Karnataka High Court
Shivaraj And Ors vs State Of Karnataka And Anr on 29 April, 2025
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2025:KHC-K:2595
CRL.P No. 201430 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 201430 OF 2022
(482(Cr.PC)/528(BNSS))
BETWEEN:
1. SHIVARAJ
S/O SIDDARAMAPPA APPAJI,
AGED ABOUT 59 YEARS,
ADVOCATE,
2. SHIVALEELA
W/O SHIVARAJ APPAJI
AGED ABOUT 54 YEARS,
ADVOCATE
3. SANKETH
S/O SHIVARAJ APPAJI
Digitally signed by AGED ABOUT 27 YEARS,
R HEMALATHA ADVOCATE,
Location: High
Court of
Karnataka PETITIONERS ARE R/AT NO. 4-2-8/1
OLD GUNJ AREA, K.B TEMPLE ROAD,
SEDAM, AT PRESENT GUBBI COLONY,
KAALABURAGI-585 105.
...PETITIONERS
(BY SMT. VIJETHA R NAIK, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY CYBER, ECONOMICS AND
NARCOTIC CRIME POLICE STATION,
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NC: 2025:KHC-K:2595
CRL.P No. 201430 of 2022
KALABURAGI 585101
REP BY SPP HIGH COURT OF
KARNATAKA KALABURAGI BENCH,
KALABURAGI 585102
2. SMT. KASTURA
W/O SHIVASHANKAR TALLALLI
AGED ABOUT 66 YEARS,
R/AT VIDYA NAGAR,
SEDAM 585222
...RESPONDENTS
(BY SMT. ANITHA M REDDY, HCGP FOR R1;
SRI. BRIJESH PATIL, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO
I) CALL FOR RECORDS, IF NECESSARY II) QUASH CHARGE
SHEET AND ALL THE PROCEEDINGS IN CC NO.2039/2021
FOR THE OFFENCE 406, 418, 420, 463, 464, 468, R/W 34
OF IPC PENDING ON THE FILE OF THE CIVIL JUDGE AND
JMFC, SEDAM, AGAINST THE PETITIONERS, AS IT IS AN
ABUSED OF PROCESS OF COURT AND IN THE INTEREST OF
JUSTICE.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
ORAL ORDER
The Petitioners in this Criminal Petition challenge the registration of the charge sheet in C.C. No. 2039/2021, which is pending before the Learned Civil Judge (Jr. Div) and JMFC, Sedam, for offences punishable under Sections 406, 418, 463, 464, 468 read with Section 34 of the IPC.
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2. The case of the prosecution is that Accused No. 1, the brother of the complainant/Respondent No. 2, and Accused Nos. 2 and 3, the wife and son of Accused No. 1 respectively, are alleged to have induced the complainant to sell her plots. It is claimed that 25 plots were sold without her knowledge, and her signatures were obtained on sale deeds. The complainant reportedly received Rs. 22 lakhs through six cheques, while Accused No. 1 allegedly sold the plots at half the market value, and some plots were sold in benami names. It is further alleged that Accused No. 1 transferred the plots to their names and received Rs. 50,00,000/-, which was used by the petitioners. The complainant alleges that she was unaware of these illegal transactions that took place between January 2016 and February 2019.
3. Subsequently, an F.I.R. was registered in Crime No. 0026/2021 on 12.02.2021 by Respondent No. 2 against Accused Nos. 1 and 2 for offences punishable under Sections 415, 418, 420, 463, 464, 465, 467, 468, 120-B, and 34 of the IPC.
4. After conducting an investigation, the police filed a charge sheet on 14.09.2021 against the petitioners in C.C. No. 2039/2021 before the Learned Civil Judge (Jr. Div) and JMFC, Sedam, for offences punishable under Sections 406, 418, 463, 464, 468 read with Section 34 of the IPC.
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5. Shri. Ravi B. Naik, learned Senior Counsel for the petitioners, submitted that Respondent No. 2 executed a sale deed for the plots in the office of the concerned Sub- Registrar. Therefore, the charge sheet filed for the offence of forgery is not legally sustainable. He further argued that there is no material to establish that the petitioners had obtained the signatures of Respondent No. 2 on blank papers to defraud her. He also contended that Respondent No. 2 had filed a suit in O.S. No. 44/2023 for the cancellation of the sale deed and possession, implying that the dispute is purely civil in nature and has been given a criminal texture to pressurize the petitioners into a settlement. He submitted that on 13.04.2016, Respondent No. 2 executed a gift deed in favor of her son, conveying six plots measuring 9 x 12 meters each in Sy. No. 906/1/1B.
5.1 Further, he submitted that in the absence of any allegations, the petitioners cannot be prosecuted for the offences punishable under Sections 415, 418, 420, 463, 464, 465, 467, 468, 120-B read with Section 34 of the IPC. In support, he relied on the following decisions:
(i) Radha Sundar Dutta v. Mohd. Jahadur and Ors, AIR 1959 SC 24.
(ii) A. Abdul Rashid Khan (Dead) and Ors v. P.A.K.A. Shahul Hamid and Ors, (2000) 10 SCC 636.-5-
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(iii) Radheer Singh v. State of Uttar Pradesh and Ors, (2021) 14 SCC 626.
(iv) Basavaraj Harlapur v. Yallappa and Anr, (Crl.P No. 10257/2012).
(v) B.A. Ravishankar v. State and Anr, (2019 (1) AKR
748).
(vi) K.P. Manjuprakash v. State of Karnataka, (2024 (1) AKR 236).
6. The Learned High Court Government Pleader for the respondent-State submitted that the charge sheet material discloses the commission of the alleged offences against the petitioners, and the veracity of the allegations can only be considered at the time of trial. He thus sought for the dismissal of the petition.
7. Per contra, Shri. Bijesh Patel, learned Counsel for Respondent No. 2, submitted that the petitioners Nos. 1 and 2 are practising advocates who are allegedly in the habit of duping gullible people in a similar fashion. The investigation reveals that about Rs. 56,00,000/- in cash was directly received by the petitioner No.1, in addition to a cheque for Rs. 22,90,000/- credited to the bank account of Respondent No. 2. On more than three occasions, cheques were initially issued in the name of Respondent No. 2 and handed over to the petitioner, but were later returned to the petitioners. Respondent No. 2 had no knowledge of such transactions -6- NC: 2025:KHC-K:2595 CRL.P No. 201430 of 2022 and therefore lodged the complaint after taking advice from her husband and son.
7.1 He further submitted that the civil proceedings is pending since 2015 between the complainant and her daughter have no relevance in the filing of a complaint by Respondent No. 2. Therefore, the averments in the complaint and charge sheet clearly disclose the commission of the offence of criminal breach of trust and cheating by the petitioners.
8. A perusal of the F.I.R. reveals that Respondent No. 2 was the owner of plots in Sy. No. 906/1/1B, situated at Sedam Taluk, Kalaburgi. As she was in need of money to repay a bank loan, Accused No. 1 suggested that she sell the plots and assured her that he would help her. Accused No. 1 allegedly obtained the complainant's signature, inducing her to believe it was necessary for preparing the sale deed for one plot. It is alleged that Accused Nos. 1 and 2 devised a plan to cheat by not contacting the purchasers in the presence of the complainant.
9. It is further alleged that Accused No. 1 failed to disclose how many plots were sold and how much money was credited to her account. When the complainant and her children inquired about this on 09.01.2021 and 16.01.2021, Accused No. 1 allegedly failed to provide the information. It -7- NC: 2025:KHC-K:2595 CRL.P No. 201430 of 2022 is claimed that the accused sold 25 plots without informing the complainant. The complainant reportedly received only Rs. 22 lakhs through six cheques, and no other consideration was received from these transactions. It is further alleged that the plots were sold at half the market value, and in a subsequent statement, the complainant stated that she had received Rs. 40 lakhs from such transactions.
10. It is also claimed that the plots were sold in benami names to people within the same family. Some plots were transferred to the names of Accused Nos. 1 and 2, while others were transferred and re-transferred by various individuals. The accused are alleged to have cheated the complainant by inducing her to sign property documents without providing the corresponding sale consideration. For example, in sale deed No. 3597/18-19, Rs. 4 lakhs was paid by cheque, but the cheque details were not mentioned.
11. A perusal of the charge sheet filed against the petitioners/accused shows that Accused No. 1 sold plots No. 36 and 37 for Rs. 4 lakhs and Rs. 1,90,000/- respectively, which were deposited in his Axis Bank account. Similarly, plots No. 53 and 54 were allegedly sold for Rs. 2,50,000/- and the amount was transferred to his Kalaburgi Co- operative Society. It is further stated that Accused No. 1 received Rs. 56 lakhs in total, using Rs. 28,71,460/- for his son's education, and spent the remaining amount on -8- NC: 2025:KHC-K:2595 CRL.P No. 201430 of 2022 constructing a commercial complex on plot Sy. No. 917/1/A/3, which belongs to Accused No. 2. The allegations against Accused No. 2 are that she sold plots No. 73 and 46, receiving Rs. 4 lakhs for each in her account. Accused No. 3 allegedly sold plots No. 72, 53, and 54, receiving Rs. 4 lakhs and Rs. 2.5 lakhs, which were deposited in his Kalaburgi Co- operative Bank account.
12. Further, a suit for the cancellation of the sale deed and for possession has been filed by the Plaintiff/Respondent No. 2 in O.S. No. 44/2023 before the Learned Senior Civil Judge at Sedam, challenging the validity of the sale deeds executed by Respondent No. 2 in relation to the fraudulent transfer of 20 plots. The suit alleges that Defendant No. 1/Petitioner No. 1 colluded with Defendant Nos. 2 and 3/Petitioners Nos. 2 and 3, along with other defendants, and transferred the plots without the complainant's knowledge, receiving the sale consideration in her name. The cancellation of the sale deed is sought for 20 plots, namely plots Nos. 9, 12, 14, 31-37, 42, 46, 53, 54, 70, 71, 74, 75, 87, and 88 in Sy. No. 906/1/1B, Sedam, Kalaburgi.
13. The arguments of the learned counsel for the parties have been considered .
Analysis;
14. It is relevant to refer to the decision of the Hon'ble Supreme Court in S.W. Palanitkar & Ors. v. State of -9- NC: 2025:KHC-K:2595 CRL.P No. 201430 of 2022 Bihar & Anr., reported in (2002) 1 SCC 241, which expounded the difference in the ingredients required for constituting an offence of criminal breach of trust (Section 406 IPC) and the offence of cheating (Section 420). The relevant observations read as follows:
"9. The ingredients necessary to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property; (ii) that person, entrusted, (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person to do so, in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made, touching the discharge of such trust.
10. The ingredients of the offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by
(ii)(b), the act of omission should be one that causes or is likely to cause damage or harm to the person induced in body, mind, reputation, or property."
(emphasis supplied) 14.1 Accordingly, in order to constitute an offence of cheating and criminal breach of trust, the sine qua non requirement of mens rea, i.e., intention to defraud or dishonest intention, must be present. Every act of breach of trust may not always result in a criminal breach of trust. The
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NC: 2025:KHC-K:2595 CRL.P No. 201430 of 2022 intention of fraudulent misappropriation must be corroborated with sufficient evidence to constitute an offence of criminal breach of trust.
15. The distinction between the aforesaid offences is that, in the case of the offence of cheating, the intention at the time of inducement should be looked into, which may be judged by subsequent conduct, and the fraudulent or dishonest intention must be present at the time of the beginning of the transaction. Whereas, to constitute an offence of criminal breach of trust, the accused must hold the property in the trust of some other person or beneficial interest or ownership, and he dishonestly misappropriates the same. Thus, the offence of cheating and criminal breach of trust cannot co-exist simultaneously for the same set of facts (Delhi Race Club Ltd and Ors v. State of Uttar Pradesh and Anr., 2024 INSC 626, para 30).
16. In the case of Radha Sundar Dutta v. Mohd. Jahadur and ors (AIR 1959 SC 24), the Hon'ble Apex Court held that where there is a conflict between the earlier clause and the later clause of the same conveyance deed, if it is not possible to give effect to all of them, then the rule of construction is well established that the earlier clause must override the latter clauses, and not vice versa. The interpretation of the clause that confers a title must be given
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17. In A. Abdul Rashid Khan (Dead) and Ors v. P.A.K.A Shahul Hamid and Ors (2000) 10 SCC 636, the appellants, who were joint-owners of property, entered into an agreement of sale with the vendee, without including sisters/co-sharers as parties to the agreement. The vendee sought a suit for specific performance, and the High Court decreed the suit to the extent of the appellants' shares in the property. The Hon'ble Apex Court held that where the property is held jointly, and once any party to the contract has agreed to sell such property by agreement, then, even if other co-sharers are not joined as parties, the decree only extends to the transfer of the shares of the appellants in the property to the contracting party.
18. In Radheer Singh v. State of Uttar Pradesh and Ors (2021) 14 SCC 626, wherein it was alleged that the appellant-accused had executed a sale deed with respect to the property belonging to the respondent-complainant in favour of other persons, based on a false power of attorney, the Hon'ble Supreme Court, by allowing the appeal, held that the High Court, while exercising its jurisdiction under Section 482 of Cr.P.C., is required to consider whether a dispute of a civil nature has been given the colour of a criminal offence. In such a situation, the Court should not hesitate to quash criminal proceedings, and the existence of
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NC: 2025:KHC-K:2595 CRL.P No. 201430 of 2022 a civil remedy on a given set of facts may not be a ground to quash criminal proceedings.
19. In the case of Basavaraj Harlapur v. Yallappa and Anr (Crl.P No. 10257/2012), it was alleged against the petitioners-accused that they took the complainant to the office of the Sub-registrar to execute a document in order to secure a loan. Subsequently, the petitioners forged his signature to fabricate a registered sale deed in favour of other petitioners. A complaint was registered against the petitioners for offences punishable under Sections 323, 406, 417, 465, 504, and 506 of the IPC. The Coordinate Bench of this Court held that while the sale deed came to be registered before the Sub-registrar, no objections were raised at that time, which gives the impression that the sale deed was duly executed. The validity of the sale deed, whether it is genuine or fabricated, will be considered in the suit where the ultimate remedy lies.
20. In the case of B. A Ravishankar v. State and Anr (2019 (1) AKR 748), the allegations against the petitioner and other accused were that they had managed to take blank cheques, on-demand promissory notes, title deeds of immovable property belonging to the complainant, and other documents at the time of lending a loan. However, after repayment of the entire loan, the accused persons failed to return the documents and cheques. The Co-ordinate Bench
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NC: 2025:KHC-K:2595 CRL.P No. 201430 of 2022 of this Court allowed the petition and held that the allegations made in the FIR and the complaint did not disclose prima facie materials to constitute the alleged offences, and the documents submitted by the counsel for the petitioners indicated that the allegations in the complaint and FIR were false and baseless.
21. In the case of K.P. Manjuprakash v. State of Karnataka (2024 (1) AKR 236), an agreement of sale was entered into between the petitioner/accused and the complainant for purchasing the subject property for a valuable consideration of Rs.48 Lakhs, with an advance of Rs.45 Lakhs. However, the complainant contended that the agreement of sale was created by forging the signature. The petitioner filed a civil suit for specific performance of the agreement of sale. In turn, an FIR was registered against the petitioner, alleging the offence of forgery and cheating.
22. The Co-ordinate Bench of this Court, relying on Rajeshbhai Mulkbhai Patel v. State of Gujarat and others (2020) 3 SCC 794, held that when the issue of genuineness of documents, the forgery of which was the basis of criminal proceedings, is pending for consideration in a civil suit, the FIR should not be allowed to continue, as it would prejudice the interests of the parties, and the stand taken by them in the civil suit.
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23. Accordingly, in the present case, the respondents contended that the accused persons had conveyed the sale of plots with the intention to commit dishonest inducement, which constitutes an offence of criminal breach of trust and the offence of cheating. However, since the complainant herself had executed the sale deed in favour of the purchasers and admitted that she had received an amount of Rs. 22 Lakhs for the sale consideration for 25 plots, and she had executed the sale deeds before the Sub-registrar, no objections were filed at the time of registration of the sale deed. The offences of criminal breach of trust and cheating are distinct offences and cannot co-exist for similar sets of facts. Furthermore, the allegations against the accused pertain to non-payment of the entire sale consideration and the sale of plots at a lower price than the market value. This aspect does not establish that there was deception or inducement at the time of registration of the sale deed. Therefore, the ingredients required to constitute an offence under Sections 406 and 418 of the IPC are absent.
24. At this juncture, it is appropriate to refer to Section 463 of the IPC, which defines the offence of forgery as:
"Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with
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NC: 2025:KHC-K:2595 CRL.P No. 201430 of 2022 intent to commit fraud or that fraud may be committed, commits forgery."
25. Further, Section 470 of IPC defines a 'forged document' as a false document made by forgery. As per Section 464 of the IPC, a person is said to have made a 'false document':
(i) if he has made or executed a document claiming to be someone else or authorized by someone else;
(ii) if he has altered or tampered with a document; or
(iii) if he has obtained a document by practicing deception, or from a person not in control of his senses.
Unless the document is false and forged in terms of Sections 464 and 470 of the IPC, respectively (Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751).
26. In this case, the recital of the complaint and FIR indicates that the accused persons allegedly obtained the complainant's signature on blank sheets, which were later used to execute a sale deed based on the accused's inducement. However, there is no evidence to show that the accused created false documents, executed such documents in favour of others, altered any documents, or acquired any documents through deception. Since the complainant has duly executed the sale deed on her own will to repay the loan amount, the ingredients required to constitute an offence under Sections 463 and 464 of the IPC are absent.
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27. Section 468 of IPC, which deals with forgery for the purpose of cheating, is as follows:
"Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
27.1 Section 468 of IPC deals with the act of committing forgery with the intention that the forged document shall be used for the purpose of cheating. It does not require that the accused should actually commit the offence of cheating; it is sufficient if the act is "likely to cause". Forgery is usually an act done in furtherance of some other criminal design; what is material is the intention or purpose of the offender in committing forgery. If his intention and purpose in committing forgery is that the forged document should be used for the purpose of cheating, the offender is guilty of the aggravated offence under Section 468 IPC.
28. The Hon'ble Supreme Court in V.Y. Jose and Another v. State of Gujarat and Anr (2009) 3 SCC 78 has observed that a contractual dispute does not always lead to criminal proceedings, especially if the aspect of cheating or deception is absent at the beginning of the contractual transaction. If the averments in the complaint/FIR do not reveal the ingredients of cheating, the High Court could
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29. In the present case, a perusal of the gift deed executed on 13.04.2016 by the complainant in favour of her son indicates that the complainant had duly executed a gift deed conveying the properties, namely plots bearing municipal No. 6, measuring 9 x 15 mts, and plots No. 15, 66, 67, 68, 70, 71, 72, and 73, measuring 9 x 12 mts each, situated at Sy.No. 906/1/1B, Sedam Taluk, Kalaburgi. Subsequent sale deeds were executed in favour of other persons.
30. The complainant has made contradictory statements with respect to the consideration received from the transfer of plots. The petitioners contend that accused No. 2 entered into an agreement of sale dated 12.12.2017 to transfer a plot in favour of the complainant. Therefore, the contention of the respondent that she had no knowledge of the sale transactions cannot be safely relied upon.
31. In view of the facts and circumstances of the instant case, the ingredients of the offence of forgery are not established. Consequently, the offence of cheating is not made out. Therefore, the essential elements required to constitute an offence under Section 468 of IPC are absent, and the determination of the genuineness of the sale deed documents and alleged forgery is purely civil in nature. However, it was given a criminal texture, and the remedies
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NC: 2025:KHC-K:2595 CRL.P No. 201430 of 2022 for such a claim lie in the institution of a civil suit, which is pending consideration.
32. Accordingly, I order the following, ORDER:
(i) The Petition is allowed.
(ii) The impugned in C.C No. 2039/2021 pending on the file of the Learned Civil Judge (Jr.Div) and JMFC, Sedam is hereby quashed.
Sd/-
(HEMANT CHANDANGOUDAR) JUDGE BKM, List No.: 19 Sl No.: 1