Karnataka High Court
Smt Parvathi vs The State Of Karnataka on 20 January, 2023
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CRL.RP No. 783 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL REVISION PETITION NO. 783 OF 2013
BETWEEN:
SMT. PARVATHI
AGED 48 YEARS,
W/O LATE DAYANANDA,
R/AT DOOR NO.3-112-1089,
BAJJODI, BIKKARNAKATTE,
KULSHEKAR POST,
MANGALORE-575005.
...PETITIONER
(BY MISS PRASANNA K., ADVOCATE FOR
SRI. CHANDRANATH ARIGA K., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BARKE POLICE STATION,
MANGALORE, D.K.
...RESPONDENT
Digitally (BY SRI. KRISHNA KUMAR K.K., HIGH COURT GOVERNMENT
signed by PLEADER)
SUMA
Location:
HIGH THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
COURT OF
KARNATAKA SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
25.10.2005 PASSED BY THE J.M.F.C. (II COURT), MANGALORE IN
C.C.NO.21599/99 AFFIRMED BY ITS JUDGMENT AND ORDER DATED
02.08.2013 PASSED BY THE I ADDL. DIST. AND S.J., D.K.,
MANGALORE IN CRL.A.NO.381/2005.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.RP No. 783 of 2013
ORDER
The petitioner has challenged the judgment of conviction dated 25.10.2005 passed by the J.M.F.C. (II Court), Mangalore, Dakshina Kannada (henceforth referred to as 'Trial Court' for short) in C.C.No.21599/1999 convicting her for the offence punishable under Section 465 of IPC and the consequent sentence to undergo simple imprisonment for six months with fine of Rs.1,000/. The petitioner has also challenged the judgment dated 02.08.2013 in Crl.A.No.381/2005 passed by the II Addl. District and Sessions Judge, Dakshina Kannada, Mangalore (henceforth referred to as 'Appellate Court' for short) by which, the judgment of the Trial Court was upheld.
2. CW.1 filed a private complaint in PCR No.774/1998 alleging that her husband purchased a residential house bearing Door No.3-112/108 in S.No.55/1 Plot No.171 situated at Maroli village from Mr. Monthu Marian Pereira in terms of a sale agreement dated 17.03.1994. She claimed that her husband was missing since 20.11.1997, in respect of which, a missing complaint was registered in Crime No.271/1997. She claimed that the accused was a maidservant employed by -3- CRL.RP No. 783 of 2013 them. She alleged that the accused had got the above house transferred to her name in the records of the Municipal Corporation, which she came to know when she filed an application for transfer of the khatha to her name. Thereafter, she collected the documents and found that the accused had photocopied the original sale agreement dated 17.03.1994 and thereafter, replaced the name of her husband by her name and address in the photocopy. She thereafter, submitted it to the Corporation along with the application for transfer of khatha. She alleged that in the application for transfer of khatha, the accused had claimed that she had obtained lease of the land, where the house was situate. The authority of the Municipal Corporation transferred the khatha to her name in terms of the order dated 24.07.1998 after deleting the name of Mr. Monthu Marian Pereira and husband of CW.1. She claimed that Mr. Monthu Marian Pereira swore to an affidavit that the agreement concocted by the accused dated 04.12.1994 was forged. The private complaint was referred for investigation under Section 156(3) of Cr.P.C. based upon which the jurisdictional police registered Crime No.91/1998 for the offences punishable under -4- CRL.RP No. 783 of 2013 Sections 417, 420, 465, 468 and 471 of IPC. The investigating officer (CW.11) took up investigation and issued appropriate notice to the accused to produce documents relating to the case. The accused produced an agreement allegedly executed by Mr. Monthu Marian Pereira in favour of the accused, which was notarized on 24.11.1998. He thereafter visited the house of the accused along with CW.10 and demanded the original agreement and that the accused produced the original agreement. He thereafter recorded the statement of CW.1 to CW.10 and submitted a charge-sheet for the offences punishable under Sections 417, 420, 465, 468 and 471 of IPC.
3. The Trial Court took cognizance of the offences punishable under Sections 417, 420, 465, 468 and 471 of IPC and secured the presence of the accused and she was released on bail. Copy of the charge-sheet was furnished to her. She pleaded not guilty to the charge framed for the offences punishable under Sections 417, 420, 465, 468 and 471 of IPC and claimed to be tried. The prosecution examined PW.1 to PW.9 and marked Exs.P1 to P12. The statement of the accused was recorded under Section 313 of Cr.P.C. who denied the -5- CRL.RP No. 783 of 2013 incriminating evidence against her. The accused examined a witness as DW.1 and marked Exs.D1 to D10.
4. Based on the oral and documentary evidence, the Trial Court held that the evidence of the vendor (PW.4) disclosed that he did not sell the property to the accused as he denied his signature on Ex.P1. It noticed that PW.4 admitted that the property could not be sold without the permission of the Ashram and that he had intimated the Ashram about the sale in favour of the husband of PW.1. It also noticed from Ex.P7, which was the stamp register of the year 1996, which disclosed that Ex.P1 was bearing No.15120 dated 04.12.1994, while the stamp papers bearing Nos.15118 to 15120 was issued on 04.12.1996. Therefore, it held that the stamp paper of Ex.P1 was not issued on 04.12.1994. The Trial Court observed that the stamp paper number was tampered and the number 15220 was overwritten as 15120. The Trial Court considered the evidence of the stamp vendor, who placed on record the stamp registers at Exs.P6 and P7. The Trial Court held that Ex.P1 was seized by the investigating officer (PW7) from the house of the accused. The Trial Court after considering -6- CRL.RP No. 783 of 2013 documents placed on record by the prosecution as well as the documents furnished by the accused in her defence, held that the prosecution had succeeded in proving the guilt of the accused and convicted her for the offence punishable under Section 465 of IPC and sentenced her to undergo simple imprisonment for six months with fine of Rs.1,000/-.
5. Being aggrieved by the said judgment, the accused filed Crl.A.No.381/2005 before the Appellate Court. The Appellate Court secured the records of the Trial Court and after hearing the parties, reconsidered the evidence on record and held that the judgment of conviction was justified and hence, dismissed the appeal.
6. Being aggrieved by the aforesaid, the accused has filed this revision petition.
7. The learned counsel for the petitioner/accused submitted that Ex.P1 was the original agreement that was executed by PW.4 in her favour and this was not concocted by her in the manner as claimed by PW.1. She submitted that -7- CRL.RP No. 783 of 2013 though PW.4 denied his signatures on Ex.P1, the prosecution made no effort to compare the signature of PW.4 on Ex.P1. She further submitted that there was no material produced by the prosecution to establish that the petitioner/accused had fabricated a sale agreement by using a copy of the sale agreement dated 17.03.1994. At any rate, she contended that Ex.P1 was an agreement executed by PW.4 in favour of the petitioner/accused and PW4 did not complain that the said agreement was fabricated by the petitioner/accused. She contended that this was essentially a civil dispute that had to be tried by a Civil Court.
8. Per contra, the learned High Court Government Pleader for the respondent/State submitted that Ex.P1 was itself fabricated, which was evident from the deposition of PW.4 and PW.5, who was allegedly a witness to Ex.P1, who denied her signatures on Ex.P1. He therefore contended that the petitioner/accused had indeed fabricated Ex.P1 to lay a claim to the property of the complainant (PW.1).
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9. I have considered the submissions made by the learned counsel for the petitioner/accused as well as the learned High Court Government Pleader for the respondent/State.
10. The private complaint which, is referred for investigation under Section 156(3) of Cr.P.C. indicated that the petitioner/accused had photocopied a sale agreement dated 17.03.1994 executed by PW.4 in favour of the husband of PW.1 and thereafter, the accused inserted her name in the said agreement, to seem as if PW.4 had sold the property to her. The charge-sheet was filed accusing the petitioner/accused of purchasing three stamp papers bearing Nos.15118 to 15120 dated 09.11.1996 on 04.12.1996 in the name of PW.4 and that the year 1996 was tampered as 1994 and fabricated an agreement of sale of 3 cents of land bearing plot No.171 in Sy.No.55/1 belonging to St. Anthony Ashram. The charge framed by the Trial Court read as follows:-
"Charge dated 06.08.2001:
That you on 4.12.1996 having obtained 2 Non- Judicial Stamp Papers for Rs.20/- each and one Non--9- CRL.RP No. 783 of 2013
Judicial Stamp Paper worth Rs.10/-, in all Rs.50/-, bearing date 19,11,1996 of D.K.District Treasury, bearing Sl.No.15118 to 15120, in the name of C.W.2 Montu Marian Pereira Pereira, from C.W.2 Lancy D'Souza, and over-writing the year 1994 as 1996 in the said stamp papers, created an agreement for sale dated 4.12.94 of immovable property; House bearing Door No.3-112-108 situated in Plot No. 171 in bearing S.No.55/1 extent 3 cents, at Bajjody in Bikarnakatte, Mangalore City, in the possession of St. Anthony Ashram, as if the same is purchased from C.W.3 on such forged document, and thereby committed cheating, and thereby committed an offence punishable under section 417 of I.P.C. and within my cognizance.
Secondly, that you on the said date, having obtained 2 Non-Judicial Stamp Papers for Rs.20/- each, one Non-Judicial Stamp Paper worth Rs.10/-, in all Rs.50/-, bearing date 19,11,1996 of D.K.District Treasury, bearing Sl.No.15118 to 15120, in the name of C.W.2 Montu Marian Pereira Pereira, from C.W.2 Lancy D'Souza, and over-writing the year 1994 as 1996 in the said stamp papers, created an agreement for sale dated 4.12.94 of immovable property; House bearing Door No.3-112-108 situated in Plot No. 171 in bearing S.No.55/1 extent 3 cents,
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at Bajjody in Bikarnakatte, Mangalore City, in the possession of St. Anthony Ashram, if the same is purchased from C.W.3 on such forged document, cheated C.W.1, and further by producing the copy of said document before the City Corporation for transfer of Property Tax in your favour in respect of the property along with your application on 24.8.2001 knowingly, cheated the authorities of the City Corporation, and that you thereby committed an offence punishable under section 420 of I.P.C. and within my cognizance.
Thirdly, that you on the said date, having obtained 2 Non-Judicial Stamp Papers for Rs.20/- each, one Non-Judicial Stamp Paper worth Rs.10/-, in all Rs.50/-, bearing date 19,11,1996 of D.K.District Treasury, bearing Sl.No.15118 to 15120, in the name of C.W.2 Montu Marian Pereira Pereira, from C.W.2 Lancy D'Souza, and over-writing the year 1994 as 1996 in the said stamp papers, and creating an agreement for sale dated 4.12.94 of immovable property; House bearing Door No.3-112-108 situated in Plot No. 171 in bearing S.No.55/1 extent 3 cents, at Bajjody in Bikarnakatte, Mangalore City, in the possession of St. Anthony Ashram, as if the same is purchased from C.W.3, forged a certain document i.e. the said agreement, with intent to cause damage
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CRL.RP No. 783 of 2013or injury to C.W.1, and with intent to commit fraud to C.W.1 by creating such agreement, and that you thereby committed an offence punishable under section 465 of I.P.C. and within my cognizance.
Fourthly, that you on the said date, having obtained 2 Non-Judicial Stamp Papers for Rs.20/- each, one Non-Judicial Stamp Paper worth Rs.10/-, in all Rs.50/-, bearing date 19,11,1996 of D.K.District Treasury, bearing Sl.No.15118 to 15120, in the name of C.W.2 Montu Marian Pereira Pereira, from C.W.2 Lancy D'Souza, over-writing the year 1994 as 1996 in the said stamp papers, and creating an agreement for sale dated 4.12.94 of immovable property; House bearing Door No.3-112-108 situated in Plot No.171 in bearing S.No.55/1 extent 3 cents, at Bajjody in Bikarnakatte, Mangalore City, in the possession of St. Anthony Ashram, as if the same is purchased from C.W.3, forged a certain document i.e the said agreement for sale, intending that it shall be used for the purpose of cheating, and that you thereby committed an offence punishable under section 468 of I.P.C. and within my cognizance.
Fifthly, that you on the said date, having obtained 2 Non-Judicial Stamp Papers for Rs.20/- each, one Non-Judicial Stamp Paper worth Rs.10/-, in all Rs.50/-, bearing date 19,11,1996 of
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CRL.RP No. 783 of 2013D.K.District Treasury, bearing Sl.No.15118 to 15120 in the name of C.W.2 Montu Marian Pereira Pereira, from C.W.2 Lancy D'Souza, over-writing the year 1994 as 1996 in the said stamp papers, and creating an agreement for sale dated 4.12.94 of immovable property; House bearing Door No.3-112-108 situated in Plot No. 171 in bearing S.No.55/1 extent 3 cents, at Bajjody in Bikarnakatte, Mangalore City, in the possession of St. Anthony Ashram, as if the same is purchased from C.W.3 on such forged document, fraudulently used as genuine the said agreement for sale, by producing the copy of said document before the City Corporation for transfer of Property Tax in your favour in respect of the property along with your application on 24.8.2001 knowingly, which you knew at the time you used it, to be a forged document; and that you thereby committed an offence punishable under section 471 of LP.C. and within my cognizance."
Charge dated 23.09.2002 ZÁ¸Á.1 gÀªÀgÀ ªÀÄ£ÉAiÀÄ PÉ®¸ÀzÁ¼ÀÄ DVzÀÄÝ, CªÀgÀÄ UÉÊgÀĺÁdjAiÀÄ°è CªÀgÀ UÀAqÀ ªÀÄvÀÄÛ ZÁ¸Á.1 gÀªÀjUÉ ªÉÆøÀ ªÀiÁqÀĪÀ GzÉÝñÀ¢AzÀ ¢£ÁAPÀ 4.12.96 gÀAzÀÄ ZÁ¸Á:2 ¯Áå¤ì r¸ÉÆÃeÁgÀªÀjAzÀ 20 gÀÆ¥Á¬ÄAiÀÄ 2 ºÁUÀÆ 10 gÀÆ¥Á¬ÄAiÀÄ 1 MlÄÖ 50 gÀÆ¥Á¬Ä ¨É¯ÉAiÀÄļÀî zÀ.PÀ. f¯Áè ReÁ£ÉAiÀÄ 19 £ÀªÉA§gï 1996 JA§ ²Ã®Ä
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CRL.RP No. 783 of 2013ªÉƺÀgÀÄ EgÀĪÀ PÀæ.¸ÀA.15118 jAzÀ 15120 gÀ vÀ£ÀPÀzÀ 3£Éà ¥ÉÃ¥Àj£À°è ZÁ¸Á.3 ªÉÆAvÀÄ ªÀÄjAiÀiÁ£ï ¦gÉÃgÁ JA¨ÁvÀgÀ ºÉ¸Àj£À°è Rjâ¹ 96£Éà E¸À« CAvÀ §gÉzÀÄzÀ£ÀÄß w¢Ý 94 JAzÀÄ §gÉzÀÄ, ªÀÄAUÀ¼ÀÆgÀÄ ±ÀºÀgÀÄ ©PÀtðPÀmÉÖAiÀÄ §eÉÆÃr JA§°ègÀĪÀ ¸ÀAvÀ CAvÉÆä D±ÀæªÀÄ C¢üãÀzÀ°ègÀĪÀ ¥Áèmï £ÀA:171 ¸ÀªÉð £ÀA:55:1 gÀ°è 0.003 ¸ÉAlÄì ¸ÀܼÀzÀ°ègÀĪÀ ªÀÄ£É qÉÆÃgï £ÀA:3-112-108 £ÀÄß gÀÆ.1,75,000 PÉÌ RArvÀ PÀæAiÀÄPÉÌ ¢£ÁAPÀ 4.12.94 gÀAzÀÄ ZÁ¸Á.3 gÀªÀjAzÀ £ÉÃgÀªÁV ¥ÀqÀPÉÆAqÀAvÉ ¥sÉÆÃdðj CVæªÉÄAmï ªÀiÁr, ZÁ.¸Á:1 ²æêÀÄw ¥ÉÆèÃj£ï eÉƸɥsï gÀªÀjUÉ ªÀAa¸ÀĪÀ GzÉÝñÀPÁÌV ¸ÀļÀÄî ¸ÀàµÀ£Éà zÀ¸ÁÛªÉÃdÄ ¸Àȶֹ, ¸À¢æ zÀ¸ÁÛªÉÃfUÉ ¸ÁQëzÁgÀgÀ ºÉ¸ÀgÀÄ §gÉzÀÄ, ¥sÉÆÃdðj ¸À» ªÀiÁr ¸ÀļÀÄî zÁR¯É ¥ÀvÀæ vÀAiÀiÁj¹zÀÄÝ C®èzÉà ¸À¢æ CVæªÉÄAmï ¸ÀļÀÄî zÁR¯Áw JAvÀ w½¢zÀÄÝ PÀÆqÁ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉUÉ ¸ÁeÁ zÁR¯É JAzÀÄ £ÀA©PÉ §gÀĪÀAvÉ £Àn¹ ¸À¢æ ªÀÄ£É vÉjUÉAiÀÄ£ÀÄß ¤ªÀÄä ºÉ¸ÀjUÉ £ÉÆAzÁ¬Ä¹PÉƼÀÄîªÀ ¸À®ÄªÁV SÁvÉ §zÀ¯ÁªÀuÉUÁV ¸À¢æ ¥sÉÆÃdðj JVæªÉÄAmï ¥ÀæwAiÀÄ£ÀÄß SÁvÁ §zÀ¯ÁªÀuÉAiÀÄ CfðAiÉÆA¢UÉ ¢£ÁAPÀ 24.8.98 gÀAzÀÄ ¸À°è¹ ¸ÀA§AzsÀ¥ÀlÖ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉAiÀÄ C¢üPÁjUÀ¼À£ÀÄß ªÀAa¹gÀÄwÛÃj, PÁgÀt ¤ÃªÀÅ PÀ®A 417, 420, 465, 468 ªÀÄvÀÄÛ 471 ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉAiÀÄr zÀAr¸À®àqÀĪÀ C¥ÀgÁzsÀªÀ£ÀÄß £À£Àß ¥Àj«ÄwAiÉƼÀUÉ J¸ÀVgÀÄwÛÃj."
11. The petitioner/accused pleaded not guilty to the charges and prayed that she be tried. PW.1 was the complainant, who detracted from the averments made in the private complaint and claimed that the petitioner/accused had
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CRL.RP No. 783 of 2013fabricated an agreement dated 04.12.1994 and had obtained the khatha of the said property. PW.1 in her cross-examination admitted that there is no sale deed in respect of the aforesaid property in the name of her husband. She admitted that the property was owned by St. Anthony Ashram and that her husband did not purchase it from the Ashram. Contrarily, she claimed that she was in possession as tenant by paying Rs.25/- as ground rent. She claimed that PW.4 had obtained permission from the Ashram to construct a house but was unable to say when he became the owner of the property. She did admit that the name of the petitioner was found in Ex.P3, while the name of her husband and PW.4 was found in Ex.P2 (Form No.19). In her further cross-examination, she contended that her husband had purchased the property from St. Anthony Ashram, but no document was produced in that regard. Though she alleged that the agreement executed in favour of her husband was used by the petitioner/accused to fabricate an agreement, such a document was not seized nor marked by the prosecution. Ex.P1, was the agreement executed by PW.4 in favour of the petitioner/accused and though this agreement was claimed to
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CRL.RP No. 783 of 2013be fabricated and the signature of PW.4 forged, yet no attempt was made to establish that the signatures of PW.4 found on Ex.P1 did not belong to him. PW.3 was the witness to Ex.P1, who deposed that the signature found on Ex.P1 was made by her. She also admitted that it was the petitioner/accused who was residing in the property in question. PW.4 claimed that he had sold the property to the husband of PW.1 on 17.03.1994 in terms of an agreement of sale. He denied having sold the property to the petitioner/accused.
12. The investigating officer, who seized Ex.P1 from the custody of the petitioner/accused and who recorded the statement of PW.4 (CW.3) ought to have sent Ex.P1 for forensic examination to determine whether the signatures found thereon belonged to PW.4 or not. This was crucial for the case, particularly to establish an offence punishable under Section 465 of IPC. Therefore, the prosecution failed to establish the charge under Section 465 of IPC. The Trial Court instead of viewing the case from this stand point, solely relied upon the evidence of PW.4 to doubt the authenticity of the agreement of sale at Ex.P1 and held that since Ex.P1 was seized from the
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CRL.RP No. 783 of 2013house of the petitioner/accused and that there were some inconsistencies in the stamp entries of Ex.P1, the prosecution had proved that Ex.P1 was forged and fabricated by the petitioner/accused. The Appellate Court too did not apply its mind but merely reiterated the findings of the Trial Court.
13. A bare perusal of 465 of IPC discloses that to sustain a charge under Section 465 of IPC, the prosecution ought to establish beyond doubt that Ex.P1 was forged as defined under Section 463 of IPC . The words "whoever makes any false document" and "with intent to cause damage to any person or to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit fraud, commits forgery"
mandates that the prosecution has to prove that the document in question was false. In that regard, PW.3 who was the attesting witness to Ex.P1 admitted his signature thereon, while PW.4 who executed Ex.P1 denied his signatures thereon. PW.5 who was also another attesting witness, who denied her signature on Ex.P1 and claimed that she had signed the agreement of sale in favour of the husband of PW1. However,
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no attempt was made to compare the signature of PW.5 with her signature on the agreement executed in favour of the husband of PW.1. No attempt was made to establish whether the accused had forged the signature of PW.4. Consequently, the prosecution had failed to establish the guilt of the accused beyond reasonable doubt. The finding of the Trial Court and the Appellate Court that the stamp paper on which Ex.P1 was drawn, is though relevant but until it was established that the signature of PW.4 on Ex.P1 was forged by the accused, the prosecution cannot establish the offence punishable under Section 465 of IPC.
14. In that view of the matter, this revision petition is allowed. The impugned judgment of conviction and order of sentence dated 25.10.2005 passed by the J.M.F.C. (II Court), Mangalore, Dakshina Kannada in C.C.No.21599/1999 for the offence punishable under Section 465 of IPC are set aside. Consequently, the judgment dated 02.08.2013 passed by the II Addl. District and Sessions Judge, Dakshina Kannada, Mangalore, in Crl.A.No.381/2005 is also set aside.
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CRL.RP No. 783 of 2013
15. The accused is acquitted of the offence punishable under Section 465 of IPC and she is set free.
16. The Registry is directed to forthwith return the Trial Court as well as the Appellate Court records.
Sd/-
JUDGE PMR List No.: 1 Sl No.: 30