The High Court
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.11210/2024 BETWEEN: DR. TAKKOLU SREERAM KARTHIK, S/O. DR. T. SUDHAKAR REDDY, AGED ABOUT 42 YEARS, R/AT NOS.46 AND 47, KHATHA NO.974/952/456/46,47, AMRUTHAHALLI VILLAGE, YELAHANKA, BENGALURU-560092. PERMANENT RESIDENT NO.42/80-8, NGO COLONY KADAPA, ANDHRA PRADESH-515 001. … PETITIONER (BY SRI. TOMY SEBASTIAN, SENIOR COUNSEL FOR SRI. PRASANNA D.P., ADVOCATE) AND: SMT. G. VIJAYA LAKSHMI, W/O. RAMANA REDDY T.V. AGED ABOUT 63 YEARS, R/AT FLAT NO.01, PLOT NO.46/47, 1ST CROSS, 4TH MAIN ROAD, A-SECTOR, AMRUTH NAGAR, BENGALURU - 560 092. … RESPONDENT (BY SRI. V.SRINIVASA RAGHAVAN, SENIOR COUNSEL FOR SRI. M.V.CHANDRASHEKARA AND SRI. GURU PRASAD C. REDDY, ADVOCATES) 2 THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.PC (FILED U/S 528 BNSS) PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO.21682/2024 ON THE FILE OF THE IV ADDL. CHIEF JUDICIAL MAGISTRATE, BENGALURU FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 193, 405, 415, 419, 420, 463, 464 AND 468 OF IPC. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 17.01.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV ORDER Heard the learned Senior Counsel for the petitioner and the learned Senior Counsel for the respondent. 2. This criminal petition is filed praying this Court to quash the proceedings in C.C.No.21682/2024 on the file of the IV Additional Chief Judicial Magistrate, Bengaluru for the offences punishable under Sections 193, 405, 415, 419, 420, 463, 464 and 468 of IPC. 3. The factual matrix of the case of the complainant/respondent before the Trial Court is that the accused being the nephew and as well as brother’s son of her husband, herself and her husband believed the words of the accused and without bothering about the specific verification of the documents pertaining to the subject matter of flats and 3 besides the same both her husband and herself were staying in Hyderabad and they were also not well-versed with Bengaluru, trusted the accused. It is also an allegation that pursuant to purchase of the said flats, without her knowledge, the accused himself forged her signature and has applied for the khatha before the BBMP authorities and filed an application to his convenience by changing the number of the flats, which is contrary to the flats purchased in the sale deed registered by him in collusion with the revenue officers and got the khatha, which is contrary to the sale deeds by misrepresentation. Based on the said allegation, a private complaint was filed and the Trial Court after recording the sworn statement has taken the cognizance against the accused and issued process vide order dated 05.07.2024 and hence challenge is made before this Court. 4. It is the contention of the learned counsel for the petitioner that the petitioner who intended to construct a residential apartment has got converted the agricultural property into non-agricultural purpose and also obtained the sanction plan and after having obtained the sanction plan constructed the flats. It is contended that by considering the relationship, the 4 petitioner has agreed to sell and entered into an agreement of sale and executed three sale deeds on 21.01.2013, 17.10.2013
Facts
and 03.05.2014 in respect of flat Nos.1 and 2 in first floor and flat No.3 in second floor. The BBMP authorities have also issued the khatha and taxes are also paid and respective owners are having khatha in their respective properties. It is also an allegation in the complaint that the petitioner has obtained the khatha in respect of GF-1 and GF-2 for which the respondent is the owner and the petitioner has misrepresented the authority concerned in order to cheat the respondent and has obtained the khatha of FF-1, FF-2 and SF-1 and the same is contrary to the sale deeds. But as per the sale deeds executed by the petitioner in Annexures-G, H and J, the respondent has purchased the flats in first Floor (FF-1 and FF-2) and second Floor (SF-3), but there were only two flats in the second floor and the authorities have transferred the khatha of SF-1 to the name of the respondent.
Legal Reasoning
made out a prima facie case to proceed against the accused for the offences alleged in the complaint and nothing is discussed with regard to attracting the offences and not found any prima facie material to proceed against the petitioner and hence it requires interference of this Court. 8. Per contra, the learned counsel for the respondent would contend that this is a successive petition and successive petition invoking Section 482 of Cr.P.C. is not maintainable. The learned counsel contend that in terms of the sanction plan only four flats are permitted, but he made it as ground floor, first floor, second floor and constructed a flat in third floor also. The learned counsel contend that applications which are filed before the BBMP produced along with the memo is clear that application is given in the name of the respondent, but the petitioner herein 9 had signed the document in the place of the respondent and not in place of the property was sold by the owner and mislead the BBMP and obtained the khatha in respect of the properties. The learned counsel would contend that the khatha is also obtained in favour of ground floor premises and there was no any sanction plan in respect of ground floor and only sanction is with regard to the stilt and hence the Trial Court has not committed any error in taking the cognizance and issuing the process. The learned counsel would contend that though the complaint was dismissed earlier, the same was challenged and the said order was set aside by the District Court and the said order is also challenged before this Court and this Court also confirmed the same in Crl.P.No.3996/2020 and thereafter the Trial Court proceeded to pass such an order and hence it does not require interference of this Court. 9. The learned counsel for the respondent in support of his arguments relied upon the judgment of the Apex Court in the case of BHISHAM LAL VERMA v. STATE OF UTTAR PRADESH reported in AIR ONLINE 2023 SC 1140, wherein the Apex Court has held that subsequent petition challenging charge sheet and cognizance order was not maintainable under Section 482 of 10 Cr.P.C. on grounds that were available for challenge at the time of filing first petition. 10. The learned counsel also relied upon the order passed by this Court in W.P.No.12/2022 dated 26.05.2022, wherein this Court made an observation that there can be no qualm at the enunciation of law by the Apex Court as to the maintainability of the second petition under Section 482 of Cr.P.C., but only in exceptional cases where there are changed circumstances. The learned counsel referring this judgment would contend that there is no changed circumstances. 11. The learned counsel also relied upon the judgment of the Apex Court in the case of C.P. SUBHASH v. INSPECTOR OF POLICE, CHENNAI AND OTHERS reported in 2013 AIR SCW 4014 and contend that question as to whether or not respondents had forged documents and what offence was committed by the respondents was a matter for investigation which could not be prejudged or quashed by the High Court in exercise of its powers under Section 482 of Cr.P.C. or under Article 226 of Constitution of India. 11 12. The learned counsel also relied upon the judgment of the Apex Court in the case of MISSU NASEEM AND ANOTHER v. STATE OF ANDHRA PRADESH AND OTHERS reported in (2022) 4 SCC 807 wherein it is held that quashment of FIR by High Court against private respondents on ground that fabrication of documents is permissible if it does not cause loss to the revenue, is completely unsustainable. 13. The learned counsel also relied upon the order passed by this Court in Crl.P.No.12452/2023 dated 03.06.2024, wherein quashing of FIR is sought and the Court comes to the conclusion that FIR or the complaint cannot be quashed. There is cognizable case made out in the FIR for investigating the matter by the police and at this stage, the Court cannot quash the FIR as there is criminal breach of trust as well as cheating made by the accused persons in collusion with each other. 14. The learned counsel also relied upon the judgment of the High Court of Uttarakhand at Nainital in the case of COMMERCIAL TOYOTA v. STATE OF UTTARKHAND AND ANOTHER reported in 2019 SCC Online Utt 749, wherein 12 challenge is made to set aside the Revisional Court order remitting the matter back to the Trial Court to reconsider the application under Section 156(3) of Cr.P.C. and pass an appropriate order and the Court held that it is a curable defect and does not find any merit in the revision and dismissed the same. 15. The learned counsel referring these judgments would contend that when the complaint was dismissed earlier, the same was challenged and set aside and this Court also confirmed the said order and now the petitioner cannot find fault with the order of taking cognizance and there is no merit in the petition. 16. In reply to the arguments of the learned counsel for the respondent, the learned counsel for the petitioner would contend that there is no forgery in the case on hand and it is not the case of the respondent that the petitioner had forged her signature. Even on perusal of the memos which have been produced, this petitioner has only signed the application and the same is not in the name of the respondent and he had signed the document as he is the owner of the property and the fact that he is also the owner of remaining flats is also not in dispute 13 and it does not attract the offence of forgery and hence it requires interference of this Court. 17. Having heard the learned Senior Counsel for the petitioner and the learned Senior Counsel for the respondent and also considering the principles laid down in the judgments referred supra, this Court has to look into whether the same are applicable to the facts of the case on hand. Now the question before this Court is: (i) Whether this Court can exercise the revisional jurisdiction against the order of the Trial Court in taking cognizance and issuance of process? (ii) What order? 18. Having perused the case of the complainant and also the grounds urged in the petition and so also the contentions of the respective learned counsel, first this Court has to see the impugned order which is under challenge. Before that this Court would like to make a mention of the earlier order of the Trial Court and the Trial Court vide order dated 13.03.2019 dismissed the complaint in coming to the conclusion that there are no sufficient grounds made out by the complainant to issue process against the accused. Admittedly, the same was challenged and 14 the said order was set aside and this Court also confirmed the order of the Revisional Court in coming to the conclusion that there is an allegation of forgery in the complaint and thereafter the Trial Court proceeded to pass the impugned order. 19. This Court would like to see the reasoning of the Trial Court while issuing the process by taking the cognizance against the petitioner. No doubt, the contents of the complaint, sworn statement and also the copy of the sale deeds are taken note of in paragraph No.10. In paragraph No.11, the Trial Court has taken note of the sale deed as well as challenging the khathas issued by the BBMP authorities and also transferring of the flats in favour of the petitioner in respect of GF-1 and GF-2 and also transferring of the khatha in respect of FF-1, FF-2 and SF-1 in favour of the respondent. The Trial Court also taken note of the dismissal of the suit filed by the petitioner in O.S.No.816/2017. In paragraph No.12, the Trial Court having taken note of the contention of the complainant that the accused has created the documents in collusion with the revenue authorities comes to the conclusion that the accused has committed breach of trust, fraud and tampering, forgery of signatures, cheating, misrepresentation and created false 15 documents and also comes to the conclusion looking into the contents of the complaint, sworn statement and documents produced by the complainant that the complainant has made out a prima facie case. This Court would like to extract paragraph No.12 of the Trial Court’s order which reads as follows: 12. It is the contention of the complainant that, the accused has created the documents as per their wish in order to infringing over her right. The accused in collusion with the revenue authorities has committed breach of trust, fraud and tampering, forgery of signatures, cheating, misrepresentation and created false documents in respect of her flats contrary to the purchase. So looking to the contents of the complainant, sworn statement and documents produced by the complainant, I am of the opinion that, the complainant has made out prima-facie case to proceed against the accused for the offences alleged in the complaint. So, there are sufficient grounds made by the complainant to issue process against the accused. Hence, I answer point No.1 in the affirmative.” 20. Having perused the above paragraph, except stating the allegations made in the complaint and coming to the conclusion that the complainant has made out a prima facie case, nothing is discussed while taking the cognizance for all the 16 offences which have been mentioned in the complaint. Whether the act of the petitioner attracts the ingredients of Sections 193, 405, 415, 419, 420, 463, 464 and 468 of IPC or not, nothing is discussed. A cryptic order has been passed by just mentioning that looking into the contents of the complaint, sworn statement and the documents produced by the complainant, the complainant has made out a prima facie case. What are the material looked into to invoke all of these offences, nothing is discussed and while coming to such a conclusion, atleast would have mentioned the offences which could be invoked against the petitioner and no reasoned order has been passed. Taking of cognizance and issuance of process is subjecting a person to face criminal prosecution and while subjecting him for criminal prosecution, there must be a prima face material and to that effect, a discussion should be made in the order of the Trial Court and no need to pass a detailed order, but there must be some reference for invoking of such offences to take cognizance and proceed against the petitioner. Having perused the order impugned, it suffers from legal infirmity and no discussion at all to invoke all the offences and a bald statement is made that sufficient grounds are made out by the complainant to issue 17 process against the accused for the offences alleged in the complaint. Hence, the order impugned requires interference to set aside the order and the Trial Court to pass an order considering the material on record to issue process against the accused. 21. It is important to note that the offences invoked are under Sections 193, 405, 415, 419, 420, 463, 464 and 468 of IPC. Admittedly, the documents which have been produced before this Court i.e., Annexures-G, H and J are clear that the respondent purchased the flats in F-1 and F-2 and the same is described in the sale deed itself and in respect of third sale deed dated 03.05.2014, flat No.3 is mentioned in second floor. Admittedly, there is no flat No.3 in the second floor and there are only two flats. Annexure-K letter issued by the BBMP dated 02.05.2015 discloses the flats and the same is in respect of ground floor, first floor and second floor and one flat in third floor. Annexure-K discloses that the name of the respondent/complainant is mentioned in respect of FF-1, FF-2 and SF-1 and mistakenly flat No.3 is mentioned in respect of second floor and the same is transferred in respect of second 18 floor flat No.1. If any mistake in the sale deed, the same can be rectified. The Trial Court also take note of whether it amounts to invoking the offences which have been invoked in the complaint and nothing has been discussed. The documents Annexures-Z1 to Z4 which have been produced by the learned counsel for the petitioner is also produced by the learned counsel for the respondent along with the memo and the said applications are in respect of FF-1, FF-2, SF-1 and SF-2 and one flat in third floor. Admittedly, these applications are signed by the original owner and not by the complainant/respondent and ought not to have signed these documents in the place wherein the purchaser has to sign. Instead of he ought to have signed the same in the present khathedhar and who sold the property, but there is a mistake in seeking for transfer of khatha on behalf of the purchaser Smt.G.Vijaya Lakshmi i.e., the respondent. Though it is alleged that the petitioner herein signed and forged the signature of Smt.G.Vijaya Lakshmi, but the documents reveals that it is the signature of the earlier khatha holder and also the owner and not purchaser. It appears that the petitioner has not signed the document as Smt.G.Vijaya Lakshmi, but he has signed in the place where the purchaser name ought to have 19 been shown and signed by the purchaser and got transferred the khatha and the same amounts to forgery or not, has to be looked into by the Trial Court to invoke the offence of forgery. There is a force in the contention of the learned counsel for the petitioner that the petitioner had not forged the signature of the complainant/respondent, but he had signed the said application by mistake in the place of the purchaser and the fact that other flats are standing in the name of the owner is not in dispute. 22. It is important to note that the respondent/complainant approached the BBMP and got cancelled the khatha made in favour of the petitioner as well as in favour of the respondent. Admittedly, the khatha is made in respect of FF-1 and FF-2 which the complainant had purchased, but only correction in respect of flat No.3 in second floor and the same is made as flat No.1 of second floor and admittedly there is no existence of flat No.3 in the second floor. When such being the case, whether the allegations made in the complaint amounts to initiation of criminal proceedings or not, ought to have been taken note of by the Trial Court and no detailed order has been passed and general reference was made in the order that prima facie case is made out to proceed against the accused. This 20 Court has already observed that setting of criminal motion against the petitioner and directing the petitioner to face the criminal prosecution is a serious matter and the Trial Court has to apply its mind and pass appropriate order in view of the observations made by this Court. 23. No doubt, the learned counsel for the respondent relied upon the judgment of the Apex Court in the case of Bhisham Lal Verma (supra), wherein it is held that subsequent petition challenging charge sheet and cognizance order was not maintainable under Section 482 of Cr.P.C. on grounds that were available for challenge at the time of filing first petition. It has to be noted that earlier petition is filed challenging remanding the matter for fresh consideration when the complaint was dismissed and not challenged the very initiation of the proceedings and now only the petition is filed against taking of cognizance and issuance of process and the same cannot be termed as second petition as contended by the learned counsel for the respondent. The order passed by this Court in W.P.No.12/2022 (supra) also does not come to the aid of the respondent, wherein it is held that Section 482 of Cr.P.C. can be 21 invoked in second petition in exceptional cases where there are changed circumstances. In the case on hand also there are changed circumstances, earlier approach is with regard to setting aside of the order of dismissal of the complaint and now the changed circumstance is taking of cognizance and issuance of process. The judgment of the Apex Court in the case of C.P.Subhash (supra) is with regard to investigation is concerned which could not be prejudged. But in the case on hand, the sworn statement was recorded by the Trial Court taking cognizance and thereafter proceeded for issuance of process. Hence, the said judgment is also not applicable to the facts of the case on hand. The judgment of the Apex Court in the case of Missu Naseem (supra) is with regard to quashing of the FIR. But in the case on hand, it is not with regard to quashing of FIR. In the order passed by this Court in Crl.P.No.12452/2023 (supra), prayer is sought for quashing of FIR and so also in the judgment of Uttarkhand High Court in the case of Commercial Toyota (supra) also for quashing of FIR. In the case on hand, at the first instance the complaint was dismissed and the same was challenged and the same has been set aside and confirmed by this Court. Now the Trial Court after 22 having recorded the sworn statement and considering the material on record, taken the cognizance and proceeded to issue process by summoning the accused. Hence, these judgments will not come to the aid of the respondent. Hence, I answer the point in the affirmative. 24. In view of the discussions made above, I pass the following:
Arguments
It is contended that during the course of construction itself, the respondent insisted to handover the physical possession of the apartment for her personal stay. By considering the relationship, the petitioner has put her in possession of GF-2 which was the only flat which was completed at that time, with a 5 condition that after completion of her flat she has to move to her flat, but after completion of her flat also she has refused to move and on contrary she has occupied GF-1 also. Hence, the petitioner has issued a notice to the respondent to quit and vacate and the respondent started foisting false case against the petitioner. 5. The petitioner approached the Civil Court in O.S.No.816/2017 for declaration and possession and the same came to be dismissed and RFA is filed and the same is pending for consideration. The petitioner has initiated the civil proceedings and the respondent filed an appeal challenging the khatha and the same has been cancelled. It is contended that the respondent has locked the main gate to the apartment and threatened to put some construction as per her wish to restrain the petitioner to enter the apartment and hence the petitioner was forced to file a suit in O.S.No.26292/2020 and the same is pending for consideration. It is contended that the respondent has caused one more notice to the petitioner by claiming that the petitioner has not maintained the apartment by violating the Court order and also initiated a suit in O.S.No.3974/2021 seeking mandatory injunction. 6 6. The learned counsel for the petitioner contend that initially private complaint was dismissed and the same was challenged before the City Civil Court in Crl.R.P.No.360/2019 and the same was allowed and the said order was challenged before this Court in Crl.P.No.3996/2020 and the same was also dismissed and accordingly the complaint filed by the respondent was restored and the Trial Judge was pleased to take cognizance against the petitioner for the offences which have been invoked in the complaint and hence challenged the same before this Court. The learned counsel contend that the dispute between the petitioner and the respondent is purely civil in nature and registration of the complaint and taking of cognizance is bad in law. The learned counsel contend that the allegations made by the complainant will not attract the offences which have been invoked in the complaint and issuance of summons is perverse. It is contended that the respondent has suppressed the facts and misled the Court for taking cognizance. The learned counsel contend that the Trial Court committed an error in taking the cognizance and issuing the process. The learned counsel contend that in terms of the sale deed it is clearly mentioned that the respondent had purchased the flats in FF-1, FF-2 and 7 SF-3 and khatha was also transferred to her name in respect of FF-1, FF-2 and SF-3. Since there is only two apartments are sanctioned and built by the petitioner, first flat in second floor is transferred to the respondent as such there is no cheating to the respondent. However, the respondent made false allegations and got issued the process. It is contended that after construction of flats, the petitioner has applied for khatha in respect of all the 7 flats and he has affixed his signature in all the applications and he never put the signature of the respondent or forged any documents and as such there is no ingredient for the offence of forgery. The Trial Court failed to take note of these facts and erroneously taken cognizance and issued the process and hence it requires interference of this Court. 7. The learned counsel contend that nothing is discussed by the Trial Court while taking cognizance and issuing the process with regard to the ingredients of offences which have been invoked in the complaint and a bald order has been passed by the Trial Court in coming to the conclusion that specific allegation is made in the complaint that the accused has created the documents as per their wish in order to infringe over 8 the right of the complainant in collusion with the revenue authorities and committed breach of trust, fraud, tampering, forgery of signatures, cheating, misrepresentation and created false documents in respect of flats contrary to the purchase. The Trial Court issued the process in coming to the conclusion that looking into the contents of the complaint, sworn statement and documents produced by the complainant, the complainant has
Decision
ORDER (i) The criminal petition is allowed. (ii) The impugned order is set aside and the matter is remitted back to the Trial Court for fresh consideration in accordance with law in view of the observations made hereinabove. MD Sd/- (H.P. SANDESH) JUDGE