Karnataka High Court
Sri.Shankrappa vs The State Of Karnataka & Anr on 19 August, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL PETITION NO.200080/2019
C/W
CRIMINAL PETITION NO.200792/2018
In Crl.P.No.200080/2019
Between:
Sri Shankarappa
S/o Hanumanthappa Hanchinal,
Aged about 47 years, Occ. Agriculture,
R/o Sukalpet, Tq. Sindhanoor,
Dist. Raichur.
... Petitioner
(By Sri Arunkumar Amargundappa, Advocate)
And:
1. The State of Karnataka,
By its Sindhanoor Town Police Station,
Represented by SPP,
High Court of Karnataka,
Kalaburagi Bench, Kalaburagi.
2. Shri Hosagerappa S/o Erappa,
Aged 73 years, Occ. Agriculture,
R/o Sukalpet, Tq. Sindhanoor,
Dist. Raichur.
... Respondents
2
(By Sri Gururaj Hasilkar, HCGP for R1;
Sri Mahantesh Patil, Advocate for R2)
This Criminal Petition is filed under Section 482 of
Code of Criminal Procedure praying to quash entire
proceedings against the accused No.1/petitioner pending on
the file of Principal Civil Judge (Jr.Dn.) and JMFC at
Sindhanoor in C.C.No.447/2015 for the offences under
Sections 468, 471, 420 read with Section 34 of IPC.
In Crl.P.No.200792/2018
Between:
1. M.A.Maroof S/o M.A.Raheem,
Age 47 years, Occ. Business,
Madhina Enterprises,
R/o Ramkrishor Colony,
Gangawati Road, Sindhanur,
Tq. Sindhanur, Dist. Raichur.
2. Akbar Ali S/o Gulam Mustafa Sab,
Age 42 years, Occ. Agriculture,
R/o Sindhanur, Tq. Sindhanur,
Dist. Raichur.
... Petitioners
(By Sri Ameetkumar Deshpande, Advocate)
And:
1. The State of Karnataka through
Sindhanur Police Station,
Tq. Sindhanur, District Raichur,
Represented by Addl.SPP,
High Court of Karnataka,
Kalaburagi Bench.
2. Sri Ho sagerappa S/o Irappa,
Aged 73 years, Occ. Agriculture,
3
R/o Sukalpet, Tq. Sindhanur,
Dist. Raichur.
... Respondents
(By Sri Gururaj Hasilkar, HCGP for R1;
Sri Mahantesh Patil, Advocate for R2)
This Criminal Petition is filed under Section 482 of
Code of Criminal Procedure praying to quash the entire
charge sheet arising out of Crime No.48/2014 registered by
the Sindhanoor Town Police Station, Tq. Sindhanoor, Dist.
Racihur for the offences punishable under Sections 468,
471, 420 read with Section 34 of IPC and to quash the entire
proceedings pursuant to filing the charge sheet which is
pending on the file of Principal Civil Judge (Jr.Dn.) and
JMFC Court, Sindhanoor, in C.C.No.447/2015.
These petitions coming on for admission this day, the
Court made the following:
ORDER
(Through Virtual Court) The Crl.P.No.200080/2019 filed by the petitioner/ accused No.1 under Section 482 of Code of Criminal Procedure, praying to quash the entire proceedings against the petitioner/accused No.1 pending on the file of Principal Civil Judge (Jr.Dn.) and JMFC at Sindhanoor in C.C.No.447/2015 for the offences under Sections 468, 471, 420 read with Section 34 of IPC. 4
2. The Crl.P.No.200792/2018 filed by the petitioners/ accused No.2 and 3 under Section 482 of Code of Criminal Procedure, praying to quash the charge sheet No.186/2014 dated 13.11.2017 arising out of Crime No.48/2014 registered by the Sindhanoor Town Police Station, Tq. Sindhanoor, Dist. Racihur for the offences punishable under Sections 468, 471, 420 read with Section 34 of IPC and to quash the entire proceedings pursuant to filing of charge sheet which is pending on the file of Principal Civil Judge (Jr.Dn.) and JMFC Court, Sindhanoor, in C.C.No.447/2015.
3. The marshalling of facts upon perusal of the complaint and the other materials available at this stage that the second respondent's father had purchased the agricultural land bearing Sy.No.758/1 to the extent of 1.00 acre situated at Sindhanoor village from the erstwhile owner Eranna S/o Bandeppa by way of registered sale deed dated 18.05.1974 and it is stated that since the father of the second respondent was an 5 illiterate person therefore he had not made effort to get his name mutated in the revenue records on the basis of the sale deed.
4. It is further stated that after the death of the father of second respondent the complainant being the son of the said Eranna S/o Durgappa has got mutated his name in the record of rights. When this being the fact it is made accusation against the petitioners and other accused that they have made conspiracy to each other in order to gulp the land of second respondent and created a forged documents and upon coming to know this fact the second respondent had filed a suit in O.S.No.102/2012 before the Civil Judge Court, Sindhanoor seeking declaratory relief that he is the owner of the property and said suit is pending.
5. It is further submitted that the petitioners and the other accused have made conspiracy to each other and created forged documents and by way of 6 fabrication of such documents got removed the name of the second respondent from the record of rights and the same was made entered the name of the petitioner/accused No.1 and then second respondent came to know this fact had enquired with the revenue officials and the revenue officials viz. namely Revenue Officer, Tahasildar and Assistant Commissioner have stated that no such order was passed in entering the name of the petitioner/accused No.1.
6. Further it is stated that the petitioner/accused No.1 conspired to create as if it is the order passed by the Assistant Commissioner and got entered the name of the petitioner/accused No.1 in the revenue records and thus, petitioner/accused No.1 had prepared and got registered the General Power of Attorney in favour of accused No.3 and the same was sold in favour of petitioner/accused No.2 and it is also stated the accused No.4 being the Data Entry Operator had conspired with the petitioners/accused Nos.1 to 3. 7 Therefore, with these allegations private complaint is filed under Sections 120-B, 417, 420, 426, 431, 465, 466, 467, 468, 470, 471 read with Section 34 of IPC. After completion of investigation, the police have filed charge sheet before the court and based on the said charge sheet the learned Magistrate has registered a criminal case in C.C.No.447/2015 and issued summons to the accused to face trial upon the allegations made in the complaint and the first information statement. The accused No.1 has preferred the Crl.P.No.200080/2019 and the accused No.2 and 3 have preferred the Crl.P.No.200792/2018 for quashing of the entire proceedings as stated above.
7. I have perused the grounds made out in both the petitions and also heard the arguments from the learned counsel Sri Ameetkumar Deshpande, Sri Arunkumar Amargundappa, for the petitioners and also Sri.Mahantesh Patil, for respondent No.2 and the 8 learned High Court Government Pleader for respondent No.1/State.
8. The learned counsel for the petitioners argued that the entire dispute is revolving civil in nature and criminal case ought not to have been filed and the learned Magistrate ought not to have referred the case to the police for the purpose of investigation and also learned Magistrate ought to have not taken cognizance against the accused. Further submitted that the learned Magistrate before passing the order referring the complaint for the purpose of investigation under Section 156(3) of Cr.P.C., had not received the affidavit of complainant and without receiving affidavit the learned Magistrate has mechanically proceeded to referring the matter for the purpose of investigation.
9. Further the learned counsel for the petitioners submitted that the father of the accused No.1 was the owner of the land bearing Sy.No.758/1 9 and which is reflected in the mutation extracts and also record of rights and in this regard the learned counsel Sri Arunkumar Amargundappa has filed memo along with documents and contended that the petitioner/accused No.1 is inherited the land from his father as reflected in the revenue record. Further submitted that the Assistant Commissioner in his order dated 08.01.2018 had cancelled the entries in the record of rights to the entire extent of 2 acre 28 guntas whereas it is the case of the respondent No.2 is that he is the owner of the land to the extent of only one acre. Therefore, the Assistant Commissioner has also committed illegality in passing such order this fact has prompted the respondent No.2 to take disadvantage of this fact so as to file a false complaint before the court.
10. Therefore, it is sum and substance of the counsel for the petitioners that the entire case is revolving as if it is civil in nature and filing of private complaint before the learned Magistrate and 10 consequently referring the case for the purpose of investigation under Section 156(3) of the Cr.P.C and thereafter filed the charge sheet taking cognizance is nothing but abuse of process of the court. Therefore, to secure the ends of justice, the criminal proceedings initiated against the petitioners/accused are liable to be quashed. Therefore, requested to quash the entire proceedings as prayed for.
11. On the other hand, the learned High Court Government Pleader had submitted that the learned Magistrate after ascertaining the facts that there are various offences have been committed i.e., Sections 120-B, 417, 420, 426, 431, 465, 466, 467, 468, 470 and 471 read with Section 34 of IPC and thereafter application of mind and since there are prima facie allegations are made so as to conduct investigation, accordingly, the learned Magistrate had proceeded to pass the order under Section 156(3) of Cr.P.C to conduct investigation in the present case. 11 Accordingly, the police after investigation found that there are prima facie allegations proved upon collection of evidences and came to the conclusion that the petitioners and other accused have committed the alleged offences. Therefore, filed the charge sheet which itself fortifies the gravity that the petitioners have committed the alleged offences and therefore this court does not power to decide the disputed facts involved in the case but it is complete domain of the Trial Court. Therefore, prayed to dismiss the petitions.
12. Further the learned counsel Sri Mahantesh Patil, appearing for respondent No.2 submitted that the petitioners and other accused have made conspiracy to each other attracting Section 120-B of IPC in order to commit the offences of cheating; cheating and dishonestly inducing delivery of property; mischief; forgery of valuable security.; forgery for purpose of cheating; forged (document or electronic record); using 12 as genuine a forged (document or electronic record) and therefore the Investigating Officer after recording the statement of the Revenue Inspector, Tahasildar, Assistant Commissioner and other officials and after collecting the documents had come to the conclusion that these petitioners and other accused have made conspiracy to each other and accordingly destroyed the records which are in favour of respondent No.2 and therefore committed the offences as alleged which is culminated into filing of charge sheet. Therefore, submitted that the criminal proceeding initiated as against the petitioners is as per law and therefore there is no abuse of process of the court, prayed to dismiss the petition.
13. Considering the submission made by the learned counsel for the petitioners in Crl.P.No.200792/2018 regarding the point that the respondent No.2 had not filed affidavit along with 13 private complaint under Section 200 of Cr.P.C before the learned Magistrate and the learned Magistrate without receiving the affidavit had proceeded to pass the order referring the case for the purpose of investigation under Section 156(3) of Cr.P.C, which is in violation of the principle of law laid down by the Hon'ble Apex court the case of Priyanka Srivastava & Anr vs State Of U.P.& Ors [(2015) 6 Supreme Court Cases 287].
14. The facts therein the above cited case are that the bank has initiated the proceedings under the SARFAESI Act against the lonee since lonee become defaulter of loan amount and then the lonee has filed a private complaint under Section 200 of Cr.P.C against the officers of the Bank and the learned Magistrate had referred the case for the purpose of investigation under Section 156(3) of Cr.P.C. In that background the Hon'ble Supreme Court found it is the abuse of process of the court when the bank initiated proceedings against the lonee-defaulter then the defaulter filed private 14 complaint and then without application of mind referred the case for the purpose of investigation, is abuse of process of the court. Therefore, in that context the Hon'ble Supreme Court were pleased to lay down some guidelines how to deal with private complaint and before passing the order for referring the case for investigation. Hence, to prevent filing of false and vexatious private complaints under Section 200 of Cr.P.C before the Magistrates, guideline of filing of affidavit is made. The Hon'ble Supreme Court passed an order on 19.03.2015 whereas the private complaint in the present case is filed on 03.02.2014 and passing the order referring for investigation was under Section 156(3) of Cr.P.C and report by 26.04.2014. Therefore much prior to the said judgment the learned Magistrate had applied its mind and referred the case for the purpose of investigation under Section 156(3) of Cr.P.C. However, even though without there being affidavit the present private complaint is filed before the learned Magistrate, but 15 records shows that since the records of the respondent No.2 pertaining to the land were destroyed in the office of the Tahasildar, Sindhanoor and noticing this fact and also considering the fact that the Assistant Commissioner had not passed any order, however it is shown by the petitioners/accused that the Assistant Commissioner has passed an order of mutation, but no such order was passed. Therefore, considering all these factors by applying his mind the learned Magistrate has passed the order under Section 156(3) of Cr.P.C referring the case to the police for the purpose of investigation. Thereafter the investigation was conducted and filed charge sheet. Filing of charge sheet itself prima facie fortifies the case of the respondent No.2 so as to proceed with the petitioners and other accused for the trial of the offences as alleged.
15. This court has perused the statement recorded by the Investigating Officer who are some of the agriculturists and Tahasidlar, Revenue Inspector, 16 Assistant Commissioner and Village Accountant that in column N.9 and 12, the accused No.4 who was working as a Second Division Assistant/Computer Operator had colluded with the petitioner/accused N.3 got removed the name of respondent No.2 from the record of rights and entered the name of the petitioner/accused No.1. Therefore, considering these factors that there are prima facie case is made out during the course of the investigation and accordingly filed charge sheet which itself shows that prima facie case is made out so as to proceed against the petitioners and other accused for the trial for the alleged offences as foisted.
16. Regarding taking contention by the counsel for the petitioner/accused No.1 in Crl.P.No.200080/2019, whose father is owner of the land bearing Sy.No.758/A to the extent of 4 acre 18 guntas, that the petitioner/accused No.1 is inherited the said land from his father and accordingly he had sold the said land in favour of respondent No.2. 17 Therefore, submitted that he has sold the land, which is inherited, through his father. The learned counsel in support of the arguments had filed memo along with some revenue records and the order passed by the Assistant Commissioner but these are all the disputed facts to decide who is the owner over the land and this fact cannot be adjudicated in these petitions by exercising the power under Section 482 of Cr.P.C. But upon considering the filing of charge sheet itself prima facie fortifies the fact that the allegations made in the complaint that all the petitioners and other accused have conspired to each other and committed the alleged offences. Therefore, in this regard even though it is contended by the learned counsel for the petitioners that the entire case is civil in nature but at the same time there are allegations made out as the alleged offences of forgery, fabrication of documents cheating; cheating and dishonestly inducing delivery of property ; mischief; forgery for purpose of cheating; forged 18 (document or electronic record); using as genuine a forged (document or electronic record) etc. Therefore, it cannot be said that there is abuse of process of the court so as to quash the proceedings initiated in the case.
17. The learned counsel for the petitioner/accused No.1 had relied upon the order passed by this court in Crl.P.No.200340/2017 dated 29.10.2018 where the case is found to be civil in nature and based on that giving colour as if it is criminal in nature, in that context and the factual matrix of the case in that case this court has quashed the criminal proceedings. Therefore, submitted that same order to be followed in these petitions to quash the proceedings initiated arising out in the present case. Upon considering the factual matrix involved in the case which is involved regarding execution of gift deed and 19 consequently sale of the land by virtue of the gift deed. Therefore, under these circumstances this court had quashed the criminal proceedings. The factual matrix in the above cited case is entirely different from the present case, therefore, said order referred by the learned counsel for the petitioner/accused No.1 is not applicable in the present case.
18. Further, I place reliance on the ruling of the Hon'ble Supreme Court in the case of State of Madhya Pradesh vs. Yogendra Singh Jadon and others [MANU/SC/0117/2020] [Criminal Appeal No.175/2020
- 31.01.2020] as referred by the learned counsel for respondent No.2 that, just because the dispute is civil in nature that cannot be made a ground to quash the criminal proceedings where the allegations of crime are prima facie shows during the transactions. At para 5 their lordships were pleased to observe as follows ;-
"5. We find that the High Court has examined the entire issue as to whether the offence Under Sections 20 420 and 120-B is made out or not at pre trial stage. The Respondents are beneficiary of the grant of cash credit limit when their father was the President of the Bank. The power Under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised where the allegations are required to be proved in court of law. The manner in which loan was advanced without any proper documents and the fact that the Respondents are beneficiary of benevolence of their father prima facie disclose an offence Under Sections 420 and 120-B Indian Penal Code. I may be stated that other officials of the Bank have been charge sheeted for an offence Under Sections 13(1)(d) and 13(2) of the Act. The charge under Section 420 Indian Penal Code is not an isolated offence but it has to be read along with the offences under the Act to which the Respondents may be liable with the aid of Section 120-B of Indian Penal Code."
19. Further, I place reliance on the ruling of the Hon'ble Supreme Court in the case of Kamal Shivaji Pokarnekar vs. The State of Maharashtra and others [MANU/SC/0180/2019] [Criminal Appeal No.255/2019 - 12.02.2019] as referred by the learned counsel for respondent No.2 and their lordships were pleased to observe at para 9 as follows ;-
"9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view 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 complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or 21 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."
20. The ratio laid down in the above cited rulings are squarely applicable in the present case. There are so many disputed facts are present in these petitions which are to be adjudicated during the full fledged trial. Admittedly the respondent No.2 has filed suit in O.S.No.102/2012 before the Competent Civil Court which is still pending as per the submission made by the learned counsel for the accused.
21. Further upon perusing the complaint averments made by the respondent No.2 before the learned Magistrate prima facie discloses that the name of respondent No.2 was removed from the record of rights and got entered the name of petitioner/accused 22 No.1. Whether the petitioner/accused No.1 in Crl.P.No.200080/2019, is owner of the land and which is also rival claim over the land which can be adjudicated during the trial in the suit above stated or if he wish he may file another suit. But in the complaint at para 5 in the present case upon making allegation by respondent No.2 that the Assistant Commissioner had not passed order but the petitioners herein and other accused have prepared the documents as if the Assistant Commissioner has passed an order and based on that order the name of the respondent No.2 was removed. This prima facie shows element of criminal acts were done in the present case and further after investigation, the Investigating Officer has filed charge sheet after recording statements of Assistant Commissioner, Tahasildar, Revenue Inspector and perusing documents, which fortifies the facts that act is criminal nature were done, which is liable to be decided during full-fledged trial in criminal proceedings. 23
22. Therefore, on all these disputed facts the civil suit is also pending and also prima facie allegations of offences are borne out and it is fortified during the course of investigation culminating into filing of charge sheet against the petitioners and other accused. Therefore, correctness and otherwise of the said allegations has to be decided only during full fledge trial but not at this stage. Just because there is a civil in nature dispute, the criminal complaint which prima facie makes allegations of criminal liability and further more in the present case the said fact is fortified by filing of charge sheet by the Investigating Officer and in such an event criminal complaints cannot be quashed. Just because dispute of civil in nature is involved even though the disputes are found to be civil in nature but where the allegations of forgery and fabrications of documents is involved then initiation of criminal proceedings cannot be quashed. Therefore, upon considering the entire materials and for the reasons 24 above stated and after following the principle of law laid down by the Hon'ble Supreme Court as discussed above, this court does not find any abuse of process of the court in initiating criminal proceedings against the petitioners and other accused. Therefore the criminal petitions are liable to be dismissed. Accordingly, dismissed.
In view of the disposal of the criminal petitions, IA No.1/2019 in Crl.P.No.200080/2019 and I.A.No.1/2018 in Crl.P.No.200792/2018, do not survive for consideration and the same are dismissed.
Sd/-
JUDGE sn