Karnataka High Court
Mr H Amarnath vs The State Of Karnataka on 7 September, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2023:KHC:32309
CRL.P No. 4525 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 4525 OF 2021
BETWEEN:
1. MR. H. AMARNATH
S/O LATE S. HANUMANTHAIAH,
AGED ABOUT 78 YEARS,
2. MRS. MANJULA
W/O MR. H. AMARNATH,
AGED ABOUT 72 YEARS,
BOTH ARE RESIDING AT NO.449,
11TH MAIN, PADMANABHANAGAR,
BANGALORE-560 070.
...PETITIONERS
(BY SRI. C.K. NANDAKUMAR, SENIOR ADVOCATE FOR
SRI. RAGHURAM CADAMBI, ADVOCATE)
Digitally signed by B
K
MAHENDRAKUMAR
AND:
Location: HIGH
COURT OF
KARNATAKA
1. THE STATE OF KARNATAKA
THROUGH JAYANAGAR POLICE STATION,
MAIN ROAD, 4TH BLOCK,
BANGALORE-560 011.
2. MR. H. SRINATH
S/O LATE S. HANUMANTHAIAH,
AGED ABOUT 72 YEARS,
RESIDING AT NO.264/265, FLAT NO.702,
DELTA FOREST EDGE APARTMENT,
2ND CROSS, PANDURANGANAGAR,
BANGALORE-560 076.
...RESPONDENTS
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NC: 2023:KHC:32309
CRL.P No. 4525 of 2021
(BY SRI. M.R. PATIL, HCGP FOR R-1;
SRI. C.V. ROHITH, ADVOCATE FOR
SMT. RAMA R IYER, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO
QUASH THE COMPLAINT AND THE ENTIRE PROCEEDINGS IN
P.C.R.NO.12162/2020 ON THE FILE OF THE HON'BLE XXXVII
ADDL.C.M.M. AT BENGALURU INCLUDING THE ORDER DATED
01.12.2020 DIRECTING THE FIRST RESPONDENT TO
INVESTIGATE, SUCH ORDER BEING A PARTY OF ANNEXURE-B
ORDER SHEET (ANNEXURES - A AND B), AS AGAINST THE
PETITIONERS.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The order of reference under Section 156(3) of Cr.PC to prosecute the petitioners for the offence punishable under Sections 416, 481, 419, 420, 467, 471, 120B of IPC is impugned in this petition.
2. The respondent No.2 lodged the private complaint under Section 200 of Cr.PC alleging that, the petitioners herein along with accused No.1 by creating the release deed tried to grab the property of which the respondent No.2 has got a share. The learned Magistrate referred the complaint to the police under Section 153(3) of Cr.PC for investigation of the aforesaid offences.
3. Sri C K Nanda Kumar, learned Senior Counsel for the petitioners submits that the petitioner No.1 - accused No.2 is a party to the released deed, by which, the subject property -3- NC: 2023:KHC:32309 CRL.P No. 4525 of 2021 was released in favour of one of the sisters of the petitioner No.1 and the respondent No.2 and the share allegedly belonging to the respondent No.2 was released by the mother, who represented the respondent No.2. He further submits that the petitioners are not beneficiaries under the said release deed. He further submits that the issue whether the release deed was obtained fraudulently was subject matter in OS No.1244/2013 and in the said suit, the jurisdictional Civil Court has recorded a categorical finding that the release deed was not obtained fraudulently. Hence, the allegation of fraudulently obtaining the release deed having been adjudicated by the Civil Court, the continuation of criminal proceeding will be an abuse of process of law.
4. The learned counsel for the respondent No.2 submits that the petitioners herein created the release deed so as to deprive the respondent No.2 of his legitimate share in the subject property. Therefore, the allegation made in the private complaint discloses the commission of the aforesaid offences, and the veracity of the allegation requires to be investigated and at this stage, the order passed by the learned Magistrate does not warrant any interference.
5. Considered the submissions of the learned counsel for the parties.
6. The respondent No.2 had filed OS No.1244/2013 for declaration that the release deed dated 23.3.1985 is not binding on the share of the plaintiff therein and also for -4- NC: 2023:KHC:32309 CRL.P No. 4525 of 2021 allotting legitimate share in the suit schedule property. In the said suit, one of the issues framed was that, whether the plaintiff therein proves that the release deed dated 23.3.1985 was created fraudulently and not binding on him. The jurisdictional Civil Court after appreciating the evidence on record held that through the release deed came into existence in the absence of plaintiff, that itself will not give rise for any of the inference that the release deed was created and fraudulent one. At the most, it can be said that the plaintiff is not a party to the release deed and not binding on his share. The release deed alleged to have been executed fraudulently was well within the knowledge of the 2nd respondent in 2013 and the private complaint was filed in 2020, which clearly infers that the private complaint was filed with malice and without any probable cause.
7. The Hon'ble Supreme Court in the case of Rajeshbhai Mulkbhai Patel and Others -vs- State of Gujarat and another, reported in (2020) 3 SCC 794, has held that when issue as to genuineness of documents, forgery of which was the basis of criminal proceedings, was pending consideration, the FIR ought not to have been allowed to be continued as it would prejudice the interest of the parties and the stand taken by them in the civil suit.
8. Therefore, the continuation of criminal proceeding against the petitioners herein will be an abuse of process of law. Accordingly, I pass the following:
-5-NC: 2023:KHC:32309 CRL.P No. 4525 of 2021 ORDER
i) Criminal petition is allowed.
ii) The impugned order dated 1.12.2020 passed by the learned XXXVII Additional Chief Metropolitan Magistrate, Bangalore and the proceeding in PCR No.12162/2020 stand quashed and consequently, the private complaint filed against the petitioners stands dismissed.
Sd/-
JUDGE BKM