Karnataka High Court
Smt Revamma vs State Of Karnataka on 15 April, 2021
Equivalent citations: AIRONLINE 2021 KAR 484, 2021 (2) AKR 702
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF APRIL, 2021
BEFORE:
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION No. 5555/2020
BETWEEN:
1. SMT REVAMMA
W/O LATE DODDA SHANTHAPPA
AGED ABOUT 83 YEARS
R/A NO. 228, AREHALLI
VILLAGE, UTTARAHALLI HOBLI,
BENGALURU - 560 061.
2. SHRI SHIVARUDRAPPA
S/O LATE DODDA SHANTHAPPA
AGED ABOUT 44 YEARS
R/A NO. 228/1,
AREHALLI VILLAGE
UTTARAHALLI HOBLI,
BENGALURU - 560 061.
... PETITIONERS
[BY SRI. V. B. SHIVA KUMAR, ADV.]
AND:
1. STATE OF KARNATAKA
BY SUBRAMANYAPURA
POLICE STATION
SUBRAMANYAPURA,
BENGALURU - 560 061.
REP. BY SPP,
HCK, BENGALURU - 01
2. SMT. K.V. SATHYAVATHI
W/O LATE T.L. RAMAIAH
AGED ABOUT 84 YEARS
NO.13, VENKATASWAMAPPA LANE
LALBAGH UPPARAHALLI,
2
LALBAGH WEST GATE
BENGALURU - 560 004.
... RESPONDENTS
[BY SMT. NAMITHA MAHESH B.G, HCGP FOR R1;
SMT. RAKSHITHA D.J., ADV FOR R2]
THIS PETITION IS FILED UNDER SECTION 482 OF CR.PC,
PRAYING TO QUASH THE PROCEEDINGS INITIATED BY THE 1ST
RESPONDENT ON THE BASIS OF THE COMPLAINT FILED BY
THE 2ND RESPONDENT BEFORE THE II ADDL.C.M.M.,
BENGALURU IN CR. NO. 24/2020 AT ANNEXURE-C.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
This petition is filed under Section 482 of the Cr.PC, praying this Court to quash the proceedings initiated against the petitioners herein in Crime No.24/2020 pending on the file of II Additional Chief Metropolitan Magistrate, Bengaluru and pass such other order as deems fit in the circumstances of the case.
2. The factual matrix of the case is that the Respondent No.2 had lodged a complaint with the Respondent No.1 vide complaint dated 3.2.2020 making allegation against these petitioners that they have 3 created a power of attorney and forged the signature of the complainant and making use of the power of attorney executed gift deed and also sale deeds in respect of property bearing Nos.1/1A, 1/1B to the extent of 1 acre 32 guntas situated at Arehalli Village, Uttarahalli Hobli, Bengaluru South Taluk. Based on the complaint, the Police have registered the case against the petitioners for the offences punishable under Sections 465, 468, 471, 420 of IPC read with Section 34 of IPC. Hence, the petitioners are before this Court.
3. Learned counsel for the petitioners would vehemently contend that the alleged power of attorney dated 6.7.1995 and the same is executed by the complainant/Respondent No.2 and only in the year 2020, notice was issued and also filed a civil suit. When the civil suit is pending before the trial Court with regard to the alleged offence of forgery and fabrication of 4 documents and there is presumption under Section 85 of the Indian Evidence Act in respect of execution of the document, the complaint is nothing but an absue of process, giving criminal colour to the civil dispute between the parties. Learned Counsel also brought to the notice of this Court with regard to exchange of notice between the parties and also brought to the notice of this Court the original suit in O.S. No.3747/2020 and also averments made in the complaint. Learned Counsel also relied upon the power of attorney which is marked as Annexure-G. When the civil suit is pending between the parties and allegation has to be proved in the said case and after conclusion of the said case, the Respondent No.2 can initiate criminal proceedings and there cannot be two parallel proceedings against the petitioners both in civil and criminal proceedings.
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4. Per contra, learned High Court Government Pleader submits that the petitioners are not assisting the Investigating Officer in conducting the investigation and they have not produced the original power of attorney and notice has been issued under Section 41[a] of Cr.PC to produce the original and the same is not produced. When serious allegations of forgery and fabrication of documents are alleged against the petitioners herein, the Investigating Officer has to get FSL report with regard to the forgery and hence this Court cannot invoke Section 482 of Cr.PC to stop the investigation and crime has to be unearthed by conducting the probe.
5. Learned counsel for the respondent No.2 would vehemently contend that the land originally belonged to late Patel Dodda Shanthappa and the same was purchased by the complainant/respondent and even portion of the land was acquired and the same has been 6 quashed and the matter was taken to the Supreme Court and ultimately the acquisition was cancelled. Learned Counsel would vehemently contend that out of 2 acres 13 guntas of land, 1 acre 32 guntas which has been retained by the Respondent No.2 is the subject matter of fabrication and forgery and no such power of attorney was executed and it is the specific case of the complainant that signature found on the power of attorney does not belong to her. She also contends that based on the forged power of attorney, gift deeds are created in favour of children of the petitioner No.2 herein and the documents they are relying upon, they have not produced the original before the Investigating Officer and the very contention of civil suit pending is not a ground to quash the proceedings.
6. Learned Counsel, in support of her arguments, also relied upon the Judgment of the Hon'ble Apex Court in the case of PARBATBHAI AAHIR @ 7 PARBATBHAI BHIMSINHBHAI KARMUR v. STATE OF GUJARAT reported in 2017 [9] SCC 641 and brought to the notice of this Court paragraphs 4 and 16 with regard to fabrication of documents, forgery and conspiracy where parties have acted upon based on the said document. Learned Counsel also relied upon the Judgment of the Hon'ble Apex Court in the case of DINESHBHAI CHANDUBHAI PATEL v. STATE OF GUJARAT reported in 2018 [2] Crl. CC 426 and brought to the notice of this Court paragraphs 29 to 34 wherein the Hon'ble Apex Court also summarized the principles with regard to quashing of the FIR.
7. Learned Counsel also relied upon the Judgment in the case of AZIJA BEGUM v. STATE OF MAHRASHTRA AND ANOTHER reported in [2012] 3 SCC 126 wherein the Hon'ble Apex Court declined to invoke Section 482 of Cr.PC when serious allegations are made in the FIR and also relied upon the Judgment 8 of this Court in the case of K. MUNIRATHNAM v. THE STATE OF KARNATAKA AND OTHERS reported in 2021 SCC Online Karnataka 372 and referring to this Judgment, brought to the notice of this Court, paragraphs 5, 6, 9, 10 and 11 and this Court referring to the Judgments of the Apex Court in the case of similar circumstances, declined to invoke Section 482 of Cr.PC and hence prayed this Court to reject the prayer sought in the petition.
8. Learned Counsel appearing for the petitioners in reply to the arguments of the respective respondents' Counsel would vehemently contend that when the matter is pending before the Civil Court and the same has to be adjudicated and the Police cannot decide the issue with regard to forgery and fabrication of the documents and it requires full fledged trial and Civil Court can take a decision with regard to forgery and fabrication of the documents and hence if the 9 proceedings is continued, it amounts to abuse of process which leads to miscarriage of justice.
9. Having heard the petitioners' Counsel and also respondents' Counsel, this Court has to analyze the material available on record. It is settled principle that when the FIR is sought for quashing, the Apex Court also in the case of DINESHBHAI CHANDUBHAI PATEL v. THE STATE OF GUJARAT reported in 2018 [3] SCC 104 held that Court has to look into the contents of the complaint, where the complaint discloses prima facie committing of cognizable offence and then High Court should not venture to collect material as Appellate Court or interfere with the investigation to be done by the Investigating Officer and the same is the domain of the Investigating Officer.
10. The main contention of the petitioners' Counsel that civil suit is also pending before the Court and it is not in dispute that the original suit in O.S. 10 No.3747/2020 is also pending before the Civil Court and on perusal of the complaint dated 3.2.2020 [Annexure-A], specific allegations are made against these petitioners that they have indulged in creation of the power of attorney and specific allegation is made that signatures found in the power of attorney does not belong to the complainant and they have forged the signature and making use of the forged power of attorney, properties are sold and even created gift deeds in favour of the children. The very contention of the petitioners' counsel that the power of attorney was executed on 16.7.1995 and after a lapse of almost 25 years, the complainant disputed the document i.e., Power of Attorney. The very contention of the petitioners that they have given criminal colour to the civil dispute.
11. In reply to the arguments, learned counsel for the respondent No.2 contends that the complaint was given 11 at the first instance on 3.2.2020 and civil suit is filed subsequent to the complaint. Having perused the complaint averments, specific allegations are made against the petitioners that they have indulged in creation of power of attorney and based on the power of attorney, third party interest is created. In view of the principles laid down in DINESHBHAI CHANDUBHAI PATEL'S case supra, the Apex Court held that the Court has to look into the contents of the complaint. No doubt, civil suit is also pending before the Court. When the offence of forgery with regard to criminal culpability is alleged in the complaint, the Court has to take note of the same and when the contents of the complaint discloses prima facie commission of the offence of forgery, the High Court should not venture to curtail the right of the Investigating Officer who has to conduct investigation of the cognizable offence of the alleged complaint. No doubt civil proceedings also pending before the Court, there cannot be any criminal colour 12 given to the civil dispute. In the case on hand, merely because suit is pending is not a ground to quash the FIR. The Apex Court in the recent Judgment in the case of SAU. KAMAL SHIVAJI POKARNEKAR v. THE STATE OF MAHARASHTRA & OTHERS in Criminal Appeal No.255/2019 disposed of on 12.02.2019, in paragraph-5 discussion with regard to similar issues wherein quashing criminal proceedings the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. The Apex Court also in paragraph-9 held that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the 13 complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.
12. This Court also in similar circumstances, had considered the issues involved between the parties in Criminal Petition No.5641/2020 vide Order dated 22.01.2021 and in detail discussed the Judgment of the Apex Court in M. KRISHNAN v. VIJAY SINGH AND ANOTHER reported in [2001] 8 SCC 645 wherein the 14 Apex Court held that the proceedings initiated against the accused/respondent under Sections 193, 209, 406, 468 and 471 read with Section 120B of IPC is quashed by the High Court due to pendency of a civil suit filed by the accused disputing the genuineness of the documents setting aside the High Court's order, held, mere pendency of the civil suit between the parties cannot be a ground for quashing the criminal proceedings against the accused. If permitted, such practice would be an easy way out for the accused to avoid criminal proceedings.
13. This Court also discussed the principles laid down in the case of VIJAYANDER KUMAR AND OTHERS v. STATE OF RAJASTHAN AND ANOTHER reported in (2014) 3 SCC 389 and so also reported Judgment in RAY CONSTRUCTIONS LIMITED, IIT MARKET, POWAI, MUMBAI AND OTHERS v. STATE OF KARNATAKA AND ANOTHER reported in 2020 (4) 15 KAR.L.J. 555. Referring to the Apex Court Judgments, this Court also has come to the conclusion that after filing of the charge-sheet, took cognizance and issued process. The legality of it is well-settled that when given set of facts may make out a civil liability as also a criminal offence and only because civil remedy may also be available to the complainant, that itself cannot be a ground to quash criminal proceedings. The real test is whether the allegations disclose a criminal offence or not.
14. Having taken note of the principles laid down in the Judgments referred to supra and also Judgment relied upon by the learned Counsel for the Respondent No.2 in PARBATBHAI AAHIR's case supra, in paragraph-16 discussed in detail with regard to scope of Section 482 of Cr.PC wherein allegation is with reference to offences punishable under Sections 384, 467, 468, 471, 120B and 506[2] of IPC. Regarding 16 creation of documents, the Apex Court held that the Court should not venture to quash the proceedings under Section 482 of Cr.PC.
15. Having considered the principles laid down in the Judgments referred to supra and also factual aspects in the case on hand and complaint allegations are specific that signatures are forged and the complaint discloses prima facie committing of cognizable offence and then High Court should not venture to collect material as Appellate Court or interfere with the investigation to be done by the Investigating Officer and the same is the domain of the Investigating Officer. Hence this Court cannot invoke Section 482 of Cr.PC to stop the investigation and crime has to be unearthed by conducting the probe. In view of the discussions made above, I pass the following:
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ORDER The petition is dismissed. However, liberty is given to the petitioners to approach this Court after filing of final report, if need arises.
I.A. No.1/2021 does not survive for consideration and hence stands dismissed.
SD/-
JUDGE AN/-