Karnataka High Court
Mohammad Ayub And Ors vs The State Of Karnataka And Anr on 26 November, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.201075/2020
C/W
CRIMINAL PETITION No.200855/2020
IN CRIMINAL PETITION NO.201075/2020:
BETWEEN:
1. MOHAMMAD RAFIQ,
S/O MOHAMMAD YUSUF NALABAND,
AGE 43 YEARS, OCC.DOCTOR,
M.G.M.MEDICAL COLLEGE STAFF QUARTERS,,
PANAVEL NAVI MUMBAI-410206.
2. MOHAMMAD AYUB,
S/O MOHAMMAD YUSUF NALABAND,
AGE44 YEARS, OCC.BUSINESS.
3. MOSHIN,
S/O MOHAMMAD YUSUF NALABAND,
AGE 44 YEARS, OCC.BUSINESS.
4. SMT. MEHABOOBBI,
WO MOHAMMAD YUSUF NALABAND,
AGE 81 YEARS, OCC.H.H.WORK.
5. SMT. HAMEEDA BEGUM,
W/O MEHABOOBSAB NALABAND,
AGE 57 YEARS OCC.H.H.WORK.
ALL ARE R/O NALABAND GARDEN,
VIJAYAPURA-586109.
2
6. JAHANARA,
W/O ABUBAKAR GALGALI,
AGE 44 YEARS,
OCC: GOVT.SERVANT,
R/O MALLAPUR, LAST BUS STOP,
DHARWAD-580004.
7. SMT. SHAMSHAD BEGUM,
W/O ABDUL RAZAK MOMIN,
AGE 57 YEARS, OCC: HH WORK,
R/O TANGADGI ROAD,
OPP: KEB OFFICE,
MUDDEBIHAL, DIST.BIJAYAPURA-586 212.
8. SMT. JAIBUNNISA,
W/O SAHEB MODDIN MOMIN,
AGE 56 YEARS, OCC: HH,
R/O ASARGALLI,
MUDDEBIHAL-586212,
DIST.VIJAYAPUR.
9. SMT. SALEEMA,
W/O MEHAMUD SHAIK,
AGE 51 YEARS, OCC: HH,
R/O SHANTH NAGAR JEWARGI,
DIST: KALABURGI-585 310.
10. NASEEMA,
W/O MOHAMMED IRFAN CHATTARKI,
AGE 49 YEARS,
OCC: GOVT. SERVANT,
R/O NALABAND GARDEN,
VIJAYAPURA-586109. ...PETITIONERS
(BY SRI J. AUGUSTIN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY SPP,
HIGH COURT BUILDING,
KALABURAGI-585101.
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2. IMTIYAZ AHMED,
S/O MOHAMMAD HANIF NALABAND
AGE 52 YEARS,
OCC.BUSINESS,
R/O NALBAND GARDEN,
NEAR BADIKAMAN,
VIJAYAPUR-586101. ...RESPONDENTS
(BY SRI SHARANABASAPPA M. PATIL, HCGP FOR R-1,
SRI SANJAY A. PATIL, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING THIS COURT TO GRANT THE
FOLLOWING RELIEFS TO THE PETITIONER. a) QUASH THE
ORDER OF HONOURABLE II ADDL. SESSIONS JUDGE,
VIJAYAPUR IN CRL.R.P.NO.18/2019 DATED 21.08.2020
PERTAINING TO THE C.C.NO.554/2018 (P.C.NO.65/2019). b)
QUASH THE ENTIRE INITIATION OF PROCEEDINGS OF
C.C.NO.554/2018 (P.C.NO.65/2019) PENDING BEFORE THE
III ADDL. CIVIL JUDGE AND JMFC-III, VIJAYAPUR AGAINST
THESE PETITIONER/ACCUSED NO.1 TO 9.
IN CRIMINAL PETITION No.200855/2020 :
BETWEEN:
1. MOHAMMAD AYUB,
S/O MOHAMMAD YUSUF NALABAND,
AGE 49 YEARS, OCC: BUSINESS.
2. MOHAMMAD RAFIQ,
S/O MOHAMMAD YUSUF NALABAND,
AGE 43 YEARS, OCC: DOCTOR.
3. MOSHIN,
S/O MOHAMMAD YUSUF NALABAND,
AGE 40 YEARS, OCC: BUSINESS.
4. SMT. MEHABOOBI,
W/O MOHAMMAD YUSUF NALABAND,
AGE 80 YEARS, OCC: H-H WORK.
4
5. SMT HAMEEDA BEGUM,
W/O MEHABOOBSAB NALABAND,
AGE 56 YEARS, OCC: H-H WORK.
6. JAMEER AHMED,
S/O MEHABOOBSAB NALABAND,
AGE 39 YEARS, OCC: BUSINESS.
7. SMT. DILSHAD BEGUM,
W/O INAYAT MOMIN,
AGE 37 YEARS, OCC: H-H WORK.
R/O TANGADGI ROAD, MUDDEBIHAL.
8. SAMEER AHMED,
S/O MEHBBOSAB NALABAND,
AGE 35 YEARS, OCC: BUSINESS.
9. WASEEM,
S/O MEHABOOBSAB NALABAND,
AGE 33 YEARS, OCC: BUSINESS.
PETITIONER NOS.1 TO 6 AND 8 TO 9
ARE RESIDING AT NALABAND GARDEN,
NEAR BADIKAMAN,
VIJAYAPUR CITY-586101. ...PETITIONERS
(BY SRI J. AUGUSTIN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY SPP,
HIGH COURT BUILDING,
KALABURAGI- 585101.
2. MUSHTAQ AHMED,
S/O MOHAMMAD HANIF NALABAND,
AGE 56 YEARS, OCC: BUSINESS,
R/O NEAR BADIKAMAN,
J.M ROAD, VIJAYAPUR-586101. ...RESPONDENTS
(BY SRI SHARANABASAPPA M. PATIL, HCGP FOR R-1,
SRI SANJAY A. PATIL, ADVOCATE FOR R-2)
5
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING THIS COURT TO QUASH THE ORDER OF
II ADDL. SESSION JUDGE, VIJAYAPUR IN
CRL.R.P.NO.19/2019 DATED 21.08.2020 PERTAINING TO THE
C.C.NO.5563/2016 AND TO QUASH THE ENTIRE INITIATION
OF PROCEEDINGS OF C.C.NO.5563/2016 (P.C.NO.409/2016)
PENDING ON THE FILE OF THE JMFC-III, VIJAYAPUR
AGAINST THESE PETITIONERS/ACCUSED NO.1 TO 9.
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09.11.2021, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
Crl.P.No.201075/2020 is filed under Section 482 of Cr.P.C. praying this Court to set aside the order of taking cognizance in C.C.No.554/2018 arising out of P.C.No.65/2019 and to set aside the order passed in Crl.R.P.No.18/2019 dated 21.08.2020
2. Crl.P.No.200855/2020 is filed under Section 482 of Cr.P.C. praying this Court to set aside the order passed in C.C.No.5563/2016 arising out of P.C.No.409/2016 and to set aside the order passed in Crl.R.P.No.19/2019 dated 21.08.2020.
3. The factual matrix of the case in Crl.P.No.201075/2020 is that respondent No.2 herein had 6 filed P.C.R.No.554/2018 against the petitioners herein for the offences punishable under Sections 191, 192, 193, 194, 195, 200, 205, 206, 209, 210, 420, 423, 463, 464, 466, 468, 470, 471 and 474 of IPC and also under Sections 4 and 5 of the Karnataka Land Grabbing Prohibition Act, 2015 making the allegation that the property bearing Sy.No.293/1 to the extent of 3 acres 18 guntas and Sy.No.932 measuring 31 guntas in total 4 acres 9 guntas was subjected for alienation and thereafter sketch was prepared and civic amenities sites were also reserved and roads were formed. The complainant is the owner of the plot No.26 along with his brothers. On the southern side of the said plot, there is plot No.27 and the same is reserved for civic amenities and these petitioners/accused persons colluded with each other with an intention to defraud the general public and indulged in creating and fabricating the documents and made use of the same before the Court and made the Court and the concerned authorities to believe the same. Though the petitioners are not the owners and the said plot belongs to 7 the public and BDA, with an intention to defraud the general public, they filed a suit in O.S.No.94/2008 and pretended that the property belongs to them and both plaint and written statements are filed and obtained the decree. Though the property was converted in the year 1994 itself, once again in 2004 in respect of plot No.27, cheating the District Magistrate, subjected the same for NA and obtained the decree before the Court. The petitioners/accused persons are the school teachers and they created the documents claiming that they are the maid servants and when the complainant came to know about the filing of the suit and also FDP proceedings, the complainant got impleaded and filed an application under Sections 340 and 195 of Cr.P.C. before the learned Magistrate. The proceedings was pending for consideration. The FDP proceedings have been initiated by the petitioners herein, in order to avoid the criminal action against them got it dismissed and hence the present complaint is filed against the petitioners herein. 8
4. The Court below having considered the contents of the complaint averments and also recording the sworn statement of the complainant, vide order dated 31.12.2018 took the cognizance for the IPC offences and not taken the cognizance in respect of Sections 4 and 5 of the Karnataka Land Grabbing Prohibition Act. Being aggrieved by the order of taking the cognizance, the petitioners herein filed Crl.R.P.No.18/2019. The Revisional Court after considering the complaint averments and also the sworn statement of the complainant and considering the reasons assigned by the learned Magistrate, comes to the conclusion that there are no grounds to interfere with the order of the Magistrate and dismissed the Revision petition. Hence, the present petition is filed before this Court invoking Section 482 of Cr.P.C.
5. The main grounds urged in the petition is that both the Courts have failed to consider the material that nowhere in the complaint, the complainant, who is a beneficiary of the disputed plots made specific allegations and though respondent No.2/complaiant being the donee 9 through oral gift and his brother Imtiaz being the purchaser of the property in dispute and being in possession and enjoyment of the property and also raising loan in the Bank by mortgaging the said property, without seeking cancellation of the gift and sale deed, by way of filing a suit or by way of any other proceedings, have filed private complaint making false allegations. It is also contended that in the cross-examination of respondent No.2 in C.C.No.5563/2016, certain relevant answers are elicited from his mouth, which has been extracted in the petition. Relying upon the same, the learned counsel for the petitioners would contend that the complaint is premature. Admittedly, the civil dispute is between the parties and they have given criminal colour to the civil dispute. The allegations made in the complaint is that these petitioners have indulged in creation of documents and the fact that the accused persons have filed the suit in O.S.No.29/2006 has not been touched upon and the allegation is that the said decree is obtained by compromise and the matter was compromised before the 10 Lok Adalath. The Criminal Court cannot give finding in respect of decree obtained in O.S.No.29/2006 and the Trial Court without applying the judicious mind, took the cognizance and the same is not sustainable. Even the same is questioned before the Revisional Court and the Revisional Court also not applied its mind and erroneously dismissed the criminal revision petition and hence it requires interference of this Court.
6. The petitioners in Crl.P.No.200855/2020, who are the accused persons in Criminal case No.5563/2016, in this petition have contended that respondent No.2 has filed the private complaint for similar offences, which have been noted above reiterating the averments that the above survey numbers have been converted into non-agricultural purpose in the year 1994 and similar set of facts are pleaded regarding civic amenities sites were reserved for public use. The petitioners herein have filed O.S.No.29/2006 for the relief of partition and separate possession of 21/32 share in the suit property. The suit property in the said suit was CTS No.785/2, which was 11 kept for public utility as per the layout plan. It is an allegation that the suit got decreed by producing the false documents and the Trial Court erroneously took the cognizance and being aggrieved by the same, Crl.R.P.No.350/2016 was filed and thereafter an application was filed before the Trial Court for discharge under Section 245(1) read with Section 246(1) of Cr.P.C. and the same was dismissed. The same was questioned before the Sessions Judge in Crl.R.P.No.19/2019 and the same was also dismissed and hence the present petition is filed and in this petition also reiterated the grounds urged in the earlier petition and prayed this Court to quash the respective orders.
7. The learned counsel for the petitioners is common and common arguments are addressed contending that in both the cases, the complainant are different, but they are the brothers and the suit was filed for partition. Inspite of the suit was pending, these petitioners have obtained the decree by placing the documents. A false allegation is made that these 12 petitioners have indulged in creation of documents and obtained the decree. Both the Courts have committed an error in taking the cognizance and dismissing the discharge application and the Revisional Court also committed an error in not considering the grounds urged in the revision petition and hence it requires interference of this Court.
8. Per contra, the learned High Court Government Pleader would submit that in order to obtain the civil decree, these petitioners have indulged in creation of the documents and when the same was noticed by the complainant, immediately he filed an application in FDP proceedings to initiate criminal action against these petitioners. Under the circumstances, these petitioners have filed the memo and got dismissed the FDP in order to avoid criminal prosecution. Hence, it is clear that these petitioners have indulged in creation of documents in order to knock off the property and hence there are no grounds to invoke Section 482 of Cr.P.C.
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9. Having heard the learned counsel for the petitioners and the learned High Court Government Pleader , the points that arise for the consideration of this Court are:
(i) Whether the learned Magistrate has
committed an error in taking the
cognizance in respect of the petitioners in C.C.No.554/2018?
(ii) Whether the Court below has committed an error in dismissing the discharge application in C.C.No.5536/2016?
Point No.(i):
10. The main contention of the petitioners before this Court is that the Trial Judge has committed an error in taking the cognizance. The learned counsel brought to the notice of this Court the extract of the deposition of respondent No.2 in C.C.No.5563/2016 and brought to the notice of this Court that the decree obtained in O.S.No.29/2006 has not been questioned. However, he admits that his brother filed suit in O.S.No.98/2017 and when civil suit is pending, respondent No.2 has given 14 criminal colour to the said proceedings. Keeping in view the contentions and grounds urged in the petition, this Court has to analyze the material available on record.
11. Having perused the complaint, a specific allegation is made against the petitioners that plot No.27 was reserved for civic amenities and in respect of the same, documents are created and on the basis of the created documents, suit was filed in O.S.No.194/2008 and FDP was also filed. The FDP was withdrawn when the complainant filed an application and came on record. The learned counsel for the petitioners has not disputed the fact of filing of the suit and obtaining the decree and filing of FDP and also not disputes the fact that FDP No.24/2011 was dismissed. The petitioners are also not disputing the fact that in the said FDP proceedings, the complainant got impleaded as defendant No.11 and filed an application under Sections 340 and 195 of Cr.P.C. and thereafter only FDP got dismissed. The learned Magistrate while taking the cognizance, taken note of the contents of the complaint and sworn statement of C.W.1 and in detail 15 passed an order and not taken cognizance in respect of the offences set out under Karnataka Land Grabbing Prohibition Act, but taken IPC offences since specific allegations are made that these petitioners were indulged in creation of the documents in order to knock off the property. The specific allegations are made that false information are given representing that they are the maid servants inspite they were working as teachers. When the specific allegation is made in the complaint and also in the sworn statement and the learned Magistrate while passing the order comes to the conclusion that it is a fit case to issue the process. The learned Magistrate followed the procedure in taking the cognizance and thereafter proceeded to record the sworn statement of the complainant and thereafter issued process. The said order has been challenged before the Sessions Court by filing Crl.R.P.No.18/2019.
12. The Revisional Court also took note of the material available on record, particularly the allegations made in the complaint as well as in the sworn statement of 16 C.W.1 and also taken note of that the complainant is having interest in the said disputed plot No.27 in the same layout, which was preserved for civic amenities and in respect of the said property, an allegation is made that these petitioners have indulged in creation of the documents and instituted the suit and obtained the decree. I have already pointed out that initiation of civil suit based on the documents and obtaining the decree and filing the FDP is not disputed by the petitioners and specific allegations made in the complaint as well as in sworn statement is that the petitioners have indulged in creating of documents and also used the created documents before the Court and other authorities. When such serious allegations are made with regard to the cognizable offences, the Revisional Court has rightly come to the conclusion that the Trial Court has not committed any error in taking the cognizance and the Revisional Court in detail discussed the grounds urged by these petitioners and comes to the conclusion that the Magistrate has not committed any error.
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13. Having considered the grounds urged in the petition and also the material on record, I do not find any force in the contention of the learned counsel for the petitioners that in respect of civil dispute, criminal colour was given by the complainant and whether the petitioners have indulged in creation of documents or not is a matter of trial. The complaint is also specific and sworn statement is also specific that these petitioners have indulged in creation of the documents, particularly in respect of plot No.27 and also specific allegations are made that the property though converted in the year 1994, again it was subjected for NA vide order dated 06.10.2014. Under the circumstances, I do not find any merit in the proceedings to invoke Section 482 of Cr.P.C. Point No.(ii):
14. The petitioners herein invoking Section 245(1) read with Section 246(1) of Cr.P.C., filed an affidavit on behalf of accused Nos.2 to 9 contending that there are no sufficient grounds to frame the charge and further contended that it is incumbent to take note of those 18 documents furnished by himself and admitted in the cross-
examination and marked exhibit 'D' series, which have been bearing on the matter even at the initial stage and grant relief to them. The complaint is premature since civil cases are pending before the Court. The Trial Court considering the grounds urged in the application and also the oral submission of the State, considered the oral and documentary evidence available on record. Ex.C.5 certified copy of conversion order passed by the City Development Authority, Vijayapura in respect of R.S.Nos.293 and 932 of Mahalbagayat discloses about the conversion of the above land for non-agricultural purpose and also taken note of the copy of the plaint in O.S.No.29/2005 and certified copy of the order and certified copy of the compromise petition and having considered all these materials, comes to the conclusion that on the strength of compromise petition, gift was made in favour of the complainant and also taken note of the grounds urged that the civil dispute was given criminal colour. Having considered the fact that the accused have 19 not challenged the order of taking the cognizance and also taking note of serious allegations made against the accused that they have cheated the public and grabbed public property in creation of the documents, comes to the conclusion that it is not a case for discharge.
15. The Revisional Court while rejecting the revision petition, in detail discussed the factual aspect and particularly considering the grounds urged in the revision in paragraph No.9 discussed in detail for having sold various plots in respect of the property belonging to the BDA and taken note of the allegations made in the complaint and so also the evidence of P.W.1 and comes to the conclusion that the accused persons have got converted the property left by the BDA for the purpose of civic amenities by making correspondence with the BDA. The Revisional Court also taken note of, particularly the document Ex.C.5 and so also other document Exs.C.9, 10, 12 and 14 and taken note of the specific allegations made against the petitioners herein that all of them joined together in creating fake documents with an ulterior 20 motive to engulf the public property. Having considered the material on record and so far as the order of the Trial Court comes to the conclusion that the Trial Court has rightly dismissed the application filed by the accused for discharge.
16. No doubt, civil suit is pending between the parties, but the specific case of the complainant before the Trial Court is that in order to knock off the public property, which is meant for civic amenities, the petitioners have indulged in creating the documents and committed the offence of forgery in order to deceive the general public with a malafide intention. When such specific allegations are made in the complaint and in the sworn statement, the Trial Court took the cognizance and while taking the cognizance also considered the documents relied upon by the complainant and hence both the Trial Court and the Revisional Court have rightly come to the conclusion that it is not a case for discharge. Hence, I do not find any ground to invoke Section 482 of Cr.P.C. to quash the order 21 passed by the Trial Court as well as the order passed by the Revisional Court.
17. In view of the discussions made above, I pass the following:
ORDER Both the petitions are dismissed.
Sd/-
JUDGE MD