Karnataka High Court
Gunjalli Nagappa vs Basavaraj on 1 June, 2010
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE EST DAY QII==+»II.II4NI3:,"éé I."o'T;I
BEFORE
THE I-1ON'BLE3 MR.JUsT_I_C~5; JAWAD .E?{A£§:III$'§._:"*v--.I
CRIMINAL I>E_T:Ti0I\IV_N'é)-.». 72V.1_5/2' 010'__
BETWEEN:
1.
. 'OCC. A'GI2ICuLTURIsT, GUNJALLI NAGAPPA' . ' S/O.H1RE}..N«'\G'APPA 1.
AGED Asourfso YEARS, _ V OCC. AGI{I'CUi;-riI;RIsf;r, 1 R/o.GANG.A\:;ATI, ' TQ._v¢"}A1'-1.G1ii;VA'TE;,"-- " b DIST.
GUNJALLI BANNA' « S/O.;N-AGAPPA-, ., "V ' A(}_}:3"D ABOUT "
I R] 0.,cIA_N*GAvAT_I, ' GPI.§\IGAVATI_,~ DIST.' KO I5Ié,ALD:;
...PI::Tm0NERs V'-»(BY sI"<I..V_:I3. SHARANABASAVA, A13. PATIL, ADV.) SfRI.BAsAvARAJ ' /OBALAPPA " @ BALANAGOUDA HANCHINAL, AGE. MAJOR, 4 /.
.**.;\V,\"-
occ. AGRICULTURIST, R /O.SHARANABASAVESHWAR NAGAR, GANGAVATI, TQ. GANGAVATI, DIST. KOPPAL.
THIS CRIMINAL PETITION IS 1?kiL__E5D IJ/S 4--82 TO SET ASIDE THE IMPU-CINED'-.. 'cI2DI:_Rv..i-£)AfI*.I«:D 08/01/2010 PASSED BY THE LE3";'\R'I'-IEJD SESSi0I:IS";IUDGE, KOPPAL IN CRL.R.P. NO. S/2009-»,VAI~ID 'I*III::.,I:\/IP,I3cINED ORDER DATED 27/02/~.2joo_9, _PAS SE,D_IE3Y THE "LEARNED PRLCIVIL JUDGE (JR.DN;}' 8:, J.I_I\<{v;;.F?..c';';.AfI"GANGAVATI, IN cc. No. 470/2008 ANDV"DIScI+.I1AIfVeGE~.,TIIE;PETITIONERS FROM THE ALLEGED QFFEI-Ic§:S..'V*-I.N TE~1.E ABOVE SAID PROCEEDINGS:_ 4' THIS "I?O'R ADMISSION THIS DAY, THECQURT Iv;ADE.._fI'II_I_3 FO.LLQWING:
F_DRDDR A 'Peti"LiQneAI*S who are ranked as accused in CC. No. of P.C. No. 113/2006 facing Charge for _the o'ffenc_eS punishable under Sections 193, 209, 420, 504, 506 If/wt. of I.P.C. are Seeking to quash the proceedings.
2. Contextual facts, which need reference are» the VA " .« reSp0n<:ient herein Basavaraj presented a petition under .»"':'_;"'* U Section 200 Cr.P.C. before the learned Magistrate alleging that land in Sy. No. 65/ I it acres 1 gunta of Gang-avathi was ovVned----b3* fi¢he_.5"i:3Cc'used Gunjalli Nagappa and his brother which land was acquired by the Qiovernrnient i'oric.on'st'r'u<: ting market yard by virtue of preC1irriinary..L' notific3.tion'§ dated I1/()4/ 1974 and fo1lowed"bi§'T --a Award was also passed the Cfficer fixing compensation,.. the petitioner herein qnestio'neci ithxe vbyithe Land Acquisition Officer and to the Civil Court. The Land Acquisition .Qrficef'réfaj:~e:_§i"~§i};e"award in LAC. No. 8/2001 at the request of thceiipietitioner No.1 (accused No.1) and his .bi*o*.i.1€:r; Wefinwhilveiiiiifiunjalli Mahanthappa also filed I 1/ 1987 before the Land Acquisition Officer rei_ir1~q}i1<iishing his claim, title and interest in respect of 3"-'~___it'he saidzpr-eperty in favour of the 15* accused. On the basis an affidavit the petitioner No.1 i.e., accused No.1 llclaicining to be an absolute owner of the property entitled to ~ 'wall benefits and approached the Civil Court in LAC. No. awxk 2 S i' i:,;_,.
fig W' 4-('""'v~'H from Rs.1,88,230.15 ps. to 14 lakhs rupees suppressing the sale in favour of the complainantsi'ather"by ' his brother, the 15' accused alongr' with .'l2'"ll"taVccu3eti approached the Civil Court and :'*with_Adrew' Rs.14,72,039/--. According bf Rs.l,54,34,522/» was also deposited._by_»pL.!i.i(j«_dtgoppal on 12/03/2003, which the iSf'~iicc.us.eci:_aipain':withdrew. In this manner the cornpenspatiort'"awarde'd_:'»byiliithvefifiovernment in respect of No. 65/1 was withdrawn grievance of the complainant 30' x 60' out of the said survey nurnber fraudulently by Gunjalli Mahantappa in connivance of the 13? accused. it is also alleged l"5?p_accusVedi'knowing that his brother had soid fraudulently withdrawn the amount of compensationi'Qdeiposited by the L.A.O. His son, 21"' accused said toliave actively assisted him in all these acts. Since ii ith_ei.collf7:iplainarit learnt that the amount of compensation
--djldepiosited and the withdrawals by the 15* accused he wanted ifto participate in the execution proceeding to put forward his _,-s./ 'N ' : _ I 1 z..._ .-4*-LR in K./' (7 claim. At that juncture knowing complainant will seek compensation, the accused No.1 is alleged to withdrawn the Execution Petition and filed a Men1jo'"s'ta_1;ing that petition filed by him for recovery of balance~arn:oun'ti.:rnay Vi 0' "'4 be closed for the time being. In this fnann.er]theg i?%f3'acc1_1sed..,d.gii is alleged to have prevented the,cornplai'n_ant frordnilayiing claim for compensation in the land.i_acquisitiori"proceedings including the execution. that h_as'is_he'~-allegedthat both the accused have committed 'i'thVe under Sections 193, 2o9;'2ig;2,:ttr, 5G4 635 5b6'4ri]'{5z;'--s§_¢V;i'34 of I.P.C.
3. iaccused"«i.e'nter_ed'fappearance and sought for discharge, the lllealrned jurisdictional Magistrate rejected. h~i.s orderliidatcd 27/02/2009 and directed Harriingi' against it the petitioner filed revision beforei4__th¢.-lelafiried Sessions Judge in Crl.R.P. No. 8/2009. l""~__l'l'~he reikision is also dismissed by an order dated Against both these orders he is in this jllpetftion.
..'fl/)'__'_g_mJ £1!" 3
3. The learned counsel would contend that on the face of it the allegations in the complaint make out no caus.et».fo%._V action against the petitioners. He submits that coniiplain'a.nt' ;_ i admits sale deed was executed in favour of h.i.s--.fa"ther.:and that too by Gunjalli Mahantappa. He _ T No.1 is not a party to the salestleed n'o_ri"has a,5'ne,"n§ acti"
affecting the interest of the complainant. VH6 that sale, if any was between_""~Gu1.ijaillii and the complainant in which he far as 211s accused is concerriegdi.'he the son of 1St accused and no al'iegation"isf.'- against him to implicate him as 4t-hiaccuseid'r.foi*v.Ath:e'"effences indicated above. Lastly he Would" contend that inaction on the part of complainant in sieekgiifigieiiforceijnent ofmsale under a deed of 1988 and also putting iifeV€v.rardV"t~hViis claim, defeats his cause. According to V ° him i£__the.~dee§dof sale was genuine the complainant would it '"2__inot havev.l_/dept quiet for the 18 years to seek action. He g"wiQu].djiA.i.a1so submit that dispute, if any is of purely civil M _na__ture inviting no criminal action against them. Conduct of lithe complainant is commented upon saying he has been ."'"i_ \. ,» 9 13' petitioner and sold the property cannot be said without basis. It makes out prima--facie case against Gunjaliie Mahantappa. However he is not alive. He is not an , A' . in the proceedings. The question is whether they};-etiti_oner' it could be roped in for the said charge. this regairdu averrnents made in the complaint are cle--ar.--.. The 1.? iacc';ise--d"> has withdrawn amount of comp'e:ns»ation be owner in possession of theiidoctirnents referred to by the cornplainan-it records are mutated in favotlfrozi showing him to be in Secondly in the land acquisition i he has withdrawn Rs. V iéi,'72,C'-:39/C.' and"»a'ga'in ifirithdraw'n Rs.1,54,34,532/-- being in¥_compensation_iin. respect of entire land in Sy. No. 65 which siite.Vvclaimied by the complainant and again sought for recovesry' balance. When the complainant sought to it 'i"--._in'terVene,'v..ii is alleged that the 151- petitioner withdrew the [execution proceedings as not pressed for time being. From ii ,th_e_se ailegations of the complaint it has to be noticed that «complainant has put forward his right in respect of property measuring 30' X 60' based on the sale deed of 1988 the property was acquired he was entitled to eornpensatioii i * proportionately to the extent he purchased. petitioner appears to have withdrawn":.the_"entire_aivgount.l°t.Q"*1.t_i victirriise the complainant. The eg;§¢plaina»nt's that petitioner preempted action frornli: 'in land i_ laeqriiisirion proceedings and withdrexiv"*ei~ie.Cti1;pi0?iji Jpr'oce.edi.ngs is used as a material to show his fraud "
5. lifiiolticed the deprivation of property _p_roperty to the complainant by direct ioveprtactsiVoid~thie'-.:_:p'et'itioner No.1. He has taken cognizance and hasconsidered the material produced along {xfith the eornplainantfllto hold. that prirna--faeie case is made outl forlfrarnsing charges referred to above. But it has to it be no.ticed~tha':tiior the charge under Section 193 of Cr.'P.C, it "~___lthe Magistrate could not have takcri cognizance in View of by Section 195 of Cr.'P.C. For the offence under '«s:Secftion 193 of Cr.P.C. course to be followed is as prescribed iifunder Section 340 of Cr.P.C. on a complaint by the Court in which the offence was committed. Hence the Magistrate could not have taken cognizance against the petitioner'cip_for offence under Section 193 of Cr.P.C. on the basis complaint and accordingly that portion of the o_rdeir'has.i_it.o 3 set aside.
6. As far as other offences are concernedithe ma_'te'ria1_iii'i~ in the complaint certainly makes._o'ut_ a pr'irna-rfacie and it is always subject to proof. The acc'used_Vwill ihavepaupright of defence and explain his cio~nd}.:ct, fF'urtlierA»iif--.,we accept the contention urged byvthe,lea'rnedi"co'unse'1 behalf of the petitionersiithat role to play and he is nothingtodo the property in question or that Gunjalli .lV1'ahantap'pa'sii' acts diihbt bind him then petitioner has to e:~.',_p:laini he has withdrawn the amount almost exceeding more than 1.75 crores awarded as compensation. this view of the matter E do not find any merit in the to hold that charge against him is untenable.
-.._ii:iC)bs%ervations made in this order are only for the purpose of '4'§'"' , , K ascertainment as to prima~facie case is made out and shaii not be taken as expression on merit.
7. Before parting, I must rnentionmthat 1e:«:1rnec.i:'coi:ns--e1 if placed reliance in support of his eontentio-1iro3n .j1i=c¥g:rrer.1tir:.;vr if of the Apex Court in the Case .o't'-.I__nder'V1V_Io}<:an fiostarami Another V. State of Uttaranchal SCW 66'? 9, wherein the Apex action piavrosecution under Section 420, 120BA,'VV_=%V€i§7VV basis that transaction on the basis, Prosecution by the Apex Court in thesaicl :_are:'q{iite different. Whereas in the presentcase crrminality attributed to the conduct of the 15etitioners'i'in'"the circtirtistances stated above. Therefore on ith.e"ITact,eA not applicabie.
8."the result, petition faiis except to the extent it ire_iates""At,o charge for the offence under Section 193 of Cr.P.C.
9. As far as 2*"-1 petitioner is Concerned, I am satisfied that in the Complaint itself there is no averrnent makingout prima--facie case against him or the role played either withdrawal of the amount or depriving the 'f'ightj:ol'iiti1iei' complainant to pursue legal CO'LL1I"S€.;':MltiéI'i{'§,'../l ':3 ~j1;1i€)iVi"11'"1A:E'i sufficient material to allow prosec1iti_on_ againstthe petitioner. Hence, the petition ofpetitionierxi7ailis"loot prosecution against second.zpetiti,o'nefi_'is iiC'§L.1_asheciL"'-A Qafw lI.\)'¥'~4.';»;' ''E"':' '"{''?''"'x ""9 5': § g m; 'M: J --f{:I-fili-:5