Karnataka High Court
R N Nagaraja Rao S/O Late R N Narayana Rao vs R N Lakshmi Kanthamani D/O Late R N ... on 10 March, 2008
Author: B.S.Patil
Bench: B.S.Patil
Cri. P.No.3297.05 IN THE HIGH COURT OF KARNATAKA AT BANGALORE | DATED THIS THE 107 DAY OF MARCH, 2008 BEFORE THE HON'BLE MR.JUSTICE B.S.PATIL CRIMINAL PETITION HO 0.5297/2008 BETWEEN: 1.
R.N.Nagaraja Rao, Aged about 55 years, S/o late R.N.Narayana Ras, Resident of the First Floor _ | - . a of the premises beazing --
No.15, Kempanna Lane, Nagarathpet Cross, -
Bangalore-36C 002.
2. R.N. Vijaya Kumar, Aged about #9 yeare, oo ©/o late P.N.Narayana Rao, Resident of the Second Floor Of the premises bearing No. 15, Kempanna. Lane, Nagarathpet Crovs, ~ . Bangalore -560 002.
a RN. Raja Prasad, . . ~. Aged about 32 years,
-. §/o Late R.N.Narayana Rao, _ ~ Resident of the First Floor
-, Of tie premises bearing No.15, Kempanna Lane, Nagarathpet Cross, ., Bangalore - 560 002.
(ay Sri.C.V.Nagesh, Adv.) Smt.R.N.Lakshmi Kanthamani, D/o late R.N.Narayana Rao, : PETITIONERS Cri. P.No.3297 ,08-e:
accused persons had fraudulently obtained signatures on stamp papers, falsely representing that the signatures were required for cancellation of charge on the said property. She also stairs.
in the complaint that she learnt that the accused hai! siso taizen - her signatures on blank stamp papers and on scme forms which | | were fabricated and submitted to the Sub-Registrar as genuine | papers and that the accused had taken all the precaution to successfully knock away the property to defraud and deceive | her with an intention to snatck: her share in the property
4. tf farther ated in the compinint that they Dad arranged to snatch her share in the property. Thereafter the complainant elaine to have: confronted the accused persons when they hed come to her resizience with the information she | had learn' and the second accused toki the complainant that he .
| and hie brothers had hatched a plan to get signatures toa reiinguisimacat deed stating that it was a document pertaining to cancellation of charge to deprive the complainant's share in oo, the property. . The complainant further claims that the accused . threatened her not to probe into the matter as she would be mes risking herself and her family members if she urged for partition of her share. After obtaining the certified copy of the . relinquishment deed, the complainant claims to have learnt that by Cri. P.No.3297.08.
6 her rights were shown to have been released in favour of the accused. and their mother receiving a sum of Rs.10 ,000/-. thus learnt that the document executed was not cancellation of charge as represented by the accused but was a fabricated one. *
5. The petitioners have produced a copy of the piaint in
0.S.No.6984/ 1997 which is filed by Ananda Lakshmi one of the :
sisters of the complainant. The Present compisinant is arrayed as defendant No.7 in the said suit. in 1 the said suit, the sister of the complainant has made. sitailar allegations of fraud against the accused. 'It has been usserted in ite said suit that the relinguishment Gerd wes not binding. on the plaintiff and was liable to be cancelled, "The averments made in the plaint particularly in paragreph 7 also reveal thet the signatures of the plaintif? was taken for the release deed falsely representing that the property ined to be got released from the mortgage for which "purpose the signatures of the plaintiff Anand Lakshmi and defendants 4 to 9 (other sisters) were required at the 'Sub-
Oe - Registrars Office, Gandhi Nagar, Bangalore. It is further stated
-- 'that & separate suit for cancellation of the fraudulent "\ "yelinquishment deed had been filed on the file of the City Civil Judge, Bangalore (CCH. 13) which was pending adjudication.
Paragraph 8 of the plaint also reveals that after the death of by Cri. P.No.3297.05 OR 8 which they unearthed to find that false documents were created in respect of 4 portions in plaint 'A' and 'B' schedule properties purporting to be sale deeds executed in favour of defendants 1 to 16 (third party purchasers). It is thus alleged haa the piaint 7 i that the accused in collusion with the thid party. purchasers played fraud on late Ramalakshmammz and created documents. | Purported to be sale deeds alley executed by the said Ramalakshmamma on. 16.03. 1992 ¢ and hence the 'said sale was not binding on the plaintiff to the extent of her share. Likewise, it was contended in the complaint | that the 'accused also played fraud against Reweiakahmemma in epfmaion with defendants 12 to 16 (other 'set. of third party purchasers) and created documents purporting te be sule deeds in respect of 4 portions of 'A' schedule 'property 'executed by. Smt. Rainplakshmemme and the accused in. favour of defendants 12 to 16 (third party | » purchasers} during the year 1994. Thus, it is also asserted that the said desds were also not binding on the plaintiff to the | extent of er share in the schedule property. In para 12 of the _ plaint, it is stated that the cause of action arose on 30.05.1997 "when the plaintiff and her sisters including the complainant : hexein sent registered notice to the defendants (accused herein) demanding the partition of the suit schedule properties. It is by Cri. P.No.3297.05 10 sisters in the month of June 1997 when they went to the residence of the defendants after failing to get any information in support of the partition of the suit echadule. propestics demanded by the plaintiff and other sisters by 'iseuing: a :
registered notice and it was during their 'Personal visit that the second defendant-accused No.2 herein got furious and told that | the sisters had no share in the suit properties av they had already made orrangemenite to. avoid their claim. it is further stated in the plaint that the said brother opened the almirah and took out the shotocopy of the 'forged effidavit purported to have been signed. 'by the sisters inchading the complainant herein who in fact never signed the said affidavi
7. Learned counsel appeasing for both the parties submit that the complainant herein has got herself transposed as : : plaintiff in- 0.8.5511/1997 by making a necessary application | wodhing permission to come on record as a co-plaintiff. In fact an order passed by the VIII Addl. City Civil Judge, Bangalore, on
-. 17.09.2004 in this regard is produced along with the criminal 2 'petition. It is thus clear from the facts narrated herein above "that the complainant herein had got issued along with her a > sisters a legal notice to the accused seeking partition and separate possession of their respective shares in the family "
~ Cri.P.No.3297.05 12 process of the Court. It is further contended by him that as the parties are before the Civil Court litigating regarding the same set of allegations and assertions for the last more than. i0. years . So if the same issue is allowed to be agitated in this private | complaint the interest of the petitioners will 'be seriously . a affected. He contends that the very valicity of the document namely the relinquishment deed is under challenge before the Civil Court wherein the complainant hersett is ig a a plaintiff and if before the Civil court adjudicates tine - sald issue, the private complaint filed is | proceeded with 'ond any decision is pronounced it wili hiewre irreversible impect on the rights of the petitioners agitated. before the Civil. Court. He therefore contends that. the entire, matter being of civil nature can only be decided comprehensively. by the Civil Court after trial. In support of. his contention, learned counsel for the petitioner has placed aeliaace on . the decision in the case of MADHAVRAO ee JIWAJIRAO SCINDIA AND OTHERS VS. SAMBHAJIRAO Senn ANGRE AND OTHERS (1988 (1) SCC 692).
- He draws the attention of the Court to paragraph 6 and 7 of the . 'said judgment and contends that the legal position is well : _ settied that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether 'L Cri. P.No.3297.05..:.
13 the uncontroverted .giegations as made prima facie establish the offence. He contends that the Apex Court haa ruled in the said decision at para 7 that it was for the Court io take into consideration any special features which appear in @ partivuler ;
"case to consider whether it is expedient and in the interest of justice to permit @ prosecution fo continus as the couit cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is Hitely to be served by allowing a criminal prosecution to continue. Reliznce ts also placed on the decision of the Apex Court in the cese of PRPSI FOODS L7D., AND ANCTHER VB. SPECIAL JUDICIAL MAGISTRATE AND OTHERS {LX 1992 ZAR 3899) 10 contend that the order of the Magistrate summoning the accused must reflect that he hes _ applied his mind tc the ficts of the case and the lew applicable | "thereto and thet he hes to examine the nature of the allegations mace in the. complaint and the evidence both oral and | documentary in 'support thereof and as to whether the same os was sufficient for the complainant to succeed in bringing the | oharge home to the accused and that the Magistrate was
- required to carefully scrutinise the evidence brought on record and even himself put questions to the complainant and his bs Cri. P.No.3297.05 .,,.....
proceedings are totally different. He submits that the allegations of forgery can only be deciied in criminal proceedings. He further contends that whether the silegstinns were true or false are matters that can be decided only at the stage of trial. The Magistrate having been vatistied tom the averments made in the complaint and. in the swerm statement recorded has prima facie found that the compisinant had made out a case for summoning the sconsed and therefore the process is issued which cannot be ound inutt with He submits Nengat by the petitioners on the sok ground that 2 Civil Suit on the similar set of that the process ixaued. cannot be. c nt : ;
allegations is pending cousiderntion. He places reliance on the judgment of the Apex Court in the case of T.VENGAMA NAIDU V8. T.DORA SWAMY NAIDU & OTHERS (AIR 2007 SCW . 4966; to bring hore the point that at the stage of investigation,
- the only enquiry | which could be made is whether FIR contains allegation of any "offence and if prima facie there were | ingredienss of offences complained of found in the FIR that _ "investigation cannot be quashed on the ground that no offences | --" and it was a civil dispute. He has also placed yeliance on unreported judgment in Cri.R.P.No.508/2004 decided on 01.06.2004. He also places reliance on the decision by 17 Investigating Officer while filing the 'B' report. A perusal of the onder of the Magistrate gives an impression that the reasoning given by him for issue of process and the conclusion arrived at are not consistent with each other. The Magistrate oppears to .
have found that there was no occasion for the accused to take the signature of the complainant to et the progeriy relesncd from the mortgage. 'The Magistrate is also not sure aa to why the sccused should resoxt to obtaining the signature to the paper by misrepresenting that the said siguatures were required for release of properties: instead of releasing their rights in the property. Having dd 0, the Mogistrate has posed the following question in the order: -
"Even for a moment, the signatures have been obtained to the release deed is irue one, why it was not disclosed to the own sister. Ie it not sufficient to say that the accused persons have obtained their signatures to a document make her to believe: that, her signature was necessary for cancellation "of charge and made use the same _. fraudulently and converted the same _ into a mo rel quinkment deed by cheating her?' Even while powing this question, there is no clarity and the
-. subsequeni observations would make the matter worse as the
- 7 "Magistrate proceeds to observe that a suit was pending before "> the City Civil Court which would decide the right of the parties and at best the Relinquishment Deed would be cancelled. But since it was the say of the complainant that the act of the ly
-- ae Cri. P.No.3297.05*-18
REE the signature involved question of fraud and 4 cheating th 'oe family members, the sworn statement of the complainant was sufficient to register a case ageinst the accused persons.
11. As adverted to above, in he complaint filed, the complainant has 'stated that she knew that she hed signed the Mortgage papers during the life time of her father | in the year 1981 and subsequently » the morigage wes redeemed. The Magistrate has not applied his mind to this important aspect. If the mortgage was | redeemed, during the life time of the father to the knowledge of the 'compisinant who is an educated and employes lady 'and it 'the "properties were transferred subsequently by way. of reyistcred sale deeds executed in favour of thirt parties and if two suits had been fled as back as in the 7 : year 1997, seeking cancellation of the Relinquishment Deed whether it con still be said that there was a prima facie case made 'out for the offences punishable u/s 420, 468, 471 r/w S. oo 84 IPC. -Durther, the complainant herein was aware of the , entire pleadings in O.S.No.6984/1997 wherein Smt.Ananda "~~ Laitshmi another sister of the complainant had stated that she had in fact lodged the complaint against defendants 1 to 3 namely the accused herein for forging the signatures of the 4 20 prima facie cage for proceeding against the accused under the provisions contained u/s 420, 468, 471 r/w S.34 of the IPC.
12. It prima facie appears that the complaint -- is the
- consequence of the refusal ofthe accused to part wits the chute in the property. If the complainant hes yot a shere in the property and that those properties are ilegaily soki favour of third parties, the proper remedy in the facts and circumstances of this case is to agitate before the Civ Court where the matter is at large and is pending consideration. "The Magistrate has failed to take note of the contents of tire complaint and the materials made ceveilabic 'before him by the police after investigation wherein all theer facts pertaining to the civil dispute and the subsequent alienations made are brought on record. The matter deserves and requires to be settled between the: parties in the Civil Court and not by proceeding in this 'manner. 'The Magistrate was not at all justified in issuing the process in the facts and circumstances of the case ky Learned counsel for the petitioner is right and justified in _ MAGISTRATE AND OTHERS reported in ILR 1998 KAR 3599 . plecing reliance on the judgment of the Apex Court in the case _ of PEPSI FOODS LTD., AND ANOTHER VS, SPECIAL JUDICIAL iv Cri. P.No, 3297: QBs.21
ary laid down by the Apex Court that the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law appiicabte thereto. He has to examine the nature of the allegations mate in the complaint and the evidence beth orai and documentary in : | support thereof and to find out as to whether it was sufficient for the complainant to succeed in bringing the charge home to the accused. The Apex Court lias beld in paragraph 22 of the said judgment as under: -
"22. it is settled that the Hi igh Court can exercise its power of judicial review in cr | matters, In State of Haryana Vs. Bhajan Lai this. court exunined the power unier Articie 225 of the Constitution and also the -- inkarent powers under Section 482 of the Code which it the ends of justice. .While laying down certain guidelines where the court wil! exercise jurisdiction under these provisions, ii was also stated that these guidelines could _ _ not be inflexible or laying rigid formulae to be followed by _" otherwise to secure the ends of justice. One of guidelines is where the allegations made in the first information report or the complaint, even if they are taken ai their face value and accepted in their entirety do not prima facie constitute any offence or make out a case _ igainst the accused. Under Artide 227 the power of _ superintendence by the High Court is not only of see that the stream of administration of justice remains clean and pure. The power conferred on the High Court ie Cri.P.No.3297:05:22
under Articles 226 and 227 of the Constitution and under Section 482 of the code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may net ahoays be necessary to invoke the provisions of Article 26. Some cf -- the decisions of this Court laying down principles for the : exercise of powers by the High Court under Articles. 226 and 227 may be referred to.
As para 28 it is. observed that the Magistrate is not a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The: "Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the: truthfuinees of the allegations or otherwise and then examine if 'any offence is prima facie committed bye all or any ¢ of the accused.
; 14. ta the instant cease, as already stated above, the "Mogistrate has net taken note of the important materials placed before him ty the « police after investigation. The Magistrate has also not taken note of the assertion made in the complaint by Pos, the complainant herself that the mortgage had stood redeemed eattier itself If that was so, prima facie, the version of the . complainant that they were made to sign on stamp papers for > the purpose of cancellation of the charge was required to be i _Crl.P.No.3297.05.23
examined with reference to the materials brought home before him particularly in the context where having full knowledge of all the transaction including the sale made in favour of thind parties as was stated and reflected in the two suits: fied, the complainant did not think of initiating an: iy action » against the | accused for nearly 4 years. The Magistrate also aia not think it proper to examine the statement mate by the cornpisinant that she learnt about the alleged creation of documents: only in the month of July/August 2001 when she. met one of the sisters.
Who is this one. of the sisters is 'also noi mentioned in the complaint. She bad: the knowledge of the so called creation of document i in. the yeat 1997 itself ae. she e had already got issued a legal notice and her sisier had filed. two suits which is also not taken note by. the Magistrate though they were made part of _ the records: after. investigation by the police. In these
- circomstauces, it has to be held that there is absolutely no application of mind by the Magistrate while issuing process.
AS. Issué of process and subjecting the person to the process.
". 'of criminal law involves serious consequence. The.same cannot
- be: lightly resorted to. In the case of M/s.Zandu "Pharmaceutical Works Ltd. & Others Vs. Md. Sharaful Haque & Others reported in AIR 2005 SC 9, the Apex Court in by Cri. P.No.3297.05 24 paragraph 10 has observed that "the Court should be circumspect and judicious in exercising discretion and 'should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrament ip 'ihe -
hands of a private complainant to unleash vensictta wo » harass :
persons needlessly. At the same time 'the Section is 'not an. instrument handed over to an " eooused to short-circuit a prosecution and bring about its surden death by invoking Section 482 Cr.P.C.".
16. As already adverted to above. iti is cicar that the complaint filed in the instant case. 'is intended only to pressurize the accused. who have denied. the alleged rightful share of the complainant in the. 'family 'properties and br which civil litigation is instituted. 'as back as in the year 1997. The a complaint lacks bonafides and if the complainant is allowed to prosecute the accused in such circumstances; it amounts to misusing the. process of the Court and the Court's time. The Court's precious time cannot be allowed to be misused and
- : . abused in this manner. Therefore, I am constrained to exercise ~~ the jurisdiction under Section 482 of the Code and set aside the
- impugned order passed by the learned Magistrate. by Cri. P.No.3297 05»...
25
17. In the regult, this criminal petition is allowed. The impugned order passed by the Magistrate is set aside. The proceedings initiated as per the Private Complaint shal) stend quashed.