Karnataka High Court
Mr Anji Kumar J vs The State Of Karnataka on 18 August, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 21909 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 21909 OF 2021 (GM-RES)
BETWEEN:
1. MR ANJI KUMAR J
AGED ABOUT 42 YEARS
SON OF LATE JAYARAM
MULLURU VILLAGE
VARTHURU HOBLI
BENGALURU EAST TALUK-560 035.
2. M P SHEKAR
AGED ABOUT 43 YEARS
SON OF M P PUTTAPPA
NO.49, MULLURU VILLAGE
VARTHURU HOBLI
BENGALURU EAST TALUK-560 035.
...PETITIONERS
(BY SRI. V B SHIVA KUMAR.,ADVOCATE)
AND:
Digitally signed by
PADMAVATHI B K
1. THE STATE OF KARNATAKA
Location: HIGH VARTHUR POLICE STATION
COURT OF
KARNATAKA MARATHAHALLI SUB-DIVISION
BENGALURU CITY-560037
REP. BY SPP, HIGH COURT BUILDING
BENGALURU - 560 001.
2. SRI M MANJUNATH
AGED ABOUT 37 YEARS
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WP No. 21909 of 2021
SON OF LATE MUNIRAJU
NO.24 MULLUR VILLAGE
VARTHURU HOBLI
BENGALURU EAST TALUK-560035.
...RESPONDENTS
(BY SRI. K.S. ABHIJITH, HCGP FOR R1
SRI. VIVEK SUBBA REDDY, SR. COUNSEL FOR
SRI. KALYAN R, ADVOCATE FOR R2)
THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF
THE CONSTITUTION OF PRAYING TO- QUASH THE COMPLAINT
DTD 26.10.2021 AND FIR IN CRIME NO.0266/2021 DTD
26.10.2021 ON THE FILE OF THE ADDITIONAL CHIEF JUDICIAL
MAGISTRATE (ACJM) BENGALURU RURAL DISTRICT VIDE
ANNX-B AND A.
THIS W.P. COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioners/accused Nos. 2 and 1 in Crime No.266 of 2021 are before this Court calling in question registration of crime for offence punishable under Sections 210, 466, 506, 196, 199, 419, 420, 465, 471, 192, 383 and 468 of the IPC.
2. Heard Sri V.B.Shivakumar, learned counsel appearing for the petitioner, Sri Vivek Subba Reddy learned senior counsel representing the 2nd respondent and Sri K.S. Abhijith, learned High Court Government Pleader appearing for respondent No.1.
-3- WP No. 21909 of 20213. Brief facts that lead the petitioners to this Court in the subject petition, as borne out from the pleadings, are as follows:-
One couple Mohammad Jaffer and Dilshad Begum execute a General Power of Attorney in favour of the 1st petitioner on 15.10.2020. The strength on which those two execute the power of attorney is that they have claimed and secured occupancy rights in a manner known to law in favour of one Nizzar Ahmed in LRD 1983/1974-75 dated 8-12-1996. Based on the repre-sentations made by the couple, the petitioners on the strength of the power attorney enter into an agreement of sale on 15.10.2020 in favour of the 2nd respondent/complainant and later execute certain sale deeds. After all this, they institute a civil suit in O.S.No.1150 of 2021 making all the purchasers as party respondents, one of whom is the complainant herein who is defendant No.36 in the said suit. The suit was filed by the holders of the power of attorney for declaration, permanent injunction and cancellation of sale deeds earlier made pursuant to a compromise decree in O.S.No.384 of 2010. Therefore, the issue is that the executants -4- WP No. 21909 of 2021 of power of attorney Mohammad Jaffer and Dilshad Begum claimed to be in possession of the property and therefore seek a decree of declaration and cancellation of sale deeds that the original vendor had executed in favour of several parties. On such maze of facts alleging that the complainant has been defrauded by Dilshad Begum and the aforesaid power of attorney holders, he registers a complaint before the jurisdictional police on 26-10-2021 alleging offences punishable under the aforementioned sections. The registration of crime itself gives the cause of action for the petitioners to approach this Court in the subject petition on the ground that the matter is purely civil in nature and after the petitioners having registered the civil suit, the subject complaint has been filed giving it a colour of crime. This Court having accepted the said submission, albeit prima facie, interjected the investigation and stayed further proceedings.
4. The learned counsel appearing for the petitioners Sri V.B.Shiva Kumar would reiterate the contentions advanced in the memorandum of petition submitting that the matter is purely civil in nature and civil suit is already filed by the -5- WP No. 21909 of 2021 petitioners and after receipt of notice in the civil suit the present complaint is registered as a counter-blast and, therefore, the very complaint needs to be quashed.
4.1. On the other hand, the learned senior counsel Sri Vivek Subba Reddy appearing for the complainant/respondent No.2 taking this Court through the documents appended to the petition and the ones that are now produced by way of a memo dated 18-08-2022 would seek to demonstrate that the basis on which civil suit is preferred and the basis on which sale deeds are executed are all concocted documents, the concoction is palpable and demonstrable on the very look of the documents.
It is his contention that the property which is the subject matter of agreement to sell is worth Rs.5/- crores and, therefore, the documents are concocted. The property actually belongs to the complainant as he has purchased the same in the year 2019 from the legal heirs of original grantee one Sri Nagesh Rao and these are all disputed questions of fact and the petitioners have to prove it in a full blown trial as the investigation is yet to complete.
-6- WP No. 21909 of 20214.2. The learned High Court Government Pleader would toe the lines of the learned senior counsel to contend that the investigation should be permitted to be continued and a final report be allowed to be filed by the Police since the offences are serious in nature.
5. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
6. The afore-quoted facts are not in dispute and are, therefore, not reiterated. The power of attorney that the aforesaid two persons executed in favour of the petitioners leads to two acts by them - one entering into an agreement of sale and filing of O.S.No.1150 of 2021. The agreement of sale is with regard to a property that belongs to the complainant.
The complainant has purchased the same from the hands of Nagesh Rao, the original grantee. It is for this reasons, the petitioners have filed the suit seeking cancellation of that sale deed through which the complainant purchases the property among other sale deeds. It is now germane to notice the -7- WP No. 21909 of 2021 document relied on by the learned senior counsel appearing for respondent No.2 to consider whether concoction would emerge on the very look of it. The document produced as Annexure-F to the petition concerns case No.HOA.CR.392/68-69 and is dated 20-02-1969. This is alleged to be concocted as the original document is produced along with the memo aforesaid.
If the original document and the document produced as Annexure-F are juxta posed it demonstrates that the proceeding before the Assistant Commissioner itself belongs to different persons. The one produced by the petitioners as Annexure-F is different from the one that is produced by respondent No.2 along with the memo. An endorsement is issued by the Taluk Panchayat of Devarabeesanahalli that no proceeding as is indicated at Annexure-F did ever take place as there is no record available. This is the first blush of a seriously disputed question of fact.
7. The second concoction alleged is concerning proceeding in LRF 93/74-75 which is appended to the civil suit.
The learned senior counsel for the 2nd respondent on comparison of the document produced therein would also seek -8- WP No. 21909 of 2021 to demonstrate that this is also a forged document that is placed before the civil Court not one but every document. This is the second blush of a disputed question of fact. This Court would not go into the veracity of documents in exercise of its jurisdiction under Section 482 of the CrPC as this would require evidence and the evidence would be brought forth before the Civil Court. The issue may be purely civil in nature but the documents on the strength of which the petitioners have entered into agreements and later institute civil suit to cancel all the sale deeds that are entered into by the original grantee in terms of the compromise decree, all would be a matter of trial both on the civil side and in the subject crime. The issue is not even investigated into. The contention is forgery of documents even before they reached the civil Court and the forgery being prima facie palpable. The issue will have to be thrashed out only after investigation. It is for the petitioners to come out clean.
8. Yet another circumstance that would decline interference at the hands of this Court at this juncture is the revenue officer before whom the petitioners had sought -9- WP No. 21909 of 2021 entering their names in the revenue records based upon which all subsequent transactions had taken place admits that revenue entries were changed in favour of the petitioners at the behest of the petitioners. All these would clearly show that they are in the realm of seriously disputed questions of fact which would be a bar for entertaining the petition in the manner that is presented before this Court at this juncture. It is a matter for investigation where the petitioners would have liberty to question the same if the charge sheet is filed against them on conclusion of investigation. The time for interference is yet to arrive in the peculiar facts of this case. Reference being made to the judgment of the Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH - (2021) 9 SCC 35 in the circumstances becomes apposite. In the said case the Apex Court holds as follows:
"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the
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WP No. 21909 of 2021charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.
9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 :
(2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this
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WP No. 21909 of 2021
Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 :
(2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.
9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.
10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27- 10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint
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WP No. 21909 of 2021notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.
11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.
12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.
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WP No. 21909 of 202113. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.
14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."
In the light of the facts obtaining in the case at hand which are shrouded with seriously disputed questions of fact and the judgment rendered by the Apex Court in the case of Kaptan Singh (supra), I decline to interfere with the proceedings at this stage.
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WP No. 21909 of 20219. For the aforesaid reasons, the criminal petition is dismissed.
Sd/-
JUDGE rs