Bangalore District Court
Sajjan Jony vs Chikkabylappa And Others on 16 April, 2025
KABC030163372011
Presented on : 18-05-2011
Registered on : 18-05-2011
Decided on : 16-04-2025
Duration : 13 years, 10 months, 29 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 16th Day of April, 2025
C. C. No.16309/2011
(Crime No.158/2009)
State by Gangammanagudi Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
1. Sri Chikkabylappa @ Byralingappa,
Aged about 45 years,
S/o Sri Late Bylappa,
R/at No.169, Lakshmipura Grama,
Vidyaranyapura Post,
Bengaluru North Taluk,
Bengaluru City
KABC030163372011 CC No.16309/2011
2. Sri K.V.Naidu,
Aged about 47 years,
S/o Sri K.C.Naidu,
R/at No.13, 4th Cross,
Gowdara Colony, 1st Main,
R.M.V. 2nd Stage, Dolor's Colony,
Bengaluru-94.
3. Sri Marasandra Muniyappa,
Aged about 50 years,
S/o Sri Muninarasappa,
R/at Maya White House,
Ambedkar Nagara,
Kanshiram Nagara,
Bengaluru City. ...... Accused
(Represented by Sri. Nagabhushan M.R., Advocate for
Accused No.1)
(Represented by Sri M.S. Murthy., Advocate for
Accused No.2)
(Represented by Sri D.A.Shivakumar, Advocate for
Accused No.3)
1. Date of commission of 13-10-2009
offence
2. Date of FIR 13-11-2009
3. Date of Charge sheet 06-02-2011
2
KABC030163372011 CC No.16309/2011
4. Name of Complainant Sri Sajjan Johny
5. Offences complained of Under Section 447,
427, 506, 465, 468,
471 read with Sec.34
of IPC
6. Date of framing charge 08-12-2021
7. Charge Pleaded not guilty
8. Date of commencement 13-10-2022
of Evidence
9. Date of Judgment is 16-04-2025
reserved
10. Date of Judgment 16-04-2025
11. Final order Accused No.1 is
convicted for the
offences punishable
under section 465,
468, 471 of IPC and
Accused No.2 and 3
are acquitted for the
offences punishable
under section 465,
468, 471 of IPC and
3
KABC030163372011 CC No.16309/2011
accused No.1 to 3 are
acquitted for the
offences punishable
under section 427,
448, 506 read with
Section 34 of IPC
12. Date of Sentence of Separate order
accused No.1
JUDGMENT
The Police Inspector of Gangammanagudi Police Station submitted charge sheet against accused No.1 to 3 for the offences punishable under Section 447, 427, 506, 465, 468, 471 read with Sec.34 of Indian Penal Code.
2. Prosecution Case: CW2 namely Sri Thomas Nainan is the owner of 1 acre land situated at Sy.No.11, Hissa No.192, Lakshmipura Village, Yeshwanthpura Hobli, Bengaluru North and in the same survey No.11, Hissa No.195 (Podi No.70) he have 1 acre 15 guntas land. When CW2 was in Qatar, accused No.1 created fake GPA on 25-09-2006 by forging CW2's signature and on the basis of said GPA, accused No.1 and 2 used the said document as genuine and sold the 15 guntas of land to accused No.2 under the execution of Sale Deed dated 23-03- 4 KABC030163372011 CC No.16309/2011 2009 and also entering the names in Revenue records, and also to sell the other parts of the said land by way of also misrepresentation as it is part of Podi survey No.70. Further the accused persons illegally trespassed into the said land and removed the fence which was put surrounding of land by CW2 and caused loss of Rs.2,60,000/- to him. On 13-10- 2009 at 4.00 p.m. when CW1 sent the said property and questioned about the act of accused persons, the accused No.1 to 3 with common intention put life threat to CW1. Further, the accused No.3 trespassed into the some portion of Sy.No.11, Hissa No.192 and build a house and compound and living therein.
3. First Information Report: On the basis of first information given by informant cum CW1 namely Sri Sajjan Johny, CW9/PW5 the then HC of Gangammanagudi Police Station Sri Prasanna Kumar registered Crime No.158/2009 against the accused for the offences punishable under Section 447, 427, 506 R/W Sec.34 IPC, prepared FIR as per Ex.P6 and sent the same to the Court and to his superior officers.
4. Investigation: After registration of case, CW11/PW5 drawn spot mahazar on 13-11-2009 as per Ex.P2 from 8.45 am to 9.45 a.m. in presence of CW3 and CW5 and also seized documents under seizure mahazar as per Ex.P3, collected the 5 KABC030163372011 CC No.16309/2011 documents and obtained report from FSL and submitted the charge sheet against accused No.1 to 3 for the alleged offences.
5. On receipt of charge sheet, this Court took cognizance of offences alleged against the accused No. 1 to 3.
6. The accused No.1 to 3 were enlarged on bail by the order dated 19-08-2011, 10-11-2011 and 09- 07-2012 respectively.
7. Copies of prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused persons.
8. Charge: After hearing learned Sr.APP and counsel for accused No. 1 to 3, charge for the offences punishable U/Sec.465, 468, 471, 427, 447, 506 read with Section 34 of Indian Penal Code, has been framed, read over and explained to the accused No.1 to 3 in the language known to them, who, in turn, pleaded not guilty and claimed to be tried.
9. Prosecution Evidence: The prosecution in order to establish its case cited 11 witnesses and examined 7 witness and exhibited 12 documents and 6 KABC030163372011 CC No.16309/2011 closed their side. The examination of CW8 was dropped out by order dated 08-11-2023 as he reported to be dead. The examination of CW6 and CW7 were dropped by the order dated 06-02-2024 as they could not be secured. The examination of CW10 was dropped out by order dated 28-11-2025 as he was reported to be dead.
10. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused persons examined as per section 313 Cr.P.C, wherein they denied all incriminating evidence appearing in the statement of prosecution witness and did not lead any rebuttal evidence.
11. Heard the arguments and perused the written arguments of APP. Perused materials on the record.
12. The following point are arises for consideration is as follows;
1. Whether the prosecution proved beyond all reasonable doubt that the uncle of CW1 i.e. CW2 namely Thomas Nainan is the owner of Sy.No.11/192 land of Lakshmipura Village, 7 KABC030163372011 CC No.16309/2011 Yeshwantapura Hobli, Bengaluru north, measuring 1 acre and in same Sy.No.1/195 there is a land under Phodi No.70 measuring 1 acre 15 guntas. On 25-09-2006 when CW2 was in Qatar nation, accused No.1 and 2 with common intention got created GPA by forging his signature with an intention to sell the aforesaid land, thereby resulted in commission of the offence punishable under U/s.465 read with Sec.34 of IPC?
2. Whether the prosecution proved beyond all reasonable doubt that on 25-09-2006 when CW2 was in Qatar Nation, in furtherance of common intention accused No.1 sold 15 guntas land of CW2 in favour of Accused No.2 on 23-03-2009 and also sold part of said land by representing it as Podi of Sy.No.70 land with dishonest intention of cheating CW2 thereby resulted in commission of the offence punishable 8 KABC030163372011 CC No.16309/2011 U/sec. 468 read with Sec.34 of IPC?
3. Whether the prosecution proved beyond all reasonable doubt that on the above said time, date and place the accused No.1 and 2 in furtherance common intention to commit an offence forged the GPA and used the same as genuine knowingly well that the document is forged document thereby resulted in commission of an offence punishable U/sec.471 read with Sec.34 of IPC?
4. Whether the prosecution proved beyond all reasonable doubt that on the above said duration, accused No.1 and 2 with the help of aforesaid created GPA and sale deed in favor of accused No.2 and accused No.3 with an intention to encroach the part of land of CW2 mentioned above, illegally destroyed a barbed wired fence 9 KABC030163372011 CC No.16309/2011 put around his land and caused loss of Rs.2,60,000/- to CW2 thereby resulted in commission of an offence punishable U/sec.427 read with Sec.34 of IPC?
5. Whether the prosecution proved beyond all reasonable doubt that on the above said duration, accused No.1 and 2 with the help of aforesaid created GPA and sale deed in favor of accused No.2 and accused No.3 with an intention to encroach the part of land of CW2 mentioned above, illegally trespassed into the said Sy.No.11/195 thereby resulted in commission of an offence punishable U/sec.447 read with Sec.34 of IPC?
6. Whether the prosecution proved beyond all reasonable doubt that on 13-10-2009 at 4.00 p.m, at above said place when CW1 namely Sri Sajjan Johny questioned about the act 10 KABC030163372011 CC No.16309/2011 of accused persons, the accused No.1 to 3 with common intention threatened the CW1 with dire consequences thereby resulted in commission of an offence punishable U/sec.506 read with Sec.34 of IPC?
7. What order?
13. The findings on the above points are as under:
Point No.1-3 : In the Affirmative as far as accused No.1 is concerned and in the Negative as far as accused No.2 and 3 is concerned Point No.4-6 : In the Negative Point No.7 : As per final order REASONS
14. Point No.1 to 6: These points are taken up together for the purpose of common discussion in order to avoid repetition of facts as they form the same part of transaction. In support of prosecution 11 KABC030163372011 CC No.16309/2011 case as narrated in paragraph 2 and the point for consideration in paragraph 12 of this judgment, the prosecution examined the following witnesses i. CW1 by name Sri Sajjan Johnny, being informant examined as PW1 deposed that, CW2 is his uncle, he was in Qatar with his family and he had 1 acre land and another land measuring 15 gunta is Lakshmipura, Yeshwanthapura Hobli, Bengaluru, both lands are situated adjacent to each other. In 2009 we had barbed both lands, when we went to spot the neighbors told that barbed wire were removed by accused No.1 and 2 and encroached by them, after enquiry, he came to know that accused No.1 and 2 had purchased land and they had encroached the same by forming sites, then he lodged complaint as per Ex.P1 with all documents. Police summoned accused persons and they produced documents which depicts that accused No.1 had created a forged GPA in the name of CW2 in the year 2006 when he was in Qatar, with the help of forged GPA, accused No.1 executed a Sale Deed in favor of accused No.2 and he developed the land by forming sites in the name Shirdi Layout and sold all the sites. The Police obtained specimen signatures of CW2 and forwarded the same to Lab, which proved that above document is forged, in the year 2010 he have lodged additional complaint before police, on 13.11.2009 police have conducted spot mahazar as per Ex.P2 and at that time he along with CW2 to CW5 have signed 12 KABC030163372011 CC No.16309/2011 said mahazar. He identified his signatures as per Ex.P1(a) and 2(a).
ii. CW5 Sri Muralidhar, the pancha witness examined as PW2 and deposed that on 22-11-2011, he along with CW3 and CW4 put their signatures on Ex.P3 mahazar, at Gangammanagudi PS and identified GPA dated 02-04-2009 as Ex.P4 and Sale agreement dated 9-2-2006 a Ex.P5 and his signature as per Ex.P3(a).
iii. CW4 by name Sri Anu George, pancha witness examined as PW3 and deposed that she along with CW1 and CW5 put their signatures on Ex.P2 at Sy.No.70 of CW1's land.
iv. CW11 by name Sri Somalingappa Chabbi, the then PI of Gangammanagudi PS examined as PW4 and deposed that, on 13-10-2009 he received complaint from CW1 as per Ex.P1 and registered FIR No.158/2009 as per Ex.P6, drawn spot mahazar as per Ex.P2 in presence of CW3 and CW4 from 11.15 a.m. to 12.00 a.m. and recorded the statement of CW3, CW5 and further statement of PW1. Further deposed that, on 14-11-2009 he received survey report from Tahasildar, North Division with regard to place and on 15-11-2009 CW1 and CW5 produced the purchase certificate of Sy.No.11 Hissa 70 for the year 1974-75 and seized the GPA dated 25-9-2006, 13 KABC030163372011 CC No.16309/2011 Sale deed dated 9-2-2006 produced by one K.P.Naidu, under mahazar as per Ex.P3 in the presence of CW3 and CW5 and further he identified GPA as per Ex.P7 and original sale agreement as per Ex.P5. He sent the specimen signature of CW2, handwriting, GPA and documents received from CW1 to FSL for examination and after completion of investigation submitted charge sheet against accused. Further he identified the documents as per Ex.P8 to Ex.P10.
v. CW9 by name Sri Prasanna Kumar, the then HC of Gangammanagudi PS examined as PW5 and deposed that, on 04-11-2010, as per the order of CW11, he handed over the documents, seized in Crime No.158/2009 to FSL and obtained a receipt as per Ex.P9 and handed over it to CW11.
vi. CW2/PW6 Sri K.Thomas Nainan, victim, deposed that he worked in Qatar from 1975 to 2015, after that he returned to Bengaluru. Without his knowledge, his property in Lakshmipura was sold to someone by forging his signature. He doesn't know who Chikkabailappa was. He had given the GPA to his friend Chako to sell his property, but since he did not receive any information or money from him, he cancelled the said GPA, later, he gave the GPA related to his property to CW1 to file a case. Since he was in Qatar at that time, he gave the GPA to his son-in-law 14 KABC030163372011 CC No.16309/2011 i.e. CW1, who was conducting this case on his behalf. He identified his e-mail and original passport as Ex.P11 and 12.
vii. Sri Krishnamurthy, advocate, examined as PW7 and deposed that he have not seen the accused persons, he do not know CW2. He seen the original document in Ex.P7 in the court file and the seal, signature and writing in GPA was not his, when the GPA is notarized, the person who writes appears before him and after verifying the identity documents related to him, he give a number in his book and then write its details in the notary register book and write his signature and the signature of the parties. On 25- 09-2006, he was practicing notary profession, at that time, he kept notary register book, and if the notary had done before him, he would have made an entry in the book, since he did not give the number in this way for the said registration, it means that they did not appear before him, therefore, Ex.P7 was not registered as per the Notary Act. He do not know whether the register book is in his possession for 2006 or not. They send a copy of the notary book to the District Judge and the government every year. Further deposed that he has seen Ex.P7 for the first time, and the witnesses who have entered in the same did not appear before him, which means that the signature in Ex.P7 does not belongs to him, the Advocate Kumar did not make the signature of the witnesses in front of him.
15KABC030163372011 CC No.16309/2011
15. The counsel for the accused No.1 with vehemence argued and relied upon Section 18 and Section 33 of Indian Stamp Act which reads as under
18. Instruments other than bills and notes executed out of India.--
(1) Every instrument chargeable with duty executed only out of 2[India], and not being a bill of exchange 3*** or promissory note, may be stamped within three months after it has been first received in 2[India].
(2) Where any such instrument cannot, with reference to the description of stamp prescribed therefore, be duly stamped by a private person, it may be taken within the said period of three months to the Collector, who shall stamp the same, in such manner as the 1[State Government] may by rule prescribe, with a stamp of such value as the person so taking such instrument may require and pay for.16
KABC030163372011 CC No.16309/2011 Section 33 in The Indian Stamp Act, 1899 which reads as under
33. Examination and impounding of instruments.
(1)Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same (2)For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed:
Provided that
(a)nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if 17 KABC030163372011 CC No.16309/2011 he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the [Code of Criminal Procedure, 1898 (5 of 1898)] [ Now see the Code of Criminal Procedure, 1973 (2 of 1974).];
(b)in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf (3)For the purposes of this section, in cases of doubt,(a)[the [State Government] [Substituted by A.O.1937, for "the Governor-
General in Council" .]] may determine what offices shall be deemed to be public offices;
and(b)[the [State Government] [Substituted by A.O.1937, for "the Governor-General in Council" .]] may determine who shall be deemed to be persons in charge of public offices.
18KABC030163372011 CC No.16309/2011 It appears from the Ex.P4 GPA given by the PW6 to informant/PW1 makes it very clear that the stamp duty paid is Rs. 100/- on 13/03/2009 so such being the case requisite the stamp duty being paid to the Government of Karnataka. The process of adjudication before the District Collector is only for the collection of stamp duty.
16. When the stamp duty is sufficiently paid, the question of adjudication before the District Collector as per Section 31 of Indian Stamp Act is required. In this context, it is relevant mention the decision of Hon'ble Madras High Court, in Manoharan v. Velu, (1998) III M.L.J 272, held that a power of attorney executed on proper stamp need not be produced before the Collector for the purpose of certification or adjudication that the full duty with which it is chargeable has been paid. It was observed Manoharan v. Velu as under
"5. This power document satisfies the definition 'power of attorney' as defined in Sub-sec.(21) of Sec.2 of the Act. It is not in dispute that this power document is engrossed on Indian Non-Judicial stamp paper of the value of Rs.5, which is the proper stamp duty, payable on that instrument. On these facts, the question that arises for 19 KABC030163372011 CC No.16309/2011 consideration is whether the said power document should be necessarily produced before the Collector to certify by endorsement on such instrument that the full duty with which it is chargeable has been paid or not. To decide this question, the court has to necessarily look into Secs.31 and 32 of the Act. Sec.32 of the Act starts with the following words' "When an instrument brought to the Collector under Sec.31, is etc., etc. Therefore, if the provisions of Sec.32 of the Act have to be applied, then the instrument should have been necessarily produced under the provisions of Sec.31 of the Act before the Collector concerned. Sec.31 of the Act enable a person bringing to the Collector any instrument whether executed or not and whether previously stamped or not, to have his opinion as to the duty (if any) with which it is chargeable and thereupon the Collector on payment of a fee, shall determine the duty (if any) with which, in his 20 KABC030163372011 CC No.16309/2011 judgment the instrument is chargeable. Sub-sec.(2) of Sec.31 of the Act deals with the power of the Collector to collect materials, in order to determine the stamp duty, if any, chargeable on the instrument produced before him.
However in this regard, the Hon'ble Kerala High Court, quoting above portions from Manoharan v. Velu, it was held in the case of Anitha Rajan v. Revenue Divisional Officer, reported AIR 2010 Ker153, that it was not necessary to produce the power of attorney, even if executed outside India, for adjudication if it was sufficiently stamped. Such being the case, the adjudication before the collector is for collection of revenue for the State of Karnataka but there is no material produced by the accused No.1 to 3 to corroborate that the stamp duty as on 13/03/2009, is more than Rs.100/- for the purpose of adjudication before the District Collector. hence the contention of the accused No.1 that the Ex.P4 GPA cannot be relied upon as it was not conferred any power to the PW1 from the PW6 cannot be accepted. In addition to which, PW6 had given evidence by sanctifying the Ex.P4 was given by him and attested his signature before the Indian Embassy.21
KABC030163372011 CC No.16309/2011
17. The another question arises whether the complaint could be lodged through PA holder in criminal cases? The present case is lodged for the offences punishable under Section 447, 427, 506, 465, 468, 471 read with Sec.34 of IPC and these offences does not fall under section 198 of CRPC wherein the aggrieved person has to file a complaint. However it is relevant to rely upon in the case of Deepalakshmi vs K.Murugesh by the Hon'ble Madras High Court held in paragraph 17 that "17.In view of the above discussion, we hold that,
(i)With regard to the first issue, the complaint even if not signed by the power of attorney on behalf of the complainant but singed in his own name, is maintainable and not bad in law because it is more procedural than substantive;
(ii)regarding the second issue, though the General Power of Attorney at initial stage fails to produce the deed of power of attorney or the affidavit of the complainant in proof of execution of power of attorney, the same can be rectified by producing the same 22 KABC030163372011 CC No.16309/2011 at a subsequent stage of the proceedings as and when the validity of the power of attorney is questioned by the accused and the Court could then be called upon to decide the genuineness or the validity of the power of attorney; and
(iii)in respect of third issue, it is not required to record the sworn affidavit of the complainant also on a future date to enable the Court to exercise its discretion."
28.The learned senior counsel has relied on yet another judgment of the Honourable Supreme Court in Shankar Finance and Investments Vs State of Andhra Pradesh reported in ((2008) 8 SCC 536).
That was also a case of prosecution launched by the power of attorney holder on behalf of his principal. There also, the Honourable Supreme Court has held that a compliant filed by the power of attorney holder on behalf of the principal is certainly maintainable but he can only 23 KABC030163372011 CC No.16309/2011 speak about the facts, which are within his personal knowledge and he cannot speak to the facts, which are in the exclusive knowledge of his principal.
29.From these two judgments, it is very clear that there is no bar in our Indian Criminal Jurisprudence for a power agent to file a private compliant on behalf of his principal. But the only restraint is that the power agent cannot speak to a fact of which he has got no knowledge. It is after all a very elementary principle of rule of evidence as envisaged in the Indian Evidence Act.
Except the said raider, absolutely, there is no bar for a power agent to file a complaint. In the modern world, either on account of employment or for some other purpose, people go abroad or to a distant State in this country and settle down either permanently or temporarily. It is also possible that a NRI may be an aggrieved person of an offence who may not be in a position to visit India to file a complaint and to attend the future hearings. In such a situation, the offender cannot be allowed to go 24 KABC030163372011 CC No.16309/2011 scotfree and after all it is purely procedural and not substantive. Therefore, this court held that a power agent (PW1) can file a complaint representing his principal (PW6). Apart from giving the complaint through PA holder as per Ex.P1 on 09/11/2009, PW6 had also given the complaint through fax to the Circle Inspector of Police, Gangammagudi Police Station, Bangalore on 18/11/2009 as per Ex.P11.
18. The present case is charge sheeted accused No.1 namely Sri Chikkabailappa @ Bharathilingappa S/o Late Bailappa and Accused No.2 namely Sri K. V.Naidu S/o K.C.Naidu based upon the complaint lodged by the CW1 who is none other than son-in-law and GPA holder of CW2 for the offence punishable under section 465, 468, 471 R/W Section 34 of IPC. CW2/PW6 had given concurrence to the complaint lodged by the PW1 on his behalf in his evidence. The relevant provision of forgery is as under
463. Forgery.--3 [Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with 25 KABC030163372011 CC No.16309/2011 intent to commit fraud or that fraud may be committed, commits forgery.
Section 464 in The Indian Penal Code Making a false document.-- [A person is said to make a false document or false electronic record-- First --Who dishonestly or fradulently
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or 26 KABC030163372011 CC No.16309/2011 Secondly--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]
465. Punishment for forgery.-- Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
27KABC030163372011 CC No.16309/2011 Section 468:- Forgery for purpose of cheating whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Thus, it is culled out the main ingredients of forgery from aforesaid sections are:
1. Making a False Document
2. As per Section 463 IPC, forgery involves making any false document or false electronic record or part of a document or electronic record.
3. Section 464 IPC further defines when a person is said to have made a false document:
Dishonestly or fraudulently making, signing, sealing, or executing a document, with the intention of causing it to be believed that such document was made, signed, sealed, or executed 28 KABC030163372011 CC No.16309/2011 by or by the authority of a person by whom or by whose authority the maker knows it was not made, signed, sealed, or executed Dishonestly or fraudulently altering a document or electronic record in any material part after it has been made or executed
4. Dishonestly or fraudulently causing any person to sign, seal, execute, or alter a document or electronic record, knowing that the person does not know the contents or nature of the alteration due to unsoundness of mind or intoxication
5. Intention to Cause Damage, Injury, or Fraud
6. The false document must be made with the intent to cause damage or injury to the public or any person, support any claim or title, cause a person to part with property, enter into a contract, or commit fraud.
7. Knowledge of Forgery 29 KABC030163372011 CC No.16309/2011 In this backdrop, the present case is taken up for evaluation of oral and documentary evidence to ascertain whether the prosecution has made out the case for forgery.
19. It is the case of prosecution that the CW2/PW6 namely Sri K. Thomas Nainan is the owner of the survey Number 11 (eleven) situated at Lakshimipura Village, Yeshwanthapura Hobli, Bangalore North Taluk measuring 1 acre and bounded on the East by Chikkkan's land, West by Veeraswamy Reddy's garden, North by Hanumakk's Land and South by Narayappa's land as per Ex.P11 having purchased on 06/08/1996 from one Sri Kanakmalla S/o. Late Harakchand represented by his PA Holder Sri C. B. Gowder and the said ownership of PW6 through Ex.P11 was not disputed by the accused No.1.
20. However the accused No.1 has created Ex.P7 wherein the CW2/PW6 claims to have executed power of attorney in favour of accused No.1 on 25/09/2006 for 15 guntas in the aforesaid property survey No.11 and description of the property in the GPA as under
-ಷೆಡ್ಯೂಲ್ ವಿವರ- ಬೆಂಗಳೂರು ಉತ್ತರ ತಾಲ್ಲೂಕು, ಯಶವಂತಪುರ ಹೋಬಳಿ, ಲಕ್ಷ್ಮೀಪುರ ಗ್ರಾಮದ ಸರ್ವೆ ನಂ.11 ರ ಒಟ್ಟು 30 KABC030163372011 CC No.16309/2011 2-00 ಎಕರೆ ಪೈಕಿ 0-15 (ಹದಿನೈದು ಗುಂಟೆ) ಜಮೀನಿಗೆ ಚೆಕ್ಕುಬಂದಿ :
ಪೂರ್ವಕ್ಕೆ : ಮಾರಾಟಗಾರರ ಬಾಬ್ತು ಸ್ವತ್ತಿನ ಪೈಕಿ ಉಳಿಕೆ ಸ್ವತ್ತು ಪಕ್ಚಮಕ್ಕೆ : ವೀರಾಸ್ವಾಮಿ ರೆಡ್ಡಿ ಗಾರ್ಡನ್ ಉತ್ತರಕ್ಕೆ : ಥಾಮಸ್ ನಿನನಿಯವರಿಗೆ ಸೇರಿದ ಜಮೀನು ದಕ್ಷಿಣಕ್ಕೆ : ಬೈರಲಿಂಗಪ್ಪನವರ ಜಮೀನು ಈ ಮಧ್ಯಕ್ಕೆ ಇರುವ 0.15 (ಹದಿನೈದು ಗುಂಟೆ) ಖುಷ್ಕ್ ಜಮೀನು ಮಾತ್ರ ಈ ಜನರಲ್ ಪವರ್ ಅಫ್ ಅಟಾರ್ನಿ ಪತ್ರಕ್ಕೆ ಒಳಪಟ್ಟಿರುತ್ತೆದೆ.
and the property conveyed to the accused No.2 by the accused No.1 by the registered sale deed dated 23/03/2009 which are as follows;
schedule All that piece and parcel of the unconverted agricultural land in Survey No. 70, measuring 15 guntas out of total extent measuring 1 acre 30 guntas situated at Lakshmipura Village, Yeshwanthapura Hobli, Bangalore North Taluk and bounded on the East by Land belongs to K. V. Naidu 31 KABC030163372011 CC No.16309/2011 West by Private property Northy by property belongs to K V Naidu South by Byralingappa's land It is the case of prosecution that the CW2/PW6 was not in the country and was in Qatar country and relied upon the passport of CW2 wherein it shows that the CW2/PW6 left to 13/02/2006 and was returned only on 14/12/2007. The PW4/IO sent the disputed power of attorney to FSL, Bangalore on 08/06/2010 through HC 3189 wherein the Expert namely Sri Lakshminarayan (CW8) had given his opinion that the signature was done by imitation process in their production however was not examined before this court.
21. The prosecution when the author of FSL report (CW8) was unavailable on account of his death, summoned the notary namely Sri Krishnamurthy who alleged to be the notary of GPA dated 25/09/2006 wherein he had given his evidence that CW2 /PW6 did not appear before him and has not seen the CW2/PW6 and the signature on Ex.P7 does not belongs to him and accused No.1 too did not appear before him. In fact, PW6 deposed whilst cross examining by the accused No.1 in page No.4 that 32 KABC030163372011 CC No.16309/2011 "xxxxx Ex.P7 was shown to the witness and posed to question that it was prepared by Chacko witness after seeing the documents it was written in Kannada and he does know about the same. Signature of accused No.1 was not seen in the Ex.P7 for which witness answered that he does not know who is Chikkabyalappa. It is false to suggest that accused No.1 did not execute any sale deed of my property to accused No.2, I did not met the purchaser of my property".
Such being the case, the prosecution has successfully the Ex.P12 (passport of PW6) coupled with the Ex.P7 (GPA dated 25/09/2006 and evidence of PW6 and evidence of PW7 makes it very clear that the CW2/PW6 was not in India and was in Qatar as on the date of execution of GPA dated 25/09/2006 and does not who is the accused No.1 and accused No.2 then how the Ex.P7 came into existence and how the property was conveyed to the accused No.2 through Accused No.1 as PA holder of PW6, the burden shifts upon the accused No.1 to rebut the same. In this regard, this court relies upon Section 106 of Indian Evidence Act which reads as under 33
KABC030163372011 CC No.16309/2011 Burden of proving fact especially within knowledge When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Such being the case, the accused No. 1 never rebutted the Ex.P12 and the evidence of PW6 that the CW2/PW6 was present in Bangalore, India on 25/09/2006 before the said Notary Sri R.T. Krishnamurthy vide Law 438 LCL 88 and CW2/PW6 has affixed his signature before the alleged witness namely Sri D. Krishnappa and and identified by Advocate Sri C A Kumar BSC(Ag) LLB, Advocate City Civil Court complex, Bangalore. The advocate for accused No.2 and 3 has argued that witness to the power of the attorney (Ex.P7) and advocate was not made as a witness to prove the case of forgery by the prosecution but it ought to be seen that the prosecution produced the statutory document i.e., passport of PW6 is very clear that the PW6 has exited from India on 13/02/2006 and returned from, Qatar back to India on 14/12/2007 and the same was not rebutted by the accused No.1 except the bare denial in the cross examination which does not disqualify to rebut the statutory document passport without any cogent rebuttal evidence. The advocate for the accused No.1 has disputed his identity in the Ex.P7 dated 25/09/2006 however the said Shri 34 KABC030163372011 CC No.16309/2011 Chikkabyalappa S/o. Bylappa (accused No.1) filed Crl. Misc. No. 3614/2011 wherein he had given particulars as "Sri Chikkabylappa @ Byralingappa, Aged about 52 years S/o Sri Late Bylappa, No. 59, Lakshmipura Grama, Vidyaranyapura Post, Bengaluru -560 059 and the same are concurring with the identity of the accused No.1 in this case. If the accused No. 1 has any other identity than the identity mentioned, he would have rebutted the same with cogent evidence.
22. The defence of accused No.1 was that the sale consideration amounts were transferred to the account of the PW6, if such so, what prevented the accused No.1 to produce the statement of account except arguing on the said contention by the counsel for accused No.1 and the specimen signature of accused No.1 was not obtained by IO/PW4 and hence this court cannot fix the charge of forgery against the accused No.1 however the particulars of accused No.1 and the purchase of the property by the accused No. 2 from the accused No.1 as the GPA holder of PW6 was not disputed by the accused No.2 and such being the case, the burden is heavily upon the accused No.1 to rebut the statutory passport document as per Ex.P12 and Ex.P12A whether the PW6 came to India and under what circumstances the Ex.P7 (GPA dated 25/09/2006) came into existence.35
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23. The defence of accused No.1 was that the PW6 was not investigated and hence cannot be held guilty for forgery but the PW6 deposed that he sent his specimen signatures to PW1 through post and passport documents, then what is left out for PW4 to investigate the PW6 when the entire cases rests on the documentary evidence. Thus the prosecution has established that the accused No.1 has committed the forgery. Merely the accused No.2 purchased the land from the accused No.1, he cannot be made culpable. The prosecution has not whispered anywhere in the record that accused No.2 was a part of forgery of signature of PW6 and creation of forgery GPA dated 25/09/2006 except he purchased the land.
24. No doubt, CW1/PW1/informant deposed that the accused No.2 after purchase of land from accused No.1 has developed the lands and sold the same to public. The prosecution has not established that the accused No.2 had knowledge about the alleged forgery GPA dated 25/09/2006. IO/PW4 clearly had deposed that he seized the GPA dated 25/09/2006, original sale deed from the possession of the accused No.2 in the presence of CW3 namely K.G. Thomas and CW5 namely Sri Muralidhar upon the seizure mahazar as per Ex.P3 (seizure mahazar) on 22/11/2009. The defence argued that the evidence of CW3 and CW5 cannot be relied upon as they are interested witnesses as CW5 is working with 36 KABC030163372011 CC No.16309/2011 the PW1 however enmity or any previous animosity was established by the defence that they are interested persons in conviction of accused persons, this court cannot term the PW2 as interested witnesses. The prosecution has not established that the accused No.2 had knowledge or in connivance with the accused No.1 has created GPA dated 25/09/2006 and forged the signature of CW2/PW6. Thus, the accused No.1 is held guilty for the offence punishable under section 465 of IPC.
25. In addition to which, the accused No.1 has used the said forged GPA dated 25/09/2006 for selling the land 15 guntas of land to the accused No.2 on 23/03/2009 through the registered sale deed. Sections 468 and 471 of IPC reads as follows:
468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.37
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471. Using as genuine a forged 1[document or electronic record].
--Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic record].
26. It has been held in the case of Mir Nagvi Askari vs. Central Bureau of Investigation reported in AIR 2010 SUPREME COURT 528 decided by the Hon'ble Supreme Court wherein it was observed and held as under:
"A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section.
The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not 38 KABC030163372011 CC No.16309/2011 made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had been made with the intention of causing it to be believed that they were made by or under the authority of someone else.
The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore in our opinion the second criteria of the said section is also not applicable to the present case.
The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e., because of intoxication or unsoundness of mind etc. Such is also not the case before this court 39 KABC030163372011 CC No.16309/2011 for consideration. Indisputably therefore the accused No.1 falls under first category that he created the false document -GPA dated 25/09/2006 under the authority of the CW2/PW6.
27. In the case of Mohammed Ibrahim & Ors. vs. State of Bihar & Anr reported in (2009) 8 SCC 751 wherein it was held that " 11. In short, a person is said to have made a `false document', if
(i) he made or executed a document claiming to be someone else or authorized by someone else; or
(ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception, or from a person not in control of his senses.
28. It appears from the record that the copy of sale deed dated 23/03/2009 executed by the accused No.1 falls under the first categories of `false documents' and the accused No.2 has not denied the land of PW6 purchased by the accused No.2 from the 40 KABC030163372011 CC No.16309/2011 accused No. 1 who sold in the capacity of PA Holder of CW2/PW6. It therefore remains to be seen whether the claim of informant and PW6 that the execution of sale deeds by the accused No.1, who was in no way connected with the land, created GPA by forging the signature of PW6 with the intention of defrauding PW6's land as if PW6 had given authority to sell the aforesaid property measuring 15 guntas would bring the case under the first category by falsely claiming to be authorized or empowered by the owner, to execute the deed on owner's behalf. The prosecution has not whispered anywhere in the record that accused No.2 was a part of forging the signature of PW6 or part of creation of forgery GPA dated 25/09/2006 except accused No.2 purchased the aforesaid property and the accused No.3 being a local leader of the said place where the property is situated. The prosecution has not established that the accused No.2 and 3 had knowledge about the alleged forgery GPA dated 23/03/2009 and took part in the act of forgery. The prosecution has not established that the accused No.2 and 3 was in connivance with the accused No.1 has created GPA dated 25/09/2006 and forged the signature of CW2/victim/PW6. Thus, the accused No.2 and 3 are not held guilty for the offence punishable under section 465 of IPC.
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29. In addition to which, the accused No.1 has used the said forged GPA dated 25/09/2006 for selling the aforesaid land to the accused No.2 on 23/03/2009 through the registered sale deed and the accused No.2 has sold the aforesaid lands to the public as per suggestion posed in the cross examination of PW1. The suggestion posed by advocate for accused No.3 in cross examination of PW1 that the accused No.2 purchased the land based upon the GPA dated 25/09/2006 on 23/03/2009. The copy of sale deed was made available and merely the certified copy was not marked, the accused No. 1 cannot escape from his mischief /fraudulent acts. It is relevant to mention Sections 468 and 471 of IPC reads as follows:
468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged 1[document or electronic record].
--Whoever fraudulently or
42
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dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic record].
30. The essential ingredients of Section 471 are (i) fraudulent or dishonest use of document as genuine
(ii) knowledge or reasonable belief on the part of person using the document that it is a forged one.
31. Section 471 is intended to apply to persons other than forger himself, but the forger himself is not excluded from the operation of the Section.
32. To attract Section 471, it is not necessary that the person held guilty under the provision must have forged the document himself or that the person independently charged for forgery of the document must of necessity be convicted, before the person using the forged document, knowing it to be a forged one can be convicted, as long as the fact that the document used stood established or proved to be a forged one.
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32. The act or acts which constitute the commission of the offence of forgery are quite different from the act of making use of a forged document. The expression 'fraudulently and dishonestly' are defined in Section 25 and 24 of IPC respectively. For an offence under Section 471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent. The use of document as contemplated by Section 471 must be voluntary one. For sustaining conviction under Section 471 it is necessary for the prosecution to prove that accused No.2 and 3 knew or had reason to believe that the GPA (Ex.P7) to be a forged one. Whether the accused No.2 and 3 knew or had reason to believe the GPA in question as per Ex.P7 to be a forged is not clear from record as they purchased the aforesaid property for sale consideration and the contents of the sale deed contents were not rebutted by the prosecution that these documents were not executed for the sale consideration as alleged.
34. Under the IPC, guilt in respect of almost all the offences is fastened either on the ground of "intention" or "knowledge" or "reason to believe".
"Knowledge" is an awareness on the part of the person concerned indicating his state of mind. "Reason to believe" is a higher level of state of mine.44
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35. Section 26 of IPC explains the meaning of the words "reason to believe" thus:
26 - "Reason to believe": A person is said to have 'reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise."
In substance what it means is that a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of absolute conviction or inference; but it is sufficient if the circumstances are such creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. These two requirements i.e. "knowledge" and "reason to believe"
have to be deduced from various circumstances in the case and the said principle is appreciated in the case of Joti Parshad v. State of Haryana reported in AIR 1993 SC 1167. As discussed, the prosecution failed to prove that the accused No.2 had the knowledge about the GPA dated 25/09/2006 Ex.P7 and also had reason to believe that the document was a forged one before the accused No.2 purchased the aforesaid property under sale deed dated 23/03/2009 and the 45 KABC030163372011 CC No.16309/2011 accused No.3 was part of GPA dated 25/09/2006 as per Ex.P7.
36. It has been held in the case of Mir Nagvi Askari vs. Central Bureau of Investigation reported in AIR 2010 SUPREME COURT 528 decided by the Hon'ble Supreme Court wherein it was observed and held as under:
"A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section.
The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had been made with the intention of causing it to be believed that they were made by or under the authority of someone else.46
KABC030163372011 CC No.16309/2011 The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore in our opinion the second criteria of the said section is also not applicable to the present case.
The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e., because of intoxication or unsoundness of mind etc. Such is also not the case before this court for consideration. Indisputably therefore the accused No.3 falls under first category that she created the false document -GPA dated 25/09/2006 claims to be under the authority of the CW2/Victim namely Sri. Thomas Ninan 47 KABC030163372011 CC No.16309/2011
37. In the case of Mohammed Ibrahim & Ors. vs. State of Bihar & Anr reported in (2009) 8 SCC 751 wherein it was held that " 11. In short, a person is said to have made a `false document', if
(i) he made or executed a document claiming to be someone else or authorized by someone else; or
(ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception, or from a person not in control of his senses.
Thus, the sale deed dated 23/03/20096 executed by the accused No.1 in favour of accused No.1 falls under the first categories of `false documents'. It therefore remains to be seen whether the claim of the victim (PW6) that the purchase of property by the accused No.2 from the accused No.1 who was in no way connected with the creation of GPA by forging the signature of CW2/PW6 with the intention of defrauding his land as if he had given authority to sell the aforesaid property to the accused No.1 would bring the case under the first category by falsely claiming to be authorized or empowered by the 48 KABC030163372011 CC No.16309/2011 owner, to execute the deed on owner's behalf. Therefore, execution of such document by the accused No.1 claiming to be authorized by the CW2/PW6 falls under execution of a false document as defined under section 464 of the Code so the accused No.1 has executed false document GPA dated 25/09/2006 as per Ex.P7 and sale deed dated 23/03/2009, there is a forgery on the part of accused No.1 is established by prosecution and not against the accused No.2 and 3. When the forgery is established, then section 467 or section 471 of the Code are attracted.
38. In the case of Sheila Sebastian vs. R. Jawaharaj & Anr reported in (2018) 7 SCC 581, it was observed and held as under:
"25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 49 KABC030163372011 CC No.16309/2011 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.
26. The definition of "false document" is a part of the definition of "forgery". Both must be read together. „Forgery‟ and „Fraud‟ are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that „false document‟. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery.50
KABC030163372011 CC No.16309/2011 In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same."
Thus, in the light of the principles laid down by the Hon'ble Supreme Court, it is evident that to attract the offence of forgery, the accused No.1 must be the maker of the forged document. In the instant case, perusal of the order on charge dated 08.12.2021 does not show that that the accused No.2 and 3 had created a false document or part of the document on record in order to execute the General Power of Attorney (GPA) on the pretext of using the said false document. Therefore, in the opinion of this court, as the charge of forgery cannot be imposed on a person who is not the maker of the forged document, the charges framed against the accused No.2 and 3 under Sections 468 and 471 IPC does not survive for consideration when the prosecution did not explain the role of forging the signature of PW6 on GPA dated 25/09/2006. Therefore the accused No.1 has held guilty of offence under section 468 and 471 of IPC. Accordingly the point No.1 to 3 is answered in affirmative as far as the accused No. 1 is concerned consequently the point No.1 to 3 is answered in 51 KABC030163372011 CC No.16309/2011 negative as far as the accused No.2 and 3 is concerned.
39. Point No. 4 to 6: The fourth charge is for section 427 of IPC. The expression "mischief" has been defined in Section 425 IPC to mean an act done with intent to cause or knowing that it is likely to cause wrongful loss or damage to the public or to any person causes the destruction of any property etc. Section 427 IPC reads as follows:
"Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both."In the instant case, the accused No.1 to 3
damaged the barbed wired fence and caused loss of Rs. 2,60,000/- however the Ex.P2 spot mahazar was dated 13/11/2009 was removed the stone fencing however the IO/PW5 did not seize the stone fencing or any bills for loss occurred by the PW6. When the accused No.2 has purchased the property from the accused No.1, then the question of encroachment does not arise. Added to which, it appears from the Ex.P2 that the accused No.2 is making attempt to encroach the northern side of land belongs to one Sri Marasandra Muniyappa but the said Sri Marasandra 52 KABC030163372011 CC No.16309/2011 Muniyappa was not made as a party to the witness. In this regard, it is relevant to extract the relevant portion of chief and cross examination of PW1 it is true to suggest that CW2 to CW5 have signed the said mahazar along with me. A3 is a local leader. He has no direct involvement in the above case.
But he was part and parcel of scam in development of above said land by A1 and 2.
Cross examination by accused No. 3 "It is true to suggest that, A3 has not caused any obstruction to us in enjoying our lands. It is true to suggest that, he has not encroached or trespassed our land and he has not made any galata. It is true to suggest that there is no nexus between A3 and land developed by A1 and 2. it is true to suggest, A3 has not signed any document pertaining to our lands. Witness volunteers but when we had been to spot, some henchmen had warned us saying 53 KABC030163372011 CC No.16309/2011 that said lands belongs to A3. But A3 has not personally threatened us any time and I have not seen him.
Cross examination of accused No. 1 and 2 in page 3 ಸದರಿ ಜಾಗದಲ್ಲಿ ಫೆನ್ಸಿಂಗ್ ವೈರ್ ಹಾಕಿದ ಬಗ್ಗೆ ಫೋಟೋಗಳನ್ನು ಪೊಲೀಸರಿಗೆ ಕೊಟ್ಟಿರುತ್ತೇನೆ. ಶಿರಡಿ ಲೇಔಟ್ ನ ಮಾಲೀಕರು ಕೆ ವಿ ನಾಯ್ಡು ಇರುತ್ತಾರೆ. ಸದರಿ ಲೇಔಟ್ ಆ ಸಮಯದಲ್ಲಿ ಡೆವೆಲಪ್ ಆಗುತ್ತಿತ್ತು. ನಮ್ಮ ಪಕ್ಕದ ಜಮೀನಿನಲ್ಲಿ ಮನೆಗಳು ಕಟ್ಟಿರುತ್ತಾರೆ. ಸದರಿ ಲೇಔಟ್ ದೂರು ದಾಖಲಿಸುವ ಸಮಯದಲ್ಲಿ ಯಾವ ಸ್ಥಿತಿಯಲ್ಲಿತ್ತು ಎಂದು ತೋರಿಸುವ ಫೋಟೋ ಮತ್ತು ವಿಡಿಯೋವನ್ನು ನಾವು ಪೊಲೀಸರಿಗೆ ಕೊಟ್ಟಿರುತ್ತೇವೆ.
in addition in page 4 on 6th line that ಆರೋಪಿತರು ಫೆನ್ಸಿಂಗ್ ವೈರ್ ನ್ನು ತೆಗೆದು ಹಾಕಿರುವುದನ್ನು ನಾನು ನೋಡಿಲ್ಲ. xxxxxxx 22-01-2020 ರಲ್ಲಿ ದಾವೆ ಭಾಗಾಂಶ ಡಿಕ್ರಿ ಆಗಿರುತ್ತದೆ ಎಂದು ಹೇಳುತ್ತಾರೆ. ದಿ. 13-11- 2022 ರಂದು ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಹೇಳಿರುವ ಸಾಕ್ಷ್ಯದಲ್ಲಿ ಸದರಿ ದಾವೆ ಡಿಕ್ರಿ ಬಗ್ಗೆ ಹೇಳಿಲ್ಲ ಎಂದರೆ ಸರಿ. ನಾವು ಮುಳ್ಳುತಂತಿ ಹಾಕಲು 54 KABC030163372011 CC No.16309/2011 ತಗುಲಿರುವ ವೆಚ್ಚದ ಬಗ್ಗೆ ಯಾವುದೇ ದಾಖಲೆ ನ್ಯಾಯಾಲಯಕ್ಕೆ ಸಲ್ಲಿಸಿಲ್ಲ ಎಂದರೆ ಸರಿ. ಸ್ವತ್ತಿನ ಜಾಗಕ್ಕೆ ಹೋದಾಗ ತಂತಿ ತೆಗೆದು ಹಾಕಿದ ಬಗ್ಗೆ ನಮಗೆ ಸಾರ್ವಜನಿಕರು ಹೇಳಿದರು.
however no such photographs were produced by the prosecution to corroborate that the accused No.1 to 3 have removed the stone fencing barbed wire around the subject property and further PW1 himself had not seen that accused No.1 to 3 have removed the fencing and hence the prosecution i.e., PW4 failed to produce any document given by the PW1 about the fencing of the land of PW6. Thus, it is clear that there is no cogent or probable evidence produced by the prosecution that stone barbed fencing wire were damaged and no evidence was produced to that extent except claiming that it was damaged. The prosecution failed to produce any document that the PW1 or PW6 has put stone barbed fencing wire before lodging of complaint as per Ex.P1 and Ex.P11. Then on what basis, this court come to a conclusion that the accused No.1 to 3 has removed the stone barbed fencing wire to corroborate the loss incurred to the PW6.
40. In fact, PW1 himself deposed that he did not see that the accused No.1 to 3 removed the stone barbed fencing wire .
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41. There is no independent witness to the alleged incident that the accused No.1 to 3 has removed stone barbed fencing wire thereby the ingredients of Section 427 of IPC was not proved.
42. The fifth charge against accused No.1 to 3under section 448 of IPC provides punishment for house-trespass which is defined under Section 442 of the IPC which states that "whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as human dwelling or any building used as a place for worship, or as a place for the custody of property". Meaning thereby to constitute house trespass, it must be a criminal trespass.
Criminal trespass is defined under Section 441 of the IPC. Basic ingredient to satisfy criminal trespass is (i) entry into or upon property in the possession of another, (ii) if such entry is lawful then unlawfully remaining upon such property, (iii) such entry or unlawful remaining must be with intent (a) to commit an offence; or (b) to intimidate, insult or annoy the person in possession.
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43. In order to constitute offence under Section 441 of IPC, the accused No.1 to 3 must enter into property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. It is clear from the wording of the section that there can be no criminal trespass unless the "intent" specified in the section is present. The phrase "any person in possession of such property" is also to be remembered. The intent to annoy and intimidate must be not with respect to any and every person connected with the property but with respect to any person in actual possession of such property. It is aimed to protect possession and not the ownership.
44. Mere entry upon another's land, under however preposterous a claim of right or even without any claim of right, is no offence unless this entry is accompanied by one of the specific intents provided for in Section 441 of IPC.
45. The presence of such criminal intent may be manifested by the act or may be inferred from other circumstances. But in either case there must be an intention to commit an offence or to intimidate, insult or annoy any person in possession of such property. However accused No.2 has developed the subject property based upon the sale deed dated 23/03/2009 57 KABC030163372011 CC No.16309/2011 unless the prosecution has established that sale deed dated 23/03/2009 was not for any sale consideration cannot aver or state that there was a criminal trespass on the part of the accused No.2 and such being the case, the question of criminal trespass does not arise.
46. The prosecution failed to produce relationship of accused No. 3, 1 and 2 are part of Sri M/s Mahalakshmi Properties forming Shridi Layout cannot come to a conclusion that there was criminal trespass.
47. Added to which, spot mahazar witness did not support the prosecution case as per Ex.P2 and Ex.P3. Therefore, the prosecution failed to prove the charges against the accused beyond all reasonable doubt thereby this court answer the above point No. 5 in the negative.
48. It appears from provision of 506 of IPC, it is clear that in order to satisfy the ingredients of criminal intimidation, there has to be a threat of injury to person, reputation or property to the PW1 by the accused persons, which should be with an intention to cause alarm to that person or cause that person to do any act which he is not legally bound to do, or to omit to do so as to avoid the execution of 58 KABC030163372011 CC No.16309/2011 such threat. It has been held in the case of MANIK TANEJA AND ANOTHER v. STATE OF KARNATAKA AND ANOTHER reported in (2015) PART 7 SCC 423, the Hon'ble Supreme Court examined the ingredients of Section 503 and 506 of the IPC as under
''11. Section 506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation"
as defined in Section 503 IPC is as under:
"503.Criminal intimidation.-- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section." A reading of the definition of "criminal 59 KABC030163372011 CC No.16309/2011 intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.'' From the foregoing proposition of law, it is clear that in order to constitute offence of criminal intimidation, there must be threat with intention to cause alarm to the PW1 or to do any act which is not legally bound to do. Mere expression of any words without any intention to cause alarm to the PW1 or to make him to do, or omit to do any act, is not sufficient to bring the act within the definition of criminal intimidation and there is no particulars of date and time and place when the accused No.1 to 3 have threatened the PW1 with dire consequence. Therefore, in the instant case, the ingredients of Section 506 of IPC are not made out against the accused No.1 to 3 thereby Point No.6 is answered in negative.60
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49. Point No.7:- The learned counsel for the accused No.2 and 3 with vehemence argued that the criminal law cannot be set into motion as per Ex.P1 as it is clothed with civil liability. PW1 and PW6 alleged that the accused No. 1 has committed forgery by forging the signature of PW6 and created Ex.P7 GPA dated 25/09/2006. A dispute over forged documents can lead to both civil and criminal actions, forgery itself is primarily a criminal offense. A civil dispute might arise from the consequences of the forgery, such as disputes over property or contracts, but the forgery itself is a crime that can be pursued through criminal proceedings. The Hon'ble High Court of Karnataka in the case of Vasanth Vs Sri Umesh GD reported in NC: 2024:KHC:16162 in CRL.P No. 9791 of 2017 dated 23/04/2024 held that victims of forgery can file both a criminal complaint and a civil suit, as the civil court cannot punish for the criminal offence of forgery. Criminal proceedings and civil proceedings for forgery are separate and distinct. The criminal court will focus on the criminal act of forgery, while the civil court will focus on the consequences of the forgery and the remedies available to the victim and hence the complaint is not maintainable has to be negated.
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50. Added to which, merely the PW6 did not seek for possession of the disputed property does not mean that he had given his consent to the forgery act committed by the accused No. 1 and based upon the forged GPA, sale deed dated 23/03/2009 having executed by the accused No.1 as a PA holder in favour of accused No. 2. It is well settled principle of law that 'Fraud vitiates every solemn Act and the said principle is appreciated in the case of SONAMATI DEVI & ORS -Vs- MAHENDRA VISHWAKARMA & ORS reported in Laws (SC) -2021-9-176, so, any act done through the forgery, all the proceedings including legal proceedings gets vitiated.
51. In view of the above findings and reasons given on point No.1 to 6, this Court proceeds to pass the following:
ORDER
i) Acting Under Section 248(2) of Cr.P.C, the accused No.1 is convicted for the offences punishable under section 465, 468, 471 read with Sec.34 of IPC 62 KABC030163372011 CC No.16309/2011
ii) Acting Under Section 248(1) of Cr.P.C the accused No.2 and 3 are acquitted from the offences punishable under section 465, 468, 471 read with Sec.34 of IPC
iii) Acting Under Section 248(1) of Cr.P.C the accused No.1 to 3 are acquitted from the offences punishable under section 427, 448, 506 read with Sec.34 of IPC
iv) Accused No.1 shall be heard on the sentence under Sec. 248(2) of Cr.P.C.
(Typed from the reasons by me in my laptop, corrected and then pronounced by me in open Court on this the 16th day of April, 2025.) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
63KABC030163372011 CC No.16309/2011 Heard on sentence from APP and the advocate for accused No. 1.
:ORDER ON SENTENCE:
1. Accused No.1 submitted that he is aged about 69 years, has BP and diabetics and bread earner of the family and his family is totally depended upon him for their livelihood and prays to take a lenient view.
2. The learned Sr. Asst. Public Prosecutor has replied that considering the magnitude of the fraud, maximum possible sentence be imposed on the accused No.1. He also further has argued that the accused is liable to compensate the victim PW1 towards the loss suffered by him. The question is whether the accused No.1 should be sentenced to maximum possible sentence or any leniency can be shown to him? Admittedly the accused is aged about 61 years. Having regard to the magnitude of the fraud and taking into consideration the circumstances obtaining in the case, I deem it just and expedient to pass the following sentence.
ORDER
i) For the offence under Section 465 of IPC accused No.1 is convicted and sentenced to undergo Simple Imprisonment for 64 KABC030163372011 CC No.16309/2011 two years and shall pay a fine of Rs.50,000/- and in default of payment of fine he shall undergo SI for six months.
ii) For the offence under Section 468 of IPC accused No.1 is convicted and sentenced to undergo Simple Imprisonment for 5 years and shall pay a fine of Rs.25,000/- and in default of payment of fine he shall undergo SI for three months.
iii) For the offence under Section 471 of IPC accused No.1 is convicted and sentenced to undergo Simple Imprisonment for 2 years and shall pay a fine of Rs.25,000/- and in default of payment of fine he shall undergo SI for three months.
iv) The substantive sentences shall run concurrently.
v) Under Section 357(1) of the Cr.P.C., the 75% of the fine amount on recovery shall be paid as compensation to the PW6 65 KABC030163372011 CC No.16309/2011 which is the victim of the fraud. The remaining 25% shall be defrayed as prosecution expenses.
vi) Under Section 357(2) of the Cr.P.C., the accused No.1 is given time to pay the fine amount till the appeal period.
vii) The bail bond of accused No.1 shall stand cancelled.
viii) In view of Section 437-A of Cr.P.C, the bail bonds of accused No.2 and 3 shall be in force for 6 (six) months
ix) Copy of the judgment be given to the accused No.1 to 3 at free of cost.
(Dictated to the stenographer directly to the computer, corrected and then pronounced by me in open Court on this the 16 th day of April, 2025.) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
66KABC030163372011 CC No.16309/2011 ANNEXURE Witnesses examined for Prosecution :
PW1: Sri Sajjan Ajohnny Informant PW2: Sri Muralidhar Pancha witness PW3: Sri Anu George Pancha witness PW4: Sri Somalingappa PI/IO Chabbi PW5: Sri Prasanna Kumar HC PW6: Sri K.Thomas Nainan Victim PW7: Sri Krishnamurthy.R.T. Notary to Ex.P7 Documents marked on behalf of Prosecution:
Ex.P1: Complaint PW1
Ex.P2: Spot Mahazar PW1
Ex.P3: Seizure mahazar PW2
Ex.P4: GPA PW2
Ex.P5: Sale Agreement PW4
Ex.P6: FIR
Ex.P7: GPA
Ex.P8: Letter addressed to FSL
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Ex.P9: Acknowledgment
Ex.P10: Sale Deed dated 06-08-1996 Ex.P11: Additional Compliant PW6 Ex.P12: Passport PW6 Material Objects marked on behalf of the prosecution: NIL Witnesses examined for the defence:Nil Documents marked on behalf of the defence:Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.68
KABC030163372011 CC No.16309/2011 16-04-2025 (Judgment pronounced in the open court vide separately) ORDER
i) Acting Under Section 248(2) of Cr.P.C, the accused No.1 is convicted for the offences punishable under section 465, 468, 471 read with Sec.34 of IPC
ii) Acting Under Section 248(1) of Cr.P.C the accused No.2 and 3 are acquitted from the offences punishable under section 465, 468, 471 read with Sec.34 of IPC
iii) Acting Under Section 248(1) of Cr.P.C the accused No.1 to 3 are acquitted from the offences punishable under section 427, 448, 506 read with Sec.34 of IPC
iv) Accused No.1 shall be heard on the sentence under Sec. 248(2) of Cr.P.C.
VIII Addl. Chief Judicial Magistrate, Bengaluru City.
69KABC030163372011 CC No.16309/2011 Orders on Sentence pronounced in the open court vide separately ORDER
i) For the offence under Section 465 of IPC accused No.1 is convicted and sentenced to undergo Simple Imprisonment for two years and shall pay a fine of Rs.50,000/- and in default of payment of fine he shall undergo SI for six months.
ii) For the offence under Section 468 of IPC accused No.1 is convicted and sentenced to undergo Simple Imprisonment for 5 years and shall pay a fine of Rs.25,000/- and in default of payment of fine he shall undergo SI for three months.
iii) For the offence under Section 471 of IPC accused No.1 is convicted and sentenced to undergo Simple Imprisonment for 2 years and shall pay a fine of Rs.25,000/- and in default of 70 KABC030163372011 CC No.16309/2011 payment of fine he shall undergo SI for three months.
iv) The substantive sentences shall run concurrently.
v) Under Section 357(1) of the Cr.P.C., the 75% of the fine amount on recovery shall be paid as compensation to the PW6 which is the victim of the fraud. The remaining 25% shall be defrayed as prosecution expenses.
vi) Under Section 357(2) of the Cr.P.C., the accused No.1 is given time to pay the fine amount till the appeal period.
vii) The bail bond of accused No.1 shall stand cancelled.
viii) In view of Section 437-A of Cr.P.C, the bail bonds of accused No.2 and 3 shall be in force for 6 (six) months
ix) Copy of the judgment be given to the accused No.1 to 3 at free of cost.
VIII Addl. Chief Judicial 71 KABC030163372011 CC No.16309/2011 Magistrate, Bengaluru City.
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