Judge, Mysuru to register the complaint by holding an enquiry, if any, required under Section 340 of Cr.P.C against the respondents for the offence punishable under Section 282 of the Act before the jurisdictional Magistrate, Mysuru.
2. Heard learned counsel for the appellant and learned counsel for the respondents.
3. The appellant's sister late Smt.C.B.Leelavathi died on 05.12.2015. Her husband and their only son and her parents pre-deceased her. The appellant is the only brother of the said Smt.C.B.Leelavathi. After four years of death of Smt.C.B.Leelavathi, respondent Nos.1 and 2 filed a petition under Section 232 of the Act, seeking issue of Letter of Administration in respect of the properties of late Smt.C.B.Leelavathi on the basis of the Will dated 19.07.2013 said to have been executed by late Smt.C.B.Leelavathi. The said petition came to be registered as P & S C No.29/2019 and the proceedings -4- NC: 2023:KHC:30366 CRL.A No. 937 of 2022 were held by III Additional District and Sessions Judge, Mysuru.
4. In the said petition, the appellant was not arrayed as a party. The respondents in the said proceeding sworn to the affidavits of examination-in-chief and they were examined as PWs.1 and 2. The III Additional District and Sessions Judge, Mysuru by order dated 27.02.2020 allowed the petition in P & S C No.29/2019 and granted the Letter of Administration to the respondents. The appellant on coming to know about grant of Letter of Administration in favour of the respondents, filed the petition seeking revocation of Letter of Administration which came to be registered in P & S C No.42/2020 and subsequently, it was re-registered as Mis.No.22/2021 and it was filed under Section 263 of the Act.
5. In the said petition, the appellant had sought revocation of Letter of Administration granted to the respondents in P and S C No.29/2019. In the said petition the appellant contended that he is the brother of late -5- NC: 2023:KHC:30366 CRL.A No. 937 of 2022 Smt.C.B.Leelavathi and he is her heir and he ought to have been made as a party in P and S C No.29/2019. In the said Mis.No.22/2021, the respondents appeared through counsel, filed the statement of objections and contested the petition. After hearing both the parties, the said petition in Mis.No.22/2021 came to be allowed and Letter of Administration granted in P and S C No.29/2019 came to be revoked. In the said Mis.No.22/2021, the appellant has also sought registering a complaint as per the provision contained in Section 340 of Cr.P.C against respondent Nos.1 and 2 for giving false evidence for the offence under Section 282 r/w Sections 191, 192 and 193 of IPC. The III Additional District and Sessions Judge, Mysuru, while disposing of the said Mis.No.22/2021 has considered the said prayer of the appellant in point No.4. The point No.4 reads thus;
4. Whether the cognizance of the offences alleged to have been committed by the Respondents under Sections 191, 192 punishable under Sections -6- NC: 2023:KHC:30366 CRL.A No. 937 of 2022 193 r/w 340 of Cr.P.C., have to be taken as per Section 282 of Indian Succession Act ?"
6. The III Additional District and Sessions Judge, Mysuru, has answered the said point No.4 in the negative and the reasons assigned in the said finding are as under:
11. It is true that in the Petition in P & S C 29/2019, the Respondents have stated that the deceased has left the Petitioners and no other person would have been her heir. The Respondent No.1 and 2 who got themselves examined as PW1 and PW2 have also stated the said fact in their evidence. But, the Petitioners have produced the genealogical tree which shows that the name of the Petitioner herein is shown as the brother of the deceased. Ex.P.2 shows that the said genealogical tree was prepared by the Respondent No.1 himself. The Respondents have argued that as the brother is not shown as the legal heir of the deceased female Hindu as per Section 15 of the Hindu Succession Act, he is not a legal heir and therefore the Petitioner was not made a party to the proceedings. Further, as per the requirement of Section 276 of the Indian Succession Act the requirements of the Petitioner is complied.-7-
NC: 2023:KHC:30366 CRL.A No. 937 of 2022
12. The argument of the Petitioner could have been accepted, if the name of the Petitioner was not shown in the genealogical tree. The proceedings under Section 340 of Cr.P.C. can be initiated if it is expedient in the interest of justice. But, considering the above circumstances, this Court is of the opinion that there is no necessity to invoke the power under Section 340 of Cr.P.C., and the materials on record do not prima-facie show that the Respondents herein had the intention to conceal the fact that the Petitioner herein is the brother of the deceased. Hence, this Court holds that there are no grounds to take the cognizance of the offences alleged to have been committed by the Respondents under Sections 191 and 192 punishable under Section 193 r/w 340 of Cr.P.C. Hence, this Point is answered in the Negative."
7. Aggrieved by the said finding given on point No.4, the appellant has filed this appeal.
8. Learned counsel for the appellant has argued that the respondents even inspite of having knowledge that this appellant is the brother of late Smt.C.B.Leelavathi, have not impleaded him in the petition seeking Letter of Administration. In the petition and in the affidavits filed in -8- NC: 2023:KHC:30366 CRL.A No. 937 of 2022 lieu of examination-in-chief, respondent Nos.1 and 2 have averred that "at the time of her death, the deceased left the petitioners and no other person who would have been her heirs".
9. The respondents by giving the said false evidence have got an order of issue of Letter of Administration. He further argued that the said averment of the respondents in the petition and in the affidavit in lieu of examination- in-chief is false averment and it attracts the offence under Section 193 of IPC and as per the provisions contained under Section 282 of the Act. The respondents as per the provisions contained under Section 278(b) of the Act ought to have stated the details of the family members of late Smt.C.B.Leelavathi. The respondents ought to have got issued the citations as required under Section 283(1)(c) of the Act, calling upon the appellant who is the brother of late Smt.C.B.Leelavathi who has an interest in the estate of the deceased Smt.C.B.Leelavathi. The appellant is the heir entitled to succeed the estate of late -9- NC: 2023:KHC:30366 CRL.A No. 937 of 2022 Smt.C.B.Leelavathi, as per the provision contained under Section 15 of the Hindu Succession Act. Without arraying the appellant as a party, the respondents in the petition, by giving false averment in the petition and the affidavits in lieu of examination-in-chief have committed the offence under Section 193 of IPC.
10. He placed reliance on several judgments stating that the action required to be taken for making false averment in the petition and giving false evidence and they are as under;
"1. (2010) 2 SCC 114 - Dalip Singh V. State of Uttar Pradesh and Others
2. 1998 Cri L J 4756 - A.Hiriyanna Gowda and others V. State of Karnataka and others.
3. (2000) 5 SCC 668 - Swaran Singh V. State of Punjab
4. AIR 1958 Calcutta 104 - Raj Kumar Dhar and others V. Colonel A Stuart Lewi.
5. (2001) 5 SCC 289 - In Re: Suo Motu Proceedings Against R Karuppan, Advocate.
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NC: 2023:KHC:30366 CRL.A No. 937 of 2022
6. (2002) 1 SCC 253 - Pritish V. State of Maharashtra and Others."
11. With this contention, he prayed for allowing the appeal and setting aside the findings given by the III Additional District and Sessions Judge, Mysuru on point No.4 of the impugned order and taking action against the respondents under Section 340 of Cr.P.C.
12. Per contra, learned counsel for the respondents would contend that the respondents have furnished the genealogical tree and it contained the name of this appellant as brother of late Smt.C.B.Leelavathi and they have not suppressed the said fact to the Court. The respondents claimed issue of Letter of Administration based on the Will dated 19.07.2013 executed by the said Smt.C.B.Leelavathi in their favour. He submits that by virtue of the said Will, the respondents are the legal heirs. Therefore, they averred the same in the petition and the affidavit filed in lieu of examination-in-Chief. There is no intention on the part of the respondents to suppress the
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NC: 2023:KHC:30366 CRL.A No. 937 of 2022 existence of the brother of Smt.C.B.Leelavathi. The respondents stated that there are no legal heirs of Smt.C.B.Leelavathi, believing that the husband, son and the parents of Smt.C.B.Leelavathi pre-deceased her and as she executed the Will in favour of the respondents. The appellant ought to have been filed a separate application for taking action under Section 340 of Cr.P.C., but, he has included the said prayer in the petition seeking revocation of Letter of Administration. The citation has been duly published in the newspaper as per the orders of the Court passed in P and S C No.29/2019 and inspite of that, none appeared to object the petition. Considering all these aspects, the learned III Additional District and Sessions Judge has passed the impugned order giving negative finding on point No.4. With this, he prayed to dismiss the appeal.
13. It is not in dispute that this appellant Sri.C.B.Murthy is the brother of Smt.C.B.Leelavathi. Respondent Nos.1 and 2 on the basis of the registered Will said to
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NC: 2023:KHC:30366 CRL.A No. 937 of 2022 have been executed by Smt.C.B.Leelavathi in their favour, filed a petition seeking issue of Letter of Administration annexed with the Will in respect of estate of the deceased Smt.C.B.Leelavathi and it is registered in P and S C No.29/2019. As per the said registered Will dated 19.07.2013, late Smt.C.B.Leelavathi bequeathed her estate in favour of respondent Nos.1 and 2. In the said petition, the respondents have averred as under:
"That at the time of her death the deceased left the petitioners and no other persons who would have been her heirs."
14. Respondent Nos.1 and 2 have been examined as PWs.1 and 2 and in their affidavit filed in lieu of examination-in-chief, they have stated as under:
"I State that at the time of death of C.B.Leelavathi left me and 2nd petitioner as her legal heirs and no other persons who would have been her heirs."
15. Learned counsel for the appellant adverting to the said averments made in the petition and the affidavits, has
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NC: 2023:KHC:30366 CRL.A No. 937 of 2022 contended that the respondents have given false evidence even though they are aware of the fact that this appellant
- Sri.C.B.Murthy is the brother of late Smt.C.B.Leelavathi and he is her heir.
16. As per the provisions contained in Sub Section (1) of Section 278 of the Act, the family or other relatives of the deceased and their respective residences have to be stated in the petition seeking issue of Letter of Administration. As per the provision contained under Section 282 of the Act, if the petition contains any averment which the person making the verification knows or believes to be false, such person shall be deemed to have committed an offence under Section 193 of IPC.
17. In the circumstances, whether the respondents have knowingly suppressed the fact that the appellant Sri.C.B.Murthy is the brother of late Smt.C.B.Leelavathi in the petition and in the affidavits. The respondents filed a document namely, the affidavit containing the genealogical tree dated 19.09.2019 along with the petition. The said
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NC: 2023:KHC:30366 CRL.A No. 937 of 2022 affidavit has been marked as Ex.P2. In the said genealogical tree, this appellant has been shown as the son of C.H.Basappa and so also, Smt.C.B.Leelavathi has been shown as the daughter of Sri.C.H.Basappa. On going through the said Ex.P2 - affidavit containing the genealogical tree, one can come to know that this appellant Sri.C.B.Murthy is the brother of Smt.C.B.Leelavathi. The petition in P and S C No.29/2019 has been filed on 19.09.2019 and the affidavit containing the genealogical tree (Ex.P2) is also dated 19.09.2019 filed along with the petition. As the said affidavit containing the genealogical tree which indicates that the appellant is the brother of late Smt.C.B.Leelavathi and by filing the said affidavit containing the genealogical tree, the respondents have not suppressed the said fact to the Court. Even the said affidavit containing the said genealogical tree is marked in the evidence of respondent No.1, who has been examined as PW1.
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18. Considering the said aspect, it cannot be said that mentioning of the fact in the petition and in the affidavit that Smt.C.B.Leelavathi has no other legal heir is not a deliberate false on a matter of substance. There must be prima facie case of deliberate false on a matter of substance and the Court must be satisfied and there must be reasonable foundation for the charge and the prosecution of the offender is necessary in the interest of justice. Otherwise, time of the Court, which has to be usefully devoted for dispensation of justice, will be wasted on such enquires. The same has been held by the Hon'ble Apex Court in the case of N.Natarajan Vs. B.K.Subba Rao reported in AIR 2003 SC 541.
19. The Court before directing a complaint to be lodged, must form an opinion on being satisfied or come to the conclusion on such satisfaction that the person charged has intentionally given false evidence and such formation of opinion must be on consideration of materials duly placed. The same is the observation by the Calcutta High
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NC: 2023:KHC:30366 CRL.A No. 937 of 2022 Court in the case of Bibhuti Basu Vs. Corporation of Calcutta reported in 1982 Cr.L.J page 909. In the said decision, the Calcutta High Court has observed thus;
"27. The provisions of Section 340, are more or less procedural and indicates how a complaint in respect of offence referred to in Section 195(1)(b) is to be made. The Court, in a proceeding Under Section 340 or before directing a complaint to be lodged must in my view, form the opinion on being satisfied or come to the conclusion on such satisfaction that the person charged, has intentionally given false evidence and that, for the eradication of the evils of perjury and in the interest of justice, it is expedient that he should be prosecuted for the offence and furthermore the Court, at the time of or before delivering the judgment, must, as mentioned above, duly form the opinion that the person charged, gave false evidence and such formation of opinion, must be on consideration of materials duly placed. These apart, the Court should, before directing a complaint to be filed, also consider, if the evidence as led, was intentionally done and knowing the same to be false or the same was intended to have some unlawful gain over the adversary and was aimed at having some advantage irregularly. Thus, like all other Criminal trials or proceedings, the existence of mens rea or the
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NC: 2023:KHC:30366 CRL.A No. 937 of 2022 criminal intention behind the act as complained of will also have to be looked into and considered, before any action Under Section 340 is recommended. Mere sufferance of the petitioner, because of the inaction or irregular or improper or wrong action of his adversary, would not be enough. If there is any doubt or any semblance such doubt in the mind of the Court, in respect of the bona fides of the defence of the person charged of the action, the Court, in my view, will not be justified in exercising the power to direct the lodging of a complaint Under Section 340 simply because such action has been filed. The purpose of making a complaint against a person, would be for intentionally giving false evidence or for intentionally fabricating such evidence and that too with the aim and object as mentioned hereinbefore, at any stage of the proceeding."
20. The Kerala High Court in the case of Kuriakose Vs. State of Kerala reported in 1995 Cri.L.J 1751 has observed that the proceedings under Section 340 of Cr.P.C. should not be initiated as a matter of course, even when the witnesses give contradictory evidence. It appears that Section 340 of Cr.P.C should be exercised with care and due consideration in the interest of justice.
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21. It is not every false statement that is intended to be the subject matter of the prosecution.
22. The respondents had no deliberate intention while making the averments in the petition and in the affidavits as they have filed the affidavit containing the genealogical tree along with the petition, wherein the name of this appellant Sri.C.B.Murthy has been mentioned as brother of late Smt.C.B.Leelavathi.
23. Considering all these aspects, the learned District Judge has rightly rejected the prayer of the appellant for the action under Section 340 of Cr.P.C by the impugned finding on point No.4. There are no grounds to interfere with the said findings.
24. In the result, the appeal is dismissed.
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JUDGE GH List No.: 1 Sl No.: 7