Karnataka High Court
Gangadhar Bhimaji Kulkarni vs State Of Karnataka on 13 October, 2022
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL PETITION NO.100916 OF 2017
BETWEEN:
GANGADHAR BHIMAJI KULKARNI
AGED ABOUT 66 YEARS
OCCUPATION: BUSINESS
R/A INDRA PRASHTA SARAF COLONY
TILAKWADI, BELAGAVI
...PETITIONER
(BY SRI. GOWRISHANKAR H MOT, ADVOCATE)
AND
1. STATE OF KARNATAKA
BY ITS SPL PUBLIC PROSECUTOR
BY KHADE BAZAR PS
HIGH COURT BUILDING
DHARWAD
2. RAGHAVENDRA UTTAM TEVARE
AGE: 34 YEARS
OCC: GOVT. SERVICE
R/O: GONDHALI GALLI,
TAL. BELGAAVI
DIST: BELAGAVI
...RESPONDENTS
(BY SMT. GIRIJA S HIREMATH, HCGP FOR R1;
SRI. NITIN R BOLABANDI, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO QUASH THE PROCEEDINGS IN PRIVATE
COMPLAINT (P.C.NO.42/2012), C.C.NO.40/2016 UNDER
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SECTION 420, 465, 471, 201 R/W 34 WAS FILED BY THE 2ND
RESPONDENT AGAINST THE PETITIONER / ACCUSED NO.2
PENDING BEFORE THE 3RD JMFC, BELAGAVI, IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
23.09.2022, COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner who is arraigned as accused No.2 has filed this petition under Section 482 Cr.P.C. to quash the criminal proceedings initiated against him in C.C.No.40/2016 (PC.42/2012) for the offences under Section 420, 465, 471, 201 r/w Section 34 I.P.C.
2. It is the case of the petitioner that respondent No.2 filed a complaint in P.C.No.471/2011 on 27.12.2011 alleging that accused No.1 created and concocted a relinquishment deed and executed a GPA in favour of petitioner and on the basis of GPA, sold property to third party. However, the said complaint came to be dismissed. Respondent No.2 filed one more complaint on the same set of facts in P.C.No.42/2012. It was referred to investigation under Section 156(2) Cr.P.C. Respondent No.1 Police have -3- registered a case in Cr.No.26/2012 and after completing the investigation, filed charge sheet. Aggrieved by the same, the present petition is filed.
3. Respondent No.1 has appeared through learned High Court Government Pleader.
4. Respondent No.2 after due service of notice has appeared through counsel and protested the petition.
5. Vide order dated 28.07.2020, TCR were summoned and placed before the Court.
6. During the course of arguments, learned counsel representing the petitioner submitted that in view of the dismissal of the first complaint, the second complaint is not maintainable. He would further submit that the learned JMFC without application of mind has taken cognizance in respect of the second complaint. The impugned order is bad law and suffers from legal infirmities. The complaint is not supported by Affidavit. Complainant is not having any personal knowledge about the execution of relinquishment deed. The complaint in question is barred by limitation. There is no material on record to take cognizance of the offences -4- alleged. In view of the dismissal of the first complaint, the second complaint is not maintainable and prays to quash the proceedings.
7. In support of his arguments, learned counsel for petitioner has relied upon the following decisions:
1) S.B.Ranga Rao Vs. S.B.Jayasimha1 (S.B.Ranga Rao's case)
2) Jyothiprakash Punacha and Ors Vs. Pradeepkumar Shetty and Anr.2 (Jyothiprakash Punacha's case)
8. On the other hand learned High Court Government Pleader as well as learned counsel representing respondent No.2 argued and submitted that the first complaint came to be dismissed only on the ground that the complainant has failed to place sufficient material to take cognizance and it would not come in the way of maintaining the second complaint. They would further submit that after conducting detailed investigation, which includes examination of the disputed documents by an handwriting expert, the Investigating Officer has filed charge sheet. Prima facie there is sufficient material to proceed against 1 Crl.P.No.4600/2017 2 Crl.P.No.4711/2017 -5- petitioner as well as accused No.1 and prays to dismiss the petition.
9. In support of their arguments, respondents have relied upon the following decisions:
1) Mahesh Chand Vs. B. Janardhan Reddy3 (Mahesh Chand's case)
2) Poonam Chand Jain & Anr Vs. Fazru4 (Poonam Chand Jain's case)
10. Heard arguments of both sides and perused the record.
11. As evident from the Genealogical tree produced along with the petition, accused No.1 is no other than the paternal uncle of complainant. From the material placed on record it is evident that after the death of his father Mallappa, accused No.1 has allegedly got executed certain relinquishment deeds by his sisters to make Khatha in the name of accused No.1 as well as his mother. Thereafter, he has got a General Power of Attorney executed in favour accused No.2 by himself as well as his mother Smt.Lakshmi. It is also evident from the death certificate of Smt.Lakshmi 3 (2003) 1 SCC 734 4 2004 (13) SCC 269 -6- that she died on 20.07.2007. However, the charge sheet revealed that even after her death, accused Nos.1 and 2 have sold number of sites based on the General Power of Attorney executed by her. In fact the Investigating Officer has got the documents said to have been executed by the family members of accused No.1 relinquishing their right in favour of accused No.1 and his mother through Truth Lab and the report reveal that those documents are not executed by the persons who are said to have executed them. In the light of these material, the Investigating Officer has filed charge sheet against accused No.1 as well as the petitioner. The charge sheet makes out a strong prima facie case against the petitioner and accused No.1.
12. So far as the first complaint is concerned, before filing the complaint in P.C.No.42/2012, which ultimately came to be referred to the Police for investigation resulting in filing of charge sheet, respondent No.2 has filed complaint in P.C.No.47/2011 dated 27.12.2011. Vide order dated 27.12.2011, the learned JMFC has dismissed the said complaint by observing that the grand father of the complainant i.e., respondent No.2 viz., Mallappa died on -7- 11.11.1998 whereas in the complaint, the complainant has pleaded that he died on 11.11.2008, which appears to be a mistake. Further, the learned JMFC has dismissed the complaint on the ground that the complainant has not placed any material to prove the allegations. In other words, the earlier complaint came to be dismissed based on incomplete documents.
13. As held by the Hon'ble Supreme Court in Mahesh Chand's case and Poonam Chand Jain's case, there is no specific prohibition for entertaining the second complaint especially when the earlier complaint is dismissed on account of incomplete record or misunderstanding of the nature of the complaint or it was manifestly absurd unjust or foolish or where new facts which could not, with reasonable diligence have been brought on record in the previous proceedings have been adduced. Having regard to the fact that the subsequent investigation conducted by the concerned police, sufficient material is brought on record to prove the allegations against the petitioner as well as accused No.1. Prima facie the very date of the sale deeds goes to show that those documents came into existence after the death of -8- mother of accused No.1, who is one of the executant of the sale deeds through Power of Attorney. It goes to show that only to make wrongful gain and to cheat the real owners, these documents have been brought into existence. Moreover the very basis on which accused No.1 and his mother have said to have acquired complete right over the property to the exclusion of other sharers is prima facie proved to be concocted documents. In the circumstances, I am of the considered opinion that second complaint is maintainable.
14. So far as the decisions relied upon by the petitioner are concerned, they are not applicable to the facts and circumstances of the present case.
15. Thus from the above discussion, I hold that the continuation of proceedings would not amount to abuse of the process of the Court calling for interference under Section 482 Cr.P.C. In the result the petition is liable to be dismissed and accordingly I proceed to pass the following -9- ORDER
(i) Petition filed by the petitioner under Section 482 Cr.P.C is hereby dismissed.
(ii) Registry is directed to send back the TCR along with copy of this order.
Sd/-
JUDGE RR