Karnataka High Court
Basanagouda vs The State Of Karnataka, on 16 September, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
Crl.P.No.102749/2017
C/w. Crl.P.No.101132/2016
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO. 102749/2017
C/W.
CRIMINAL PETITION NO.101132/2016
IN CRL.P NO 102749 OF 2017
BETWEEN:
SRI. BASAVARJ S/O ADIVEPPA CHIKKAMATH
AGE: 26 YEARS, OCC: BOND WRITER,
LICENSE NO.5, KALGATAGI TASHILDAR OFFICE
R/O: KALAGHATAGI, TAL KALAGATAGI,
DIST: DHARWAD.
... PETITIONER
(BY SRI.SRINAND A. PACHHAPURE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH LAXMESHWAR POLICE STATION,
GADAG, NOW REP. BY SPP,
HIGH COURT OF KARNATAKA
DHARWAD BENCH AT DHARWAD.
2. SRI.SHANKARAPPA
AGE: 59 YEARS, OCC: BANK EMPLOYEE
R/O. BEGURU, TAL: KALAGHATAGI
NOW AT CHANDAN BUILDING
2ND CROSS, SHARADA COLONY
DHARWAD.
... RESPONDENTS
(BY SRI. RAMESH CHIGARI, HCGP FOR R1;
SRI. K. M. SHIRALLI, ADVOCAE FOR R2)
Crl.P.No.102749/2017
C/w. Crl.P.No.101132/2016
:2:
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., SEEKING TO QUASH THE PROCEEDINGS IN C.C.NO.43 OF
2015 REGISTERED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 365, 342, 323, 506, 384, 468 AND 109 READ
WITH SECTION 149 OF IPC ON THE FILE OF COURT OF CIVIL
JUDGE AND JMFC, LAXMESHWAR MARKED AT ANNEXURE-A IN SO
FAR AS PETITIONER IS CONCERNED.
IN CRL.P NO 101132 OF 2016
BETWEEN:
BASANAGOUDA, S/O VEERANAGOUDA PATIL,
AGE: 67 YEARS, OCC: ADVOCATE,
R/O: CHURCH ROAD, BEHIND BUS STAND
KALAGHATGI, DISTRICT: DHARWAD.
... PETITIONER
(BY SRI. K L PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REP. BY SPP, HIGH COURT OF KARNATAKA,
DHARWAD. THROUGH LAXMESHWAR PS.
2. SHANKARAPPA
S/O VIRUPAKSHAPPA KONI,
AGE: 54 YEARS, OCC: BANK EMPLOYEE,
R/O: BEGURU, AT PRESENT CHANDAN BUILDING,
2ND CROSS, SHARADA COLONY, DHARWAD.
... RESPONDENTS
(BY SRI. RAMESH CHIGARI, HCGP FOR R1;
SRI. K. M. SHIRALLI, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., SEEKING TO QUASH THE ORDER DATED 20.4.2016 AND
THE ENTIRE CHARGE SHEET IN CRIMINAL CASE NO. 43 OF 2015
OF LAXMESWAR POLICE STATION ON THE FILE OF CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS, LAXMESHWAR(CRIME
NO. 143 OF 2013) AGAINST THIS PETITIONER FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 143, 147, 365, 342, 323, 506,
384, 468, 109 READ WITH 149 OF IPC IN SO FAR PETITIONER IS
CONCERNED.
Crl.P.No.102749/2017
C/w. Crl.P.No.101132/2016
:3:
THESE PETITIONS COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
COMMON ORDER
1. Criminal Petition No.102749/2017 has been filed by accused No.6 and Criminal Petition No.101132/2016 has been filed by accused No.7, seeking for quashing of the proceedings in CC No.43/2015 registered for offences punishable under Sections 143, 147, 365, 342, 323, 506, 384, 468, 109 R/w. Section 149 of the IPC.
2. The 2nd respondent-complainant has lodged a complaint on 18.09.2013 alleging that accused Nos. 1 to 4, on the instigation of accused No5. had kidnapped the complainant, had taken him to the Hirehonnalli Village of Kalaghatgi Taluk, threatening him with dire consequences and prevailed upon him to call his Sister Shankaravva to that location. Prior to his Sister coming to the place, they had Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 :4: taken the signature of the complainant on an empty stamp paper. After coming of the Sister to the location, they had threatened the complainant and his Sister with dire consequences and got her signature on a printed stamp paper and thereafter dropped the complainant at Beguru village.
3. The incident having occurred on 03.09.2013, the complaint came to be filed on 28.09.2013. The delay has been explained by stating that the complainant who had suffered injuries was being treated at the hospital, he being afraid of the consequences of filing a complaint as also being busy with his official work as a bank employee, it is only after thinking about and after seeking advice from friends and well wishers that the complaint was filed on 28.09.2013.
Crl.P.No.102749/2017C/w. Crl.P.No.101132/2016 :5:
4. During the course of investigation, it was found that an agreement of sale on a stamp paper stated to have been executed by the Sister of the complainant had been drafted by the accused No.6 and notarized by accused No.7 as such they were included as accused in the proceedings, though initially their names were not found mentioned in the complaint. It is being aggrieved by the inclusion of their name that the present petitions have been filed.
5. Sri. Srinand Pachhapure, learned counsel for the draftsman/Petitioner/accused No.6 in Crl P No. 102749/2017 would contend that 5.1. the name of the accused No.6 was not found mentioned in the FIR, 5.2. there is a civil suit pending between the accuse No.5 and the complainant's Sister, Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 :6: 5.3. a reading of the complaint does not make out any allegation against the accused No.6, 5.4. at the most the allegation with regard to Section 468 IPC can be said to be attracted to accused No.6, no other offence can be attributed to accused No.6. Even as regards the offence under Section 468, admittedly the complainant's Sister has singed a typed document, therefore, it could not be said that there is any forgery committed by accused No.6. The accused No.6 has only drafted an agreement at the instructions given and he cannot be found fault with.
6. On these grounds, Sri. Srinand Pachhapure submits that this Court ought to exercise its extraordinary inherent power under Section 482 of Cr.P.C and quash the entire criminal proceedings insofar as the accused No.6 is concerned Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 :7:
7. Sri. K.L.Patil, Learned counsel appearing for the Notary/Petitioner/accused No.7 in Criminal Petition No.101132/2016 would submit that, insofar as the accused No.7 is concerned being a notary he is protected by Section 13 of the Notaries Act, 1952 in that no court could take cognizance of any offence said to be committed by a Notary in an exercise or purported exercise of his functions as a notary, unless a complaint in writing is submitted by the authorized person of the Central Government or a State Government by a general or a special order. In the present case there being no such complaint which has been filed by such authorized person, the Magistrate could not have taken cognizance of the complaint insofar as the accused No.7 Notary is concerned and in this regard he relies on the decision of this Court between Smt. Ratna D/o. Devendragouda Goudar and The State of Karnataka Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 :8: and another in Criminal Petition No.100526/2014 dated 05.06.2014 more particularly para No.6 thereof which is extracted below for easy reference:
"6. On peruwsal of the above said provision, if the allegation is made against a Notary that while executing the functions of a Notary or purported exercise of the functions under the Act, if any offence is committed no Court shall take cognizance unless a complaint in writing made by an Officer authorized by the Central Government or State Government by general or special order in this behalf. Therefore, the above said provision is also a legal and specific bar to take cognizance of the offence. The charge sheet allegations is that, the accused No.3- the petitioner has notarized the said General Power of Attorney. Except the said allegations nothing has been stated now she has taken part in cheating the complainant or any other person."
8. Relying on the same Sri. K.L.Patil submits that, this Court ought to have exercised its extraordinary Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 :9: inherent power and quash the proceedings insofar as the accused No.7-Notary is concerned.
9. Sri. K.M.Shiralli, learned counsel for the respondent No.2-complainant would submit that, the accused No.6 could not have drafted the document without having received any instructions from the complainant's Sister and or the complainant, the draftsman cannot draft any agreement of sale or the like which affects a particular person without having received the instructions from such a person, furthermore it is Accused No. 6 who has identified the signatory to the agreement of sale before the Accused No. 7 Notary, which could not have been so done by him, hence, there being serious allegations which are made insofar as the accused No.6 and his complicity as also conspiracy with the other accused the matter requires Trial Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 : 10 : and as such this Court should not exercise its power under Section 482 of Cr.P.C.
10. As regards the claim of the accused No.7, Sri. Shiralli, submits that the said accused No.7 has also acted in complicity and conspiracy with the other accused, the fact remains that the complainant's Sister was not present before the accused No.7 at the time of notarization, hence, having notarized the document in the absence of the executant of the document, the Notary having committed criminal acts, the same goes beyond the purview of the functioning of legal activities of the Notary and therefore, this Court ought not to exercise its power under Section 482 of Cr.P.C. for quashing the complaint against the accused No.7.
11. Heard Sri. Srinand A. Pachchapure, Sri. K.LPatil, Sri. K.M.Shiralli, learned counsels, Sri. Ramesh Chigari, learned HCGP and perused the papers. Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 : 11 :
12. Criminal Petition No.102749/2017: The arguments addressed by Sri. Srinand A. Pachhapure have been detailed herein above, so also the reply thereto of Sri. K.M.Shiralli, learned counsel for the respondent-complainant. 12.1. The first ground that Mr. Srinand Pachchpure urged is that in the FIR the name of the accused No.6 is not found mentioned. Such a contention cannot be taken up at this stage in this particular matter for the reason that at the time of filing of the complaint the persons who are known to the complainant to be involved in the matter were arrayed as accused, it is further stated that there were several persons present who were not known to the complainant. It is only subsequently on the document alleged to have been forged surfacing that it was found that accused No.6 Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 : 12 : has drafted the document. The factum of drafting of the document and or signature of the draftsman found on the document is not in dispute. Such being the case, the question of the accused No.6 raising an issue as regards his inclusion in the proceedings by stating that his name was not included in the FIR, is not sustainable.
12.2. The second contention of Sri. Srinand Pachchpaure was that there was civil suit which is pending, an examination of the documents and on going through the statements made it is seen that there were two suits which had been filed. The first suit had been filed by the adopted son/accused No.5 against the complainant's Sister initially before the Senior Civil Judge, Dharwad, and now pending before III Addl. Senior Civil Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 : 13 : Judge, Hubballi in O.S.No.279/04. The other suit in O.S.No.37/05 filed by the complainant's Sister against accused No.5, is stated to have been disposed. Be that as it may, the said suit being one between accused No.5 and the complainant's Sister will not come to the rescue of the accused No.6. The said suits are also relating to the property as regards which the document is alleged to have been forged. In view of the same, the document having been forged pursuant to the suits having been filed, the same is not a ground for exercising of power by this Court under Section 482.
12.3. The third contention addressed by Sri. Srinand Pachchapure is that the ingredients of the offences as alleged namely that under Section 143, 147, 363, 320, 506, 384, 468 Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 : 14 : and 109 r/w. Section 149 of IPC are not made out insofar as the accused No.6 is concerned in the complaint as initially filed. As detailed above, the accused No.6 was included subsequent to the surfacing of alleged forged document. There are allegations in the complaint as regards the forgery and or complexity of the other accused. As indicated above, the drafting of the document and signature of accused No.6 on the said document are not in dispute. Hence, whether infact the accused No.6 is involved or not is the matter of Trial which cannot be adjudicated in these proceedings. 12.4. The fourth contention alleged by Sri. Srinand Pachchapure is that, the document having been already typed by accused No.6 and signed by the complainant's Sister Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 : 15 : subsequently it could not be said to be a forgery. The aspect as to whether the said document was prepared at the instructions of the complainant and or his Sister or who instructed accused No.6 to prepare the document, etc., are required to be adjudicated during the course of the Trial in the matter. It would not be possible for this Court at this stage to come to a conclusive finding that the ingredients of Section 468 are not attracted insofar as the accused No.6 is concerned.
12.5. In view thereof, I am the considered opinion that this is not a fit and proper case to this Court to exercise its inherent powers under Section 482 of Cr.P.C. The Criminal Petition No.102749/2017 is dismissed.
Crl.P.No.102749/2017C/w. Crl.P.No.101132/2016 : 16 :
13. Criminal Petition No.101132/2016: The arguments of Sri. K.L.Patil, learned counsel appearing for the accused No.7 have been detailed herein above.
13.1. The only contention of Sri. K.L.patil is that, no Court could take cognizance of any offence insofar as the accused No.7-Notary is concerned without a complaint being filed by an authorized officer of the Central Government or the State Government in terms of Section 13 of the Notaries Act, 1952. 13.2. Though at first blush the said arguments appear to be attractive and applicable what is to seen here is whether accused No.7 has only discharged the notarial functions or has he gone beyond the same. The allegations made in the charge sheet filed after the investigation is not restricted to the functions Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 : 17 : of accused No.7 as a Notary, the allegations are as regards accused No.7 having conspired with the other accused in creating of the document and authenticating the documents by notarising the said document. It is common knowledge that once the document is notarized, the general public would believe the same to be having a higher degree value than that which is not notarized.
13.3. On enquiry, it is learnt that there is no Notarial Register singed by the complainant's Sister in furtherance of the alleged execution of the document and notarization thereof. Thus, it cannot be said that accused No.7 was purely discharging notarial functions. 13.4. The aspect as regards his complicity and conspiracy with other accused in the creation or otherwise of the agreement of sale, which Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 : 18 : is the subject matter of the Criminal Proceedings is also required to be ascertained during the course of the Trial.
13.5. As regards the decision relied upon by Sri. K.L.Patil of this Court between Smt. Ratna D/o. Devendragouda Goudar and The State of Karnataka and another in Criminal Petition No.100526/2014 dated 05.06.2014 the relevant paragraph No.6 having been extracted hereinabove, the last portion of the said para makes it clear that in that case, except the allegations as regards notarization there were no allegations made. In this matter, there are other allegations which are made in the charge sheet as regards Notary having conspired with other accused, furthermore the witnesses to the said document as per their own statement are Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 : 19 : stated to have signed the document as witnesses, post notarization. Thus, the accused No.7 has not got the complainant's sister signature in the notarial register and has also notarized an incohate document before the signatures of the witnesses. Merely because the signature of the complainant's Sister is stated to have been identified by accused No.6, the same would not come to the rescue of the accused No.7.
13.6. In view thereof, I am the considered opinion that this is not a fit and proper case to this Court to exercise its inherent powers under Section 482 of Cr.P.C. Hence, Criminal Petition No.101132/2016 is also dismissed.
14. The observations made in this order is only for the purpose of exercising of power under Section 482 Crl.P.No.102749/2017 C/w. Crl.P.No.101132/2016 : 20 : of Cr.P.C. The Trial Court shall not be influenced by any of the observations made and should decide the matter on its own merits.
Sd/-
JUDGE gab/svh