Karnataka High Court
Smt.Puttagangamma vs State Of Karnataka on 18 November, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2023:KHC:41468
CRL.P No. 8798 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 8798 OF 2022
BETWEEN:
1. SMT. PUTTAGANGAMMA,
AGED ABOUT 75 YEARS,
W/O SHIVARUDRAIAH,
KODIGE HALLI VILLAGE,
KASABA HOBLI,
DODDABALLAPURA TALUK - 561 203.
2. SMT. K.S. UMADEVI,
W/O BASAVARAJU,
NO.126/4,
BASAVANAGUDI ROAD,
BASAVANAGUDI,
BENGALURU - 560 019.
...PETITIONERS
Digitally signed by B
K
MAHENDRAKUMAR (BY SRI. RAMESHCHANDRA, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. STATE OF KARNATAKA,
BY RURAL P.S.,
DODDABALLAPURA TALUK - 561 203.
BY PUBLIC PROSECUTOR.
2. SRI. CHANNIGAPPA,
AGED ABOUT 60 YEARS,
S/O LATE DODDAMUTTURAYAPPA,
KODIGE HALLI VILLAGE,
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NC: 2023:KHC:41468
CRL.P No. 8798 of 2022
KASABA HOBLI,
DODDABALLAPURA TALUK - 561 203.
...RESPONDENTS
(BY SRI. K. NAGESHWARAPPA, HCGP FOR R1;
SRI. DARSHAN JAIN M., ADVOCATE FOR
SRI. KEMPANNA, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO
ALLOW THIS PETITION AND QUASH THE CHARGE SHEET IN
C.C.NO.2783/2022 (CR.NO.314/2021) FOR THE OFFENCE
P/U/S.418,420,423,424,34 OF IPC AND THE ORDER OF TAKING
COGNIZANCE BY ORDER DATED 04.04.2022 AGAINST THE
PETITIONER PASSED BY THE PRINCIPAL CIVIL JUDGE AND
JMFC DODDABALLAPURA.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioners/accused Nos.1 and 2 have been charge-sheeted for the offences punishable under Sections 418, 420, 423, 424, 34 of Indian Penal Code, 1860 ('the IPC' for short).
2. The case of the prosecution is that, there was a dispute pending between the petitioners and the other accused in O.S.No.151/2014. In the said suit, the parties amicably resolved the dispute among themselves and in terms of the settlement, a compromise petition was filed before the jurisdictional Civil Court. After survey was -3- NC: 2023:KHC:41468 CRL.P No. 8798 of 2022 conducted in respect of the suit schedule properties and also the property bearing survey No.41/1, which was not the subject matter of the suit, the jurisdictional civil Court after recording the terms of the compromise decreed the suit by which the petitioners were entitled to absolute rights in respect of the land bearing survey No.41/1. Respondent No.2 filed the private complaint under Section 200 of the Criminal Procedure Code ('Cr.PC' for short,) alleging that the petitioners along with other accused, behind their back by submitting false documents obtained the compromise decree. The learned Magistrate referred the complaint to the police for investigation under Section 156(3) of Cr.PC. The police after investigation submitted the charge sheet.
3. The cognizance taken of the alleged offences is impugned in this petition by accused Nos.1 and 2.
4. Learned counsel for the petitioners submit that the parties entered into a compromise after survey of the suit -4- NC: 2023:KHC:41468 CRL.P No. 8798 of 2022 schedule properties including the subject property and thereafter, the compromise decree was drawn. Respondent No.2 having not challenged the compromise decree, which has attained the finality cannot prosecute the petitioners of the offences alleged. He further submits that the allegations made against the petitioner constitutes the offence under Sections 191 and 192 of the Cr.PC. He further submitted that though the petitioners had claimed rights over the land bearing survey No.42/4, however, the surveyor at the time of survey indicated that the petitioners are in possession of the land bearing Survey No.41/1. Based on the survey report, the petitioners along with other accused entered into a compromise and the decree was drawn accordingly. Therefore, in the absence of any intention to cheat respondent No.2, the continuation of criminal proceedings against the petitioners for the offence of cheating would be an abuse of the process of law.
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NC: 2023:KHC:41468 CRL.P No. 8798 of 2022
5. Learned counsel for respondent No.2 submits that the land bearing survey No.41/1 exclusively belongs to him which is evident from the entries made in the record of rights. Therefore, the petitioner along with other accused with an intention to cheat by producing false documents claimed rights over the property to cause wrongful loss to respondent No.2. The charge sheet material discloses the commission of the offences alleged against the petitioners, and the veracity of the allegations can be considered at the time of trial, and same cannot be gone into this petition.
6. Learned HCGP would re-iterate the submission made by the learned counsel for the respondent No.2.
7. Considered the submissions made by the learned counsel appearing for the parties.
8. Perusal of the compromise decree indicated that the compromise petition was filed after the surveyor submitted the report stating that the petitioners are in -6- NC: 2023:KHC:41468 CRL.P No. 8798 of 2022 possession of survey No.41/1, though the petitioners claimed right over the land bearing survey No.42/4. The compromise decree has been impugned by respondent No.2 in O.S.No.348/2021 making the very same allegations.
9. The Hon'ble Supreme Court in the case of Rajeshbhai Muljibhai Patel v/s State of Gujarat and another, reported in (2020) 3 SCC 794 is held that when issue as to genuineness of documents, forgery of which was the basis of the criminal proceedings was pending consideration in civil suit, FIR ought not to have to been allowed to continue as it would prejudice the interest of parties and the stand taken by them in the civil suit.
10. The allegations with regard to obtaining the compromise decree by producing false documents is seized before the Civil Court.
11. Making false claims in the Court and obtaining a decree constitute an offence under Section 209 of the IPC. -7-
NC: 2023:KHC:41468 CRL.P No. 8798 of 2022 Section 195 of the Cr.PC deals with the prosecution for contempt of lawful authority of public servants relating to documents governor used as evidence. Section 195(1)(b)(i) states that the cognizance of the offences under Sections 193 to 196 both inclusive 199, 200, 205 to 211 including Section 209 of the IPC can be taken only upon a complaint in writing, or such officer as that Court may authorize.
12. The Hon'ble Apex court in the case of Bandekar Brothers Private Limited and another -vs- Prasad Vassudev Keni and other reported in (2020) 20 SCC 1 has held as follows:
"48. Equally important to remember is that if in the course of the same transaction two separate offences are made out, for one of which Section 195 CrPC is not attracted, and it is not possible to split them up, the drill of Section 195(1)(b) CrPC must be followed. Thus, in State of Karnataka v. Hemareddy [State of Karnataka v. Hemareddy, (1981) 2 SCC 185 : 1981 SCC (Cri) 395] , this Court referred to a judgment of the Madras High Court (V.V.L. Narasimhamurthy, In re [V.V.L. Narasimhamurthy v. State, 1953 SCC OnLine Mad 236 : AIR 1955 Mad 237] ) and approved its ratio as follows : (Hemareddy case [State of Karnataka -8- NC: 2023:KHC:41468 CRL.P No. 8798 of 2022 v. Hemareddy, (1981) 2 SCC 185 : 1981 SCC (Cri) 395] , SCC pp. 190-91, paras 7-8) ................. The effect of the allegations in the complaint preferred by the complainant is that the petitioner has caused this will to come into existence intending that such will may cause the Judge before whom the suit is filed to form an opinion that the will is a genuine one and, therefore, his minor daughter is entitled to the property. The allegation, therefore, in the complaint will undoubtedly fall under Section 192 IPC. It will, therefore, amount to an offence under Section 193 IPC i.e. fabricating false evidence for the purpose of being used in the judicial proceeding. There is no doubt that the facts disclosed will also amount to an offence under Sections 467 and 471 IPC. For prosecuting this petitioner for an offence under Sections 467 and 471, a complaint by the court may not be necessary as under Section 195(1)(b) CrPC a complaint may be made only when it is committed by a party to any proceeding in any court.
Mr Jayarama Ayyar does not give up his contention that the petitioner, though he appears only a guardian of the minor girl, is still a party to the proceeding. But it is unnecessary to go into the question at the present moment and I reserve my opinion on the question whether the guardian can be a party to a proceeding or not, as this case can be disposed of on the other point viz. that when the allegations amount to an offence under Section 193 IPC, a complaint of court is necessary under Section 195(1)(a) CrPC and this cannot be evaded by prosecuting the accused for an offence for which a complaint of court is not necessary.'
8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a court is necessary under Section -9- NC: 2023:KHC:41468 CRL.P No. 8798 of 2022 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."
13. Even accepting the allegations, on the face of it, the same constitutes an offence under Section 208 of the IPC and cognizance can be taken only upon complaint in writing as stated under Section 195 of the Cr.Pc and not on the basis of final report submitted by the police. Therefore, the continuation of criminal proceedings will be an abuse of the process of law.
14. Accordingly, I pass the following:
ORDER i. Petition is allowed.
ii. The impugned proceedings in C.C.No.2783/2021 on the file of Principal Civil
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NC: 2023:KHC:41468 CRL.P No. 8798 of 2022 Judge and JMFC, Doddaballapura, insofar it relates to petitioners herein stands quashed.
iii. Liberty is reserved with respondent No.2 to take appropriate action against the petitioners in accordance with law.
All contentions are kept open.
Sd/-
JUDGE CH List No.: 1 Sl No.: 30 CT:SNN