Karnataka High Court
Mr. Dhiraj Hegde vs The State Of Karnataka on 30 September, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO.6282/2017
Between:
1. Mr. Dhiraj Hegde
S/o K.A. Hegde
Aged about 47 years
R/at No.51, 3rd Main, 3rd Cross
Bank Colony, Bogadi, Mysore-570 026.
2. Mr. Harish Chandra Shetty
S/o late Babu Shetty
Aged about 64 years
R/at No.8A, Chandra Kiran
24th Main Road, Opp. Canara Bank
J.P. Nagar, 1st Phase
Bangalore-560 078.
3. Mr. Abhay Raj Shetty
S/o B.R. Shetty
aged about 48 years
R/at No.1890, 9th Main
Banashankari 2nd Stage
Bangalore-560 070.
4. Dr. Madan Mohan
S/o late Dr. N.T. Mohan
Aged about 48 years
R/at No.609, 10th Cross
7th Block, Jayanagar
Bangalore-560 082. ...Petitioners
2
(By Sri A.S. Ponnanna, Senior counsel for
Smt. Leela P. Devadiga, Advocate)
And:
1. The State of Karnataka
By Ramamurthy Nagar Police Station
Rep. by SPP, High Court of Karnataka
Bangalore-560 001.
2. Smt. Rashidabi
D/o. late Sayyed Rehan
Site No.92/1, Vijinapura village
Vijinapura, R M Nagara
Bangalore-560 016. ...Respondents
(By Sri Rohith B.J., HCGP for R-1;
Sri T. Seshagiri Rao, Advocate for R-2)
This criminal petition is filed under section 482 of the code
of criminal procedure, 1973 praying to quash the FIR in Crime
No.121/2011 and Charge Sheet dated 12.08.2014 of
Ramamurthy Nagara Police station as well as the order dated
12.08.2015 passed by the X Addl. Chief Metropolitan Magistrate,
Mayohall, Bangalore taking cognizance and issuing
process/summons to the petitioners in C.C.No.55164/2014,
copies of which are produced at Annexure-B,C and D
respectively and all further proceedings pursuant thereto and
etc.
This criminal petition coming on for further hearing this
day, the court made the following:
3
ORDER
The 2nd respondent lodged a first information report (for short `FIR'), on 30.4.2011 which was registered in Crime No.121/2011 for the offences punishable under Sections 468, 471, 420, 192 and 34 of IPC
2. The summary of allegations made in the FIR are as follows:
That, the land bearing Sy.No.92/1 of Vijipura Village, KR Puram Hobli, Bengaluru East Taluk belonged to her forefathers and she along with her family members are in possession of the land for more than fifty years. The subject land is an inam land and M/s.National Tobacco Company which claims to have purchased the subject land from her grandfather did not take possession of the same. M/s.National Tobacco Company went into liquidation and liquidation proceedings were held at High Court of Calcutta, though it was not in possession. Hence, the accused forged and fabricated the following documents:
1) The conversion certificate is created by creating an entry in the index of land register to indicate that the Divisional Commissioner had sanctioned the conversion.4
2) The order dated 22.7.1958 passed by the Spl.
Deputy Commissioner and endorsement dated 25.7.1958 are created purportedly to show that the land was granted under the Inam Abolition Act and this order is interpolated and written at the end of the page in the register. The said accused have forged and fabricated the documents of the subject land to cheat the 2nd respondent and also produced the same before the Hon'ble Court to obtain an order in their favour.
3. The police after investigation submitted a charge sheet for the offences punishable under Sections 468, 471, 420, 192, 120B read with Section 34 of IPC.
4. The summary of the charge sheet is as follows:
The subject land is the ancestral property of the 2nd respondent - CW1 and her sister i.e. CW2 and CW7. The subject land though was conveyed to the M/s.National Tobacco Company through a registered sale deed, however, the possession was not handed over to the said Company. The Company borrowed loans from Banks and went into loss and a Liquidator was appointed, however, possession of the subject land was not taken over. The High Court of Calcutta passed an order for sale of subject land for recovering the dues from the Company and in pursuance of the same, the Authorized Officer issued a proclamation for sale and the accused Nos.1 to 3 purchased the subject land in the name of Gurukiran Enterprises. The accused having purchased the subject 5 land which was an agricultural land got registered the sale deed indicating the subject land was converted into non- agricultural purposes by virtue of the order of the Divisional Commissioner by order dated 4.5.1958.
5. CW1, CW2 and CW7 filed OS No.1275/1994 for partition and possession of the subject land and in pursuance of the judgment passed by the Civil Court are paying taxes and also constructed a compound wall and residential houses and shops and are residing in the subject land. An extent of ten guntas in the subject land is acquired by the Railway Department as per Official Memorandum dated 4.8.1958. Accused Nos.1 to 4 have created the documents purportedly to substantiate that the subject land has been granted in favour of M/s.National Tobacco Company under the Inam Abolition Act. Suppressing the acquisition of ten guntas of land in favour of Railways, the accused by making use of the said documents have got executed a registered sale deed in their favour and thereafter got the names registered in the property tax register maintained by the BBMP. The learned Magistrate accepted the charge sheet and took cognizance of the aforesaid offences, against which the present petition is filed. 6
6. This petition was heard on 25.1.2022, 1.2.2022, 22.2.2022, 30.5.2022, 6.6.2022 and after completion of the argument on both sides, a question was put to the learned counsel appearing for the 2nd respondent as to whether the accused can forge/interpolate the documents which are in the custody of the Revenue Department, and at that point of time, the learned counsel appearing for the 2nd respondent sought for an adjournment to address the query posed by this Court. By way of indulgence, this Court granted adjournments to the learned counsel appearing for the 2nd respondent and an interim order of stay of further proceeding, which was operating, was extended from time to time.
7. When the matter was listed for further hearing, the learned High Court Government Pleader appearing for the State submitted that supplementary charge sheet has been filed by the police after the defacto complainant submitted certain documents and in view of the same, further investigation was conducted after permission from the jurisdictional Court.
8. The supplementary charge sheet reiterates the allegation made in the charge sheet and the only additional allegations is that accused Nos.1 to 5 in connivance with accused 7 No.6 and 7 who are arrayed as accused in the supplementary charge sheet with an intention to cheat the defacto complainant and the owners of the subject land inserted the name of M/s.National Tobacco Company below the name of the owner after striking the name of the owner and used the said document as original and tried to take possession of the subject property of CW1 and others.
9. This Court directed the Investigating Officer to file an affidavit as to how he could proceed with further investigation when further proceeding before the Trial Court was stayed. The Investigating Officer filed a status report by way of affidavit that there were necessities to proceed with further investigation on the documents submitted by the defacto complainant and after seeking permission from the jurisdictional Court on 27.5.2022, the further investigation was conducted.
10. A perusal of document No.4 (order sheet) produced along with status report by way of affidavit indicates that the learned Magistrate has not granted permission to the Investigating Officer to conduct further investigation and except for the seal `permitted' the order sheet does not bear the signature of the learned Magistrate in granting permission to 8 submit supplementary charge sheet. A perusal of the order sheet in the impugned proceeding indicates that, on 27.5.2022, the Investigating Officer submitted the additional charge sheet which is counter signed by the concerned clerk. There is no provision in the Code of Criminal Procedure to take prior permission from the Magistrate concerned before conducting further investigation, but as a matter of proprietary, the police has to seek permission of the Court to continue further investigation and submit supplementary charge sheet.
11. The Hon'ble Supreme Court in the case of Vinay Tyagi -vs- Irshad Ali reported in 2013 (5) SCC 762 at para-19 has held that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct "further investigation" or to file supplementary report with the leave of the Court, the Investigating Agencies have not only understood but also adopted it as a legal practice to seek permission of the Court to conduct further investigation and file supplementary report with the leave of the Court. It was further held that the requirement of seeking prior leave of the Court to conduct further investigation and/or to file supplementary report will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. It was further held 9 that the doctrine of contemporanea expoistio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as a part of interpretative process.
12. The further investigation conducted without permission of the learned Magistrate as specified under Section 173(8) of Cr.PC and also when further proceeding on the file of the learned Magistrate is stayed by this Court is one without authority of law, and the additional charge sheet which is yet to be accepted by the learned Magistrate has no sanctity in the eye of law.
13. Sri A S Ponnanna, learned Senior Counsel appearing for the learned petitioners' counsel would make the following submissions:
a) In the FIR lodged by the 2nd respondent, there is no whisper with regard to the involvement of the petitioners in creating the documents. In the absence of any material that the petitioners/accused fabricated or concocted the documents and in the absence of essential ingredients so as to constitute the commission of the offences alleged against the petitioners, the charge sheet filed is without any substance.10
b) In OS No.5476/2011, all the allegations made by the 2nd respondent in the FIR were rejected by the Civil Court concerned and the decree was passed declaring that the petitioners are the absolute owners of the subject land and entitled for possession.
c) The dispute between the petitioners and the 2nd respondent is purely civil in nature, however, given criminal texture so as to pressurize the petitioners to arrive at a settlement.
d) It is a well settled position of the law as laid down by the Hon'ble Apex Court in a catena of judgments that "further investigation" does not mean a fresh or a reinvestigation. It is to be a supplement and form part of the existing course of investigation. That, when the position of law is crystal clear, the respondent - police have gone on to file an additional charge sheet after the lapse of many years and in the teeth of the interim order granted by this Hon'ble Court. It is also pertinent to note that the necessary requisition from the learned Magistrate was also not produced.
e) The manner in which the supplementary charge sheet is submitted indicates that the defacto complainant and the Investigating Officer are hand in glove with each other so as to falsely implicate the petitioners with an ulterior motive to wreak vengeance and revengeful intent.11
14. On the other hand, the learned counsel appearing for the 2nd respondent would make the following submissions:
a) The interim order granted by this Court staying further proceeding impliedly or expressly does not suspend the power of Investigating Officer under Section 173(8) of Cr.PC and the Investigating Officer in exercise of such power has undertaken the exercise of filing of supplementary charge sheet and the supplementary charge sheet was filed against accused Nos.6 and 7 who were Revenue Officials at the relevant point of time.
b) The charge sheet materials including the materials produced along with the supplementary charge sheet clearly disclose that the petitioners - accused Nos.1 to 4 in connivance with other accused forged/concocted the documents purportedly to show that the subject land was granted to the M/s.National Tobacco Company under the Inam Abolition Act and also the subject land was converted for non-agricultural purposes so as to get the sale deed registered in their favour with an intention to cheat the defacto complainant.
c) The decree passed by the Trial Court in favour of the petitioners - accused will not absolve the criminality and the impugned proceeding cannot be quashed on the said ground.12
15. The learned High Court Government Pleader would reiterate the submissions made by the learned counsel appearing for the 2nd respondent.
16. I have examined the submissions made by the learned counsel appearing for the learned counsel appearing for the parties
17. The petitioners No.1 to 4 are the partners of Sri Gurukiran Enterprises. In the auction dated 29.6.1995 conducted by the Hon'ble High Court of Calcutta, the RDB Industries was the successful bidder for purchasing the subject land and M/s.Gurukiran Enterprises was nominated by RDB Industries for execution of the sale deed and accordingly the sale deed was executed on 6.9.2006.
18. M/s.Gurukiran Enterprises presented the suit in OS No.5476/2011 against the 2nd respondent and family members for declaration of the possession. The said suit was decreed on 26.4.2013 against which an appeal in RFA No.1237/2013 is pending consideration.
19. The proceedings were initiated against M/s.Gurukiran Enterprises alleging that the subject land was purchased in 13 violation of Section 79-A and 79-B of the Karnataka Land Reforms Act. The initiation of proceeding by the competent Authority alleging that the subject land was purchased in contravention of Sections 79A and 79B of the Karnataka Land Reforms Act was challenged before this court in WP No.39708/2012. This Court vide order dated 11.2.2014 quashed the proceeding by making the following observations:
"16. ............ There is no dispute Syed Imam Sab sold the property in question to M/s New Tobacco Company Ltd., in the year 1956. The land was agricultural land and there were no restrictions for any company or juristic person to acquire agricultural land as in that year. Thereafter further proceedings have been taken up in respect of the land in question on the application of the owners. Petitioners have substantiated that the land in question was converted from agricultural to nonagricultural use vide order of the competent authority bearing CIPR-2C-1323 dated 4.8.1958. Though the copy of the order is not produced, the entry in the revenue records that such an order has been passed is evidenced from the records of the Tahisldar. The index of the land and record of rights of the year 1958 shows the land was converted from agriculture to non agricultural use based on the said order. Similarly the RTC for the years 1970- 71 to 1978-79, and 1993-1994 to 1994-95 also shows the lands were not agricultural lands. In view of such entry in the revenue records, presumption attached to it that such entries are correct entries as permissible under section 133 of the Land Revenue Act ought to be presumed to be true unless they are shown to be false. Copy of the RTCs are at Annexure-H and J.
17. The State has not disputed the correctness of the revenue records relied on by the petitioner. It is also 14 material to note that Respondents No.4 to 8 sought change of revenue entries from the name of the petitioner's vendors to their name on the basis of alleged partition among themselves suppressing the fact of sale by Syed Imam Sab. They had obtained fraudulent decree between themselves and got the RTC changed in their name. The petitioner-Company had filed an appeal under section 136(2) of the Karnataka Land Revenue Act before the Assistant Commissioner in R.A.No.194/2001 which was allowed on 17.5.2002 restoring the entries in the name of the petitioner Company. The respondent No.4 and 8 had preferred revision against the said order in Revision Petition No.35/2002-03 which has a failure as seen from order dated 26.4.2004. They had preferred writ petition before this court in W.P.No.32087- 33850/2004 which petitions were dismissed by this court on 12.1.2005. They had again preferred appeal in W.A.No.3931/2005 which was also dismissed by the Division Bench on 5.6.2006. The copies of the orders in Writ petition and Writ appeal are produced as Annexure-F and G. Those documents support the petitioners contention. The respondents No.4 to 9 have failed in all their attempts.``
20. This Court has categorically held that the subject land was conveyed in favour of M/s.National Tobacco Company in the year 1956 and in that year, there was no restriction for the Company or any other juristic person to hold agricultural land and the entries in the revenue records indicates that the subject land was not an agricultural land. The entries which was challenged by the members of the family of the defacto complainant was negated and this Court has held that the family members of the defacto complainant by suppressing the 15 conveyance of land in favour of M/s.National Tobacco Company obtained a collusive partition decree on the basis of which they claimed to enter the names of the revenue records. This Court has upheld the entries in the revenue records in favour of the M/s.National Tobacco Company and also held that the subject land was a converted land and the defacto complainant having suffered an order suppressing the same lodged the FIR. Hence, the charge sheet submitted alleging that the petitioners - accused fabricated documents to show that the subject land was a converted land so as to register the sale deed in favour of M/s.Gurukiran Enterprises with an intention to cheat the defacto complainant is without any substance.
21. The charge against the petitioners - accused is that they have inserted the name of M/s.National Tobacco Company in the Inam Register to show that the subject land was granted in favour of M/s.National Tobacco Company by striking the name of the original owner of the subject land. There is no material produced along with the charge sheet as to when and how the Inam Register was fabricated and also how these accused fabricated the Inam Register except making omnibus and general allegations. When a query posed to the learned counsel for the respondent No.2 as to how the petitioners -accused could 16 have fabricated the Inam Register which is in the custody of the Revenue Department.
22. The learned counsel took several adjournments to address his query and this Court by way of indulgence granted time to the learned counsel. In the meantime, the 2nd respondent produced certain documents with the police and the police after recording the statements of the very same complainant witnesses submitted a supplementary charge sheet stating that the accused No.1 to 5 in connivance with accused No.6 and 7 fabricated the Inam Register. The statements of all the witnesses are verbatim and except the statement that accused No.1 to 5 is collusion with accused Nos.6 and 7 who have been arraigned as accused in the supplementary charge sheet have fabricated the documents, there is no whisper as to when and in what capacity the accused Nos.6 and 7, they connived with other accused to fabricate the documents. The charge sheet only discloses that accused No.6 is the Special Tahsildar and accused No.7 is the Record Keeper and the charge sheet material also does not disclose that the accused Nos.6 and 7 were in custody of the documents, which are alleged to have been fabricated at the relevant point of time. 17
23. There is no material produced along with the charge sheet that the petitioners - accused have fabricated the Inam Register except the self-serving statement of the complainant witnesses.
24. To constitute an offence of forgery, only those acts of forgery which are accompanied by the elements of deception and injury can be said to be covered by the definition of forgery under Sections 463 and 464 of IPC as held by the Apex Court in the case of Sheila Sebastian reported in (2018) 7 SCC 514. The 2nd respondent admits that the subject land was conveyed to M/s.National Tobacco Company in the year 1956 and also admits that the subject land is not granted to her forefathers except alleging that they are in possession of the subject land. Merely because, the 2nd respondent is alleged to be in possession of the subject land that does not confer any right, title and interest. In the absence of any material that the petitioners have committed the offence of forgery with an intention to cheat and in the absence of any injury or loss caused to the 2nd respondent by mere creation of alleged entry, the charge sheet submitted against the petitioners - accused is impermissible. 18
25. Even otherwise, the allegation of fabrication was the subject matter of OS No.5476/2011 and the jurisdictional Civil Court has decreed the suit in favour of M/s.Gurukiran Enterprises.
26. In view of the preceding analysis, I am of the view that the dispute between the parties is purely civil in nature, however, given criminal texture with an intention to pressurize the petitioners - accused to arrive at a settlement. Accordingly, I pass the following:
ORDER
i) Criminal petition is allowed.
ii) The impugned proceeding in CC No.55164/2014 pending on the file of the X Addl. Chief Metropolitan Magistrate, Mayohall, Bangalore is hereby quashed.
Sd/-
JUDGE bkm