Karnataka High Court
Smt Geetahrani vs Smt N Padmavathi on 26 June, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF JUNE, 2012
BEFORE
THE HON'BLE MR. JUSTICE JAWAD RAHIM
CRL.A. No. 97 OF 2009
BETWEEN:
SMT.GEETHARANI,
REPRESENTED BY HER
GENERAL POWER OF ATTORNEY HOLDER
SRI M.P.SWMINATHAN
S/O LATE M.PAPACHAR,
AGED ABOUT 75 YEARS,
R/AT NO.119/3, BH ROAD,
BHADRAVATHI - 577 301
... APPELLANT
(BY SRI DHARPAN.M, ADV., FOR SRI
K.HANUMANTHARAYAPPA, ADV.,)
AND:
1. SMT.N.PADMAVATHI,
W/O NATARAJAN,MAJOR,
C/O SUBRAMANI (CQA) QUARTERS
BLOCK NO.23, B-TYPE, 2ND FLOOR,
MUNIREDDY PALYAN,
BANGALORE - 560 006
2. SMT.HAMSAVALLI,
W/O LATE MADHURAI,MAJOR,
NO.3110, 7TH CROSS,
B.H.ROAD, BHADRAVATHI
2
3. EKAMBARAM,
S/O LATE MADHURAI,MAJOR,
R/A DOOR NO.20/A,
K.H.B.QUARTERS,
GOLDEN JUBILEE COLONY,
BHADRAVATHI - 577 301
... RESPONDENTS
(BY SRI K.V.VENKATESH, ADV., FOR SRI K.MURTHY, ADV.,
FOR R1-3)
***
THIS CRL.A FILED UNDER SECTION 378(4) CR.P.C TO
SET ASIDE THE JUDGMENT AND ORDER DATED
15/17.07.2008 PASSED BY THE II ADDL. CIVIL JUDGE
(JR.DN) & JMFC BHADRAVATHI IN C.C.NO.4494/98 -
ACQUITTING THE RESPONDENTS/ACCUSED FOR THE
OFFENCE P/UNDER SECTION 177, 417, R/S SEC.34 OF IPC.
THIS APPEAL COMING ON FOR HEARING THIS DAY
THIS COURT MADE THE FOLLOWING:-
JUDGMENT
This is Complainant's appeal under Section 378(4) of Cr.P.C. questioning the acquittal of the respondents for the offence punishable under Section 177, 417 r/w 34 of IPC.
2. Heard learned counsel for appellant and respondents. Perused records, which reveals:
Appellant - Smt. Geetharani presented a private complaint before the Magistrate through one 3 M.P.Swaminathan on the premise he is appointed as her power of attorney to initiate prosecution of the respondents for the offence punishable under Section 177, 193, 197, 209, 420, 453 and 467 r/w 34 IPC. In support of the charges so levelled, she averred one M.Papachari, her father, had acquired several immovable properties during his life time and died intestate in the year 1953 leaving behind surviving him his wife Smt. Rathnammal and 12 children as also two married daughters, who were brought into party array as accused No.1 and 2.
3. She alleged, after death of Papachari, properties left behind by him were divided between her mother, Smt. Rathnammal and six minor children on one side and three major children on the other side by virtue of partition deed dated 29.10.1960. Under that partition the property bearing old assessment No.3110 & 3111 corresponding to present assessment No.285 and 286 situated at 7th Cross, B.H.Road, Bhadravathi was allotted to Smt.Rathnammal for herself and to six minor children through her as their guardian. Partition deed was acted upon. Except the 4 properties referred to above the other properties were allotted to three major children excluding accused No.1 and 2 as they were already married much before the partition.
4. She further alleged accused No.1 -
N.Padmavathi filed a suit before the Civil Judge, Shimoga in OS No.40/1970 claiming 1/12th share in all the properties relying on the deed of partition dated 29.10.1960, but the suit was dismissed on 31.08.1971 recording a finding that as she was married prior to coming in force of The Hindu Succession Act, she had no subsisting share in the properties in question. She did not prefer any appeal against such Judgment, which reached finality. Despite dismissal of her suit and negating her right to claim 1/12th share in the properties again she filed a suit in OS No.441/1973 seeking declaration that she is entitled to 1/12th share. That suit was also dismissed on 21.07.1986.
5. Referring to the judicial proceedings she contended that Rathnammal became the absolute owner of the properties referred to above and during her life time she 5 sold the property No.3111 referred to above in her favour by virtue of deed of sale dated 04.10.1989. By virtue of that transaction, she (Complainant) acquired absolute right, title and interest in respect of property bearing No. 3111. Later, Rathnammal executed Will on 18.03.1992 bequeathing the property No.3110 in her favour as evidenced from the Will registered before the Sub-Registrar, Bhadravathi. Referring to these two transactions she contended the katha in respect of those properties had to be transferred to her name.
6. Her main allegation is that respondent No.1 - N.Padmavathi and accused No.2 - Hamsavalli, her sisters, suppressing these transactions applied for transfer of katha in respect of property bearing No.3110 and 3111, misrepresenting that they have 1/12th share each by virtue of partition deed dated 29.10.1960. It is alleged the request of the accused No.1 and 2 was fraudulently accepted by the Municipality and katha was transferred to their respective names. When her mother Rathnammal learnt of it she filed objections before Municipality on 6 02.02.1992 clearly informing the authorities that the accused No.1 and 2 had no right, title and interest and that she (Rathnammal) had sold the property No.3111 in favour of the Complainant. It is alleged that respondent No.1 and 2 conspired with respondent No.3 - Ekambaram and managed to get the katha changed and on the basis of such fraudulent act claim ownership of the property bearing No.3110, which was bequeathed in her favour.
7. She alleged that accused No.3 - Ekambaram had also submitted application on 02.07.1990 to the Municipality for change of katha on the basis of the partition deed which establishes that he had colluded with accused No.1 and 2. Referring to these facts she alleged the acts of respondent No.1 to 3 in suppressing the fact that suit filed by accused No.1 - N.Padmavathi was dismissed disentitling her to share in the property proves, she had conspired with accused No.2 - Hamsavalli and accused No.3 - Ekambaram to get the katha changed fraudulently and trying to rent out the same. She referred to her mother Rathnammal and her third brother - Gopal, lodging complaint revealing the 7 offence committed by the accused to the Police on 25.11.1996, but the same was not investigated. Contending that she is a helpless lady and acts indulged by the accused constitute cheating, forgery and fabricating false evidence, she sought prosecution.
8. The learned trial Judge referred the complaint to SHO, Town Police, Bhadravathi for investigation under the provisions of Section 156(3) of Cr.P.C., who filed 'B' report. Complainant challenged the said 'B' report and took upon herself the task of establishing the charge against the accused for the offences referred to above. The learned jurisdictional Magistrate took cognizance on the complaint under Section 200 Cr.P.C. for the offences indicated above and summoned the accused, who denied all allegations and pleaded not guilty, which necessitated trial. In trial that ensued the Complainant examined herself her Power of Attorney holder - M.P.Swaminathan as PW1 and later examined herself as PW2. She also examined PW3-Arthur Pinto and PW4-Dharmappa in support of the charges raised. She relied on 15 documents, while accused though did not 8 lead any ocular evidence in defence placed reliance on 13 documents marked at Ex.D1 to D13.
9. The learned trial Judge by the impugned Judgment acquitted the respondents finding no incriminating aspects in the evidence tendered by the Complainant and her witnesses to support the charges. Assailing which she is in appeal.
10. The learned counsel submits that the learned trial Judge had failed to notice respondent No.1 had failed in claiming share in the property in regular civil proceedings, despite which she filed application to the Municipality and mischievously got the katha transferred in respect of the property No.3110 referred to above. He submits accused No.2 - Hamsavalli also indulged in similar acts making it clear that she had conspired with accused No.1 as also accused No.3 - Ekambaram. He submits the documentary evidence produced by the Complainant was sufficient to establish the charge, which unjustifiably the trial Court has 9 ignored. He has referred to several other grounds which have received my serious consideration.
11. The respondents have supported the impugned Judgment.
12. I have re-appraised the evidence keeping in mind the grounds in appeal.
13. At the outset it must be noticed that the Complainant did not explain why the complaint was presented by her power of attorney - Swaminathan instead of herself. She has not tendered any sworn statement but entered the arena only during trial. It is manifest from the evidence tendered by the PW1-Swaminathan, he claims to know more about the life of the Complainant than the Complainant herself, who has tendered evidence as PW2. However, I have re-appraised his evidence. All that he refers is to the death of Papachari and how his estate was divided by virtue of deed of partition dated 29.10.1960. He does not reveal why the respondents 1 and 2, who were 10 admittedly daughters of Papachari were excluded in property division by partition deed dated 29.10.1960.
14. It is further to be noticed that he referred to dis-cordiality between the parties who are undoubtedly heirs of Papachari. The genetic relationship between the Complainant and respondents 1 and 2 is not in dispute. PW1 has referred to the application submitted by the respondents vide Ex.P15 and 49 seeking change of katha in their favour. It is not in dispute that earlier to it the katha of the property was transferred in the name of PW1- Saminathan and not in the name of the Complainant - Geetharani.
15. No doubt, dismissal of suit in OS No.40/1970 and OS No.441/1973 establish that Civil Court found no favour with the claim of the respondent No.1. But, katha was transferred from the name of PW1 to the name of accused No.1 and 2 by virtue of Ex.P20 to P28. It is he who has submitted complaint to the Police questioning the transfer of katha in the name of accused No.1 and 2. In 11 fact, it is seen he claims to have right in the property and had questioned the transfer of katha in respect of respondents 1 and 2, but he was not the Complainant before the jurisdictional Magistrate on which respondents were prosecuted. As against such evidence the accused have produced documents marked at Ex.D1, D8, D10 to D12.
16. Besides, they have produced Ex.D7, D9 and D13, which are letters written by Swaminathan to accused No.3 - Ekambaram, whereby there is admission of the fact that respondent No.1 and 2 have right in the property in question.
17. The learned trial Judge has referred to his deposition in Para-12 of the impugned Judgment and has also referred to Ex.P2 - the partition deed and another palupatti subsequent to Ex.P2 executed on 04.08.1960, vide Ex.P42 and P43, whereby properties bearing No.3110 and 3111 were allotted to accused No.1 and 2 daughters of Papachari. In Ex.P42 there is no mention of the partition 12 deed dated 29.10.1960, but there is affirmation that accused No.1 and 2 to be the daughters of Papachari, were also entitled to share in the said property. Similarly, it is seen that one Baby Saroja was also daughter of Papachari, was allotted House No.3112, which was excluded in Ex.P2 - Partition Deed relied on by the Complainant.
18. The respondent - accused also produced Ex.D2 to D6 establishing they have been paying taxes to the Municipality and also their physical possession. It is material to note the Complainant had questioned the transfer of katha in favour of Respondent No.1 and 2 in W.P. No.17788/98 and W.P. No.17974/1998. But this court disposed of the same as follows:
"From the aforesaid provision it is apparent that wherever a property was transferred wither by a registered document or otherwise or devolves upon the heirs of the person primarily liable to payment of building tax or land tax as the case may be such transferors or heirs shall given notice to the commissioner and on receipt of such notice, the 13 commissioner shall had an enquiry and on receipt of documents wherever necessary shall substitute the name of the transferee to that of the person primarily liable to pay tax as entered in the registers. They do not deal with the possession of the transferee. The possession of the property is therefore not relevant to act under section 113 of the Act."
19. Consequently, the Commissioner has restored the katha in the name of the Complainant. Thereafter, the Complainant as also her Power of attorney PW1- Swaminathan participated in the inquiry proceedings before the TMC, Bhadravathi. Thereafter, he has addressed a letter to the Municipality to change the katha of the property referred to above in favour of respondents 1 and 2 admitting that his mother Rathnamma had no right or authority to transfer the property bearing No.3110 in favour of the Complainant by a Will.
20. PW2-Geetharani, in her evidence has displayed she is not aware of all those facts. Her evidence is vague and does not spells out any incriminating aspects agaisnt 14 the accused in support of the charges. In fact, she has identified the signature of PW1-Swaminathan on Ex.D7 to D13 and admitted filing of the suit in OS No.3/1999. Most of her evidence reveals she has referred to what her mother Rathnammal told her, she is not party to most of the proceedings.
21. At this juncture, it must also be noticed that Complainant has relied on the partition deed dated 29.10.1960 to contend the properties of Papachari were divided between two groups, one consisting of her mother Rathnammal and her six minor children and the other group consisting of major children of Papachari. Therefore, her admission shows Rathnammal was not only the person, who acquired property by virtue of deed of partition, her six minor children were also sharers. In other words, she represented the minor children as their guardian in the partition. She might have acquired one share out of 12 shares allotted, but her minor children had also acquired individual defined share.
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22. This admitted true position of facts show the properties of Papachari were divided amongst all heirs and dis-spells all assertions of the Complainant that Rathnammal was the absolute owner and she sold the property No.3111 in her favour, and later bequeathed by a Will the property No.3110 also in favour. When she had no absolute right, title or interest in those two properties which were owned jointly by her and her six minor children, she had no competence to deal with the properties as alleged by the Complainant.
23. This admitted fact position was enough to reject her complaint by the learned jurisdictional Magistrate and also to discharge accused, but the learned jurisdictional Magistrate has proceeded to subject them to trial. However, evidence read in its totality brings no incriminating aspects even to remotely suggest that the accused may have indulged in acts coming within the mischief of the offence punishable under Section 177, 417 r/w 34 of IPC. The evidence tendered by the 16 Complainant and her witnesses and the documents filed by the accused virtually exculpates the respondent - accused.
24. In this view I find no merit in the grounds urged in the appeal against the acquittal. The impugned Judgment acquitting the respondents is therefore, confirmed. Appeal is dismissed.
SD/-
JUDGE VK