Karnataka High Court
Smt.Lolakshi S.Poonja vs Sri M.R. Ananda Shetty on 27 June, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION No.2642/2015
BETWEEN:
1. Smt.Lolakshi.S.Poonja,
D/o.Smt.Girijamma Shetty,
Aged about 67 years,
Sajeepa Mooda Village,
Baranagere House,
Bantwal Taluk, D.K.
2. Sri.Mohandas Shetty,
S/o.Smt.Girijamma Shetty,
Bangle House,
Masthikatte Road,
Moodabidri-574 227,
Mangalore Taluk. ...Petitioners
(By Sri.K.Chandranath Ariga, Adv.,)
AND:
Sri.M.R.Ananda Shetty,
S/o.Smt.M.R.Girijamma Shetty,
Aged about 77 years,
Bangle House,
Masthikatte,
Moodabidri-574 227,
Mangalore Taluk, D.K. ...Respondent
(By Sri. Rameshchandra, Adv.,)
2
This Criminal Petition is filed under Section 482 of Cr.P.C.,
praying to quash the order dated 27.02.2015 in P.C.No.1/2004
(now converted as CC.No.169/2015) on the file of the Civil Judge
and JMFC, Moodabidri.
This Criminal petition coming on for Admission, this day,
the Court made the following:
ORDER
Petitioners have sought to quash the proceedings initiated against them in C.C.No.169/2015 for the alleged offences punishable under sections 463, 464, 465, 467, 471, 476 read with section 340 of Indian Penal Code.
Heard learned counsel for petitioners and learned counsel for respondent.
2. A private complaint was filed by respondent herein against petitioners and two other accused persons alleging that the Will dated 23.08.1996 purported to have been executed by the mother of the complainant and petitioners Smt.Girijamma Shetty was forged and fabricated. Learned Magistrate referred the complaint for investigation under section 156(3) of Cr.P.C. Upon investigation, the Investigating Officer submitted 'B' summary report before the court. The respondent/complainant 3 filed his protest petition. Learned Magistrate recorded the sworn statement of complainant and his witnesses and by order dated 27.02.2015, issued summons to the petitioners.
3. Learned counsel for petitioners would primarily contend that the dispute between the parties is civil in nature. The complainant had filed a suit before the Civil Court for declaration that the Will dated 28.06.1991 executed by his mother late Girijamma Shetty was not the last Will and testament of the deceased Girijamma Shetty. The said suit after trial has been dismissed by judgment and decree dated 21.03.2017 in O.S.No.71/2004 on the file of the Civil Judge and JMFC, Moodabidri. The matter is now pending before the District Court in appeal. Under the said circumstances, learned Magistrate has erred in taking cognizance of the alleged offences and issuing summons to the petitioners.
4. Disputing the submission, learned counsel appearing for respondent would firstly contend that a petition under Section 482 of Cr.P.C., is not maintainable against an order of issuing summons, as efficacious remedy is available for 4 petitioners under section 397 of Cr.P.C. Secondly, on merits, he argued that clear averments are made in the complaint to the effect that the document purported to be a Will dated 23.08.1996 was forged and concocted. These allegations clearly make out the ingredients of the offences alleged in the charge sheet and therefore, there is no ground to quash the proceedings as sought for by the petitioners.
5. Considered the submissions and perused the records.
Undeniably, the dispute raised by the parties relates to proof of Will. There is no dispute with regard to the fact that at an earlier point of time, the deceased had executed a registered Will dated 28.06.1991. Subsequently, another registered Will dated 23.08.1996 is alleged to have been executed by her. It is borne on record that on the same day, the deceased executed a registered settlement deed which speaks for the capacity of the petitioners to execute the document. Even otherwise the dispute raised by the respondent is civil in nature. In this context it is apposite to refer to the decision of the Hon'ble 5 Supreme Court in SARDOOL SINGH & Another vs. Smt. NASIB KAUR, 1987 (Supp) SCC 146, wherein in identical set of facts, the Hon'ble Supreme Court has observed as under:-
"... The civil court is therefore seized of the question as regards the validity of the Will. The matter is sub judice in the aforesaid two cases in civil courts. At this juncture the respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the Will is a forged one. That question will have to be decided by the civil court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the Will is being tested before a civil court."
In view of the above factual and legal position, the proceedings initiated against the petitioners, in my view, are liable to be quashed.
6. Insofar as maintainability of the petition is concerned, the inherent jurisdiction of this court under section 482 of Cr.P.C. is not barred. In ASIAN RESURFACING OF ROAD AGENCY PVT. LTD., & Another vs. CBI, ILR 2018 KAR 3155, the 6 Hon'ble Supreme Court on considering the issue regarding jurisdiction of the High Court has held that, the order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C., or Article 227 of the Constitution. In view of this principle, the contention urged in this regard is also rejected.
Consequently, the petition is allowed. The proceedings initiated against the petitioners in C.C.No.169/2015 pending on the file of Civil Judge and JMFC, Moodabidri, for the alleged offences punishable under sections 463, 464, 465, 467, 471, 476 read with section 340 of Indian Penal Code are quashed.
Sd/-
JUDGE Bss