Karnataka High Court
Shri.Jilani S/O Mohammd Sharif vs Naseer S/O Abdulkhadar Kadaragi on 22 May, 2023
Author: V.Srishananda
Bench: V.Srishananda
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CRL.P No. 100710 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 100710 OF 2017 (482)
BETWEEN:
1. SHRI. JILANI S/O. MOHAMMD SHARIF,
LATTEWALE, AGE: 67 YEARS,
OCC: BUSINESS, R/O: SAVANUR,
TQ: SAVANUR,
DIST: HAVERI.
2. HAJISAB S/O. ABDULGANI, LATTEWALE
AGE: 55 YEARS, OCC: COOLI,
R/O: KHADARBHAG PLOT,
BEHIND ABDULSHA DARGA,
TQ: SAVANUR,
DIST HAVERI.
3. MOHAMMADGOUSE
S/O. ABDULGANI, LATTEWALE,
AGE: 53 YEARS, OCC: COOLI,
R/O: RAJIVGANDINAGAR,
CHANDRASHEKAR
LAXMAN
KATTIMANI
OPP TO ZHANDEKATTE,
Digitally signed by
TQ: SAVANUR, DIST: HAVERI.
CHANDRASHEKAR
LAXMAN KATTIMANI
Date: 2023.05.25
10:58:46 -0700
4. MOHAMMADSHARIFF
S/O. ABDULGANI LATTEWALE,
AGE: 51 YEARS, OCC: COOLI,
R/O: LALSHAKATTI ONI,
TQ: SAVANUR, DIST: HAVERI.
5. MOHAMMADJAFFER
S/O. ABDULGANI LATTEWALE,
AGE: 48 YEARS, OCC: COOLI,
R/O: LALSHAKATTI ONI,
TQ: SAVANUR, DIST: HAVERI.
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CRL.P No. 100710 of 2017
6. ABDULMUNAF
S/O. ABDULGANI LATTEWALE,
AGE: 45 YEARS, OCC: COOLIE,
R/O: LALSHAKATTI ONI,
TQ: SAVANUR, DIST: HAVERI.
...PETITIONERS
(BY SRI. VYAS DESAI, ADVOCATE FOR
SRI. JAGADISH PATIL, ADVOCATE)
AND:
NASEER S/O ABDULKHADAR KADARAGI,
AGE: 50 YEARS,
OCC: HOUSEHOLD WORK,
R/O: LALSHAKATTI ONI,
TQ: SAVANUR, DIST: HAVERI.
...RESPONDENT
(BY SRI. M.M. HIREMATH AND
SRI. G.N. KADEMANI, ADVOCATES)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH ORDER DATED 02.02.2016
PASSED BY THE CIVIL JUDGE AND JMFC SAVANUR IN
REGISTERED THE PRIVATE COMPLAINT FILED BY THE
RESPONDENT AGAINST THE PETITIONERS HEREIN AS C.C.NO.
187 OF 2016 FOR THE OFFENCES PUNISHABLE UNDER
SECTION 323, 419, 420, 504, 506 READ WITH 149 OF IPC BY
ALLOWING THIS PETITION.
THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Vyas Desai, learned counsel for the petitioners and Sri M.M.Hiremath, learned counsel for the respondent. Perused the records. -3- CRL.P No. 100710 of 2017
2. The present petition is filed under Section 482 of Cr.P.C. with the following prayer :-
"To quash order dated 02.02.2016 passed by the Civil Judge and JMFC Savanur in registered the private complaint filed by the respondent against the petitioners herein as C.C.No. 187 of 2016 for the offences punishable under section 323, 419, 420, 504, 506 read with 149 of IPC by allowing this petition."
3. The brief facts of the case are as under :-
A private complaint came to be filed before the Civil Judge and J.M.F.C., Savanur by respondent- Naseer Abdulkhadar Kadaragi. Gist of the complaint averments is that there was a civil suit in O.S.No.42/2014 for partition and in the said suit, compromise was recorded and accepted by the Civil Court stating that the suit is amicably settled among the parties. The complainant is aggrieved by the fact that Abdulgaffarsab Lattewale has received the summons issued by the Court in O.S.No.117/2014 by subscribing signature in English language whereas -4- CRL.P No. 100710 of 2017 before the Court when the compromise petition is accepted in o.s. 44/2014, said person has subscribed his left thumb impression and therefore, somebody has been impersonated as Abdulgaffarsab Lattewale and therefore, action was sought against the accused persons. Learned Magistrate after taking cognizance has proceeded with the matter. In the meantime, accused No.3 to 8 have challenged the order of taking cognizance before this Court in this petition contending that the learned Magistrate failed to note that the complainant had the remedy of challenging the very compromise petition before the learned Civil Judge, if it is established that, by parties playing fraud on the Court and there was no criminality involved in the incident and mere averment made by the complainant itself would not be sufficient to take cognizance and therefore sought for quashing of the order taking cognizance and proceeding with the case in C.C.No.187/2016. -5- CRL.P No. 100710 of 2017
4. Reiterating the grounds urged in the petition, Sri Vyas Desai, learned counsel for the petitioners contended that mere fact that the particular person has accepted the suit summons by signing it in English language and later on subscribing the left thumb impression while accepting the compromise petition itself cannot be a ground to proceed against the petitioners for the offences U/sec.323, 419, 420, 504, 506 r/w 149 IPC and the order of taking cognizance is mechanical in nature and sought for quashing of the same.
5. Per contra, Sri M.M.Hiremath, learned counsel for the respondent-complainant supported the order of taking cognizance and contended that when a person has received the summons by saying that behind the summons in English language, how can he be permitted to subscribe his left thumb impression to the compromise petition which prima facie reveals that fraud has been played on the Court by impersonating the person by name -6- CRL.P No. 100710 of 2017 Abdulgaffarsab Lattewale and it is by the accused persons who actively colluded with some unknown persons in impersonating the said Abdulgaffarsab Lattewale and sought for dismissal of the petition.
6. In view of the rival contentions between the parties and also having regard to the scope of Section 482 Cr.P.C., this Court perused the material on record meticulously.
7. On such perusal and consideration of the material on record, it is seen that a compromise petition was filed in O.S.No.42/2014 and suit ended in a compromise. According to the complainant, Abdulgaffarsab Lattewale has received the summons in O.S.No.117/2014 by signing the duplicate of the summons in English language and very same person has subscribed his left thumb impression in the compromise petition and therefore it is not Abdulgaffarsab Lattewale who signed the compromise petition, but it is somebody else who -7- CRL.P No. 100710 of 2017 impersonated Abdulgaffarsab Lattewale and therefore sought for action.
8. Whether at all the compromise petition has been properly entered into or not cannot be decided by this Court at this stage by holding a mini trial. So also it is out of the purview of this Court to hold an enquiry on the said aspect of the matter having regard to the scope of Section 482 Cr.P.C. It is always open for the aggrieved person including the complainant-respondent to reopen the compromise in O.S.No.42/2014 by filing necessary application under Order XXIII Rule 3-A CPC in the very same suit. If there is a fraud played in accepting the compromise, definitely there would be an enquiry held with regard to the same and if it is proved that somebody has impersonated Abdulgaffarsab Lattewale then the criminal prosecution can be continued against the persons who are responsible for the alleged fraud.
-8-CRL.P No. 100710 of 2017
9. Reserving such liberty for the petitioner and without there being a prima facie material about the impersonation of Abdulgaffarsab Lattewale, taking cognizance against the petitioners has resulted in abuse of process of Court and therefore, the interference is necessary.
10. It is always open for the petitioners to establish before the Civil Court in O.S.No.42/2014, but Abdulgaffarsab Lattewale is the person who has subscribed his left thumb impression on the compromise petition by making him present before the Court and also furnish such necessary documents to prove his identity before the Court and seek necessary orders from the said Court.
11. The opinion formed by the Court with regard to the satisfaction of the person who has entered into the compromise is the proper person, the criminal proceedings can be further proceeded in C.C.No.187/2016 or it can be closed. -9- CRL.P No. 100710 of 2017
12. Reserving such liberty for the parties, the impugned order is set aside and matter is remitted to the trial Court subject to the result of the enquiry to be held in O.S.No.42/2014 upon an application filed by the respondent-complainant to reopen the compromise petition.
Ordered accordingly.
Sd/-
JUDGE CLK List No.: 1 Sl No.: 50