Karnataka High Court
Sri Ramakrishna vs Sri A N Prasannakumar on 25 April, 2024
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.1762 OF 2022
CONNECTED WITH
CRIMINAL PETITION NO.269 OF 2022
CONNECTED WITH
CRIMINAL PETITION NO.1481 OF 2022
IN CRL.P. No. 1762/2022
BETWEEN:
SMT. H. J. LALITHA,
D/O LATE. R. JAVAREGOWDA,
AGED ABOUT 58 YEARS,
MAJOR IN AGE,
R/AT NO.52, 1ST MAIN,
JAYALAKSHMIPURAM,
MYSURU.
...PETITIONER
(BY SRI. CHANDRAIAH, ADVOCATE)
AND:
SRI. A. N. PRASANNAKUMAR
S/O LATE A. J. NANJEGOWDA,
AGED ABOUT 64 YEARS,
R/AT ARJUNAHALLI VILLAGE AND POST,
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K. R. NAGAR TALUK,
MYSORE DISTRICT.
...RESPONDENT
(BY SRI. A.N. PRASANNA KUMAR, PARTY- IN PERSON)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
16.11.2021 PASSED BY THE HONBLE PRL.CIVIL JUDGE AND
JMFC K.R.NAGAR, MYSURU DISTRICT IN C.C.NO.2529/2021.
IN CRL.P. 269 OF 2022:
BETWEEN:
SRI. RAMAKRISHNA
S/O LATE. VEERA BHADREGOWDA,
AGED ABOUT 56 YEARS,
R/AT NO.1083, 14TH MAIN,
JANATHA NAGARA, T. K. LAYOUT,
MYSORE - 560 009.
...PETITIONER
(BY SRI. RAVIKUMAR M.B., ADVOCATE)
AND:
SRI. A. N. PRASANNAKUMAR
S/O LATE A. J. NANJEGOWDA,
AGED ABOUT 64 YEARS,
R/AT ARJUNAHALLI VILLAGE AND POST,
K. R. NAGAR TALUK ,
MYSORE DISTRICT - 571 602.
...RESPONDENT
(BY SRI. PRASANNA KUMAR, PARTY-IN-PERSON)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
16.11.2021 PASSED BY THE PRL. CIVIL JUDGE (Jr.Dn) AND
JMFC, K.R NAGAR, MYSORE DISTRICT IN
C.C.NO.2529/2021.
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IN CRL.P. 1481/2022:
BETWEEN:
SRI. MAHESH S.,
S/O SOMEGOWDA,
AGED ABOUT 38 YEARS,
R/AT SINGARAMARANAHALLI,
HUNSUR TALUK,
MYSURU DISTRICT - 570 026.
...PETITIONER
(BY SRI. RAVIKUMAR M.B., ADVOCATE)
AND:
SRI. A. N. PRASANNAKUMAR
S/O LATE A. J. NANJEGOWDA,
AGED ABOUT 64 YEARS,
R/AT ARJUNAHALLI VILLAGE AND POST,
K. R. NAGAR TALUK ,
MYSORE DISTRICT- 571 601.
...RESPONDENT
(BY SRI. A.N.PRASANNA KUMAR, PARTY-IN-PERSON)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
16.11.2021 PASSED BY THE PRL.CIVIL JUDGE AND J.M.F.C.,
K.R.NAGAR, MYSURU DISTRICT IN C.C.NO.2529/2021.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 05.04.2024 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
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RESERVED FOR ORDERS ON: 05.04.2024
PRONOUNCED ON : 25.04.2024
ORDER
The Crl.P.No..1762/2022 filed by the petitioner/accused No.1, Criminal.P.No.1269/2022 filed by the petitioner/accused No.2 and Crl.P.No.1482/ filed by accused No.3 under Section 482 of Cr.P.C., for quashing the criminal proceedings C.C.No.2529/2021, arising out of PCR No.109/2021, pending on the file of Principal Civil Judge and JMFC, K.R. Nagar, Mysuru District.
2. Heard the arguments of learned counsel for the petitioner and respondent party in person.
3. The case of the respondent before the Magistrate in his PCR private complaint filed under Section 200 of Cr.P.C., alleging that on 10.07.2008 a 5 SPA said to be executed by one Bhavana in favour of H.Lalitha, her mother and accused No.1 to represent and act on behalf of her in O.S.No.181/2008 on the file of Civil Judge of KR Nagar. On 11.7.2008 partition suit said to be signed by Bhavana filed for half share in the immovable property of the complainant in O.S.No.181/2008. The said Bhavana is mentioned as plaintiff No.2, where she is sole plaintiff. In the plaint stated SPA executed on 10.7.2008 the registration number of the original suit is mentioned in the SPA is prior to the filing of the suit. The additional power inclusion in the SPA are not endorsed duly. The SPA was concocted on 10.7.2008 and on 11.7.2008 by creating forging the signature of Bhavana for unlawful gain and to deceit the complainant. It is further alleged that the Magistrate shall examine the signature of Bhavana appeared in SPA and signature in the plaint OS.181/2008 and signature of the Bhavana P in SPA 6 and signature of the plaint in the original suit is altogether different and does not resemble to each other.
4. It is further alleged that signature of Bhavana in SPA and plaint starts in English letter capital A and 2nd letter is H fourth letter is V and the last letter of the initial P is missing in all signatures of the SPA and the plaint and it is inconsistent and do not match each other. It is further alleged the signature of Bhavana P and her education records starts English capital letter B and 2nd letter H 4th letter V are missing and letter W is 3rd letter not found in the original signatures and ends with P.
5. It is further alleged that accused No.1 Lalitha fully aware the illegal act enacted and used the SPA by wilfully misrepresentation by sworn affidavit on 19.10 duly signed and identified by accused No.2 who is a 7 chief conspirator and accused No.3 against who has signed the SPA as witness and accused No.4 Shivanna is involved in signing the plaint which endorses the impersonation, accused No.5 CN Kamalamma colluding with accused no.1 to 4 and misusing the SPA
6. It is further contended in the proceedings has been decreed as prayed and pending for execution in the court as FDP 16/2016. The accused No.1 Lalitha is an educated lady well versed and other accused 2 to 5 are advocates by profession knowingly involved and conspired with intent to cheat and obtained the property of the complainant by fraudulent means. Hence they have committed the offence for unlawful gain and fraud and they are punishable with the offences under IPC, hence prayed for taking cognizance for the offences 107, 109, 205, 415,420, 464, 466, 467 read with 34 of IPC.
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7. After receipt of the complaint the PCR was registered and the complainant himself examined by sworn statement was recorded and 11 documents were marked, then the Magistrate took the cognizance for the above said offences which is under challenge.
8. Learned counsel for the petitioner-accused No.1 in Criminal Petition No.1762/2022 has contended that the order of the learned Magistrate is illegal, as there is no iota of evidence against the petitioner for the commission of offence. The learned Magistrate has failed to note that one Bhavana is the aggrieved person, and, if at all her signature is forged or fabricated, she is the best person to file the complaint, but not the respondent-complainant. The learned Magistrate has further failed to note that the Special Power Attorney (SPA) was sworn on 10.7.2008 and suit was filed on 11.7.2008. An addition was made in the 9 SPA by incorporating O.S. No.181/2008. The said Bhavana has signed at correction and this aspect has not been verified by the learned Magistrate. The said Bhavana is required to initiate the proceedings under Section 340 read with Section 195(1)(b) of Cr.P.C. and Sections 193 to 196 of IPC and the Shirastedar of the Court is required to file the complaint.
9. It is further contended that the learned Magistrate has failed to note that the predecessor has passed the decree in the civil suit and judgment was passed on 3.9.2016. If there was any forgery, the suit would have been dismissed. The respondent has produced education document about 12 years back pertaining to the signature of Bhavana. There may be some variation in the signature, but that cannot be considered for taking cognizance. The learned Magistrate has failed to note that P. Bhavana signed 10 the SPA and she has affixed her signature and also the thumb impression on 10.07.2008 and thereafter, filed the suit. If there was any forgery, the suit would have been dismissed. The learned Magistrate has failed to note that issuing warrant or summons with out production of the list of witnesses is not permissible. It is further contended that the said Bhavana Prasanna Kumar, the daughter of the respondent, residing at U.S.A., has sent an affidavit stating that she has filed the suit and accused No.1 is very much present in India. Once the said Bhavana has stated that she signed the document, that cannot be disputed by filing the private complaint.
10. The learned counsel for the petitioner has further contended that the respondent deserted the petitioner-accused No.1, who filed the maintenance petition in M.C. No.271/1990 and the same was allowed and Rs.500/- per month was awarded to wife and 11 Rs.300/- per month to the daughter. The petitioner filed a complaint in PCR No.18/2009 against the respondent for the offences punishable under Sections 494 and 498A read with Section 114 of IPC. The same was challenged by the respondent before the High Court, which came to be dismissed. The petitioner's daughter also filed the suit against the respondent for partition and the suit was decreed by granting half share in the property and in order to file counter, the respondent has filed the complaint against the petitioner in order harass her and hence, prayed for allowing the petition.
11. The learned counsel for the petitioner has also argued that huge amount of arrears is pending to be paid by the respondent. The original suit was decreed and the same was not challenged and FDP is also pending. Therefore, in order to over come all these aspects, a false case has been filed by the 12 respondent to harass the petitioner. Hence, prayed for quashing the criminal proceedings.
12. The learned counsel for the petitioner in Criminal Petition No.269/2022 has contended that by taking a similar contention, the suit was filed by Bhavana, who was aggrieved person and the suit was decreed. The said Bhavana has executed the SPA and there is a bar for filing the complaint by the complainant under Section 195(1)(b) read with Section 340 of Cr.P.C. The learned counsel further contended that in the private complaint filed by accused No.1, the petitioner herein is accused No.2. The petitioner is an advocate and he has not filed any complaint or Misc. Petition against the respondent in Criminal Misc. No.279/1990. One advocate Devaiah filed the petition and subsequently, the petitioner entered an appearance in the said case. The enhancement petition was filed by the advocate Devaiah and not by this petitioner. 13 Accused No.1 entered in the civil case as SPA holder and filed SPA along with application and the defendant's counsel (learned counsel for the complainant) stated 'no objection'. Therefore, the application was allowed on 10.08.2009. Thereafter, the suit was decreed.
13. It is further contended that the SPA has been identified by accused No.3, and accused No.4 has signed the plaint as an advocate in O.S. No.181/2008 and this petitioner has not at all filed either suit or the criminal case for maintenance or the case under Section 498A of IPC against the respondent. Such being the case, conducting the proceedings against the petitioner is abuse of process of law and is liable to be quashed.
14. The learned counsel for the petitioner- accused No.3 in Criminal Petition No.1481/2022 has 14 also taken the similar contentions taken by the other two counsels in the connected petitions, in respect of filling of the criminal case by accused No.1 and also in respect of the PCR filed against the complainant. In addition to the said arguments, the learned counsel has contended that this petitioner is an advocate who has identified the Special Power of Attorney executed by Bhavana at Mysuru in favour of accused No.1 on 10.07.2008. Therefore, it is contended that when the SPA was executed by Bhavana in favour of her mother and when the said Bhavana has not challenged the same, the advocates, who filed vakalath and identified the person in the SPA, were unnecessarily implicated by the respondent complainant. Even the notary being made as an accused is not permissible to be made as party. Hence, prayed for quashing the criminal proceedings.
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15. Per contra, the respondent - party in person has filed the detailed submission and mainly contended that there is various manipulation in the signature of Bhavana, her signature is changed by accused No.1, it was identified by advocates, and it is totally a fabricated document. Therefore, the Magistrate has rightly taken cognizance against the accused. It is further contended that on the date of filing of the suit before the Court, Bhavana was not at K.R. Nagar and she was in abroad. All the documents were manipulated and forged by the accused persons. Even the power of attorney and the affidavit sent by Bhavana is also not in accordance with law. Hence, prayed for dismissing the petition.
16. Having heard the arguments of learned counsel for the parties, perused the records. 16
17. The main objection raised by the petitioners in all the petitions is that the complainant cannot file directly a private complaint to the Court which is a bar, and the complaint is required to be filed by the Shirestedar of the Court and an Officer of the Court for creation of the false documents, etc. In this regard, it is relevant to note that the document SPA alleged to have been fabricated by accused No.1 in the name of her daughter Bhavana, prior to filing the suit in the Court, and is not created or fabricated document during pendency of case or the documents in the custody where there is a bar for filing the complaint by the complainant under Section 195(1)(b)(ii) of Cr.P.C. But the document is said to be fabricated out side the Court prior to filing the suit. Therefore, there is no bar for filing the private complaint by the respondent. Therefore, the contention of the petitioner's counsel cannot be acceptable, in view of the judgment of the 17 Supreme Court in the case of IQBAL SINGH MARWAH & ANOTHER VS. MEENAKSHI MARWAH & ANOTHER reported in (2005) 4 SCC 370.
18. As regards the merits of the case, the allegation against accused No.1 is that she has filed the suit as SPA holder of Bhavana, who is daughter of accused No.1 and the respondent complainant. The suit was filed in the year 2008 in O.S. No.181/2008 and Bhavana executed SPA on 10.07.2008 at Mysuru where the accused No.3 has identified the said Bhavana. Based upon the SPA, the suit was continued by accused No.1 i.e. the mother of Bhavana. Actually, the suit was filed by Bhavana herself on 11.07.2008, but the contention of the respondent is that Bhavana used to sign as 'Bhavana P' earlier, however in the SPA and the plaint, she has not signed like that, and, it is totally, a different signature as 'ABWANA'. Therefore, it is contended that the said signature is not made by 18 Bhavana. The suit was contested by the respondent through the counsel and later, the SPA was produced in the Court along with application, which was not objected by the learned counsel for the respondent and the same was allowed by the Court. Thereafter, the suit was decreed in the year 2016. The execution was also filed. But the respondent did not file any appeal against the judgment and decree in the suit. The respondent has filed this complaint before the Magistrate contending that the signature and columns were forged only in the year 2021, after lapse of almost 12-13 years. Since the respondent did not object the SPA during the course of cross examination in the original suit and the suit was decreed, which was not challenged by filing the first appeal, the judgment and decree passed in the suit has attained finality. 19
19. That apart, the very Bhavana, who is said to be the daughter of the respondent and accused No.1, has not filed any complaint for forging her signature, etc. The contention of the respondent is that at that time of considering the suit by the civil Court, Bhavana was not at all in station and she was in abroad, and therefore, accused No.1 and the advocates have created the documents and forged the documents. The plaint copies produced herein were marked by the complainant which reveals that the suit was filed on 11.07.2008, and subsequently, it was numbered in the office and thereafter, posted before the Court and after the issuance of summons, the complainant-respondent appeared and filed written statement in the original suit. But, he has not taken any such contention that the signature was forged by the accused persons. It is also revealed that accused No.1 filed PCR against the respondent for the offences punishable under Sections 20 498A and 494 of IPC for bigamy, which is pending before the Court. Accused No.1 also filed a petition under Section 125 of Cr.P.C. where maintenance order was passed and there was huge arrears of maintenance to be paid by the respondent and he has not paid the maintenance till date. It appears that as a counter blast as against the petitioner-accused No.1, who claimed to be the wife of the respondent-complainant and obtained decree, the order of maintenance and also filed bigamy complaint against the respondent, he has filed the complaint against accused No.1, including the advocates who appeared on behalf of accused No.1 in the PCR and also in the civil case.
20. Even other wise, accused No.2 was not the advocate who filed the suit, but it was one Devaiah filed the case. Accused No.2 came on record by NOC. Accused No.3 is said to be signed in the SPA for 21 identification of Bhavana and then, accused No.5- another advocate is signed as notary. There is a bar under the Notaries Act for filing a complaint and taking cognizance by the Court as against the advocate- notary.
21. The respondent also filed a criminal petition before the High Court in Criminal Petition No.4682/2009 against the PCR No.18/2009 filed by accused No.1 for the offences punishable under Sections 498A and 494 of IPC, which came to be dismissed on 15.02.2012 and it is also referred that writ petition filed by respondent was also withdrawn.
22. On perusal of the contentions, it reveals that the respondent has filed this complaint only as a counter blast to take revenge against accused No.1, who is said to be the wife of respondent-complainant 22 and the advocates appeared for accused No.1 have also been implicated in this case.
23. The High Court of Calcutta in the case of SHYAMAL ROY Vs. STATE OF WEST BENGAL reported in 2017 Crl.L.J. 920, in a similar situation, has held as under:
(a) Criminal P.C. (2 of 1974), S.482 -
Quashing of complaint - Forgery for
purpose of cheating Fake document
allegedly prepared by petitioner to grab property of complainant Neither prima facie case made out from statement of complainant and his witnesses - Nor evidence showing that such document is forged - Mere oral statement is not sufficient to justify that a document has been forged for purpose of cheating -
Complaint filed for wreaking vengeance against petitioner with view to spite him due to his personal grudge - Liable to be quashed. Penal Code (45 of 1860), S.468. 23
24. In another case in RAMESH RAJAGOPAL Vs. DEVI POLYMERS PVT. LTD. reported in 2016 Crl.L.J. 2339, the Hon'ble Supreme Court, at paragraphs 15 and 22, has held as under:
15. We find that the allegations that the appellant is guilty of an offence under the aforesaid Section are inherently improbable and there is no sufficient ground of proceedings against the accused. The proceedings have been initiated against the appellant as a part of an ongoing dispute between the parties and seem to be due to a private and personal grudge.
22. The High Court seems to have over looked these circumstances and has merely dismissed the petition under Section 482 of the Criminal Procedure Code on the ground that it requires evidence at a trial to come to any conclusion. We, however, find that the 24 criminal proceedings initiated by the respondent constitute an abuse of process of Court and it is necessary to meet the ends of justice to quash the prosecution against the appellant.
25. In view of the judgment of the Hon'ble Supreme Court and the Calcutta High Court, I am of the view that the respondent complainant has filed the complaint for taking revenge against the petitioners- accused, who filed the complaint against him, and the advocates, who appeared on behalf of the wife-accused No.1. Therefore, the very complaint itself is not sustainable under the law.
26. That apart, the learned Magistrate is said to be compared the signature of Bhavana appeared in the SPA and the earlier documents. Without calling Bhavana and verifying her signature, issuing the summons to the accused persons by taking cognizance, 25 cannot be acceptable. Even otherwise, this Court cannot venture to verify the signature by comparison as per Section 73 of the Indian Evidence Act as held by the Co-ordinate Bench of this Court in the case of NASREEN PASHA Vs. MALIK AHMED reported in ILR 2016 KAR 3732.
27. The learned Magistrate cannot issue warrant summons against the petitioners without filing the list of witnesses by the complainant in his complaint. The learned Magistrate has not at all considered the judgment and decree, the order of maintenance, and pending of FDP proceedings and, blindly took the cognizance against accused No.1 and the advocates, which is against the law. Therefore, taking the very cognizance by the Magistrate against the petitioners is liable to be quashed and it is nothing but the abuse of process of law.
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28. In the result, I proceed to pass the following order:
All the petitions are allowed.
The criminal proceedings C.C.No.2529/2021, arising out of PCR No.109/2021, pending on the file of Principal Civil Judge and JMFC, K.R. Nagar, Mysuru District against the petitioners is hereby quashed.
Sd/-
JUDGE CS CT:SK