Bangalore District Court
Smt. Chikkamuniyamma vs ) Sri Paramesh S/O. Muniswamy on 26 October, 2018
IN THE COURT OF 55TH ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE (CCH-56)
: Present :
Smt. H.G.Nagarathna, B.A., LL.B.,
55th Addl. City Civil & Sessions Judge,
Bangalore
: Crl. Appeal No. 1194/2015 :
Date: The 26th day of October 2018
APPELLANT : Smt. Chikkamuniyamma,
W/o. Venkataswamy, D/o. Late Muniswamy,
Age: 47 years, r/at No.1, 1st Main,
4th Cross, Road, Govindarajanagar,
Thimmenahalli, Bangalore-560 040.
(By: Sri M.S.N., Adv.)
- V/s -
RESPONDENTS : 1) Sri Paramesh s/o. Muniswamy,
Age: 48 years, (Accused No.1)
2) Smt. Nanjamma w/o. Paramesh,
Age: 38 years, (Accused No.2)
(Both are r/at No.1, 1st Main, 4th Cross,
Govindarajanagar, Bangalore-560 040.)
3) The State of Karnataka,
By Inspector of Police,
Vijayanagar Police Station,
Bangalore-560 040.
(By: Sri B.S.P., Adv. for R1, R2,
P.P., for R3)
JUDGMENT
This is a Criminal Appeal filed by Appellant against Respondents u/sec 372 of Cr.P.C. to call for the entire records in C.C.No.24853/2009 on the file of 24th ACMM., Bangalore city and
-2- Crl. Appeal No. 1194/2015 to set-aside the Judgment of acquittal passed by the learned 24th ACMM, Bangalore in C.C.No.24853/2009 dt.17-7-2015 and for consequently convicted the respondents 1 and 2 for the offence p/u/secs. 468, 471, 420, 506 r/w. 34 of IPC.
2. The facts leading to this Crl. Appeal, in brief, are as under:-
2(a) The accused No.1 is the son, accused No.2 is the brother-in-law of CW1 & CW1 owned property at Thimmenahalli of Govindaraja nagara, 1st Main, 4th Cross Road bearing No.PID 36-48, measuring 15 x 45 feet consisting of three floored RCC building, the accused No.1 and 2 were residing in the 1st floor of the said house with an common intention to take the said property, the accused have concocted power of attorney dt.7-4- 2005 by forging the signature of CW1 and on 6-7-2007 by using the concocted power of attorney, the accused No.1 and 2 with the assistance of accused No.3 and 4 got registered the said property at Srirampura Sub-Registrar office and thereby cheated CW1 and on 2-7-2009 at about 3-00 p.m. the accused No.1 came near the house of CW1 and CW9 and threatened him of taking his life if he did not withdraw the complaint given to the police.
-3- Crl. Appeal No. 1194/2015 2(b) The trial court took cognizance of offence and issued process against the accused. The accused No.1 and 2 appeared before the trial court through his counsel and got released on bail. The substance of accusation was read over and explained to accused. They pleaded not guilty and claimed to be tried. Accordingly the trial court has tried the case.
2(c) The prosecution to bring home the guilt of the accused examined five witnesses as PW1 to PW5 and got marked three documents such as forged GPA, original sale deed and seizure mahazar and got them marked as Exs.P.1 to 3. The statements of accused u/sec. 313 of Cr.P.C were recorded. Then the accused has adduced has not adduced any evidence nor marked any documents.
2(d) The learned trial judge heard both side arguments and raised the following points for consideration:
1) Whether the prosecution beyond reasonable doubt proves that accused No.1 is the son, accused is the brother-in-law of CW1 and CW1 owned property at Thimmenahalli of Govindaraja nagara, 1st Main 4th Cross Road, bearing No.PID36-48, measuring 15x 45 feet consisting of three floored RCC building, the accused No.1 and 2 were residing in the 1st floor of the said house with an common intention to take the said property, the accused have concocted power of attorney dt.7-4-2005 by forging the signature of CW1 and on 6-7-2007 by using the concocted
-4- Crl. Appeal No. 1194/2015 power of attorney, the accused No.1 and 2 with the assistance of accused No.3 and 4 got registered the said property at Srirampura Sub-
Registrar Office and thereby cheated CW1 and on 2-7-2009 at about 3-00 PM the accused No.1 came near the house of CW1 & CW9 and threatened him of taking his life if he did not withdraw the complaint given to the police and thereby the accused have committed the offences punishable u/s.468, 471, 420 & 506 r/w. 34 of IPC?
2) What order?
2(e) The learned trial judge has answered the point No.1 is in the negative and the accused No.1 and 2 are acquitted u/sec. 248(1) of Cr.P.C. for the offences punishable u/s. 468, 471, 420 and 506 r/w. 34 of IPC. The accused are set at liberty and their bail bond and surety bonds stand cancelled.
3. The accused, being aggrieved by the Judgment and order dated.17-7-2015, has preferred this appeal on the following amongst other grounds:
1) The findings of acquittal recorded by the trial court are totally contrary to the evidence on record.
2) The trial court has totally failed to appreciate the documentary evidence available on record which clearly shows that the accused No.1 and 2 are being the husband and wife have created the document in respect of the property owned by their father itself.
-5- Crl. Appeal No. 1194/2015
3) The trial court has not granted the opportunities to the prosecution to keep and secure the hand writing expert before the court for the purpose of examination, since the hand writing expert is a material witness and his examination is very much necessary to prove the guilt against the accused.
4) The trial court has totally failed to applied the mind on the report submitted by the hand writing expert and same is the part of the record.
5) The trial court has totally failed to appreciate the oral and documentary evidence available on record in proper perspective manner only for the reason of non-examination of witnesses the trial court has acquitted the accused by giving benefit of doubt in favour of accused.
6) Viewed from any angle the findings of acquittal recorded by the trial court are otherwise illegal, arbitrary and contrary to the evidence on record.
7) The impugned Judgment is devoid of merits and has resulted in miscarriage of justice.
Because of these above mentioned grounds, the Appellant has prayed for allowing the appeal and for setting-aside the impugned Judgment and Order.
5. In pursuance of notice issued in this appeal case, the respondents have appeared through their Advocate.
6. The lower court records are secured.
7. Heard by both. Perused the same.
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8. The points for determination:-
1) Whether appeal filed by the appellant is entitled to allow?
2) What order?
9. My answer to the above points are:-
Point No.1 : In the Negative, Point No.2 : As per final order for the following REASONS
10. Point No.1:- The appellant questioned the acquittal order passed by the trial court in C.C.No.24853/2009 that the trial court acquitted the accused No.1 & 2 for the offences p/u/secs. 468, 471, 420 & 506 r/w.s.34 of IPC.
11. The dissatisfied complainant questioned the acquittal order passed by the trial court in this appeal on several grounds that, the orders of the trial court is not correct and the trial court has failed to appreciate the documentary evidence filed by the appellant - complainant, the evidence of PW-1 to 4 was not considered. Accused No.1 & 2 have forged the signature of CW-1 and created general power of attorney to cheat CW-1 and through power of attorney accused No.1 executed a sale deed in favour of accused No.2 through his wife. The evidence of PW-2 to 4 supported the case of PW-1. The court has to believe that the
-7- Crl. Appeal No. 1194/2015 accused No.1 has forged the signature of PW-1 and created a general power of attorney and through general power of attorney executed a sale deed in favour of accused No.2, in which the property belongs to CW-1 on the basis of evidence of PW-2 to 4. It is also further contended that, the trial court has not secured the handwriting expert opinion in respect of signature forged by the respondent - accused on general power of attorney. Court has not given opportunity to adduce the evidence of handwriting expert and failed to secure them before the Court and acquitted the accused by awarding the benefit of doubt. The orders of the trail court is to be set-aside.
12. The charges leveled against the accused are U/s.468, 471, 420, 506 r/w.s.34 of IPC that, the accused No.1 & 2 to cheat CW-1 and to grab the property of CW-1 created a fake general power of attorney on 07-04-2005 and the accused No.1 on the strength of fake general power of attorney executed a bogus document of sale in favour of his wife - accused No.2 and also cheated CW-1 and gave life threat to her. The document was registered before Sub-Registrar, Srirampura on 28-12-2007. The complainant - prosecution is able to prove the guilt of the accused as alleged in the charge sheet. PW-1 deposed that, accused No.1 is his brother-in-law and accused No.2 is the wife of accused No.1.
-8- Crl. Appeal No. 1194/2015 Complainant is his father-in-law, now at the time of evidence, he is no-more. His father-in-law had a site in Govindaraja Nagara and CW-9 is the fourth daughter of his father-in-law and she was used to take care of her parents and after the death of complainant wife, he gifted away half of the site in Govindaraja Nagara measuring 15X46 to CW-9 through a gift deed in the year 2007. When CW-9 is in occupation, accused No.1 & 2 created a forged document and on the basis of the forged GPA, executed the registered sale deed to accused No.2 though the property belongs to CW-9 in which she has acquired the property through gift deed. The act of the accused No.1 & 2 was questioned in the police station by lodging a complainant and at that time, accused No.1 & 2 admitted that they have committed a forgery and they have came to a negotiation to provide a site with an equal measurement in Bhuvaneshwari Nagar with a roof shed and to pay Rs.3,50,000/-. But accused No.1 & 2 did not pay the maintenance to the complainant nor gave alternate site to CW-9. Hence, the case aroses. This witness was cross examined and admitted that, he don't know whether daughter of PW-2 has given Rs.2,00,000/- as a maintenance and he also not know whether PW-2 had sold land at Devanahalli and disagreed that, as per instructions given by police, there was execution of memorandum
-9- Crl. Appeal No. 1194/2015 of understanding in between the parties. CW-9 who is the daughter of the complainant has spoke same as PW-1. PW-3 the mahazar witness, PW-4 is the pancha witness who participated in the panchayath and PW-5 is the Notary Advocate.
13. Now, on perusal of the entire evidence and the document on record and the allegations of the complainant is concerned that her father has bequeathed small portion of the property in her name by executing a gift deed as she was taking care of her father during his last days. Therefore, he has executed a gift deed in her favour in respect of the property measuring 15 x 45 feet consisting of 3 floor RCC building and as a mark of love and affection the father of the complainant gifted away half portion of the site mentioned supra which is located at Govindarajanagara and thereafter after demise of her father she went to BBMP to change the khatha of the gifted property, but stunning she learnt that her brother had created a GPA executed by CW9 and through GPA accused No.1 transferred the said property in the name of Narayanappa through registered sale deed. The accused No.1 fabricated the GPA forged the signature of the complainant and got transferred the property panchayath was convened and in the panchayath accused No.1 and 2 admitted the forgery and fabrication of documents and there were
-10- Crl. Appeal No. 1194/2015 game forward to get a site to CW9 on equal measurement in Basaweshwara Nagara with roofing shed and ready to pay Rs.3,50,000/- to the complainant for maintenance. But did not keep the promise. Hence this complaint.
14. In this case the CW1 have convened a panchyath, she has agreed for the terms of the panchayath, but since the accused fail to comply the terms of the panchayath decision. Therefore, complaint came to be lodged. Now the complainant is no more. During the life time of the complainant he had purchased the site which is a disputed site in between the accused and the CW9 and CW9 was looking after her father he had gifted away a portion of the property to her. Thereafter dispute arises in between the parties there was a memorandum of understanding with regard to the dispute in respect of the said gifted property. The matter is of a civil in nature. The CW9 having agreed upon memorandum of understanding in between the accused and herself and now the case has been raised by the complainant. The CW9 having agreed upon the memorandum of understanding held in between them. The CW9 having agreed upon the clauses of memorandum of understanding she has not stated anything about the allegations made in the complaint. The recitals of memorandum of understanding discloses the parties arrived at a conclusion in
-11- Crl. Appeal No. 1194/2015 between themselves with regard to the suit schedule property which is subsequent to gift deed executed by complainant to CW9. Now she cannot question the same cause of action by raising a criminal case. She has to approach civil jurisdiction to hesitate her legal rights if really violated. Therefore, acquittal order is in accordance with law and facts. No interference is called for. Hence I answer point No.1 is in the Negative. Point No.2:
15. Keeping in view the findings already given on point No.1 above, I proceed to pass the following:
ORDER This Crl. Appeal No.1194/2015 filed by appellant is hereby dismissed.
2) The order passed by the trial court in C.C.No.24853/2009 dt.17-7-2015 in acquitting the accused No.1 and 2 for the offences u/secs.
468, 471, 420 and 506 r/w. sec.34 of IPC is hereby confirmed.
3) The bail bonds and surety bonds stand cancelled.
4) No order is made as to costs.
Send back the LCR forthwith by keeping a copy of this judgment.
-12- Crl. Appeal No. 1194/2015 (Dictated to the Judgment writer on computer and after corrections, pronounced by me in the Open Court on this the 26th day of October 2018.) (H.G.Nagarathna) th 55 Addl. City Civil & Sessions Judge, Bangalore.