Karnataka High Court
Bheemappa vs Shantagangadhar Swamigalu ... on 22 June, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
NC: 2024:KHC-K:4146
CRL.RP No. 200028 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL R.P.NO.200028 OF 2024 (397)
BETWEEN:
BHEEMAPPA
S/O RAYAPPA DALAWAI
AGE: 89 YEARS
OCC: AGRICULTURE
R/O. KOLHAR VILLAGE
TQ: BASAVANA BAGEWADI
DIST: VIJAYAPURA-586 203.
...PETITIONER
(BY SRI KADLOOR SATYANARAYANACHARYA, ADV)
AND:
Digitally
signed by 1. SHANTAGANGADHAR SWAMIGALU
SHILPA R
TENIHALLI SHIVAGANGAMATH,
Location: AGE: MAJOR, OCC: PONTIFF,
HIGH COURT
OF R/O. SINDAGI, TQ: SINDAGI
KARNATAKA
DIST: VIJAYAPURA-586 128.
2. THE STATE OF KARNATAKA
PSI KOLHAR POLICE STATION
TQ: BASAVANA BAGEWADI
DIST: VIJAYAPURA
(RPTD. BY ASPP HC KAR, KLB-585 103.)
...RESPONDENTS
(BY SRI S.V. DESHMUKH, ADV. FOR R1;
SRI JAMADAR SHAHABUDDIN, HCGP FOR R2)
-2-
NC: 2024:KHC-K:4146
CRL.RP No. 200028 of 2024
THIS CRL.RP IS FILED U/S. 397 R/W SEC.401 OF
CR.P.C PRAYING TO ALLOW THE REVISION PETITION, BY
SETTING ASIDE THE JUDGMENT OF ACQUITTAL PASSED
BY THE ADDL. CIVIL JUDGE AND JMFC, BASAVANA
BAGEWADI IN CC NO.07/2007 DATED 23-02-2018 FOR
THE OFFENCE PUNISHABLE U/SEC.420 OF IPC PASSED BY
ADDL. CIVIL JUDGE & JMFC, BASAVANA BAGWEWADI AND
THE SAME BEING CONFIRMED BY I ADDL. DISTRICT AND
SESSSIONS JUDGE, VIJAYAPUR IN CRL.A.NO.19/2018
DATED 13.09.2023 AND CNOSEQUENTLY TO CONVICT
THE ACCUSED/RESPONDENT FOR THE OFFENCE
PUNISHABLE UNDER SECTION 420 OF IPC.
THIS PETITION COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The complainant is before this Court under Section 397 read with Section 401 of Cr.P.C. challenging the judgment and order of acquittal passed by the Court of Additional Civil Judge and JMFC, Basavana Bagewadi (for short 'Trial Court') in C.C.No.7/2007 dated 23.02.2028, which is confirmed in Criminal Appeal No.19/2018 dated 13.09.2023 passed by the Court of I Additional Sessions -3- NC: 2024:KHC-K:4146 CRL.RP No. 200028 of 2024 Judge, Vijayapur (for short 'first appellate Court'), wherein the accused/respondent No.1 has been acquitted for the offence punishable under Section 420 of IPC.
2. Heard learned counsel for the parties.
3. The petitioner had filed a private complaint before the Trial Court, which was referred to the police by the jurisdictional Magistrate in exercise of his powers under Section 156(3) of Cr.P.C. The allegation against respondent No.1/accused in the private complaint was that the petitioner/complainant and his brother were the joint owners of an agricultural land bearing Survey No.235/1 measuring 3 acres 8 guntas situated at Kolhar village. Respondent No.1, who was the pontiff of Shivaganga Math at Sindagi had arrived at Kolhar village and had represented to the villagers about his intention to construct a Math in Kolhar. For the said purpose, the gift deed was executed by the complainant and his brother in favour of respondent No.1 on 01.03.1994 in respect of two acres of land in Survey No.235/1. The allegation of the -4- NC: 2024:KHC-K:4146 CRL.RP No. 200028 of 2024 petitioner against respondent No.1 is that in spite of the land being gifted for the purpose of constructing a Math, respondent No.1 had not constructed the Math and on the other hand, he had sold the same to strangers for his personal gain. Accordingly, the petitioner had approached the jurisdictional Court of Magistrate by filing a private complaint to take cognizance of the offence punishable under Section 420 of IPC. The police had registered the FIR after the complaint was referred under Section 156(3) of Cr.P.C. After investigation, 'B' final report was filed by the police before the jurisdictional Magistrate. Since the petitioner had opposed the 'B' final report, the learned Magistrate after rejecting the 'B' final report had registered a criminal case against respondent No.1 and had taken cognizance of the alleged offence and registered a criminal case against him.
4. In the said proceedings, the petitioner had examined himself as PW.1 and another witness was examined as PW.2 and 15 documents were marked as -5- NC: 2024:KHC-K:4146 CRL.RP No. 200028 of 2024 Exs.P1 to P15. On behalf of the defence, respondent No.1 had examined himself as DW.1 and two other witnesses were examined as DW.2 and DW.3 and 43 documents were marked as Exs.D1 to D43.
5. The Trial Court thereafter heard the arguments addressed on both sides and vide its judgment and order dated 23.02.2018 acquitted respondent No.1/accused herein for the alleged offences. The appeal filed by the petitioner/complainant against the judgment and order of acquittal was dismissed by the first appellate Court vide its judgment and order dated 13.09.2023 passed in Criminal Appeal No.19/2018. Being aggrieved by the same, the petitioner/complainant is before this Court.
6. The material on record would go to show that the gift deed was executed by the petitioner and his brother in favour of respondent No.1 in respect of two acres of land in Survey No.235/1 in Kolhar village for the purpose of constructing a Math in the said land. The stone laying program for the purpose of constructing a Math was -6- NC: 2024:KHC-K:4146 CRL.RP No. 200028 of 2024 organized and the same is not in dispute. The material on record would go to show that the portion of the aforesaid land bearing Survey No.235/1 measuring 2 acres was acquired by the National Highway for the purpose of constructing National Highway No.218. The respondent No.1 and his witnesses have not only deposed with regard to the aforesaid aspect of the matter but also had produced necessary documentary evidence in this regard. The balance extent of 35 guntas of land was in a triangular shape and according to respondent No.1, it was not fit for construction of Math. The adjacent land was encroached by the villagers and in the said land, bar and restaurant and fish market existed. Therefore, respondent No.1 had sold 35 guntas of land in Survey No.235/1 and had utilized the sale proceeds for the purpose of constructing five rooms to the pilgrims in the Math at Sindagi.
7. The Trial Court as well as the first appellate Court after taking into consideration these aspects of the matter have arrived at a conclusion that respondent No.1 -7- NC: 2024:KHC-K:4146 CRL.RP No. 200028 of 2024 had utilized the sale proceeds for public purpose and also have taken into consideration that Math could not be constructed in the property in question since the major portion of the property, which was gifted to the Math was acquired by the National Highway. The compensation amount received from the National Highway Authorities had been used for the purpose of constructing five rooms in the name of the complainant at Sindagi Math. The very fact hat five rooms have been constructed in Sindagi Math in the name of the petitioner/complainant by respondent No.1/accused would go to show that the sale proceeds or the compensation amount from the land in question had been utilized for noble cause and therefore, it cannot be said that respondent No.1/accused had cheated the petitioner.
8. For the purpose of attracting the offence under Section 420 of IPC, the prosecution is required to prove that respondent No.1 had an intention to cheat at the inception and this basic ingredient, which is necessary to -8- NC: 2024:KHC-K:4146 CRL.RP No. 200028 of 2024 prosecute respondent No.1/accused for the offence punishable under Sections 420 of IPC is completely absent in the present case. The Courts below are therefore fully justified in acquitting respondent No.1 herein for the alleged offences. The Courts below have appreciated the oral and documentary evidence available and by a well reasoned judgment have acquitted respondent No.1. The scope for interference with the concurrent findings of acquittal, which is in favour of respondent No.1 in a revision under Section 397 read with 401 of Cr.P.C. is very narrow. In the case on hand, the judgment and order of acquittal passed by the Courts below do not suffer from any illegality or infirmity nor can it be termed as perverse in nature. Under the circumstances, I do not find any good ground in this revision petition to entertain the same. Accordingly, following order is passed:
ORDER The revision petition is dismissed.-9-
NC: 2024:KHC-K:4146 CRL.RP No. 200028 of 2024 In view of disposal of main petition, pending application, if any, stands disposed of.
Sd/-
JUDGE Srt List No.: 1 Sl No.: 24