The High Court
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 R BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL REVISION PETITION NO.1652/2024 BETWEEN: 1 . NARASIMHAN AGED ABOUT 81 YEARS S/O. MUNIVENKATAPPA RESIDING AT NO.280 2ND MAIN, MUTHYALANAGAR BANDAPPA COLONY M.E.S. ROAD BENGALURU-560 097. … PETITIONER AND: (BY SRI. S.V.BHAT, ADVOCATE) 1 . THE STATE OF KARNATAKA THROUGH YESHWANTHAPURA POLICE STATION REPRESENTED BY ITS SPP HIGH COURT BUILDING BENGALURU-560 001 2 . SRI. VENUGOPALA J., S/O LATE K. JAGANNATH AGED ABOUT 49 YEARS R/AT NO.50, 39TH CROSS DODDABASTHI BENGALURU-560079 NOW WORKING IN AUSTRALIA (AMENDED VIDE COURT ORDER DATED 31.01.2025) 2 (BY SRI. CHANNAPPA ERAPPA, HCGP FOR R1; SRI. VENUGOPALA J.,PARTY-IN-PERSON FOR R2 –THROUGH VC) … RESPONDENTS THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.PC (FILED U/S 438 R/W 442 BNSS) PRAYING TO SET ASIDE THE ORDER OF CONVICTION IN AND C.C.NO.26147/2016 ON THE FILE OF HONBLE XXIV ADDL. CMM, BENGALURU, DATED 06.08.2021 AS WELL AS THE ORDER OF CONFIRMATION CRL.A.NO.543/2021 DATED 05.11.2024 ON THE FILE OF THE LXVII ADDL. DISTRICT AND SESSIONS JUDGE. EXECUTION RECORDED SENTENCE OF THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18.03.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV ORDER 1. Heard learned counsel for the petitioner, learned High Court Government Pleader for respondent No.1 and party-in- person respondent No.2. 2. This revision petition is filed by the accused praying this Court to set aside the order of conviction and sentence passed in C.C.No.26147/2016 on the file of XXIV Additional Chief Metropolitan Magistrate dated 06.08.2021 and judgment of confirmation passed in Crl.A.No.543/2021 dated 05.11.2024 on the file of LXVII Additional City Civil and Sessions Judge, 3 Bengaluru City and pass an order of acquittal and grant such other relief. 3. The factual matrix of case of the prosecution is that the accused had entered into a sale agreement with one Smt. Sharada in respect of Site No.25, carved out of Survey No.138, 80 Feet Road, Mathikere, Bengaluru. Subsequently, the accused has filed the suit in O.S.No.4483/2005 and obtained an exparte decree. It is also the case of the complainant/prosecution that on 13.06.2016 at about 11.30 a.m., the accused came along with C.W.7 to the site of C.W.1/complainant bearing No.24A, which consisted of building, took possession of the same by suppressing the real fact that he has obtained decree in respect of Site No.25 with an intention to cause unlawful loss to the C.W.1/Complainant. Thereby, the accused has committed the offence punishable under Section 177, 182 and 420 IPC. 4. Before filing the charge-sheet, complainant filed private complaint invoking the offence under Sections 420, 467, 355 and 468 read with Section 120 IPC and learned Magistrate referred the matter under Section 156(3) Cr.P.C. and the 4 Investigating Officer having registered Crime No.333/2016 filed the charge-sheet for the offence under Sections 177, 182 and 420 IPC. The learned Magistrate took cognizance for the above offence and issued summons to accused and released the accused on bail and the Trial Court framed charges, since the accused did not plead guilty and claims for trial. 5. The prosecution, in order to prove the case examined the witnesses as P.Ws.1 to 7 and got marked the documents as Exs.P1 to P53. The accused was subjected to 313 statement and accused examined himself as D.W.1 and got marked the documents as Exs.D1 to D20. 6. The Trial Court having considered evidence of P.Ws.1 to 7 and documentary evidence i.e., Exs.P1 to P53 as well as evidence of D.W.1 and documentary evidence of Exs.D1 to D20, comes to the conclusion that the accused with an intention to deceive the Complainant had indulged in taking possession of the property belonging to P.W.1 bearing No.24A on the guise of claiming right in respect of site No.25 and also taken note of the fact that though decree was in respect of different property, got amended the property of the accused i.e., as Municipal No.17, 5 and mislead the Court Ameena identifying the property of P.W.1 as the property of the accused and forcibly thrown out the tenants, who are in possession of the property of P.W.1. Having considered the voluminous documents placed on record, P.W.4- Court Ameena categorically deposed that he ought to have delivered possession in respect of Site No.25, but the accused showed the building as Site No.25 and he also deposed that in view of the order passed by the Court to deliver possession with the assistance of the Police, he had delivered the property to the accused, since the accused identified the property No.24A as property No.25 and hence Trial Court convicted and sentenced him to undergo simple imprisonment for a period of one year for the offence under Section 420 IPC with fine of Rs.5,000/- and in respect of the offence under Sections 177 and 182 IPC, ordered to undergo simple imprisonment for a period of one month. 7. Being aggrieved by the said order of conviction and
Facts
sentence, criminal appeal was filed in Crl.A.No.543/2021 and the
Legal Reasoning
Appellate Court also having considered the factual aspects of the case, evidence available on record and also the grounds urged in the appeal memo, formulated the point whether the accused has 6 made out sufficient grounds to interfere with the impugned judgment and order of sentence passed by the Trial Court. Having reassessed both oral and documentary evidence placed on record, the Appellate Court confirmed the judgment of the Trial Court having considered the documentary evidence, particularly the order passed in Execution No.871/2008 on the application filed by P.W.1 invoking Order 21 Rule 99 and also the confirmation order passed by this Court in R.F.A and particularly taking note of evidence of P.W.4-Bailiff, who gave the evidence before the Court that the decree holder misled the description of the property and obtained the possession of the property. P.W.4 also categorically deposed that accused had shown property No.24A belonging to complainant and wrongfully got vacated the tenants of P.W.1 from the building and obtained wrongful possession of the property of Site No.25, even though accused was fully aware that it is not property No.25 and he had entered into an agreement of sale in respect of vacant property and not in respect of the building and it is also not the case of the accused that either he had constructed or his vendor had constructed the building, he ought not to have obtained 7 possession in respect of the building in which tenants were in occupation and induced the Court Ameena and by deceiving, he obtained delivery of the property which belongs to P.W.1. The act of the appellant clearly goes to show that he has committed deception, dishonest concealment of fact and cheating. The Appellate Court comes to the conclusion that Magistrate has rightly held that accused is guilty of the offences and confirmed the judgment of conviction and sentence. Being aggrieved by the concurrent finding, the present revision petition is filed before this Court. 8. The main contention of learned counsel for the petitioner is that he had filed a suit in O.S.No.4483/2005 against his vendor for the relief of specific performance and the same was decreed, since the defendant did not contest the matter and the Court granted the relief directing the defendant to receive the balance sale consideration within three months from the date of judgment and if the defendant failed to comply the order, the petitioner was permitted to move the Court to execute and register the sale deed and accordingly, he had filed an execution petition and notice issued to the judgment debtor was returned 8 as not claimed and hence, petitioner deposited the balance consideration and obtained the sale deed and thereafter, filed the application seeking delivery of possession and took possession subsequently and earlier it was returned that the tenants have obstructed for delivery of possession and with the police help only took possession of the property. 9. Learned counsel would contend that one Sri Masilamani claiming to be power of attorney holder of one Venugopal has filed an application claiming right in respect of the property under Order 21 Rule 99 without producing power of attorney and the same was entertained and the Executing Court erroneously allowed the application and ordered for redelivery of possession of the property to the objector and the same was challenged in R.F.A.No.133/2018 and the same was dismissed. Hence, appeal was filed before the Apex Court in Dairy No.57172/2024 which is likely to be listed. Learned counsel also would vehemently contend that P.W.1 has filed private complaint before the Magistrate invoking several offences and matter was referred under Section 156(3) Cr.P.C. and thereafter charge- sheet was filed and Investigating Officer did not notice that 9 dispute is civil in nature. The petitioner on receipt of summons appeared and did not plead guilty. However, the Trial Court considering the evidence of P.Ws.1 to 7 and documentary evidence, even though no documents were produced to establish title as claimed by P.W.1, committed an error in convicting and sentencing and the Appellate Court also committed an error in confirming the same. 10. Learned counsel for the petitioner in support of his argument, mainly concentrated on the dispute with regard to the identity of the property. He contend that he had purchased site bearing No.25 measuring 38 x 14 which was formed in Sy.Nos.60 and 138 for the sale consideration of Rs.2,50,000/- and paid Rs.20,000/- and Rs.80,000/- and balance was Rs.1,50,000/- and the vendor did not come forward to execute the sale deed. Hence, he filed the suit in O.S.No.4483/2004 and the same was not contested by his vendor and suit was decreed and Execution Petition was filed and sale deed was also executed by the Court and got amended the schedule. Learned counsel also would vehemently contend that vendor’s vendor of P.W.1 was also witness to agreement executed by Sharada and her 10 children. Learned counsel also would vehemently contend that identity of the property is doubtful and possession delivered by Court Ameena is in respect of the property which he had obtained the sale deed. Learned counsel also mainly relied upon the document Ex.D3 and so also partition deed dated 22.03.1986 and contend that the same was tampered. Learned counsel would contend that Atmaram, the vendor of P.W.1 was not allotted any such property. Learned counsel would vehemently contend that written statement was filed in detail and site No.24A is not allotted to Atmaram and Ex.D13 sale deed boundary is very clear and Ex.D14 is also in respect of the same boundary and Atmaram not having right. 11. Learned counsel would vehemently contend that when the application filed under Order 21 Rule 99 was pending, at that juncture itself filed the complaint and cognizance was taken. Learned counsel would vehemently contend that Magistrate has no power to take cognizance for the offence under Sections 177 and 182 IPC. 12. Learned counsel for the petitioner, in support of his argument, relied upon the judgment in DAULAT RAM VS. 11 STATE OF PUNJAB reported in AIR 1962 SC 1206 and relied upon paragraph No.3 and contend that question is therefore whether under the provisions of Section 195, it was not incumbent on the Tehsildar to present a complaint in writing against the appellant and not to leave the Court to be moved by the Police by putting in a charge-sheet. The words of Section 195 of the Criminal Procedure Code are explicit, “(1) No Court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate.” The words of the section, namely, that the complaint has to be in writing by the public servant concerned and that no Court shall take cognizance except on such a complaint clearly show that in every instance the Court must be moved by the appropriate public servant. The words “no Court shall take cognizance” have been interpreted on more than one occasion and they shown that there is an absolute bar against the Court taking seisin of the case except in the manner provided by the section. Now, the offence under Section 182 of the Penal Code, if any, was undoubtedly complete 12 when the appellant had moved the Tehsildar for action. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. 13. Learned counsel also relied upon the judgment in PATEL LALJIBHAI SOMABHAI VS. THE STATE OF GUJARAT reported in 1971 (2) SCC 376 and brought to notice of this Court paragraph Nos.6 to 10, wherein discussion was made with regard to prescribing the procedure in cases mentioned in Section 195(1)(b) and (c), also bearing in mind that under Section 476-A, a superior Court is empowered to complain when the subordinate Court has omitted to do so and that Section 476-B confers on an aggrieved party a right of appeal from an order refusing to make a complaint under Section 476 or Section 476-A as also from an order making such a complaint and detailed discussion was made to that effect. In paragraph No.10, it is observed that, broadly speaking we are inclined to agree with the reasoning of the Allahabad Full Bench. The purpose and object of the Legislature in creating the bar against cognizance of private complainants in regard to the offences mentioned in 13 Section 195(1)(b)(c) is both to save the accused person from vexatious or baseless prosecutions inspired by feelings of vindictiveness on the part of the private complainants to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the Courts in which forged documents are produced or false evidence is led and the conclusions of the criminal Courts dealing with the private complaint. 14. Learned counsel also relied upon the judgment in M/S. BANDEKAR BROTHERS PVT. LTD. AND ANR. VS. PRASAD VASSUDEV KENI, ETC. ETC. reported in AIR 2020 SC 4247. The counsel referring this judgment brought to notice of this Court principles laid down in the judgment as regards maintainability of private complaint under Sections 191 and 192 is not maintainable, even if false evidence is created outside Court premises. 15. Learned counsel also would vehemently contend that both the Courts have not properly considered the title of P.W.1 in Execution Petition No.871/2008 and R.F.A. and the Trial Court ought not to have taken cognizance and learned counsel would 14 contend that it requires interference of this Court by exercising revisional jurisdiction. 16. Per contra, respondent No.2, party-in-person would vehemently contend that private complaint was filed invoking the offence under Section 420 IPC and other allied offences and not invoked the offence under Sections 177 or 182 IPC in his complaint and Investigating Officer filed the charge-sheet invoking those offences leaving other allied offences, except Section 420, 177 and 182 IPC. He would vehemently contend that Ex.P51 is the letter to BBMP, Ex.P52 is the reply and Ex.P53 corresponds with regard to the said documents. He would vehemently contend that evidence of P.W.4 was considered by both the Courts as he deposed the wrong identification of the property at the time of executing the warrant and he says that property No.24A was identified by the accused as property No.25. He would vehemently contend that the Trial Court taken cognizance after filing of the charge-sheet for the offence under Section 420 as well offence under Section 177 and 182 IPC and he brought to notice of this Court order sheet dated 25.11.2016. He also would vehemently contend that incident was taken place 15 on 13.06.2015 and both P.W.1 and also accused are strangers and committing of the offence is the cause of action for initiating the criminal case. 17. In support of his argument, the respondent No.2- party-in-person relied upon the judgment in SYED ASKARI HADI ALI AUGUSTINE IMAM AND ORS. VS. STATE (DELHI ADMN.) AND ORS. reported in AIR 2009 SC 3232 and contend that took possession within the jurisdiction of the Court and contend that crime has taken place within Yeshwanthapur Police Station and hence, learned XXIV Additional Chief Metropolitan Magistrate has taken cognizance, since property comes within the purview of the said Court and wrongly taken possession by misleading the Court Official. He would vehemently contend that accused entered into a sale agreement in 2001 in terms of Ex.D4 and the same is also unregistered sale agreement and he suppressed the earlier sale agreement and suit is filed based on subsequent sale agreement. Ex.D4 is signed by minor, who is 16 year old and mother also not taken any permission to sell the property in favour of the accused. He would vehemently contend that Ex.P55 is the deposition of the 16 appellant in Execution No.871/2008 and there was an admission. ExD7 was filed for amendment after the decree with an intention to take property of P.W.1. He would further contend that Ex.P8 is the sale deed which is obtained after amendment through Court, that too by misleading the Court. He also would contend that Exs.P39 to P42 discloses that when an application was filed, rejected to transfer the khatha. 18. It is contended that when the delivery warrant was sought, the same was objected by judgment debtor No.3 contending that decree is in respect of vacant site and filed the report saying that judgment debtor No.3 is objecting. But, says that third party is objecting the same. Hence, reissued the delivery warrant and took possession of the property belonging to him on the ground that third party is in possession. He would further contend that at the time of taking possession, he was in Australia and also submits that from 2012 to 2016, he kept quiet and fraudulently obtained possession within 30 days of amending the schedule and wrongly mentioned the property Number as Municipal No.17 which belongs to him and in collusion with the Bailiff, obtained the report, inspite of objection 17 was filed by judgment debtor No.3 and since third parties are in possession, delivery was given to the accused. He also submits that departmental enquiry was held against Court Ameena and he was punished and 11 tenants were thrown out from the premises. He would further submit that Ex.P13 is the bank letter regarding mortgaging of the property by the complainant and legal opinion is also given and he had availed the loan of Rs.30 lakhs. 19. In support of his argument, he also filed the written submission in respect of contention of petitioner that cannot be initiated where there is a civil dispute and relied upon the judgment in MUKHTAR ZAIDI VS. THE STATE OF UTTAR PRADESH arising out of SLP (CRL) NO.9122 OF 2021 delivered on 18.04.2024 and brought to notice of this Court discussion made with regard to Section 2(d) the word ‘complaint’ and brought to notice of this Court explanation, a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;” and brought to 18 notice of this Court paragraph No.11, wherein it is held that Magistrate had already recorded his satisfaction that it was a case worth taking cognizance and fit for summoning the accused, we are of the view that the Magistrate ought to have followed the provisions and the procedure prescribed under Chapter XV of the Cr.P.C. 20. The respondent No.2-party-in-person also relied upon the judgment passed by the Apex Court in B.N. JOHN VS. STATE OF U.P. & ANR. reported in (2025) 1 S.C.R. 12 and referring this judgment, he would contend that in paragraph Nos.36, 37 and 38, detailed discussion was made what is evident from the records is that the police entertained the FIR under Section 353 of IPC and investigated the same by conferring jurisdiction upon itself as if it is was a cognizable offence as provided under Section 156 of the Cr.P.C., when commission of any cognizable offence was not made out in the FIR, which is not permissible in law. The police added Section 186 of the IPC and took cognizance of the offence of Section 186 of the IPC along with Section 353 of IPC when no complaint was made by any public servant or any Court as required under Section 195(1) of 19 the Cr.P.C. In paragraph No.37, it is held that during the investigation of a cognizable or non-cognizable offence on the basis of an FIR lodged, new facts emerge that will constitute the commission of a non-cognizable offence under IPC, in which event, the police can continue with the investigation of the non- cognizable offence of which there cannot be any dispute. Thus, even if it is assumed that in the course of the investigation of a cognizable offence, the ingredients of a non-cognizable offence are discovered when the police could have continued the investigation without the written complaint to the Court or the order of the Court in respect of such non-cognizable offence, as it would also be deemed to be a cognizable offence under Section 155(4) of the Cr.P.C., but where the investigation of the cognizable offence itself suffers from legal infirmity and without jurisdiction from the initial stage, the entire investigation would be vitiated. For this reason, the police cannot seek the shield under Section 155(4) of the Cr.P.C. when the FIR did not disclose the commission of a cognizable offence and held that the offence allegedly committed by the appellant as disclosed in the FIR can, at best, be that of a non-cognizable offence under 20 Section 186 of IPC, though Section 186 IPC is not even mentioned in the FIR. 21. The Party-in-Person also relied upon the judgment of the Apex Court in SRINIVAS GUNDLURI & ORS. VS. M/S. SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION & ORS. in CRIMINL APPEAL NO.1377 OF 2010, wherein discussion was made with regard to judgment of TULA RAM & ORS. VS. KISHORE SINGH against this Court considered order for investigation under Section 156(3) on a complaint, where a Magistrate chooses to take cognizance he can adopt any of the following alternatives. 22. The Party-in-person also relied upon the order passed in CRIMINAL PETITION NO.151/2024 dated 07.03.2024, particularly paragraph No.25, wherein this Court relied upon the judgment of the Apex Court in DALIP SINGH’s case, in order to meet the challenge posed by this new creed of litigants, the Courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final 21 and detailed discussion was made in paragraph No.27 i.e., the judgment of the Apex Court in KISHORE SAMRITE VS. STATE OF UTTAR PRADESH AND OTHERS reported in (2013) 2 SCC 398 and this Court extracted paragraph No.8 of the said judgment and detailed discussion was made extracting paragraph Nos.32.1, 32.2, 32.3 and 32.4, quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the Court proceedings. He also brought to notice of this Court paragraph No.29, wherein discussion was made with regard to the judgment of SCIEMED OVERSEAS INC. VS. BOC INDIAN LIMITED AND OTHERS reported in (2016) 3 SCC 70, wherein the Apex Court held that imposition of exemplary costs filing of false or misleading affidavit, imposition of cost fully justified of Rs.10 lakh on petitioner for filing a false or misleading affidavit in Court and also observed that there is no reason to interfere with the impugned judgment. 23. The Party-in-Person also relied upon the judgment of the Apex Court in GAUTAM SARUP VS. LEELA JETLY & ORS. in CIVIL APPEAL NO.1808 OF 2008, wherein discussion was 22 made in paragraph No.19 referring the judgment of SANGRAMSINH P. GAEKWAR & ORS. VS. SHANTADEVI P. GAEKWAD (DEAD) THROUGH LRS. & ORS. reported in (2005) 11 SCC 314, admission made by respondent 1 were admissible against her proprio vigore and admissions if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The Party-in-Person also brought to notice of this Court paragraph No.218, wherein also discussion was made that before an amendment can be carried out in terms of Order 6 Rule 17 of the Code of Civil Procedure, the Court is required to apply its mind on several factors including whether by reason of such amendment the claimant intends to resile from an express admission made by him and also discussion was made in RAJESH KUMAR AGGARWAL & ORS. VS. K.K. MODI & ORS. reported in (2006) 4 SCC 385, while emphasizing on the underlined principles of Order VI Rule 17 of the Code of Civil Procedure, in paragraph No.15, it was held that allow all 23 amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 24. The Party-in-Person also relied upon the judgment in MOTI LAL SONGARA VS. PREM PRAKASH @ PAPPU AND ANR. in CRIMINAL APPEAL NO.785 OF 2023 and brought to notice of this Court with regard to taking of cognizance and also suppression of fact and it was within the special knowledge of the accused. Any one who takes recourse to method of suppression in a Court of law, is, in actuality, playing fraud with the Court, and the maxim supressio veri, expression faisi, i.e., suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of the fact before the revisional Court. It can be stated with certitude that the accused-respondent tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to play possum. 25. The Party-in-Person also relied upon the judgment in V. SENTHIL BALAJI VS. THE STATE REPRESENTED BY 24 DEPUTY DIRECTOR AND ORS. in CRIMINAL APPEAL NOS.2284-2285 OF 2023 delivered on 07.08.2023 and brought to notice of this Court paragraph No.326, wherein it is observed that in A.R. ANTULAY VS. R.S. NAYAK reported in (1988) 2 SCC 602, it is observed that it is a settled principle that an act of the Court shall prejudice no man and also an observation is made that once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the Court, it is not only appropriate but also the duty of the Court to rectify the mistake by exercising inherent powers. The learned High Court Government Pleader for Respondent No.1-State would contend that both the courts have considered the material on record and no grounds are made out to exercise revisional jurisdiction. 26. In reply to the argument and citations referred by respondent No.2, party-in-Person, learned counsel for the petitioner would contend that cognizance is taken without jurisdiction and ought not to have taken such cognizance and Section 420 IPC cannot be invoked, when there is a civil dispute and Court becomes functus officio and when the civil dispute is 25 with regard to identity of the property, there cannot be any criminal prosecution. 27. Having heard learned counsel for the petitioner, learned High Court Government Pleader for respondent No.1 and respondent No.2, party-in-person and having considered the principles laid down in the judgments referred by learned counsel for the petitioner and respondent No.2-party-in-person, the points that would arise for consideration of this Court are: (1) Whether the Trial Court committed an error in convicting the petitioner for the offence under Sections 420, 172, 182 of IPC and whether the Appellate Court committed an error in confirming the same and it requires interference of this Court by exercising the revisional jurisdiction? (2) What order? Point No.(1) 28. Having heard the learned counsel for the revision petitioner and counsel appearing for respondents and also considering the grounds which have been urged in the revision 26 petition as well as during the course of argument by the respective counsel and also Party-in-Person and also the principles laid down in the judgments, this Court has to consider the same, since this petition is a revision petition. The scope and ambit of revision petition is very limited and if any perversity is found in the finding, then Court can interfere by exercising the revisional jurisdiction and only its legality and correctness of the judgment to be considered by this Court. 29. Having considered the material on record, the case of complainant/respondent before the Trial Court by filing a private complaint made the accusation that the accused/revision petitioner entered into a sale agreement with one Smt.Sharada in respect of site No.25 carved out of Sy.No.138 which is located at 80 feet road, Mathikere, Bengaluru. The accused had filed a suit in O.S.No.4483/2004 and obtained a exparte decree. It is the specific case of the complainant/respondent that while executing the decree, he took the possession of the property belongs to the complainant which is bearing No.24A suppressing the real fact that he has obtained the decree in respect of site No.25 with an intention to cause unlawful loss to the 27 complainant/PW1. Though complaint was filed invoking offence under Section 420, 467, 355, 468 r/w 120 of IPC, the Trial Court referred the matter under Section 156(3) of Cr.P.C. The Police investigated the matter and filed the charge sheet only for the offences punishable under Section 177, 182 and 420 of IPC. 30. The main contention of the counsel appearing for the revision petitioner that the Trial Court ought not to have taken the cognizance for the said offences. The Court was not having the jurisdiction and ought not to have entertained the same as there is a civil dispute and for other offences, private complaint could not be entertained. The fact that property comes within the jurisdiction of the Trial Court is not in dispute and the possession was taken within the jurisdiction of the Trial Court is not in dispute. The main contention that when the offences invoked under Section 177 and 182 of IPC, the Trial Court ought not to have invoked the jurisdiction and taken the cognizance and taking cognizance is erroneous. The Party-in-Person who is the complainant mainly contend that cognizance of offence under Section 177 and 182 of IPC taken along with offence under Section 420 of IPC. The judicial Magistrate did not tag 28 cognizance exclusively for those offence and also brought to notice of this Court the discussion made in the judgment relied by the Party-in-Person. The fact that offence invoked under Section 420 of IPC is cognizable offence is not in dispute since the offence of cheating was invoked and also admittedly the complainant has not filed the private complaint invoking the offences punishable under Section 177 and 182 of IPC and the same were invoked by the I.O after the investigation and no doubt the Trial Court taken the cognizance. It is settled law that if cognizable offence could be investigated by the I.O and I.O can also investigate even non-cognizable offences also and the judgment relied upon by the Party-in-Person referred supra is aptly applicable to the facts of the case on hand, since the Apex Court also held in the judgment that a report made by a Police Officer in a case which discloses, after investigation, the commission of non-cognizable offence shall be deemed to be a complaint and the Police Officer by whom such report is made shall be deemed to be a complaint wherein also discussed the definition of Section 2(d) of the code in the judgment of Mukhtar Zaidi case referred by the Party-in-Person and so also in the 29 case of the B.N.John’s case referred by the Party-in-Person discussion was made with regard to even if it is assumed that in the course of investigation of a cognizable offence, the ingredients of a non-cognizable offence are discovered then the Police could have continued the investigation without the written complaint to the Court or the order of the Court in respect of such non-cognizable offence, as it would also be deemed to be a cognizable offence under Section 155(4) of the Cr.P.C, but where the investigation of the cognizable offence itself suffers from legal infirmity, but in the case on hand, it is very clear that cognizable offence also invoked against the petitioner. When such being the case, the judgment relied upon by the counsel that is Daulat Ram’s case, offence under Section 182 of IPC is complete even if no action is taken on report and prosecution under Section 182 of IPC must be on complaint in writing by Tahasildar will not comes to the aid of the revision petitioner and so also the judgment of Patel Laljibhai Somabhai referred by the petitioner since counsel brought to notice of this Court paragraph Nos.6 and 10 wherein discussed regarding scope is concerned and here is a case of invoking of both the cognizable 30 offence and I.O invoked the other two offences having found the material during the course of investigation. The judgment of the Apex Court in M/s Bandekar Brother Pvt Ltd referred supra, private complaint filed for offence under Section 191 and 192 is not maintainable, even if false evidence is created outside Court premises and the same is not applicable to the case on hand since in the case on hand, the very case of the complainant/respondent that committed an offence of cheating by making fraudulently an application for amending the schedule property of the complainant even though he got the decree in respect of site No.25 and on his inception committed the offence with an intent to knock of the property of the complainant and hence, the said judgment also not comes to the aid of the revision petitioner as contended by the counsel appearing for the petitioner. This above discussion is made with regard to the question of jurisdiction and taking of cognizance is challenged before this Court in the revision petition as contended by the counsel for the petitioner. 31. Now, the question before this Court is with regard to entertaining the complaint and convicting the accused for above 31 offences. It is not in dispute that the revision petitioner entered into a sale agreement in respect of vacant site bearing site No. 25 which is formed in part of Sy.No.60 and Sy.No.138 and measurement is 38 feet, East-West and 14 feet, North-South with a particular description of boundary and no dispute with regard to the fact that he had filed the suit for specific performance in respect of the very same property and obtained the decree. It is also emerged in the evidence that after obtaining the decree he has filed execution petition in the year 2008 and the same was pending for a longer period and also material discloses that warrant was not executed when the 3rd parties were in possession of the property. 32. It is important to note that subsequently an application was filed for amendment that is after obtaining the sale deed and the fact that delivery warrant was issued and the same was returned unexecuted as the occupants of ground floor portion were refused to vacate the premises and for a period of 4 years, the same was not executed from 2008 to 2012 and the same was not vacated and in the year 2011 when the obstruction was made, did not obtain any order, instead of that 32 an application is filed for amendment of schedule belatedly and though decree was in respect of the suit schedule which was disclosed in the original suit, but while amending the same Municipal No.17 that is the property of the complainant was got amended and took the possession with the assistance of bailiff and Police and hence, a challenge was made taking of possession by filing an application in the very same execution proceedings under Order 21 Rule 99 of CPC. The Trial Court having taken note of the material on record and having dispossessed the complainant’s property ordered to re-deliver the property in favour of the complainant. It is also not in dispute that the order passed by the Trial Court in Execution Petition filed under Order 21 Rule 99 of CPC was challenged before this Court in R.F.A and the same was dismissed and the said order has been challenged before the Apex Court and the same is pending for consideration. 33. It is important to note that the main contention of the counsel appearing for the petitioner is that dispute is with regard to the identity of the property and the said contention cannot be accepted for the reason that the executing Court on an 33 application filed by the complainant restored the possession of the property to the complainant that there was no any dispute with regard to the identity of the property and the same has been confirmed by this Court. It is also important to note that the Trial Court taken note of evidence of PW3 regarding confirmation of ownership and possession of site No.24A which belongs to the complainant and also taken note of evidence of PW1 and evidence of PW7 who speaks about the ingredients of offence under Section 420, 177, 182 of IPC since there was an admission and the Court Ameena who has been examined as PW4 and categorically deposed before the Court that the accused deliberately identified the property of the complainant and the victim/complainant also re-iterates the same with an intention to deceive the property to deliver to other which belongs to the complainant, he represented before the PW4 and made him to believe that property belongs to the revision petitioner even though the same belongs to the complainant. The accused is not having any right in respect of Municipal No.17 to his site No.25 and Municipal No.17 belongs to the complainant and the same is spoken by the PW3 employee of BBMP who deposed before the 34 Court and also it is emerged during the course of evidence that Property No.25 is Municipal No.16 and the same is in possession of one Madusudhan even the petitioner admits that the vendor of the complainant built the building and he is in possession of the vendor of the complainant and document Ex.P39 to Ex.P41 discloses the same, but falsely claims that they were in possession and obtained the delivery warrant and admittedly he entered into an agreement of sale in respect of vacant site and it is not the case that his vendor had constructed the building and also it is not the case of the revision petitioner that he put up the construction, but taken the possession of the premises which consists of ground floor, first floor and second floor and thrown out who were in occupation and who are the tenants of the complainant and there is no any explanation on the part of the petitioner with regard to taking of possession of constructed building though he entered into an agreement of sale in respect of vacant site. These are the materials taken note of by the Trial Court while considering the material on record. The Trial Court in depth discussed the case of the complainant and also the accused and taken note of answer elicited from the mouth of 35 PW4, in paragraph No.33 discussed and even extracted the evidence of PW4 that he ought to have delivered the possession of site No.25 but decree holder claimed that the building belongs to him and there is an order to break open the door and possession was given to him and only as per the information given by the accused he made believed the Court Ameena that site No.24A is the site No.25 as per the orders of the Court, possession was given. If the accused has not shown the property as site No.25, definitely the Court Ameena would have ventured to enquire the tenants and other neighbors about the identity of the property and then he satisfied, he should have delivered the property for variation of the property number, he should have returned the warrant to the Court. 34. It is also important to note that earlier 3rd parties have objected and he gone to the extent of amending that the schedule mentioning the property number as No.17 and the same has been discussed in detail and comes to the conclusion that property Municipal No.17 and PID No.2.103-17 is in respect of site No.24-A and new municipal number is No.17 and Trial Court also taken note of this fact into consideration and also 36 observed that though the accused being the agreement holder of the property bearing site No.25 and obtained the decree from the Court at the time of taking the possession in execution proceedings, he has induced the Court Ameena to deceive to deliver the property of the complainant and hence, taken note of ingredients of Section 415 of IPC and comes to the conclusion that taken the possession with an intention to deceive the complainant’s property and also discussed in detail that the accused being the decree holder legally bound to furnish the information to the Court Ameena at the time of delivery of property, but he has given false information to the Court Ameena that property of complainant is the property obtained under decree and made him to hand over its possession and also taken note of giving of false information attracts the ingredients of Section 177 of IPC and similarly Section 182 of IPC also, the accused has given the false information to the Court Ameena and made him to hand over the possession of the property of the complainant and hence, taken note of ingredients of Section 182 of IPC attracts. The Trial Court taken note of the very conduct of the accused who intentionally got it amended the judgment and 37 decree inserting the Municipal No.17 as the same is the property belongs to the complainant even though his Municipal number is 16 and the same is also taken note of by the Trial Court in page No.31, considering the evidence of PW3 who is the official of BBMP, he has deposed about the same and also taken note of unequivocal evidence of PW4 who gave the evidence before the Trial Court that he only identified the property of the complainant belongs to him and in a deceitful manner, taken the possession that too in respect of constructed building though he claims that he had purchased the vacant site. The Trial Court also discussed the same with regard to the ingredients of Section 415 of IPC and also invoking of Section 420 of IPC and also invoking of Section 420 of IPC and extracted the proviso of Section 415 of IPC as well as 420 of IPC in paragraph No.23 and 24 and detailed discussion was made and finding was given based on the material on record. 35. The First Appellate Court also having re-assessed both oral and documentary evidence placed on record formulated the point whether the appellant made out a ground to interfere with findings of the Trial Court and taken note of evidence of each of 38 witnesses and particularly the finding given by the Trial Court in execution petition No.871/2008 in page No.29 of the said order and the same is also extracted in paragraph No.24 that decree holder has obtained decree in respect of property which was not existing as on the date of suit and also subsequent to decree, the decree holder has got amended the schedule of the property by misleading the Court and obtained the sale deed on the basis of said schedule and he has obtained possession of the property belonging to the objector and also an observation is made that an objector is entitled for re-delivery of the property as prayed and also taken note of the measurement of the property claimed by the decree holder which measures East – West 38 feet and North-South 40 feet whereas the objector property bearing site No.24, Municipal No.17 measures in all 742 sq.ft and also an observation is made that the decree holder on the basis of misleading description of the property has obtained the possession of the property in paragraph No.25 and also discussed with regard to finding of Trial Court as well as the judgment of this Court passed in R.F.A.No.133/2018 and this Court held that judgments are not required to be consider since 39 the evidence and the documents are admitted documents and admitted facts and the property claimed by the plaintiff through is all together different from the property in possession of the respondent No.4 which was purchased by him through his vendor and hence, it does not requires interference of passing of an order under Order 21 Rule 99 of CPC, the same also discussed in paragraph No.26 of the First Appellate Court order and even in paragraph No.27 also in detail discussed about taking of wrongful possession of the property of site No.24-A even though the accused was fully aware that it is not the property No.25 for which he had entered into an agreement of sale. The First Appellate Court also taken note of the appellant/accused has not only misrepresented the Court Ameena, even though he visited the spot, he intentionally identified the wrong property as his own and also an observation is made that the revision petitioner has not placed any evidence to show that his vendors had built the building and had given for rent and detailed discussion was made knowingfully well obtained the possession of the property which is not belongs to 40 him and also sale agreement is in respect of vacant site and not the building, but possession was taken in respect of the building. 36. Having considered the finding of the Trial Court and also the finding of the First Appellate Court and particularly taken note of both oral and documentary evidence placed on record and PW3 categorically deposed that the possession of property was taken belongs to the complainant and categorically deposed that property Municipal number is 17 and not Municipal No.16 and got amended the same as 17 by filing an application for amendment and obtained the possession misleading the Court and also the Court Ameena and it is nothing but fraud on the Court in collusion with the Ameena. The fact that disciplinary proceedings also taken against the Ameena is not in dispute and held affirmative and the fraud and justice should not dwell together. Having considered the material on record, it is nothing but fraud on the Court by got amending the schedule of property belongs to the complainant, though the decree was altogether is different in respect of the property of the revision petitioner and knowingfully well that he entered into an agreement of sale in respect of vacant site and also obtained the decree in respect of 41 the same, but subsequently got amended the same when the third parties have objected the same and did not bring to the Court notice that when he had put up the constructions or whether his vendor had put up the constructions, but possession was taken in respect of the building and hence, it is clear that at the inception with an intention to take the possession of the property of the complainant, got amended the decree and for a period from 2012 to 2016, he did not execute the decree when the same was objected in 2011 itself by the third parties and only in the year 2016 got the possession of the property, subsequently got amended the schedule and taken note of all these factors into consideration by the Trial Court and also the First Appellate Court and detailed discussion was made and there was no any perversity in the finding of the Trial Court and finding was given based on both oral and documentary evidence placed on record and hence, the scope of the revision is also very limited and this Court already made it clear that in the absence of any perversity, the scope of revision is very limited and the finding is also given based on oral and documentary evidence, particularly PW4 deposed before the Court 42 unequivocally that the accused/revision petitioner identified the property at the time of execution of delivery warrant as the same is property No.25 and even though knowingfully well that the same belongs to the complainant and property is site No.24- A and when such material available on record, the very contention of the counsel that there is a dispute with regard to the identity of the property cannot be accepted. 37. The other contention of counsel appearing for the revision petitioner that Athmaram was witness to the agreement in respect of agreement executed by Smt.Sharada and children, even assuming that he was a witness and the same is in respect of property No.25 and not in respect of property No.24A and the very contention that Ameena has delivered the possession of the property of the revision petitioner cannot be accepted. No doubt he had obtained the sale deed and material also discloses that the agreement is in respect of vacant site and Ex.D13 and Ex.D14 relied upon by the counsel appearing for the revision petitioner and also the other contention that pending application under Order 21 Rule 99 of CPC, the Trial Court entertained the complaint. There was no any bar to entertain the complaint 43 when the specific materials are placed before the Trial Court for having committed the offence. The fact that Magistrate also taken cognizance and he had invoked Section 156(3) of Cr.P.C referring the matter to the I.O and I.O only investigated the matter and filed the charge sheet after collecting the material during the course of investigation. The very contention that the Trial Court ought not to have taken cognizance cannot be accepted for the reason that at the time of cognizance only the Court has to take note of whether the material collected by the I.O, prima facie shows a triable case and taken the cognizance taking into note of material available on record since possession of the property belongs to the complainant was taken and during the course of evidence also before the Trial Court taken note of by the Trial Court as well as the First Appellate Court and also the first report of the bailiff is very clear that third parties are in possession of the property and also case of complainant is that at the time of taking the possession, he was not in India and he was in Australia. The fact that the tenants who are in occupation were thrown out from the premises is not in dispute and document of sale agreement which is produced before the Court 44 is also very clear that the sale is in respect of vacant site and sale agreement executed by Smt.Sharada and minor children and also contend that mother was not taken the permission from the Court to sell the property belongs to the minor and minor who was aged about 16 years also signed the same and this Court cannot go into the very title of the parties is concerned and only Court has to look into the ingredients to invoke the offence punishable under Section 420 of IPC and invoking of other allied offences and Ex.D8 is very clear that the same is obtained after the amendment and the fact that when the khata was sought, the same was rejected in view of Ex.P39 to Ex.P42 is evident on record. Having considered the material on record as re-analyzed by this Court, I do not find any error committed by both the Courts in invoking Section 420 of IPC and other offences under Section 177 and 482 of IPC in convicting and sentencing the revision petitioner since the ingredients of the offences which have been invoked against him were satisfied and then only the Trial Court in detail discussed about the ingredients of Section 420 of IPC and other offences, rightly comes to the conclusion that accused committed the offences 45 and sentenced to undergo imprisonment. Hence, I do not find any ground to interfere with the findings of the Trial Court and hence, I answer the point as ‘Negative’. Point No.(2) 38. In view of the discussions made above, I pass the following:
Decision
ORDER The criminal revision petition is dismissed. Sd/- (H.P. SANDESH) JUDGE ST/RHS