Karnataka High Court
Jannath Begum W/O Subhansab Choudri And ... vs Shankar S/O Ramakrishna Hanchate on 20 December, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.200682/2021
BETWEEN:
1. SMT.JANNATH BEGUM
W/O SUBHANSAB CHOUDRI
AGE: 44 YEARS, OCC: HOUSEHOLD
2. SRI SUBHANSAB
S/O HUSSAINSAB CHOUDRI
AGE: 50 YEARS, OCC. AGRICULTURE
BOTH ARE R/O LAXAMPUR VILLAGE
TQ. SHORAPUR, DIST. YADGIR.
... PETITIONERS
(BY SRI RAVINDRA REDDY, ADVOCATE)
AND:
SHANKAR
S/O RAMAKRISHNA HANCHATE
AGE: 42 YEARS, OCC. BUSINESS
R/O SHAHAPUR
TQ. SHAHAPUR, DIST. YADGIR
... RESPONDENT
(BY SRI SANJAY A. PATIL, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE PRAYING TO ISSUE ORDER
FOR SETTING ASIDE ORDER DATED 07.03.2020 PASSED BY
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THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS,
SHAHAPUR IN C.C.NO.367/2020 IN TAKING COGNIZANCE
AGAINST THE OFFENCES PUNISHABLE UNDER SECTIONS 419,
420, 465, AND 468 R/W SEC. 149 OF IPC AND CONSEQUENTLY
TO DISMISS THE COMPLAINT IN C.C.NO.367/2020
(P.C.NO.16/2018.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C., praying this Court to set aside the order dated 07.03.2020 passed by the Court of Judicial Magistrate First Class, Shahapur in C.C.No.367/2020 in taking cognizance against the offences punishable under sections 419, 420, 465, and 468 r/w section 149 of IPC and consequently to dismiss the complaint in C.C.No.367/2020 (P.C.No.16/2018).
2. Heard the learned counsel for the petitioners and the learned counsel for the respondent.
3. The factual matrix of the case is that respondent herein has filed a private complaint in 3 P.C.No.16/2018 making allegation in the complaint that accused Nos.1 and 2 are husband and wife and residents of Laxampura village taluk Shahapur. The complainant and accused are known to each other in plot transaction. Accused No.2 came and shown the khata of plot number 1-1-8/59 old (New 51-93) situated at municipal limits of Shahapur and accused put their offer to sell the property and complainant has believed the same and negotiated for the same and purchased for an amount of Rs.1,25,000/-. When the complainant filed application before the Town Municipal Corporation, Shahapur for mutation of the said plot and the same was mutated as per procedure. Thereafter, the complainant sold the said plot to one Dr.Gayatri for his family necessities. The complainant came to know about the fraud and illegality of accused No.1 as she has sold the plot defrauding the original owner and she is acted as original owner and sold the plot by receiving entire sale consideration amount. Then the complainant came to know about the illegal transaction of accused after filing the criminal complaint by original 4 owner Smt. Salima Begum in Crime No.290/2014 and hence, approached the Court to take cognizance for the offences punishable under Sections 420, 465, 468 of IPC on filing of the said complaint. The learned Magistrate proceeded to record the sworn statement and thereafter took cognizance and issued the process. Hence, the present petition is filed before this Court by the petitioners herein.
4. The learned counsel for the petitioners would submit that based on the complaint filed by one Smt. Salima Begum, the case was registered against these petitioners and also against the respondent herein. In the said case, the trial was conducted and ultimately acquitted. Hence, there cannot be a second complaint in respect of the very same transaction by the respondent. The learned counsel vehemently contended that when these petitioners have already undergone the trial in respect of the complaint filed by Smt. Salima Begum and if complaint is continued and they were subjected to trial, it 5 amounts to double jeopardy and also it violates article 20(2) of the Constitution of India and hence, it is a fit case to exercise power under Section 482 of Cr.P.C.
5. In support of his contention, he relied upon the judgment of the Hon'ble Apex Court in the case of Kolla Veera Raghav Rao vs. Gorantla Venkateswara Rao and Another reported in AIR 2011 SC 641 wherein discussed Section 300(1) of Cr.P.C., and Article 20(2) of the Constitution of India with regard to double jeopardy and held that there cannot be any two criminal prosecution if two criminal prosecution amounts to double jeopardy and hence, it requires interference of this Court.
6. Per contra, learned counsel for the respondent would submit that these petitioners by impersonation have sold the property in favour of the respondent and respondent had purchased the property for a valuable consideration only after coming to know of complaint filed by Smt. Salima Begum and committing of fraud this respondent also faced the criminal trial based on the 6 complaint of original owner Smt. Salima and now they cannot contend that this complaint is second complaint and it attracts Article 20(2) of the Constitution of India and the judgment of Hon'ble Apex Court is not applicable to the facts of the case on hand. The learned counsel would also submit that in the earlier complaint in which these petitioners have also faced the trial, complainant is different i.e., original owner wherein allegation is made of impersonation as well as forgery and selling the property belonging to the said complainant in favour of this respondent by the petitioners herein and now allegation against these petitioners that these petitioners have committed fraud on this complainant by executing a sale deed even though they were not the owners of property and suppressed the ownership of the said Smt. Salima Begum and sold the property, as a result, respondent also faced the trial and suffered the loss, since the respondent had purchased property for valuable consideration of Rs.1,25,000/- and hence, it cannot be contended that it amounts to double jeopardy.
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7. Having heard the learned counsel for the petitioners and learned counsel for the respondent and also factual aspects of the case whether this Court can exercise power under Section 482 of Cr.P.C., by coming to the conclusion that whether it attracts Article 20(2) of the Constitution of India and amounts to double jeopardy. Having heard the respective counsels and considering the factual aspects of the case, no doubt earlier based on the complaint of Smt. Salima Begum a case was registered not only against these two petitioners but also against respondent for the offences punishable under Sections 166, 420, 419, 465, 468 read with Section 149 of IPC wherein specific allegation made in the said complaint that these petitioners as well as respondent for indulging in creation of documents committed the offence of forgery. Even though the petitioners herein are not owners of the said plot sold the same in favour of the respondent herein. But in the present complaint, the very purchaser is the complainant and made an allegation against the petitioners herein that they have committed fraud on him and invoked 8 the offence under Sections 420, 465, 468 of IPC and the trial Court took the cognizance for the said offences. Admittedly, both the complaints are different and complainants are different, allegations are also different and may be in respect of the very same transactions but when the complainant is different and allegations are different the question that it amounts to double jeopardy as contended by the petitioners' counsel cannot be accepted. Now the petitioners are the accused and one of the accused in the earlier case now became the complainant and made an allegation against these petitioners though they are not the owners of the plot, they have sold the same by impersonation that too forging the signature of the original owner Smt. Salima begum and when such being the allegation made and contents of the complaint are different, merely because they have acquitted in the other case it does not amount to any double jeopardy as contended by the learned counsel for the petitioners and hence, I do not find any force in the contention of the petitioners' counsel that it amounts to 9 double jeopardy and the same is violation of Article 20(2) of the Constitution of India. Hence, there is no merit in the petition.
8. In view of the discussion made above, I pass the following:
ORDER The petition is rejected.
Sd/-
JUDGE VNR