Karnataka High Court
Mr Prathap Reddy vs The State on 4 July, 2023
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
WRIT PETITION NO.13387 OF 2022 (GM-RES)
BETWEEN
MR.PRATHAP REDDY
S/O LATE SHRI K.C. REDDY
AGED ABOUT 70 YEARS
R/AT NO. 310, 14TH MAIN
7TH CROSS
RMV 2ND EXTENSION
SADASHIVNAGAR
BANGALORE - 560 080
... PETITIONER
(BY SRI SANDESH J. CHOUTA, SENIOR COUNSEL
FOR SRI ARUN G., ADVOCATE)
AND
1 . THE STATE BY KADUGODI P.S.,
BANGALORE CITY
REPRESENTED BY HCGP
HIGH COURT OF KARNATAKA
BANGALORE - 560 001
2 . SHRI APPAYYANA
S/O LATE DODDDAMUNIYAPPA
AGED ABOUT 62 YEARS
2
3 . RAVI CHANDRA C.A.
AGED ABOUT 36 YEARS
S/O. LATE APPAYYANNA
4 . NAVEEN KUMAR C.A.
AGED ABOUT 45 YEARS
S/O. LATE APPAYYANNA
PETITIONERS NO.2 TO 4 ARE
R/AT BIDARE AGRAHARA
@ CHINNA NAGENAHALLI
BIDARAHALLI HOBLI,
BANGALORE SOUTH TALUK
... RESPONDENTS
(BY SRI VISHWA MURTHY, HCGP FOR R1
SRI S. SREEVATSA, SENIOR COUNSEL FOR
SRI M.V. CHANDRA SHEKARA REDDY, ADVOCATE FOR R3
AND R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING TO QUASH THE P.C.R. NO.118/2011 AND THE
RESULTANT FIR AND CHARGE SHEET IN C.C.NO.2811/2012
ARISING OUT OF CRIME NO.87/2011 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 420, 464, 465, 468, 471
READ WITH SEC 34 OF THE INDIAN PENAL CODE 1860
PENDING ON THE FILE OF THE HON'BLE ADDITIONAL CHIEF
JUDICIAL MAGISTRATE BANGALORE RURAL DISTRICT,
BANGALORE ARRAIGNING THE PRESENT PETITIONER AS
THE ACCUSED NO.2 (ANNEXURE-A, B, C, AND D TO THE
W.P.) AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.6.2023 THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
This writ petition is filed by the petitioner-accused No.2 under Articles 226 and 227 of Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') for issuing an appropriate writ, order or direction for quashing the P.C.R.No.118/2011 and the FIR and the charge sheet in C.C.No.2811/2012 arising out of Crime No.87/2011 for the offences punishable under Sections 420, 464, 465, 468, 471 read with Section 34 of Indian Penal Code, 1860 (for short 'IPC').
2. Heard the learned Senior counsel for the petitioner, learned High Court Government Pleader for respondent No.1-State and learned Senior counsel for the respondent Nos.3 and 4.
3. The case of the petitioner is that the respondent No.2-Appayyanna filed a private complaint which was registered as P.C.R.No.118/2011 and referred the same to the Police under Section 156(3) of Cr.P.C. In turn, the Police registered the FIR in Crime No.87/2011 for the 4 offences punishable under Sections 420, 419, 463, 464, 465, 466, 471, 191, 192, 193 and 468 of IPC. It is alleged by the complainant that he is the absolute owner of the landed property in Sy. No.26 of Bidara Agrahara @ Chinnanagana Halli Village measuring 2 acres 9 guntas of land under partition deed dated 03.02.1975. He also got mutated his name in the register in M.R.No.3/1982-83. The property was fallen to the share of the complainant which was registered on 29.03.1975 vide M.R.No.10-1974-75 in the name of his brother Appaiah as per the said partition deed, in respect of 2 acres 9 guntas in the said survey number. There was a registered partition dated 13.02.1963 effected among the father of the complainant with his elder brother and two younger brothers. In the said partition, the father of the complainant and his younger brother Chikka Muniyappa and Papanna continued to be in joint possession and enjoyment of the rest of the properties. The complainant's father performed the marriage of the daughters of his two brothers i.e., Chikka Muniyappa and Papanna and sold his share of land in Sy.No.41/1. The 5 excess properties in Sy.No.102/3 measuring 1 acre 36 guntas of Doddabanahalli Village given to Chikka Muniyappa and an extent of 1 acre 38 guntas in Sy.No.102/4 given to Papanna under the said partition for celebrating the marriages of their daughters which were not sold and continued to be in possession and enjoyment. The complainant's father took responsibility and performed the marriages of the daughters of his two brothers under the document styled as Memorandum of Settlement/Agreement dated 10.04.1972. The said Chikka Muniyappa has given 1 acre 29 guntas out of 2 acre 29 guntas in Sy.No.26 of Avalahalli Village which was fallen to his share under the registered partition deed and retained 1 acre of land on the northern side. His name was also entered in the RTC. The father of the complainant and his two brothers i.e., Chikka Muniyappa and Pappanna have continued as joint family members even after the registered partition deed dated 13.02.1963. The mutation was not obtained by Chikka Muniyappa in Sy.No.26, even though he has retained only 1 6 acre of land by giving 1 acre 29 guntas to the father of the complainant.
4. It is further alleged that the complainant has filed suit in O.S.No.424/1994 against his uncle Chikka Muniyappa and his son Chennappa-the accused No.1 seeking declaration and injunction. During the pendency of the suit, the above said Chikka Muniyappa and his son Chennappa-accused No.1 in the collusion with accused Nos.2 to 4 got alleged registered sale deed dated 23.12.1994 in respect of 2 acres 29 guntas in Sy.No.26 of Bidara Agrahara including 1 acre 29 guntas belong to the complainant. Accused No.1 along with his father in collusion with accused Nos.2 to 4 have fraudulently forged, fabricated the mutation in MR No.6/1986-87 in respect of 2 acres 29 guntas. Based upon the said spurious mutation registered sale deed was executed by accused No.1 and his father in the name of accused No.2 through GPA holder-accused No.3.
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5. It is further alleged that the complainant came to know about the fraudulent transactions during the pendency of suit in O.S.No.424/1994 and he has impleaded accused No.2-the purchaser in the suit. Accused No.2 represented the suit through GPA holder-accused No.4. Accused No.1 in his written statement has accepted the signing of the registered partition deed dated 03.02.1975. The written statement filed by accused No.2 has taken defence that he has purchased the property and he was a bonafide purchaser. The said sale deed was marked in the civil proceedings as per Ex.D.4 and in the sale deed, it was mentioned that the vendors obtained mutation register in M.R.No.6/1986-87 and a symbolic possession was given.
6. It is further alleged that the complainant verified all the revenue documents where the mutation in M.R.No.6/1986-87 were never entered in RTC at any point of time in the name of father of accused No.1. The said mutation was fabricated and created for the purpose of sale deed dated 23.12.1994. The said suit in O.S.No.424/1994 8 was decreed in favour of the complainant and in the appeal, it was reversed by the District Judge and now the second appeal is pending before the High Court. The suspicion of the complainant became very strong that accused No.2 might have given false and fictitious address and got registered the sale deed by giving GPA in favour of accused No.3. Accused No.4 given evidence that accused No.2 authorized him and pleaded about the personal knowledge regarding revenue records. The complainant was in lawful possession of the land by paying the taxes but the accused have created and forged the mutation register No.6/1986-
87. Therefore, filed the complaint for taking action.
7. After registering the FIR, the Police investigated the matter and filed the charge sheet for the offences punishable under Sections 420, 464, 465, 468, 471 read with Section 34 of IPC. The cognizance were taken, process were issued against the accused which is under challenge.
8. The learned Senior counsel for the petitioner has contended that accused No.1 was the son of Chikka 9 Muniyappa who had already died. Accused No.2 is the subsequent purchaser. Accused No.3 is the power of attorney holder purchased the property on behalf of accused No.2 and accused No.4 is power of attorney holder in the Court for defending the civil case where it is contended that there was delay in lodging the complaint for 18 years and the dispute between the parties are civil in nature. They tried to give color of criminal case. The subsequent purchaser is nothing to do with the litigation between the vendor and his relatives. He has purchased the property for the value from the LRs of the land owner. The complainant previously obtained the temporary injunction and later it was vacated. The petitioner succeeded in the first appeal and second appeal is pending before the High Court. Though the petitioner have approached the High Court under Section 482 of Cr.P.C. on the earlier occasion, but, it was dismissed for non-prosecution. Therefore, the successive petition is maintainable. The complainant has filed a vicious complaint against the petitioner who are bonafide purchaser 10 which is nothing but abuse of process of law. Hence, prayed for allowing the petition.
9. Per contra, learned counsel for the respondent Nos.3 and 4 objected the petition and contended that previously the petitioner approached this Court under Section 482 of Cr.P.C. which came to be dismissed on 14.03.2014. The same was not challenged by the petitioner and after nine years, once again they have filed similar petition which is not maintainable. The accused persons have already filed discharge application before the Magistrate and it was rejected. Thereafter, revision petition was filed before the Sessions Judge which came to be rejected and those two orders were passed under Sections 239 and 397 of Cr.P.C. and the same have not been challenged and once again, filing under Section 482 of Cr.P.C. for quashing the proceedings does not arise. The accused persons have created the document in collusion with accused No.1 and sold the property belongs to the father of the respondent. The matter has been investigated 11 by the Police and filed the charge sheet. There is a prima facie material placed on record to frame the charges. Therefore, prayed for dismissing the petition.
10. The learned High Court Government Pleader also objected the petition and contended that the Police investigated the matter for creation of false document for getting the sale deed executed in favour of accused No.2. Therefore, criminal proceedings cannot be quashed. Hence, prayed for dismissing the petition.
11. Having heard the arguments and perused the records, it is seen from the averments of the complaint that there was partition between his father and deceased-father of accused No.1 in respect of a property measuring 2 acres 29 guntas and it was a joint family. Even after the partition, the family was continued to be in joint. Therefore, the father of the complainant took responsibility of performing the marriage of the daughters of his own brothers and he has spent much amount. Therefore, the father of the accused No.1 executed a deed in favour of the father of the 12 complainant in respect of Sy.No.26. The defendant said to be stated in the civil case that the father of accused No.1 got the share of 2 acres 29 guntas, but, they have got only 1 acre of land as per the partition held in the year 1963. But the defendant has produced a mutation register No.6/1986-87 showing the entire land belongs to them which is a created documents. The complainant succeeded in the civil case, suit was decreed and in the appeal, suit was dismissed. Now, the second appeal is pending before the High Court.
12. The Senior counsel for respondent has submitted that even though the Trial Court dismissed the discharge application and also dismissed the revision, but, they have not challenged the same and filed the petition under Section 482 of Cr.P.C. Of course, on perusal of the same, the petitioner not sought any prayer for setting aside the order of dismissal under Sections 239 or 397 of Cr.P.C., but challenged the proceedings under Section 482 of Cr.P.C. Merely, it is not stated that they approached the Sessions 13 Judge after the Magistrate and it cannot be said that the petition under Section 482 of Cr.P.C. is not maintainable.
13. However, it is an admitted fact that previously the petitioners have filed similar petition under Section 482 of Cr.P.C. which came to be dismissed by the Co-ordinate Bench of this Court, though for default as well as on merit, the order of the Co-ordinate Bench dated 14.03.2014, dismissing the petition for non-prosecution but also on merits which is as under:
"Though there is no representation on behalf of the petitioner continuously on past three occasion, this Court after going through the entire petition and other materials available on record, is of the opinion that no grounds are made out for quashing of C.C.No.2811/2012 pending on the file of ACJM, Bangalore. Accordingly, the petition filed by the petitioner under Section 482 of Cr.P.C., is hereby dismissed."
14. On perusal of the order passed by the Co-
ordinate Bench of this Court, even though the petition was 14 dismissed for non-prosecution, but it reflects the dismissal was also on merit of the case. The said order has not been challenged before the Hon'ble Supreme Court or filed application for recalling that order which attains finality.
15. As regards to the contention of the learned Senior counsel for the petitioner that civil case is pending before the High Court in respect of the mutation entry in the civil suit. In this regard, of course, the suit was decreed by the Civil Judge which was reversed by the District Judge and now pending in second appeal, but the fact remains, the mutation register extract has been forged for the purpose of selling the property to this petitioner. Of course, the main accused has expired who sold the property to this petitioner, but, when accused No.1 do not have any right over the property for selling it, by creation of the document, this petitioner purchased the property. Therefore, if he had knowledge or not or he is a bonafide purchaser, he has to face the trial and take the defence in the Trial Court. Therefore, it cannot be said that forging the document or 15 creating the fake document, making transaction and purchasing the property is not an offence. Therefore, the petitioner is required to face the trial before the Trial Court. Hence, the petition is devoid of merits and liable to be dismissed.
16. Accordingly, the petition is dismissed. However, the Trial Court is directed to dispose of the main matter within a period of 6 months from the date of receipt of the copy of this order as it is one of the oldest matter.
Sd/-
JUDGE GBB