Karnataka High Court
Sri Vinod vs The State Of Karnataka on 9 September, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO. 5162 OF 2018
(482(Cr.PC) / 528(BNSS)-)
BETWEEN
SRI VINOD
S/O LATE J BALARAJ
R/A NO.A 52
AJ BLESSINGTAN
RJ GARDENT
CHINNAPPANAHALLI
MARATHALLI POST
BANGALORE-560037
...PETITIONER
(BY SRI. RAVISHANKAR.S ., ADVOCATE)
AND
Digitally signed 1. THE STATE OF KARNATAKA
by GIRIJA A.
BYAHATTI THROUGH HAL POLICE
Location: High REP BY THE SPP
Court of HIGH COURT BUILDING
Karnataka,
Dharwad Bench, BANGALORE-560037.
Dharwad
2. MAJOR THOMAS XAVIER
S/O LATE MR V T XAVIER
AGED ABOUT 54 YEARS
R/A NO.57, 1ST MAIN
RJ GARDEN, ANAND NAGAR
CHINNAPPANAHALLI
MARATHAHALLI POST
BANGALORE-560037
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3. MRS KOMALA
W/O RAMESH
R/A NO.58/A, 1ST MAIN
R J GARDEN, ANAND NAGAR
CHINNAPPANAHALLI
MARATHAHALLI POST
BANGALORE-560037
...RESPONDENTS
(BY SRI. M.R. PATIL., HCGP FOR R1;
SMT. PARVATHY R. NAIR. AND
SRI. UDITA RAMESH., ADVOCATE FOR R2;
SRI. MANU SHANKAR., ADVOCATE FOR R3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE ORDER
DATED 19.09.2015 PASSED BY THE LVII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU IN
CRL.RP.NO.25021/2015 AND CONFIRMING THE ORDER OF THE TRIAL
COURT ORDER DATED 29.11.2014 PASSED IN P.C.R.NO.95/2010
(CR.NO.12/2011) PASSED BY THE X ADDL.C.M.M., BENGALURU TO
TRANSFERRED XLIII ADDL.C.M.M., BENGALURU IN AND QUASH THE
COMPLAINT IN P.C.R.NO.95/2010 IN CR.NO.12/2011 BY ALLOWING
THIS PETITION IN THE INTEREST OF JUSTICE.
THIS CRIMINAL PETITION COMING ON FOR ORDERS AND
HAVING BEEN RESERVED FOR ORDERS ON 30.06.2025, THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CAV ORDER
1. The Petitioner is before this Court seeking for the
following reliefs:
Quashing the order dated 19.09.2015 passed by the
LVII Addl. City Civil and Sessions Judge, Mayo Hall Unit
(CCH-58), Bangalore in Criminal Revision Petition
No.25021/2015 and confirming the order of the trail
court dated 29.11.2024 passed in PCR No.95/2010 in
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Crime No.12/2011 passed by the X Additional Chief
Metropolitan Magistrate at Bangalore to transferred XLIII
Add. Chief Metropolitan Magistrate at Bangalore and
quash the complaint in PCR No.95/2010 in Crime
No.12/2011 by allowing the above petition in the
interest of justice.
2. Respondent No.2-Major Thomas Xavier had filed a
private complaint under Section 200 of the Code of
Criminal Procedure 1973 against one Sri.J. Balaraj,
son of late R. Joseph and B. Vinod Kumar, son of Sri
Balaraj who is the Petitioner herein, as also against
Smt.Komala, wife of Mr. Ramesh who is respondent
No.3 herein, alleging offences under section 420,
464, 467, 470 and 471 of the Indian Penal Code on
18.06.2010.
3. The complainant alleged that he is the son of late
V.T.Xavier, who had purchased site Nos.53, 54, 55,
56, 57 and 58 under registered sale deed dated
17.03.1969, and in all, the above sites measure
209+205/2 x 60 feet. It is also contended that
Sri.V.T.Xavier also purchased a small piece of land
adjacent to site No. 52, measuring 7+11/2 x 60 feet
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under a registered sale deed dated 23.06.1970. All of
the above properties were purchased by
Sri.V.T.Xavier from one Sri.R.Joseph, son of
Sri.Rayappa, who is the grandfather of the Petitioner
herein.
4. It is alleged that the complainant was working in the
Army and retired as a Major in the year 1999 and
after his retirement, he was working in a central
government organisation. His father Sri.V.T.Xavier
expired on 1.05.1995. After his death, the
complainant and his brother Joseph Xavier succeeded
to the above properties. Mr.Joseph Xavier, that is his
brother, from his birth was very weak and had been
afflicted with one ailment or the other and was totally
dependent on the complainant. The complainant,
not being in Bangalore for a long period of time, was
not aware of the details of the purchases of
properties made by Sri.V.T.Xavier, his father. His
brother Joseph Xavier was not in a position to
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manage the affairs of the estate of the father due to
his ill health. During this time, a portion of the
property was acquired by the Bangalore
Development Authority fromSri.V.T.Xavier.
5. It was further contended by the complainant that he
was under the impression that the remaining
property measuring 100 x 60 feet was a property
purchased by his father adjacent to site No. 58/A,
now standing in the name of the accused Nos.1 and
3, that is Mr.J.Balaraj (who is now deceased) and
respondent No.3 herein.
6. It is further alleged that when the complainant was
going through the old documents left behind by his
late father, he noticed that the sites in occupation
were not matching with the description of the
property. Hence, a physical measurement was made,
when to his shock, he found that there never existed
any site bearing No. 58/A and on that basis, he came
to a conclusion that site No. 58/A is part of the
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property purchased by his father Sri.V.T.Xavier. It is
alleged that J.Balaraj taking undue advantage of the
long absence of the complainant and the physical
condition of his brother had got made a bogus katha
and created imaginary site No. 58/A and sold the
same to accused No.3, that is respondent No.3
herein. Respondent No.3 after purchasing site
bearing No.58/A, is also stated to have sold a portion
of same in favour of one Mrs.T.Thulasamma and on
that basis it is alleged by the complainant that
J.Balaraj (now deceased), the petitioner-Vinod
Balaraj in collusion with respondent No.3-Komala
have concocted, fabricated and sold the site bearing
No.58/A in favour of respondent No.3 without any
valid right or title.
7. It is further alleged that J. Balaraj has fraudulently
and dishonestly delivered the property bearing site
No.58/A situated at Chinnappanahalli village,
K.R.Puram Hobli, Bangalore South Taluk, which
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belongs to the complainant and his brother having
inherited the same from their father and as such, the
conveyance is with a criminal intention to cheat and
to make unlawful gain which is an offence under the
Indian Penal Code. It is in that background that the
complainant filed PCR No.95 of 2010 before the X
Additional CMM court, Bangalore on 18.09.2010
which was referred for investigation under section
156(3) of the Cr.P.C. to the Station House Officer,
HAL police station, Bangalore, in pursuance of which
FIR in Crime No.12 of 2011 came to be registered.
8. Respondent No.1-Police after investigation had filed a
B-final report as regards which a protest memo was
filed by the complainant. However, the X Additional
CMM court, Bangalore, rejected the protest memo
which came to be challenged by the complainant in
Criminal Revision No.25021 of 2015 wherein, on
appearance, the Petitioner has filed objections. The
Revision Court allowed the Criminal Revision, set
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aside the order passed by the Additional CMM Court,
thereby restoring the complaint which had been filed.
It is challenging the same, the Petitioner is before
this court.
9. Sri.Ravishankar.S, learned counsel for the Petitioner,
submits that,
9.1. Accused No.1 in the complaint-J.Balaraj has
expired. It is the father of J. Balaraj, namely
Rayappa, who was the owner of land in Survey
No. 27, who had formed a layout in the said
survey number and sold all the sites in Survey
No. 27 during his lifetime. Rayappa also being
the owner of the land in survey No.28, it was
succeeded to by wife of Rayappa and J.Balaraj
after the death of Rayappa. The wife of
Rayappa had later on formed a layout in survey
No.28 and some of the sites which are claimed
to be owned by the complainant.
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9.2. J.Balaraj had sold site bearing No.58/A to
respondent No.3-Komala under a sale deed
dated 24-3-1995. The said site does not belong
to the complainant and there is no
encroachment made of any site belonging to
the complainant. There is no site which has
been formed on the land sold to the father of
the complainant. The land/site in possession of
respondent No.3 is not part of the land which
was earlier owned by the father of the
complainant and now by the complainant.
9.3. The dispute between the parties is also civil in
nature inasmuch as the complainant along with
his brother has filed a suit against the Petitioner
in O.S. No.25514 of 2020 seeking for a
declaration that the sale deed dated
24.03.1995 executed in favour of Respondnt
No.3 and sale Deed dated 28.01.2002 executed
by Respondnt No.3 in favour of T.Tulsamma are
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not binding on the plaintiffs and for a
declaration that plaintiffs are the absolute
owners of suit schedule A and B properties, suit
schedule A property being site No.58/A
measuring east ot west 60 ft and north to west
40+44/2 and schedule B property also bearing
site No. 58/A measuring east to west 42 feet
and north to south 30 feet, as also for delivery
of possession and a mandatory injunction
directing the first and second defendants
namely Komala and T.Tulsamma to remove the
construction put up on schedule A and B
properties.
9.4. The suit has been filed for a declaration and
mandatory injunction directing respondents
No.1 and 3 therein to remove the construction
put up on Schedule A and B properties. The
sale deed having been executed in favour of
Komala on 24.03.1995, the present PCR has
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been filed in the year 2010, after a gap of 15
years of the sale.
9.5. Even according to the complainant,
Sri.V.T.Xavier expired on 1.08.1995 whereas
sale deed in favour of Komala was on
24.03.1995. Therefore, the sale deed having
been executed during the lifetime of
Sri.V.T.Xavier, he did not take any steps as
regard to same. It is only after 15 years after
death of Sri.V.T.Xavier that a complaint has
been filed.
9.6. After the initial investigation having been done,
a B-report has been filed. The protest memo
has been rejected, it is only in the revision that
the B-report has been set aside. Insofar as the
order passed, order dated 19.09.2015 in
Criminal Revision No.2501 of 2015, the
Revision court ought not to have set aside the
order of the trial court and ought not to have
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directed cognizance to be taken for offences
under Section 420, 464, 467, 470 and 471 of
the IPC.
9.7. He submits that even as per the complaint,
Sri.V.T.Xavier is stated to have purchased a
portion of the property on 17.03.1969 and
another portion on 23.06.1970 and from then
he had not put up any construction or taken
any action in respect of the property until his
expiry in the year 1995. The complaint has
been filed only on the basis of the alleged
impression of the Petitioner that his father had
purchased site measuring 100x60 bearing
No.58/A and when he was going through the
old documents, he found the original sale deed
in respect to the property.
9.8. He submits that the offences which have been
alleged under Section 420 would require an
intent from the very beginning to cheat
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Sri.V.T.Xavier and or the complainant. The sale
in favour of Sri.V.T.Xavier was executed by
R.Joseph in the year 1969-70, whereas sale
deed in favour of Komala is executed by
J.Balaraj in the year 1995.
9.9. He submits that the sale in favour of Komala
being an executed document, there is no
question of concoction of the sale deed.
Smt.Komala having purchased the property has
put up construction on the property and she
has sold portion thereof to Tulsamma who has
also put up construction thereon which is
clearly apparent from the reliefs which have
been sought for in the suit filed by the
complainant in O.S. No.25514/2010 wherein a
mandatory injunction for removal of the
construction put up has been sought for.
9.10. In the PCR which has been filed no reference to
survey number in which the sites have been
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purchased by Sri.V.T.Xavier has been indicated
and as such, the same cannot be said to be in
survey number 28 in which a subsequent layout
has been formed by the mother of the
Petitioner.
9.11. The sites which have been purchased by the
father of the complainant was in survey No.57
and not in survey No.58. Reliance placed by the
Sessions court in Lalmuni Devi (smt.) -v-
State of Bihar and others1 is misplaced.
Though there cannot be a dispute as regard
whether a criminal complaint can be filed even
if a civil claim is made, the fact in the present
matter is that a criminal complaint has been
filed much belatedly after 15 years of the
execution of sale deed by the father of the
Petitioner in favour of respondent No.3 which
aspect has not been considered by Sessions
court. He therefore submits that the order of
1
(2001)2 SCC 17
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the Sessions court is not sustainable and is
required to be quashed.
9.12. The suit in OS No 25514 of 2010 has also been
dismissed vide judgement and decree dated
15.04.2021. The trial court while dismissing
the suit has categorically come to a conclusion
that the BDA has acquired 6534 square feet
from the land purchased by late V.T.Xavier and
widened the existing road. The trial court also
observed that in the sale deed relied upon by
the complainant there was no reference made
that the said property was carved out of survey
No.28. Plaintiff in the cross examination
admitted that late V.T.Xavier knew about the
execution of sale deed in favour of defendant
No.1- Komala by Balaraj-defendant No.3. The
trial court has also doubted the boundaries in
the sale deed produced by the complainant and
has come to a conclusion that site No.58A
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claimed by the complainant comes in the
acquired land and as such, it was held that the
plaintiffs have failed to prove that they still
have ownership over the suit schedule property
and rejected all the prayers which have been
sought for.
9.13. He relies upon the decision of the hon'ble Apex
court in the case of State of Karnataka -v-
L.Munishwamy and others2, more
particularly para 10 and 11 thereof, which are
reproduced hereunder for easy reference:
10. On the other hand, the decisions cited. by
learned counsel for the respondents in Vadilal
Panchaly. D.D. Gha- digaonkar AIR 1960 SC
1113 and Century Spinning & Manufacturing
co. -v- State of Maharashtra AIR 1972 SC 545
show that it is wrong to say that at the stage
of flaming charges the court cannot apply. its
judicial mind to the consideration whether or
not there is any ground for presuming the
commission of the offence by the accused. As
observed in the latter case, the order framing
a charge affects a person's liberty
substantially and therefore it is the duty of the
court to consider judicially whether the
material warrants the framing of the charge.
It cannot blindly accept the decision of the
prosecution that the accused be. asked to face
2
(1977 Supreme (SC) 123)
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a trial. In Vadilal Panchal's case.
(supra) Section 203 of the old Code was under
consideration, which provided that the
Magistrate could dismiss a complaint if after
considering certain matters mentioned in the
section there was in his judgment no sufficient
ground for proceeding with the case.. To an
extent Section 227 of the new Code contains
an analogous power which is conferred on the
Sessions Court. It was held by this Court,
while considering the true scope of Section
203 of the old Code that the Magistrate was
not bound to accept the result of an enquiry or
investigation and that he must apply his
judicial mind to the material on which he had
to form his judgment. These decisions show
that for the purpose of determining whether
there is sufficient ground for proceeding
against an accused the court possesses a
comparatively wider discretion in the exercise
of which it can determine the question
whether the material on the record, if
unrebutted, is such on the basis of which a
conviction can-be said reasonably to be
possible.
11. We are therefore in agreement with the view
of the High Court that the material on which
the prosecution proposes to rely against the
respondents is wholly inadequate to sustain
the charge that they are in any manner
connected with the assault on the
complainant. We would, however, like to
observe that nothing in our judgment or in the
judgment of the High Court should be taken
as detracting from the case of the
prosecution, to which we have not applied our
mind, as against accused Nos. 1 to 9. The
case against those accused must take its due
and lawful course.
9.14. By relying on L.Munishwamy's case, he
submitted that judicial mind was required to be
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applied by the Sessions court on the material
and the material disclosing that there is no
offence being made out, the Sessions court
ought to have confirmed the order of the
Magistrate.
9.15. He relies upon the decision in Md.Ibrahim and
others -v- State of Bihar and Another3
more particularly para Nos.6, 8, 9, 10, 11 and
12 thereof which are reproduced hereunder for
easy reference:
6. The question that therefore arises for
consideration is whether the material on record
prima facie constitutes any offences against the
accused. The contention of the appellant is that if
the allegations made in the complaint and FIR,
even if accepted to be true in entirety did not
disclose the ingredients of any offence of forgery
Sections 467 and 471 or cheating (Section 420) or
insult (Section 504) or wrongful restraint (Section
341) or causing hurt Section 323 and there was no
other material to show any offence and therefore,
their application ought to have been accepted.
7. This Court has time and again drawn attention to
the growing tendency of complainants attempting
to give the cloak of a criminal offence to matters
which are essentially and purely civil in nature,
obviously either to apply pressure on the accused,
or out of enmity towards the accused, or to subject
the accused to harassment. Criminal courts should
3
[(2009)8 SCC 751]
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ensure that proceedings before it are not used for
settling scores or to pressurise parties to settle civil
disputes. But at the same, it should be noted that
several disputes of a civil nature may also contain
the ingredients of criminal offences and if so, will
have to be tried as criminal offences, even if they
also amount to civil disputes. [See: G. Sagar Suri
v. State of U.P. [2000 (2) SCC 636] and Indian Oil
Corporation vs. NEPC India Ltd. [2006 (6) SCC
736]. Let us examine the matter keeping the said
principles in mind.
Sections 467 and 471 of the Penal Code
8. Let us first consider whether the complaint
averments even assuming to be true make out the
ingredients of the offences punishable either
under section 467 or section 471 of Penal
Code. Section 467 (in so far as it is relevant to this
case) provides that whoever forges a document
which purports to be a valuable security, shall be
punished with imprisonment for life or with
imprisonment of either description for a term which
may extend to ten years and shall also be liable to
fine. Section 471, relevant to our purpose, provides
that whoever fraudulently or dishonestly uses as
genuine any document which he knows or has
reason to believe to be a forged document, shall be
punished in the same manner as if he had forged
such document. Section 470 defines a forged
document as a false document made by forgery.
9. The term "forgery" used in these two sections is
defined in section 463. Whoever makes any false
documents 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 express or implied
contract, or with intent to commit fraud or that the
fraud may be committed, commits forgery. Section
464 defining "making a false document" is
extracted below :
"464. Making a false document.--A person is said
to make a false document or false electronic
record---
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First.--Who dishonestly or fraudulently -
(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 digital signature on any electronic
record;
(d) makes any mark denoting the execution of a
document or the authenticity of the digital
signature, with the intention of causing it to be
believed that such document or a part of
document, electronic record or digital 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
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 digital
signature either by himself or by any other person,
whether such person be living or dead at the time
of such alternation; 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
digital signature on any electronic record knowing
that such person by reason of unsoundness of mind
or intoxication cannot, or that by reason of
deception practised upon him, he does not know
the contents of the document or electronic record
or the nature of the alteration.
Explanation 1 - A man's signature of his own name
may amount to forgery.
Explanation 2 - The making of a false document in
the name of a fictitious person, intending it to be
believed that the document was made by a real
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person, or in the name of a deceased person,
intending it to be believed that the document was
made by the person in his lifetime, may amount to
forgery.
[Note: The words `digital signature' wherever it
occurs were substituted by the words `electronic
signature' by Amendment Act 10 of 2009]."
The condition precedent for an offence
under sections 467 and 471 is forgery. The
condition precedent for forgery is making a false
document (or false electronic record or part
thereof). This case does not relate to any false
electronic record. Therefore, the question is
whether the first accused, in executing and
registering the two sale deeds purporting to sell a
property (even if it is assumed that it did not
belong to him), can be said to have made and
executed false documents, in collusion with the
other accused.
10. An analysis of section 464 of Penal Code shows
that it
divides false documents into three categories:
10.1) The first is where a person dishonestly or
fraudulently makes or executes a document with
the intention of causing it to be believed that such
document was made or executed by some other
person, or by the authority of some other person,
by whom or by whose authority he knows it was
not made or executed.
10.2) The second is where a person dishonestly or
fraudulently, by cancellation or otherwise, alters a
document in any material part, without lawful
authority, after it has been made or executed by
either himself or any other person.
10.3) The third is where a person dishonestly or
fraudulently causes any person to sign, execute or
alter a document knowing that such person
could not by reason of (a) unsoundness of mind; or
(b) intoxication; or (c) deception practised upon
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him, know the contents of the document or the
nature of the alteration.
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 authorised 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.
12. The sale deeds executed by first appellant,
clearly and obviously do not fall under the second
and third categories of `false documents'. It
therefore remains to be seen whether the claim of
the complainant that the execution of sale deeds by
the first accused, who was in no way connected
with the land, amounted to committing forgery of
the documents with the intention of taking
possession of complainant's land (and that accused
2 to 5 as the purchaser, witness, scribe and stamp
vendor colluded with first accused in execution and
registration of the said sale deeds) would bring the
case under the first category. There is a
fundamental difference between a person executing
a sale deed claiming that the property conveyed is
his property, and a person executing a sale deed
by impersonating the owner or falsely claiming to
be authorised or empowered by the owner, to
execute the deed on owner's behalf. When
a person executes a document conveying a
property describing it as his, there are two
possibilities. The first is that he bonafide believes
that the property actually belongs to him. The
second is that he may be dishonestly or
fraudulently claiming it to be his even though he
knows that it is not his property. But to fall under
first category of `false documents', it is not
sufficient that a document has been made or
executed dishonestly or fraudulently. There is a
further requirement that it should have been made
with the intention of causing it to be believed that
such document was made or executed by, or by
the authority of a person, by whom or by whose
authority he knows that it was not made or
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executed. When a document is executed by a
person claiming a property which is not his, he is
not claiming that he is someone else nor is he
claiming that he is authorised by someone else.
Therefore, execution of such document (purporting
to convey some property of which he is not the
owner) is not execution of a false document as
defined under section 464 of the Code. If what is
executed is not a false document, there is no
forgery. If there is no forgery, then neither section
467 nor section 471 of the Code are attracted.
9.16. By relying on Md.Ibrahim's case, he submits
that what is required to be considered by the
Sessions court is whether the material on
record prima facie constitutes any offence. A
criminal complaint having been filed only to
give a criminal colour to a civil dispute ought
not to be encouraged. He submits that forgery
as used under Section 463 is creation of false
document with intent to cause damage or injury
to the public or any person. Section 464 deals
with making a false document. His submission
is that the condition for invoking an offence
under Section 467 and 471 is forgery,
execution and registration of a sale deed would
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not be forgery within the meaning of Section
463, 464, as also 467 and 471 since there
cannot be a false document executed
dishonestly or fraudulently.
9.17. He relies upon the decision in K.R.Rajashekar
Reddy, S/o Rama Reddy -v- State of
Karnataka4, more particularly para 12 thereof,
which is reproduced hereunder for easy
reference:
12 In case of a private complaint, the Magistrate can
issue summons when the evidence prudced at the
pre-summoning stage shows that there is
sufficient ground for proceedings against the
accused. The material on record should indicate
that the ingredients for taking cognizance of an
offence and issuing summons to the accused is
made out. [Dipakbhai Jagdishchandra Patel -v-
State of Gujarat, 92019) 16 SCC 547; (2020)2
SCC (Cri) 361; sunil Bharti Mittal -v- CBI (2015)4
SCC 609; (2015)2 SCC (Cri) 687; and Pepsi foods
Ltd. -v- Judicial Magistrate (1998)5 SCC 749;
1998 SCC (Cri) 1400. The proviso to Section 200
of the Code is not applicable in the present case.
9.18. By relying on K.R.Rajashekar Reddy's case,
his submission is that in case of private
complaint a Magistrate can issue summons only
4
[2024 Supreme (Kar) 148]
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when there is sufficient ground for proceeding
against the accused. If the material on record
does not indicate the ingredients for taking
cognisance, summons could be refused to be
issued and as such, he submits that the
Sessions court ought to have refused the
indulgence sought for by the complainant in the
Revision petition.
10. Sri.Ramesh, learned counsel for respondent No. 2
would submit that,
10.1. The order passed by the Sessions court is
proper and correct. There is fabrication of
documents inasmuch as by way of the sale
deed executed as regard to the very same
property sold in favour of Sri.V.T.Xavier, a right
over the property of Sri.V.T.Xavier is sought to
be created by respondent No.3. In furtherance
of the said sale deed, several documents have
been created namely khatha, etc., which also
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amount to fabrication of documents. These are
all aspects which are required to stand the test
of trial.
10.2. The investigation which had been carried out
has not been properly done inasmuch as the
sale deeds, the boundaries have not been
correlated. Admittedly, the father of the
Petitioner had sold the sites to Sri.V.T.Xavier.
In this regard, he relies on the cross-
examination of the Petitioner, who was
examined in the suit in O.S. No.25514 of 2010
and submits that in the year 1968 itself, his
grandfather Joseph had carved survey Nos.27
and 28 and sold it to several persons. There is
an admission made that his grandfather Joseph
had sold sites No.53 to 58 to the father of the
plaintiff. By relying on the layout plan which
had been marked as Exhibit-P11 in the said suit
he contends that the layout had been formed
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both in survey number 27 and 28 in order to
establish that site number 53 to 58 were
abutting each other. His submission is that
there was an admission made that a layout had
been formed in survey number 27 and 28 and
the sites had been sold to V.T.Xavier, the father
of the complainant, there being no other
property which is available, these lands or any
portion thereof could not be sold by the
Petitioner to respondent No.3.
10.3. He relies on the statement of objections filed by
the petitioner and respondents No.3 herein and
submits that even in the said objections, there
is clear admission made that V.T.Xavier had
purchased the property bearing site number 53,
54, 55, 56, 57 and 58. Thus, there being
admission to that effect, it is exfacie evident
that an offence of cheating has been
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committed, so also fabrication and forgery of
documents has been committed.
10.4. On that basis, he submits that the above
petition is required to be dismissed.
11. Heard Sri.Ravishankar.S, learned counsel for the
Petitioner, Sri.M.R.Patil, learned HCGP for respondent
No.1, Sri. Ramesh, learned counsel for respondent
No.2 and Sri.Manu Shankar, learned counsel for
respondent No.3. Perused papers.
12. The facts and the contentions have been stated
hereinabove. What is required to be considered by
this court is, whether the order dated 19-09-
2015 passed by the Sessions Court in Criminal
Revision No.25021 of 2015 requires any
interference at the hands of this court?
13. From the facts above, it is not in dispute that the
grandfather of the Petitioner had sold site Nos. 53 to
58 in favour of Sri.V.T.Xavier in the year 1969 and
70. The said sites had been formed in survey number
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27 and 28 of Chinnappanahalli village, K.R.Puram
Hobli, Bangalore South Taluk. There is a clear and
categorical admission by the Petitioner of such sale
and purchase in the aforesaid survey number. The
aforesaid properties having been sold, it cannot be
said that there is any property remaining in the
hands of the grandfather of the Petitioner to be
succeeded to by the father of the Petitioner or the
mother of the Petitioner and consequently the
Petitioner. Be that as it may, the same would require
trial.
14. Though the suit in O.S. No.25514/2010 also has
been dismissed, the submission of counsel for
respondent No.2 is that an appeal has been filed and
as such, it cannot be said that there is a finality
which has been arrived at in respect of the said suit.
15. The Petitioner having admitted the execution of sale
in favour of Sri.V.T.Xavier, as also the concerned
sites having been identified, what is required to be
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ascertained is, whether there was any property
available after the expiry of Sri.R.Joseph which the
Petitioner's father Sri.J.Balaraj could succeed to and
or could be succeeded to by the wife of Rayappa as
claimed by the Petitioner? What would also be
required to be ascertained is whether the property
sold by the Petitioner to respondent No.3 is the very
same or forms part of site bearing No. 53 to 58? If
that were to be so, then the sale deed executed by
the Petitioner in favour of respondent No.3 would
amount to a fabricated document, forgery,
committed to usurp the rights of the complainant.
These aspects cannot be ascertained or verfied in a
proceedigns under Section 482 of the Code of
Criminal procedure, all these would have to be
ascertained during the course of trial. The property
being one and the same I'am of the considered
opinion that this is not a case where the
discreetionary powers are required to be exercised.
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16. As such, I pass the following:
ORDER
i. Criminal petition is Dismissed. ii. All contentions are left open to be adjudicated after trial.
Sd/-
(SURAJ GOVINDARAJ) JUDGE LN List No.: 19 Sl No.: 1