Mrs Komala vs Major Thomas Xavier on 11 July, 2019

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Karnataka High Court

Mrs Komala vs Major Thomas Xavier on 11 July, 2019

Bench: John Michael Cunha

                              1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 11TH DAY OF JULY, 2019

                           BEFORE

        THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

              CRIMINAL PETITION No.7219/2015
BETWEEN:

MRS. KOMALA
W/O RAMESH
R/A.No.58/A, 1st MAIN
R.J.GARDEN, ANAND NAGAR
CHINNAPPANAHALLI
MARATHAHALLI POST
BANGALORE -560 037                      ... PETITIONER

(BY SRI. SANDESHA A.S., ADVOCATE FOR
    SRI. S.S.MANUSHANKAR, ADVOCATE)

AND:

1. MAJOR THOMAS XAVIER
S/O LATE Mr. V.T. XAVIER
AGED ABOUT 54 YEARS
R/O NO.57, 1ST MAIN
R.J.GARDEN, ANAND NAGAR
CHINNAPPAHALLI
MARATHAHALLI POST
BANGALORE - 560 037

2. STATE
BY HAL POLICE STATION                  ... RESPONDENTS

(BY SRI. BRIJESH M.SINGH, ADVOCATE FOR R1;
    SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R2)
                              ---
                                 2


     THIS CRLIMINAL PETITION FILED U/S.482 CR.P.C., PRAYING TO
SET ASIDE THE ORDER DT.19.09.2015 PASSED BY THE ADDL.
DISTRICT & SESSIONS JUDGE (CCH-68) AT BENGALURU IN CRIMINAL
REVISION PETITION NO.25021/2015 AND CONFIRMING THE ORDER
OF THE TRIAL COURT DATED 29.11.2014 PASSED IN P.C.R.
NO.95/2010 IN CRIME NO.12/2011 PASSED BY THE X ADDL. CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU         AND QUASH THE
COMPLAINT IN P.C.R. No.95/2010 IN CRIME NO.12/2011 BY
ALLOWING THE ABOVE PETITION.

      This Criminal petition coming on for Admission, this day,
the Court made the following:

                           ORDER

Heard learned counsel for petitioner, learned counsel for respondent No.1 and learned Addl. SPP for respondent No.2. Perused the records.

Petitioner is shown as accused No.3 in the private complaint filed by respondent No.1. According to respondent No.1, he was an absentee landlord and taking advantage of his absence and ill-health of his brother, accused Nos.1 and 2 fabricated and forged documents in respect of site No.58/A purchased by the father of complainant. There are copious allegations in the complaint that the alleged acts of forgery and falsification of documents were done by accused Nos.1 and 2. In paragraph No.10 of the complaint, it is stated thus:- 3

10. The complainant further submits that the accused No.1 has no right, title or interest over the schedule 'A' property inspite of that to make unlawful gain and with a sole intention to cheat the complainant taking undue advantage of his absence and illness of his brother Mr.Joseph Xavier, has sold the schedule 'A' property in favour of the accused No.3, under sale deed dated... which is null and void and it is non-est in law.

Further in paragraph No.11, it is stated thus:-

"The complainant further submits that the accused No.1 and 2 have created a false document fabricated and forged document to create the said site bearing No.58/A which never existed."

2. The only allegation made against the petitioner herein is that, she purchased the said site from accused No.1 and later sold part of the same to others. This allegation, even if accepted at its face value, does not constitute the ingredients of the offences under sections 420, 464, 467, 470 and 471 IPC insofar as petitioner is concerned. All the allegations of falsification of documents and forgery are only directed against accused Nos.1 and 2. There are no averments in the complaint 4 and in the sworn statement of complainant that, petitioner herein had prior knowledge of the defect in title or the alleged fraud and forgery played by accused Nos.1 and 2. In the absence of any such allegation, merely on the ground that petitioner is a purchaser of the said property, petitioner cannot be prosecuted for the alleged offences. The allegations made in complaint are not sufficient to make out the ingredients of a criminal offence against the petitioner. To that extent, prosecution launched against the petitioner being illegal and abuse of process of court, deserves to be quashed.

Accordingly, petition is allowed. The proceedings initiated against the petitioner in PCR.No.95/2010 and all consequent proceedings arising therefrom are quashed only insofar as petitioner/accused No.3 is concerned. Proceedings against accused Nos.1 and 2 shall continue in accordance with law.

In view of disposal of the petition, I.A.No.1/2015 does not survive for consideration and it is also disposed of.

Sd/-

JUDGE Bss

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