Bangalore District Court
Smt.Narmada vs Mrs.Ramiza on 17 September, 2022
IN THE COURT OF THE LXVII ADDL.CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY (CCH-68)
PRESENT
Sri.KASHIM CHURIKHAN.
B.A., LL.M.
LXVII ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE.
Dated this the 17th day of September 2022.
Crl. Appeal No.63/2021
APPELLANT : Smt.Narmada.
W/o.K.R.Vijaya Kumar,
60 years,
R/at.No.26/1,
Q No.3rd Street Cross,
N.P.Street Cross,
Bengaluru.
(By Sri.R.P.K., Advocate)
.Vs.
RESPONDENT : Mrs.Ramiza,
W/o.Jabbar,
65 years,
R/at.No.50, Papanna Layout,
Kogilu Road, 6th Cross,
Maruthinagar, Yelahanka,
Bengaluru.
(Absent)
JUDGMENT
This appeal is preferred by the appellant under Section 454 r/w. Section 389(1) of Cr.P.C., challenging the order passed by the learned XII Addl C.M.M., Crl.Appeal No.63/2021 2 Bengaluru in C.C.No.40633/2010, dated:20.01.2021 rejecting the application under Section 452 of Cr.P.C., filed by the appellant.
2. The appellant herein was the accused and respondent herein was the complainant before the trial court. For the sake of convenience, parties would be referred to by the ranks they were assigned before the trial court.
3. Brief facts of the case are as under:
The accused/appellant had purchased the property bearing site No.46 in survey No.51 at Challaghatta Village, Kengeri Hobli, Bengaluru from one Sri.A.Yellappa on 8.06.2006 and she is the absolute owner in possession of the said property.
During the month of December 2009, the complainant had forcibly taken the accused and her family members to Bharathinagar Police Station, without lodging the complaint against them. The complainant had strong nexus with the police and in the Police Station, she had forcibly collected numerous cheques, On demand promotes and the site document from the accused, her husband and children. Thereafter, the complainant had filed complaint in C.C.No.40633/2010 against the accused for the offence punishable under Section 138 of N.I.Act. During the course of trial, the complainant has produced the Sale Crl.Appeal No.63/2021 3 Deed, dated:8.06.2006, which is got marked at Ex.P.17. The complainant has never claimed that the said site document was deposited as security for any debt in the case. No civil action is initiated by the complainant either in relation to Ex.P.17 or the property to which it relates, the said deed belongs to the accused and it is her property title deed. The said criminal case was ended in acquittal of the accused vide judgment dated:7.07.2015. Against the said order, the complainant has not preferred any appeal and not filed any application before the trial court for the return of the said document. The accused being the owner of the said property had filed an application under Section 452 of Cr.P.C., for return of the original Sale Deed, dated:8.06.2016, which is marked at Ex.P.17 in her favour and the said application was rejected by the trial court.
4. Being aggrieved by the orders of the trial court, the appellant/accused has preferred this appeal on the grounds that the impugned order passed by the learned Magistrate is illegal, perverse and capricious. The respondent never urged any grievance before the trial court that she is entitle for possession of Ex.P.17- Sale Deed and did not oppose the application under Section 452 of Cr.P.C., filed by the appellant to return Ex.P.17 in her favour. The respondent never claimed that the Sale Deed was deposited as security for any Crl.Appeal No.63/2021 4 debt and no civil action is initiated by the respondent in relation to Ex.P.17. The case bearing C.C.No.40633/2010 was disposed off on 7.07.2015. The respondent has not challenged the judgment in the said case or claimed Ex.P.17 to return in her favour. In fact, there is finding in the course of judgment that the document produced was illegally secured by the respondent. Therefore, the trial court ought to have directed to deliver Ex.P.17 to the appellant. The trial court has failed to note that Section 452 of Cr.P.C., envisaged that when the trial is concluded, the court can order and delivery to any person claiming to be entitled for the possession of document or property. The Sale Deed-Ex.P.17 is in the name appellant. The appellant is in lawful possession of the property. The appellant is legitimate person entitle for possession of the document Ex.P.17. The learned Magistrate erred in concluding that the Sale Deed Ex.P.17 is being produced by the respondent and hence, the respondent is best person for entitlement to have possession thereof. Hence, prays to allow the appeal by setting aside the order passed by the learned Magistrate.
5. Despite service of notice, the respondent remained absents.
6. Heard the arguments.
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7. The points raised for determination are as under:
1. Whether the appellant has proved that the trial court has erred in rejecting the application under Section 452 of Cr.P.C., filed by her in respect of Ex.P.17 ?
2. What Order ?
8. My findings on the above points are as follows.
POINT No.1 - Affirmative, POINT No.2 - As per final order, for the following :
REASONS
9. POINT No.1 : The learned counsel for the appellant has argued that the respondent with the help of Bharathinagar Police, Bengaluru had obtained the cheques, On Demand Promissory Notes and Sale Deed from the appellant, her husband & children and on the basis of false cheque, had filed C.C.No.40633/2010 against the appellant under Section 138 of N.I.Act. During the course of trial, the respondent had produced the Sale Deed, dated:8.06.2006 and got marked at Ex.P.17. The said criminal case was ended in acquittal vide judgment, dated:7.07.2015. The appellant has filed an application under Section 452 of Cr.P.C., to return Ex.P.17-Sale Deed standing in the name of appellant. The trial court has wrongly rejected the said application saying that Ex.P.17 is being produced by the respondent/complainant, the respondent is best person to have custody thereof. It is brought to the Crl.Appeal No.63/2021 6 notice of the court that the trial court at para No.14 of its judgment has held that the respondent with the help of police, obtained cheques, On demand promissory notes and forcibly took the Sale Deed of the property belongs to the appellant. In spite of it, has rejected the application for return of Ex.P.17, which is standing in the name of appellant. The appellant had purchased the property and in possession thereof. Though it was produced by the respondent before the court, the respondent has no authority to retain it in her custody. The appellant is proper person to have the document in her custody.
10. I have carefully gone through the materials placed on record. It is rightly pointed out by the learned counsel for appellant before this court that at para No.14 of the judgment in C.C.No.40633/2010, dated:7.07.2015, the trial court has observed that the disputed cheques and property document forcibly took by the respondent with the help of police. The relevant portion of para No.14 reads thus :
" .............The defense of the accused is that, six signed blank cheques each of herself, her husband and son and daughter were forcibly taken under the police threat apart from taking the signed blank bond papers demand promissory notes and original documents of a property. I find no reason to ruled out the same. Because, if really, the accused has given the cheques bearing Nos.200209, 212425, 212426 and Crl.Appeal No.63/2021 7 166854 for a total sum of Rs.5,00,000/- as stated at para 6 of the complaint, obviously there was no impediment to the complainant to present all the said four cheques for encashment instead of waiting till December 2009 to get further cheques and documents in the Police Station. The above circumstances indicates some nexus to the complainant with the police. This is a strong circumstance, which inspires to ruled out the issuance of the cheques found at Para No.6 of the complaint prior to 9.12.2009 and the cheques at Ex.P.1 to Ex.P.4, the cheque ExP.1 in C.C.No.40634/2010, but also to believe the taking of innumerable cheques and other papers under the police threat. This situation is sufficient to displace the presumption under Section 139 of N.I.Act and debars the complainant from enjoying it".
11. When the trial court made such observation regarding forcibly taking Ex.P.17 from the appellant by the respondent with the help of police, on disposal of the matter, the learned Magistrate ought to have allowed the petition under Section 452 of Cr.P.C., filed by the appellant to return of Ex.P.17-Sale Deed, though it has been produced by the respondent. The appellant is being owner and in possession of the property connecting to Ex.P.17, the appellant is proper person to have custody of the registered Sale Deed Ex.P.17. Moreover, it is mentioned here that on disposal of the criminal case, neither the respondent preferred an appeal against the judgment nor put her claim for Crl.Appeal No.63/2021 8 return of the said document. Apart from it, while the appellant has filed the petition under Section 452 of Cr.P.C., the respondent did not oppose the said application. Under such circumstances, I am of the opinion that the trial court has erred in rejecting the petition under Section 452 of Cr.P.C., filed by the appellant for return of document Ex.P.17 in her favour. It needs interference by this court to meet the ends of justice. Accordingly, I answer the Point No.1 in the Affirmative.
12. POINT No.2 : In view of my findings on Point No.1 as above, I proceed to pass the following :
ORDER The Crl. Appeal filed by the appellant is hereby allowed. Consequently, the impugned order passed by the learned XII Addl C.M.M., Bengaluru in C.C.No.40633/2010, dated:20.01.2021 is set aside.
The learned Magistrate is directed to return Ex.P.17- Sale Deed in favour of the appellant by retaining certified copy thereof.
Send the copy of this order to the trial court. (Dictated to the Judgment-writer on computer, corrected, signed and then pronounced by me in the open court on this the 17th day of September 2022) (KASHIM CHURIKHAN) LXVII Addl.City Civil & Sessions Judge, BENGALURU.
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