Karnataka High Court
Sri. Kiran Kumar. B vs The State Of Karnataka on 30 January, 2023
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY 2023
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.4267 OF 2021
BETWEEN
SRI. KIRAN KUMAR. B
S/O. LATE SRI. J. BASAVARAJU,
AGED ABOUT 38 YEARS,
R/AT NO. 22, 18TH MAIN,
12TH A CROSS, NEAR JAYANNA CIRCLE,
RAJARAJESHWARINAGAR,
BENGALURU-560 098.
... PETITIONER
(BY SRI R B SADASIVAPPA, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
RAJARAJESHWARINAGAR POLICE,
BENGALURU,
REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-560 001.
2. SMT. SARVAMANGALA
W/O. LATE SRI. J. BASAVARAJU,
AGED ABOUT 58 YEARS,
R/AT NO. 22, 18TH MAIN,
12TH A CROSS, IDEAL HOMES,
RAJARAJESHWARINAGAR,
BENGALURU-560 098.
3. SMT. ASHWINI. B
D/O. LATE SRI. J. BASAVARAJU,
AGED ABOUT 34 YEARS,
R/AT NO. 515, 6TH A MAIN,
AECS LAYOUT, A BLOCK, KUDLU,
BENGALURU-560 068.
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4. SMT. VEENA. B
D/O. LATE SRI. J. BASAVARAJU,
AGED ABOUT 32 YEARS,
R/AT NO. C-701,
ALPINE PYRAMID,
CANARA BANK LAYOUT,
KODIGEHALLI,
BENGALURU-560 087.
... RESPONDENTS
(BY SRI R.D. RENUKARADHYA, HCGP FOR R1
SRI.M.R.BALAKRISHNA FOR R2 TO R4)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO QUASH THE PROCEEDINGS IN
CR.NO.113/2021 PENDING ON THE FILE OF THE 3RD
ADDITIONAL CMM COURT, AT BENGALURU FOR THE OFFENCE
P/U/S 468, 471, 420, 465 AND SEC.34 OF IPC.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 18.01.2023, THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner-accused No.1 under Section 482 of Cr.P.C. for quashing the FIR in Crime No.113/2021 registered by the Rajarajeshwari police station for the offence punishable under Section 34, 468, 471, 420, and 465 of IPC, pending on the file of 3rd Additional CMM Court, Bengaluru.
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2. Heard the arguments of learned counsel for the petitioner, learned High Court Government Pleader for respondent No.1-State and learned counsel for the respondent Nos.2 to 4.
3. The case of the prosecution is that the respondent No.2/Sarvamangala who is none other than the mother of the petitioner filed complaint to the police in Crime No.113/2021 dated 31.05.2021 alleging that the accused took signature on the blank paper and had created the documents and got the restaurant transferred in his name. It is stated that the petitioner has forged the signature of the husband of respondent No.2 and created a fake Will in his name in respect of the immobile properties on 18.8.2016. It is further alleged that by creating the documents, he is trying to knock out the various landed properties, also got mutated in his name and obtained the khathas. She further alleges that her husband Basavaraj is having two daughters and the petitioner is a son. During the lifetime of her husband he had started a bar 4 and restaurant and after his death the accused obtained the signature of the respondents in the blank papers and got the restaurant transferred in his name. Her husband is also having landed properties and they are enjoying the same by having possession over the same. Her husband died in the year 2017, subsequent to that the accused created a fake Will by forging signature of her husband and is trying to interfere with the possession of the properties. A civil suit is also filed and is pending against her husband and in that suit the petitioner/accused produced a fake Will claiming the right over the properties. The respondent also filed a partition suit which is pending before the Civil Court, therefore, prayed for taking action against the petitioner for creating the fake Will and got it registered before the Sub-registrar along with the advocates. After registering the FIR, the police took up the investigation, which is under challenge.
4. Learned counsel for the petitioner has contended that the dispute between the petitioner and respondents 5 are purely civil in nature, there are two partition suits pending before the Civil Court. The respondents are already claiming share in the property as legal heir of the father of the petitioner and there was another partition suit filed against the father of the petitioner. In the civil suit they have challenged the Will, thereby until finding given by the Civil Court the FIR cannot be filed. The findings of the Civil Court is binding on the criminal court, therefore, prayed for quashing the FIR.
5. Learned counsel for the petitioner further contended that the very complaint is not sustainable as three respondents have filed joint complaint, which is not permissible under the law, therefore, prayed for quashing the FIR. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in case of 2018 3 AIR (Kar) (R) 569; 2018 4 KCCR (SN) 395 & 2018 0 Supreme (KAR) 73 and in case of Haridas Naik vs Mannchinamane Godriyappa.
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6. Per contra learned HCGP submits, the matter requires for investigation and the allegation against petitioner is for creating and fabricating the Will and therefore FIR cannot be quashed.
7. Learned counsel appearing for respondent No.2 also filed an objection and contended that there was civil suit filed against the father of the petitioner who is none other than husband of the respondent No.2, where the brothers and sisters of the father of the petitioner were seeking partition in the said case. The Will has been produced by him, which is a forged Will and there is no such Will executed by the husband of the respondent No.2. The accused persons also got registered the Will subsequent to the death of Basavaraj by producing false documents, therefore matter requires investigation. He further submits that a partition suit was also filed by the respondents which is pending in the partition suit filed against Basavaraj, the husband of the respondent No.2. After the death of Basavaraj, this petitioner and 7 respondent Nos.2 to 4 are brought on record as legal heirs of Basavaraj and without the knowledge of the respondents, he has created the Will in his name. Therefore, matter is required for investigation and hence prayed for dismissing the petition. In support of his arguments, he has relied upon the judgment of Hon'ble Supreme Court as well as Coordinate Bench of this court.
8. Heard the arguments of the learned counsel for the petitioner, learned HCGP, and perused the records. It is well settled by the Hon'ble Supreme Court that normally in a civil dispute, the same cannot be converted into criminal case, there are catena of decisions in this aspect. However, some of the judgment of Hon'ble Supreme Court also reveals that even if it is a civil dispute, if any allegation exists in respect of creation, fabricating and forging the signatures, then a criminal case is also filed against the accused and FIR cannot be quashed. The learned counsel for the petitioner relied upon the judgment reported in (2008) 11 Supreme Court Case 670 ; 8 (2008) 3 Supreme Court Case (cri) 920 : 2008 SCC Online SC 724 where the High Court had quashed the FIR on the ground of civil dispute. I have verified the judgment passed by the Hon'ble Supreme Court which is related to the a dispute between two parties, where the police filed charge sheet, wherein the accused was in possession of the properties and there was misappropriation later in respect of the proceeds of the agriculture land. In another case reported in (2015) SCC 679 in Mohammed Khalid Khan Vs State of UP where the Hon'ble Supreme Court quashed the criminal proceedings which was based upon the oral gift and civil suit was pending. Learned counsel for the respondent also relied upon the judgment of the Hon'ble Supreme Court reported in the case of Niharika Infrastructure Ltd Vs State of Maharashtra reported in 2021 SCC Online SC 315 and contended that the FIR cannot be quashed except in rarest of the rare cases by keeping the principle laid down by the Hon'ble Supreme Court in various cases. 9
9. Now coming to the case of the petitioner which reveals as under:
It is not in dispute that the petitioner is the son of the respondent No.2 and brother of the respondent Nos.3 and 4. It is also not in dispute that Basavaraj is the husband of the respondent No.2 and is the owner of the lands and a bar and restaurant. This petitioner and respondents are legal heirs of Basavaraj and during the lifetime of the said Basavaraj, his brother and sisters have filed a partition suit against him in O.S.No.9466/2014 and after the death of the said Basavaraj, this petitioner and the respondent Nos.2 to 4 were brought on record as legal heirs of the deceased/defendant Basavaraj. It is also not in dispute that the respondent Nos.2 to 4 also filed a partition suit in O.S.No.3614/2020 against the petitioner for 1/4th share each, as legal heirs of the Basavaraj which is pending before the Court. It is also not in dispute that the petitioner claiming the right over the properties under a will said to be executed by his father in his favour prior 10 to his death and the accused petitioner along with an advocate and scribe got the Will registered before the Sub- registrar. As per Rule 83 of the Karnataka Registration Rules 1964, the sub-registrar has authority to register the Will deed by following the procedures. Now the respondents are claiming that the Will is forged one and in order to knock out the property, the accused created Will which was in the name of husband of respondent No.2 and father of the petitioner. Ofcourse, the civil dispute is pending before the Court, but the allegation is that the Will was created by the petitioner. In this regard it is worth to mention, the judgment of the Hon'ble Supreme Court in the case of Kamal Shivaji Pokarnekar Vs State of Maharashtra reported in AIR 2019 SC 847 : 2019 wherein it was held that even the criminal complaints cannot be quashed only on the ground that the allegation made therein appeared to be civil in nature. But the ingredients of offences alleged are prima facie made out in the complaint which attracts criminal offences. In another case, Indian oil Corporation Vs NEPC India Ltd. and 11 Others, reported in 2006 (6) SCC 736 the Hon'ble Supreme Court had taken view that the criminal proceedings cannot be quashed only on the ground of civil in nature, if any forgery and creation of documents are involved. Therefore, on that ground the FIR cannot be quashed only because the dispute is civil in nature.
10. Another contention raised by petitioner counsel is that the respondent Nos.2 to 4 have filed joint complaint, which is not sustainable in support of his argument, he has relied upon the judgment of the Coordinate Bench of this court reported in 2011 1 Karlj 340 2010 Supreme (Kar) 377 in case of Haridas Naik & Others Vs Hanchinamane Godriyappa & Others wherein the High Court has stated in respect of joint complaint filed by two persons, the proceedings cannot be quashed on that ground. The complainant deserved an opportunity as to who among them should continue to prosecute the said complainant. Therefore, even if all three of them file complaint, one can be treated as complainant 12 and the remaining two can be made as witnesses. Therefore, the FIR cannot be quashed on that ground.
11. The learned counsel for the respondent also relied upon he judgment of another Coordinate Bench of this court reported in 2018 - 4 KCCR (SN) 395 taken a view that the accused has allegedly created forged document in respect of land in question. Though the civil case is pending between the parties, criminality of the accused specially alleged and serious allegation is made with regard to the forgery and cheating, wherein the court would not quash the FIR. In this regard, learned counsel for the petitioner also produced an opinion of the hand writing expert, wherein the handwriting expert from the Truth Labs have given opinion that the signatures of Basavaraj found in the admitted and disputed documents are not one and the same. Though, the expert opinion is disputed but prima facie reveals the signature of the Basavaraj has been forged. therefore in my view the FIR cannot be quashed at this stage and the matter requires 13 for investigation and police may refer the original Will as well as the signature of the Basavaraj both admitted and disputed can be referred to FSL for getting the expert opinion, therefore at this stage FIR cannot be quashed.
Accordingly, I proceed the following;
ORDER The criminal petition filed by the petitioner/accused No.1 is hereby dismissed.
Sd/-
JUDGE AKV