Karnataka High Court
Appasab S/O. Siddappa Magadum vs Rajendra Nemanna Magadum on 25 April, 2024
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NC: 2024:KHC-D:6907
CRL.A No. 2845 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH R
DATED THIS THE 25TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL NO. 2845 OF 2013 (A)
BETWEEN:
APPASAB
S/O. SIDDAPPA MAGADUM,
AGED ABOUT 68 YEARS,
OCC: AGRICULTURE,
R/O. UGAR B.K.,
TQ: ATHANI,
DIST: BELAGAVI.
...APPELLANT
(BY SRI. A.R.PATIL, ADVOCATE)
AND:
RAJENDRA NEMANNA MAGADUM,
AGE: MAJOR, OCC: AGRICULTURE,
RAKESH
SHIVAPUTRA R/O. KUSANAL, TQ: ATHANI,
HARIHAR DIST: BELAGAVI.
...RESPONDENT
Digitally signed
by RAKESH (BY SRI. S.H.MITTALKOD, ADVOCATE)
SHIVAPUTRA
HARIHAR
Date: 2024.04.25
17:06:49 +0530 THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.
SEEKING TO SET ASIDE THE ORDER DATED 16.09.2013 PASSED BY
THE PRL. CIVIL JUDGE & JMFC COURT, ATHANI IN C.C.NO.399/2005
AND CONSEQUENTLY CONVICT THE RESPONDENT FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 196, 199, 205, 209, 417,
418, 465, 468 READ WITH SECTION 34 OF IPC.
THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 01.04.2024, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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CRL.A No. 2845 of 2013
JUDGMENT
This appeal is by the complainant in C.C. No.399/2005 on the file of the Principal Civil Judge and JMFC, Athani, challenging the order dated 16.09.2013 acquitting accused of the offences punishable under Sections 196, 199, 205, 209, 417, 418 and 468 of IPC.
2. I refer the parties as per their rank before the Trial Court.
3. It is the case of the complainant that accused and others had filed L.A.C. No.170/1989 for enhancement of the compensation awarded for acquisition of the land bearing R.S. No.99/7 of Molawad Village, which was belonging to the family of complainant. When the matter was pending before the Reference Court in L.A.C. No.170/1989, the complainant was also party in the said litigation. Award was passed in L.A.C. No.170/1989. The respondent - accused behind back of complainant and members of his family, filed E.P. No.118/2000 before the Senior Civil Judge at Athani to execute the award passed in L.A.C. No.170/1989.
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4. It is further case of complainant that during the pendency of E.P. No.118/2000, accused Nos.1 to 5 filed a memo dated 20.04.2001 praying the Court to pay the compensation to decree holder No.4 - Rajendra Nemanna Magadum, for and on behalf of decree holder Nos.1 to 7. The Reference Court accepted the said memo and ordered to release the amount of compensation of Rs.3,10,088/- in favour of accused (DHR No.4). Accordingly, the accused had withdrawn the amount of compensation. This fact had came to the knowledge of the complainant much later, after withdrawing of the amount by the decree holders in E.P. No.118/2000.
5. It is further case of the complainant that decree holder No.1 - Ravindra Nemanna Magadum has died on 05.10.1998, decree holder No.5 - Devendra Balappa Magadum has died on 02.04.1992 and decree holder No.6 - Manasinghrao Parasuram Shinde died on 23.05.1999 (hereinafter referred to for short as "deceased"). The memo dated 20.04.2001, contains signatures of above said deceased persons infront of their respective names, which clearly prove that the said signatures were forced by the accused/respondent -4- NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 to withdraw the amount of compensation by playing fraud on the Court. With these allegations, he prayed to initiate the proceedings against the above said five decree holders, who were noted as accused Nos.1 to 5 in the complaint.
6. In the Court of Senior Civil Judge, Athani, complainant had filed petition under Sections 340 and 195 of Cr.P.C. Order sheet speaks that on 15.02.2005, the learned Senior Civil Judge adjourned the matter. On 28.02.2005, the matter was posted for further hearing of complaint or sworn statement of the complainant and the matter was adjourned. Between 30.04.2005 to 30.05.2005, sworn statement of complainant and his witnesses was recorded. Complainant had produced certain documents. On 21.06.2005, the learned Senior Civil Judge, Athani had passed the following order:
"ORDER Cognizance taken against the Accused No.2 Rajendra S/o. Nemanna Magadum, R/o. Kusanal, Tal.Athani for an offence punishable under Sec. 196, 205, 209, 417, 465 and 468 of I.P.C.-5-
NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 No case is made out against the Accused No.1 Tukaram, 3. Jinnappa, 4. Manohar and 5. Bhupal.
Issue summons to the Accused No.2 Rajendra directing him to appear before the court on 16.07.2005.
The case is made over to the Prl. Civil Judge (Jr. Dn.) & JMFC, Athani, as all criminal cases are transferred to the court of JMFC, as per Notification of Hon'ble CJM, Belgaum dated 23.04.2001."
7. As per the above said order, the matter was made over to the Court of Principal Civil Judge and JMFC, Athani (herein after for short referred to as "Trial Court"). The Trial Court on going through the records, and hearing both side, framed the charges for the offences punishable under Sections 196, 199, 205, 209, 417, 418, 465 and 468 read with Section 34 of the IPC. The accused pleaded not guilty and claimed to be tried.
8. The Trial Court recorded the evidence. The complainant, had examined PWs.1 to 3 and got marked Exs.P1 to P19 and closed his evidence. The learned Trial Judge -6- NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 examined the accused under Section 313 of Cr.P.C. Accused did not lead defence evidence.
9. The learned Trial Judge after hearing both the complainant and the accused and appreciating the materials available on record, by the impugned judgment dated 16.09.2013 acquitted the accused of the aforesaid offences. Same is challenged in the present appeal by the complainant.
10. I have heard the arguments of the learned advocate for the appellant - complainant and learned advocate for the respondent - accused.
11. The learned advocate for the appellant would submit that both the learned Senior Civil Judge and Principal Civil Judge and JMFC, Athani did not follow the procedure prescribed under Section 340 of Cr.P.C. and other relevant provisions of Cr.P.C. while initiating action against accused, for playing fraud on the Court and filing the memo with forged signatures. The learned Civil Judge (Sr. Dn.) instead of filing complaint, recorded sworn statement and made over to JMFC Court. The Trial Court proceeded with the matter. On conclusion of the trial, Principal Civil Judge and JMFC, Athani, -7- NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 erroneously held that the complainant had no locus standi to file a complaint under Section 190 of Cr.P.C.; complaint should be filed by competent Court and not by individual. On the basis of the above said two reasons, the learned JMFC acquitted the accused, which is erroneous.
12. The learned advocate for the appellant has further submitted that if there is any lapses in following procedures, that could be rectified by the Court below and decided the matter on merits. If an accused, who committed offence against administration of justice and dare to file memo with the forged signatures of deceased persons, is set free without any punishment, then it would affect status of the Court before the right thinking people of the society. Therefore, the findings of the Trial Court are erroneous. This Court may be pleased to set aside the said judgment and direct the concerned Court to proceed with the matter in accordance with Section 340 of Cr.P.C., if there is any procedural lapse. Since the proceeding has been pending from 2005 onwards, the period of limitation would not come in the way. Therefore, prays to allow the appeal.
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13. The learned advocate for the respondent - accused has supported impugned judgment and further vehemently contended that if any crime is committed in the Court proceedings, then the concerned Court suo moto or on the application of any of the parties may hold preliminary enquiry and if prima facie case is made out, then the Court itself or its authorized officer shall file a complaint before the jurisdictional Court. Then only such a jurisdictional Magistrate shall take cognizance. If the complaint is not filed by the Court, wherein offence is committed, then on the basis of the complaint filed by third party, who had no locus standi to file such complaint, the Court of Magistrate cannot take cognizance of such complaint. The learned Magistrate rightly held that the appellant had no locus standi to file complaint in respect of alleged offences. He further submitted that the alleged incident is said to be taken place during the year 2001. The complaint was filed during the year 2005, after a lapse of four years and at present, already 20 years has been completed from the date of filing of the application under Section 340 of Cr.P.C. by the complainant. Even if the judgment is set aside and the matter is remitted back to the Trial Court, due to the lapse of time, the -9- NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 Court cannot take cognizance of such offence. The learned Trial Court has considered all these points and rightly acquitted the accused; it does not call for any interference by this Court. With these reasons, the learned counsel for respondent prayed to dismiss the appeal.
14. The following question arises for determination:
Whether the Trial Court is justified in acquitting the accused on technical grounds does it call for interference?
15. The allegations made in the application filed under Section 340 of Cr.P.C. are stated in detail in above paras. Hence, no need to repeat.
16. In the order sheet dated 21.06.2005, the learned Senior Civil Judge, Athani has recorded that the applicant had filed a complaint before the JMFC Court, Athani and the said Court by its order dated 22.12.2004 returned the complaint, to approach before the competent Court. Thereafter, the appellant filed application under Section 340 of Cr.P.C. before the Senior Civil Judge Court, Athani. The learned Senior Civil Judge, Athani registered the said application in P.C. No.1/2005. The learned Senior Civil Judge thereafter proceeded with recording of the
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 sworn statement of the applicant - complainant and his two witnesses and also got marked the documents during recording of the sworn statement. Thereafter, passed the order dated 21.06.2005, taking cognizance of the offence against accused No.2 and issued summons to the accused No.2. The said Court has also passed an order to the effect that, "the case is made over to the Principal Civil Judge and JMFC, Athani, as all criminal cases are transferred to the Court of JMFC," as per notification of CJM, Belagavi dated 23.04.2001.
17. The learned Senior Civil Judge, Athani has erred in not following the procedure prescribed under Section 340 of Cr.P.C. Even procedure followed to take cognizance under Section 190 of Cr.P.C. is also erroneous. It is necessary to refer relevant provisions of Cr.P.C. to consider the contentions of both side.
18. Section 190 of Cr.P.C., reads as under:
"190. Cognizance of offences by Magistrates (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 class specially empowered in this behalf under sub-section (2), may take cognizance of any offence--
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such
facts;
(c) upon information received
from any person other than a police
officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."
19. The learned Senior Civil Judge, Athani, if he had a jurisdiction and authority to try criminal matters, he ought to have taken cognizance of the complaint and thereafter recorded the statement of witnesses offered by the complainant. On the contrary, learned Senior Civil Judge recorded sworn statement of complainant and witnesses and thereafter took cognizance. The procedure followed by the learned Senior Civil Judge is
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 erroneous. Hence, the order of taking cognizance is not in accordance with law. Hence, further proceedings also are illegal. Taking cognizance is basis for further proceedings in criminal trial. When that order is erroneous and illegal, further proceedings therein also become illegal.
20. The learned Principal Civil Judge and JMFC, Athani, in the order dated 21.06.2005, which is already referred above, had made over the case to the Court of Principal Civil Judge and JMFC, Athani. The learned Senior Civil Judge did not have jurisdiction to make over the case to JMFC Court. Section 192 of Cr.P.C. deals with it, which reads as under:
"192. Making over of cases to Magistrates (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.
(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial."
21. As per the above said Section 192(2) of Cr.P.C., judicial magistrate or any other Magistrate empowered by the CJM can make over the case to other Court. As per the operative portion of the order dated 21.06.2005, which is referred above, all the criminal power of the learned Senior Civil Judge, Athani were said to be withdrawn by the Notification dated 21.03.2001. Therefore, the learned Senior Civil Judge, Athani even did not have authority or jurisdiction to take cognizance, record the statement of complaint and witnesses and thereafter, make over the case to the Principal Civil Judge and JMFC, Athani. Hence, orders passed by the Civil Judge, Athani, dated 21.06.2005 is without authority and jurisdiction. Hence, it is an illegal order not tenable.
22. Let us consider the procedures ought to be followed under Section 340 of Cr.P.C. Looking to the allegation made in the application filed under Section 340 of Cr.P.C., before the learned Civil Judge, Athani dated 14.02.2005, respondent -
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 accused alleged to be committed offences punishable under Sections 199, 200 and 209 of IPC, in respect of Execution Petition No.118/2000 proceeding, pending in the Court of Civil Judge, Athani in respect of the memo filed having signature of dead persons. The learned Senior Civil Judge, Athani, ought to have proceeded with the matter under Section 340 of Cr.P.C. It is necessary to refer Section 340 of Cr.P.C., which reads as under:
"340. Procedure in cases mentioned in section 195 (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of Justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,--
(a) record a finding to that effect;
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(b) make a complaint thereof in
writing;
(c) send it to a Magistrate of the
first class having jurisdiction;
(d) take sufficient security for the
appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section
195.
(3) A complaint made under this
section shall be signed,--
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(a) where the Court making the
complaint is a High Court, by such officer of the Court as the Court may appoint;
[(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.] (4) In this section, "Court" has the same meaning as in section 195."
23. According to the above said provision, the Presiding Officer of the concerned Court has to consider about the allegation made in such application and if prima facie case is made out, then the Court itself has to file a complaint to the jurisdictional Court of Magistrate, having jurisdiction or direct any of the officer of the Court to file such complaint as stated in the above Sections 340 (a) and 340 (b) of Cr.P.C., Exs.P9 to P11 produced by the appellant shows that decree holder Nos.1, 5 and 6 were dead on different dates mentioned in Exs.P9 to 11 prior to filing of Ex.P12, which was filed on 20.04.2001. It prima facie shows that the signatures made on the memo purported to be signed by decree holder Nos.1, 5 and 6 is made by some other persons, who might be interested in withdrawing money. It also prima facie shows that an offence was
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 committed in this regard punishable under Sections 199, 200 and 209 of IPC and some other offence which has to be considered by the Court concerned, wherein such offence was committed.
24. The learned Civil Judge, Athani though knew that application was filed by the appellant under Section 340 of Cr.P.C., he ought to have proceeded under the said provision. However, he ignored procedure to be followed under Section 340 of Cr.P.C. and considered it as private complaint and proceeded under Section 200 of Cr.P.C., the said procedures are also erroneous. Therefore, the act of the learned Senior Civil Judge, Athani has lead to miscarriage of justice.
25. In the case of State of Punjab vs. Jasbir Singh in Criminal Appeal No.335/2020 dated 15.09.2022, the Hon'ble Apex Court relying on the judgment of Constitution Bench of Hon'ble Apex Court in the case of Iqbal Singh Marwah @ Meenakshi Marwah1 held that holding of preliminary enquiry under Section 340 of Cr.P.C. is not mandatory. However, if in the ends of justice, such enquiry is required, then the Court 1 (2005) 4 SCC 370
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 may hold the preliminary enquiry and record its finding to the effect of commission of such offence against the administration of justice. In the above said referred case of State of Punjab vs. Jasbir Singh, the Hon'ble Apex Court extracted portion of judgment in the case of Iqbal Singh Marwah which reads as under:
"In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words "court is of opinion that it is expedient in the interests of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint."
26. In this case recording of statement of complainant and his witnesses were not required to arrive at a prima face case, because documents placed on record in E.P. No.118/2000, itself show that someone signed in the name of deceased decree holders, who were dead long prior to filing of the said memo, as per death extracts. Said prima facie case was sufficient for the learned Senior Civil Judge, Athani to
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 proceed against the concerned by filing complaint, as provided under Section 340 of Cr.P.C. Due to erroneous procedures followed by the learned Senior Civil Judge, Athani, all these complications arose and this case is pending for last about 20 years.
27. There is bar to take cognizance of the case by learned Senior Civil Judge, Athani when application was filed before said Court. Section 352 of Cr.P.C. bars the said Court to take cognizance when complaint was filed before it under Section 340 of Cr.P.C. Section 352 of Cr.P.C. reads as under:
"352. Certain Judges and Magistrates not to try certain offences when committed before themselves Except as provided in sections 344, 345, 349 and 350, no Judge of a Criminal Court (other than a Judge of a High Court) or Magistrate shall try any person for any offence referred to in section 195, when such offence is committed before himself or in contempt of his authority, or is brought under his notice as such Judge or Magistrate in the course of a judicial proceeding."
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28. In view of the above said discussion, the order passed by the learned Senior Civil Judge, Athani dated 21.06.2005 is illegal and against the provision of law, which needs to be set aside.
29. The learned Senior Civil Judge, Athani by order dated 21.06.2005 took cognizance of the offence against accused No.2 for the offences punishable under Sections 196, 205, 209, 417, 465 and 468 of IPC. There is a bar under Section 195 of Cr.P.C. to take cognizance for some of the offences by the Court. To consider the same, it is necessary to refer Section 195 of Cr.P.C. which reads as under:
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence (1) No Court shall take cognizance--
(a) (i) XXX
(ii) XXX
(iii) XXX
(b)(i) of any offence punishable
under any of the following sections of the Indian Penal Code, 1860 (45 of 1860),
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court;
or
(ii) of any offence described in
section 463, or punishable under section 471, section 475 or section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court; or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub-clause (ii), [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) xxx (3) In clause (b) of sub-section (1), the term "court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the Principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that--
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
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30. The Civil Judge, Athani or Principal Civil Judge and JMFC, Athani had any authority to take cognizance for the offences punishable under Sections 196, 205 and 209 of IPC in view of the specific bar under Section 195(1)(b)(i) of Cr.P.C. Admittedly the complaint was not filed by the Court of Civil Judge, Athani, wherein the alleged offences were said to be committed by the accused No.2. Therefore, taking of cognizance by the learned Senior Civil Judge, Athani dated 21.06.2005 was without jurisdiction. Therefore, the said order passed by learned Senior Civil Judge is nullity.
31. In any criminal proceedings, to proceed with the matter and issue summons to the accused, it is a mandatory to take cognizance, as provided under Section 190 read with Section 200 of Cr.P.C. In this case, orders of taking cognizance itself is nullity, further proceedings also becomes invalid and illegal.
32. The Principal Civil Judge and JMFC, Athani, by the impugned judgment at para 17 onwards has dealt with the provisions of Section 195 and 340 of Cr.P.C. The learned Trial Judge observed that Senior Civil Judge, Athani should not have
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 taken cognizance of the alleged offences, since the complaint was not filed by the Court. And order of cognizance is barred under Section 195 of Cr.P.C., but still proceeds to pass the impugned judgment. When the Court comes to the conclusion that taking cognizance itself was wrong and the Court of Senior Civil Judge did not follow the procedures prescribed under Section 340 of Cr.P.C., then question of deciding of the said case on merit was redundant. Therefore, the impugned judgment passed by the Principal Civil Judge and JMFC, Athani is without jurisdiction and authority, which needs to be set aside.
33. The learned Civil Judge and JMFC, Athani acquitted the accused on the ground that appellant had no locus standi to file a complaint since he was not owner of any part of acquired land. The said finding of the Trial Court is erroneous. Under Section 340 of Cr.P.C., the Court may suo moto or on the application made to it, can proceed with the matter. The said provision does not indicate anywhere that the person who has interest over the subject matter, has only right to file such complaint. Moreover, it is general principle of criminal jurisprudence that anybody can set the criminal law into
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 motion, unless specifically barred under the provision of law. Hence, reasons assigned for acquittal of accused on the ground that complainant has no locus standi is not tenable.
34. From the allegation made out in the application filed under Section 340 of Cr.P.C. and documents placed on record. Complainant has made out a prima facie case that someone have signed in the memo filed before the Court on behalf of dead person. By filing such memo, amount deposited before the Court by the Special Land Acquisition Officer, were withdrawn. It is a grave offence committed against the Court. Therefore, such an illegal act committed by the wrong doer should be dealt with iron hand and in accordance with law. The procedures followed by the Courts below were not in accordance with law. The entire proceedings were vitiated due to not taking of cognizance in accordance with law and also not following the procedure prescribed under Sections 340 and 195 of Cr.P.C. Therefore, the impugned judgment passed by the learned Principal Civil Judge and JMFC is beyond the jurisdiction of the said Court since it had no jurisdiction to take cognizance on the complaint filed by the appellant herein. As already noted above, a serious offence was alleged to be committed against
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 the Court proceedings, which need to be determined in accordance with law.
35. All these proceedings were initiated within the reasonable time from commission of offence. Due to not following the strict provision of law, the impugned judgment passed by the Trial Court needs to be set aside. The learned Senior Civil Judge, Athani be directed to reconsider the application filed under Sections 340 and 195 of Cr.P.C., in accordance with law. Thereafter, shall file the complaint by itself or by an authorized officer in accordance with the provision of Section 340 of Cr.P.C. The concerned Court, wherein such a complaint is filed, shall proceed with the case in accordance with law provided under provisions of Limitation Act and Section 473 of Cr.P.C.
36. The period during which these proceedings are going on, needs to be excluded for considering period of limitation to take cognizance.
37. For aforesaid discussion, the questions raised above are answered in the affirmative and proceed to pass the following:
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ORDER
(i) Appeal is allowed.
(ii) The impugned judgment passed by the
Principal Civil Judge and JMFC, Athani dated 16.09.2013 is set aside. Consequently, the orders passed by the Senior Civil Judge, Athani dated 21.06.2005 taking cognizance is also set aside, and matter is remanded back to the Court of Senior Civil Judge, Athani.
(iii) The learned Senior Civil Judge, Athani shall follow the procedures prescribed under Section 340 of Cr.P.C. and file complaint to the jurisdictional Magistrate and thereafter the jurisdictional Magistrate shall proceed with the matter in accordance with law, afresh.
(iv) The period spent during this litigation shall be excluded.
(v) Registry is directed to send back the Trial Court records forthwith to the Court of Senior Civil
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NC: 2024:KHC-D:6907 CRL.A No. 2845 of 2013 Judge, Athani, alongwith the copy of this judgment.
(vi) Registry shall also send copy of this judgment to the Trial Court.
Sd/-
JUDGE Rsh LIST NO.: 1 SL NO.: 1