Karnataka High Court
Sri R Vinod Kumar vs State By Haalsurgate Police on 6 December, 2023
-1-
NC: 2023:KHC:44279
CRL.P No. 5802 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL PETITION NO. 5802 OF 2021
BETWEEN:
1. SRI. R. VINOD KUMAR
S/O RADHAKRISHNA
AGED ABOUT 41 YEARS,
R/AT NO.5/20, 4TH CROSS,
VENKATESHWARA LAYOUT,
S.G. PALYA,
BANGALORE-560029
2. V. SUJATHA
W/O SRI. R. VINOD KUMAR,
AGED ABOUT 35 YEARS,
R/AT NO.5/20, 4TH CROSS,
VENKATESHWARA LAYOUT,
S.G. PALYA,
BANGALORE-560029
3. SRI. V. PRASANNA KUMAR
S/O VENKATESH,
Digitally AGED ABOUT 38 YEARS,
signed by
SUMA R/AT NO.38, 1ST MAIN ROAD,
Location: 'A' STREET, NEW GUDDADAHALLI,
HIGH BANGALORE-26
COURT OF
KARNATAKA
4. SRI. M. MURUGAN
S/O G. MATHAIYAN,
AGED ABOUT 51 YEARS,
NO.57, 2ND MAIN ROAD,
VINAYAKANAGAR,
SHANTHINAGAR,
BANGALORE-30.
...PETITIONERS
(BY SRI. SRINIVAS V., ADVOCATE)
-2-
NC: 2023:KHC:44279
CRL.P No. 5802 of 2021
AND:
1. STATE BY HAALSURGATE POLICE
BANGALORE
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
2. NAGARATHARA S HANUMANTHARAYA SHETTAR DHARMA
CHATRA
REPRESENTED BY ITS
MANAGING TRUSTEE,
SRI. T. RAJANNA,
S/O LATE T.S. KRISHNA SETTY,
AGED ABOUT 83 YEARS,
R/AT NO.1057, VINODHA ROAD,
SHIVARAMPET, MYSORE-570001.
...RESPONDENTS
(BY SRI. DIVAKAR MADDUR, HIGH COURT GOVERNMENT PLEADER
FOR RESPONDENT NO.1;
SRI. B.N.MAHESH CHANDRA, ADVOCATE FOR SRI. NAVEEN
GUDIKOTE S., ADVOCATE FOR RESPONDENT NO.2)
THIS CRL.P IS FILED UNDER SECTION 482 OF THE CODE OF
CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE ORDER
DATED 21.06.2021 PASSED IN C.C.NO.13239/2021 ON THE FILE OF
I ADDL.C.M.M., BENGALURU REGISTERED PURSUANT TO
P.C.R.NO.3186/2018 AND CONSEQUENTLY QUASH ALL FURTHER
PROCEEDINGS IN C.C.NO.13239/2021 REGISTERED FOR AN
OFFENCE PUNISHABLE UNDER SECTIONS 120(B), 188, 420, 465,
466, 471 OF IPC AS AGAINST THESE PETITIONERS BY 1ST
RESPONDENT POLICE.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioners have challenged the prosecution launched against them in C.C.No.13239/2021 pending trial before the I Additional Chief Metropolitan Magistrate, Bengaluru (henceforth referred to as 'Trial Court') for the offences punishable under -3- NC: 2023:KHC:44279 CRL.P No. 5802 of 2021 Sections 120B, 188, 420, 465, 466, 471 read with Section 34 of IPC. The petitioners have also challenged the order dated 21.06.2021 passed by the Trial Court taking cognizance of the aforesaid offences and issuing process to them.
2. The respondent No.2 filed PCR No.3186/2018 alleging commission of cognizable offences by the accused. The Trial Court referred the case for investigation and report under Section 156(3) of Cr.P.C. The respondent No.1 after conducting an investigation filed a charge-sheet for the offences punishable under Sections 120B, 188, 420, 465, 466, 471 read with Section 34 of IPC. The Trial Court took cognizance of the offences and issued process.
3. Being aggrieved by the same, the petitioners are before this Court.
4. The learned counsel for the petitioners contends that respondent No.2 claimed to be the Managing Trustee of a Trust/Nagarathara S. Hanumantharaya Shettara Dharmachatra, which owned the property bearing New Nos.109, 110 and 111 situated at Chowdeshwari Temple Street, Chickpet, Bengaluru. He contends that accused No.1 was the son of T.S. Krishna -4- NC: 2023:KHC:44279 CRL.P No. 5802 of 2021 Setty, whose uncle was the founder trustee of the said Trust. He contends that accused Nos.1 to 3 conveyed the property to accused Nos.4 to 6 and that thereafter, they transferred it to accused No.7. He contends that the alienation made by accused Nos.1 to 3 in favour of accused Nos.4 to 6 and the consequent sale in favour of accused No.7 is challenged by respondent No.2 in O.S.No.7908/2015, which is pending consideration before the City Civil Court, Bengaluru. He submits that in the meanwhile, the tenants, who are occupying two portions of the property appeared in O.S.No.7908/2015 and handed over the possession to accused No.7, which was subject to the outcome of O.S.No.7908/2015. He contends that even though the suit filed by respondent No.2 herein for declaration and other reliefs is pending consideration before the Court, he invoked the criminal process by filing a private complaint and alleging that all the accused committed offences punishable under Sections 107, 177, 188, 415, 416, 417, 420, 423, 463, 465, 466, 468, 467 read with Section 34 of IPC. He contends that respondent No.2 has given a criminal colour to a dispute, which is already pending before the Civil Court and the Trial Court without looking into the documents and the fact that -5- NC: 2023:KHC:44279 CRL.P No. 5802 of 2021 the civil suit is pending before the Court involving the very same fact, cursorily took cognizance of the offences under Sections 120B, 188, 420, 465, 466, 471 read with Section 34 of IPC. He contends that the Trial Court committed an error in not applying its mind to the fact that the offence under Sections 465, 466, 471 of IPC are not at all made out as there is no offence of forgery as defined under Section 464 of IPC. He therefore, contends that the Trial Court did not apply its judicial mind before taking cognizance. At any rate, he submits that since the parties are before the Civil Court litigating over the question whether the sale deed executed by accused Nos.1 to 3 in favour of accused Nos.4 to 6 and the consequent sale deed in favour of accused No.7 was just and proper, the order taking cognizance as well as criminal proceedings initiated against the petitioners deserve to be set at naught. The learned counsel for the petitioners contends that respondent No.2 did not comply with requirement of Sections 154(1) and 154(3) of Cr.P.C and also did not file an affidavit as directed by the Hon'ble Apex Court in the case of Mrs. Priyanka Srivastava and another vs. State of U.P. and others [(2015) 6 SCC -6- NC: 2023:KHC:44279 CRL.P No. 5802 of 2021 287] and therefore, the entire proceedings are liable to be quashed.
5. Per contra, the learned counsel for respondent No.2 submits that accused No.1 had filed O.S.No.172/2001 before the Civil Judge, Mysuru, against his brother and others for partition and separate possession of various properties of the family including the property, which belonged to the Trust and the said suit was dismissed in so far as Trust property is concerned in terms of the judgment and decree dated 25.01.2010. He therefore, submits that accused No.1 did not have any subsisting right, title or interest in the Trust property. Similarly, he submits that after he lost the litigation, he set up his daughter who filed O.S.No.8167/2010 before the Additional City Civil Judge, Bengaluru, which was contested and apprehending an adverse outcome, the said suit was also withdrawn. He therefore, contends that the title of the Trust to the property aforementioned stood redeemed. Nonetheless, he contends that accused No.1 had brought about fraudulent documents in favour of accused Nos.4 to 6 and made attempts to get the revenue documents transferred to their names. Therefore, respondent No.2 being the Trustee of the Trust -7- NC: 2023:KHC:44279 CRL.P No. 5802 of 2021 thought it fit to file a civil suit for declaration of its title to the property and the consequent relief for declaration that the sale deed executed by accused Nos.1 to 3 in favour of accused Nos.4 to 6 and the consequent sale deed in favour of accused No.7 are all fraudulent and not binding upon the Trust. He contends that the conduct of the accused in bringing about the valuable deeds in respect of the properties, which were not owned by accused Nos.1 to 3 itself was a fraudulent act as accused No.1 was also one of the heirs of the trustee of the Trust and therefore, he was bound to protect the interest of the Trust, but on the contrary, he misused the symbolical entrustment of the Trust property by entering into unconscionable sale deed in favour of accused Nos.4 to 6 and the consequent sale deed in favour of accused No.7. He therefore, contends that they have committed an offence under Sections 420 and 120B and 188 read with Section 34 of IPC. He contends that accused Nos.4 to 6 cannot feign ignorance of the claim of the Trust to the property in question as the documents placed on record clearly indicated an antecedent title of the Trust and the fact that accused Nos.1 to 3 had no subsisting right, title or interest in the property. He therefore, -8- NC: 2023:KHC:44279 CRL.P No. 5802 of 2021 contends that the Trial Court was justified in taking cognizance of the offences punishable under Sections 120B, 420, 188 read with Section 34 of IPC . The learned counsel contended that the Trial Court had perused the records and only after being satisfied that an offence was made out, directed the registration of the case against the accused and issued process. He therefore, submits that on all counts, the petitioners are not entitled to any indulgence by this Court.
6. The learned High Court Government Pleader for respondent No.1 submitted that the investigating officer has collected various materials, which indict accused Nos.1 to 7 in the offences mentioned above and therefore, this Court may not exercise jurisdiction to halt the prosecution.
7. I have considered the submissions made by the learned counsel for the petitioners as well as the learned counsel for respondent No.2 and the learned High Court Government Pleader for respondent No.1.
8. The fact that the property in question belongs to the Trust cannot be disputed by any of the accused in view of the decree passed by the Court of competent jurisdiction in -9- NC: 2023:KHC:44279 CRL.P No. 5802 of 2021 O.S.No.172/2001, where the Court held that the property bearing Nos.109, 110 and 111 situated at Chowdeshwari Temple Street, Chickpet, Bengaluru belongs to the Trust namely, Nagarathara S. Hanumantharaya Shettara Dharmachatra. Accused No.1 was a party to the said suit and therefore, he cannot contend that he had any subsisting right, title or interest in the aforesaid property. Nonetheless, accused No.1 along with accused Nos.2 and 3 had conveyed the trust property in favour of accused Nos.4 to 6 in terms of sale deed dated 27.08.2014. It is not known how the municipal khatha of the property stood in the name of accused No.1 though it is stated by respondent No.2 that khatha was manipulated in the name of accused No.1 and based on this, a transaction was brought about by accused Nos.1 to 3 in favour of accused Nos.4 to 6. Therefore, the contention of accused Nos.4 to 7 that they were bonafide purchasers of the property from accused Nos.1 to 3 is a defence that they have to establish before the Trial Court. The contention of the learned counsel for the petitioners that respondent No.2 did not comply with the requirement stipulated by the Hon'ble Apex Court in the case of Mrs. Priyanka Srivastava and another, supra, while filing
- 10 -
NC: 2023:KHC:44279 CRL.P No. 5802 of 2021 the private complaint is of no consequence since the investigating officer after investigating the offence has found that the private complaint lodged by respondent No.2 was genuine and the Court had also taken cognizance of the offence alleged against the petitioners. Therefore, the requirement of complying with Sections 154(1) and 154(3) of Cr.P.C. would not arise and the fact situation in Mrs. Priyanka Srivastava and another, supra, does not obtain in the present case. Therefore, this contention of the learned counsel for the petitioners does not survive for consideration.
9. In so far as the contention that the Trial Court did not apply its judicial mind, it is relevant to note that the Trial Court passed the following order for the purpose of taking cognizance:-
"Perused the records.
Cognizance is taken in respect of the offence punishable U/s 120(B), 188, 420, 465, 466, 471 r/w 34 of IPC. Hence, register the case against the Accused in Register No.III in respect of the above said offence. Issue NBW to A1 to 7. Call on 07.07.2021."
- 11 -
NC: 2023:KHC:44279 CRL.P No. 5802 of 2021
10. The aforesaid order is liable to be set aside on more than one ground namely, (i) that the Trial Court must have demonstrably applied its mind by considering the material placed on record before taking cognizance. Mere mentioning the words "Perused the records" may not be sufficient, more particularly having regard to the fact that the parties are already before the Civil Court. The Trial Court must have therefore, considered the question whether notwithstanding pendency of the civil suit, an offence under Sections 420, 120B, 188 read with Section 34 of IPC was committed by the accused.
(ii) The Trial Court did not consider whether an offence under Sections 465, 466, 471 of IPC was committed more particularly, where there was no offence of forgery committed by the accused. It is not even the case of respondent No.2 that the petitioners had forged the signatures of any of the trustees of the Trust, which owned the property in question. Therefore, palpably an offence under Sections 465, 466, 471 of IPC was not committed and the Trial Court lost sight of this matter but mechanically took cognizance of the said offence. Thus, the order taking cognizance does not instill confidence in the mind
- 12 -
NC: 2023:KHC:44279 CRL.P No. 5802 of 2021 of the Court that the Trial Court had applied its judicial mind before taking cognizance.
11. In view of the above, this petition is allowed in part. The order dated 21.06.2021 passed by the I Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.no.13239/2021 taking cognizance of the offences under Sections 120B, 188, 420, 465, 466, 471 read with Section 34 of IPC is quashed. The case is remitted back to the I Additional Chief Metropolitan Magistrate, Bengaluru with a direction to re- appreciate the material placed on record along with the charge- sheet before taking cognizance and thereafter, take further steps in accordance with law.
12. In order to expedite the process, the Trial Court shall consider the aforesaid within a period of three months from the date of receipt of a certified copy of this order.
Sd/-
JUDGE PMR List No.: 1 Sl No.: 49