Shri Sirajoddin Nabisab Kalemundase v. Smt. Devaki Nemanath Rattu

ORDER Heard the learned Counsel for the petitioner and the learned Counsel for the respondent.

The petitioner the accused in a pending criminal case in C.C.No. 112/2009 on the file of the Addl. Civil Judge (Jr.Dn.) & JMFC, Raibag. The proceedings are initiated at the instance of the respondent herein, who has alleged that the complainant’s husband was the owner of land bearing survey No.244/2B and 245/6/A measuring 6 acres 16 guntas at Kudachi. It is alleged that the complainant’s husband was mentally ill and therefore, taking advantage of the same, the accused has fabricated and forged signature the husband of complainant and the documents styled as agreement of sale bearing the signatures of the complainant and her husband are sought to be misused by filing a suit for specific performance in O.S.No. 108/2000, now numbered as O.S.No.171/2008, which is pending on the file of the Civil Judge (Sr.Dn.), Raibag. Though a defence has been raised in the very suit the agreement of sale in question was a forged document, on the very same allegation, the present respondent has lodged a complaint alleging offences punishable under Sections 468 and 420 of I.P.C. In the instance, the Magistrate having directed investigation by the police, ‘B’ report was filed by the police in the year 1999. Thereafter, the respondent having filed a protest memo, for over 10 years, there was no further progress. It is only in the year 2009, that the Court of Magistrate has thought it fit to take cognizance and has issued summons. It that, which was challenged before the Court of Additional Sessions Judge, Belgaum. However, the said Court of Sessions Judge has rejected the Revision Petition on the ground that, taking 4 cognizance of a case by the Magistrate is in the nature of an interim order and the question of challenging the said order by way of Revision Petition is not maintainable and that, it would be open either for the petitioner to seek discharge at the appropriate time or to approach this Court by way of petition under Section 482 of Cr.P.C. It is in that background that the present petition is filed.

The learned Counsel the petitioner would submit that, having regard to the allegations, it is clear that the petitioner wants to scuttle the civil proceedings, which have been initiated seeking specific performance and the agreement under which the petitioner has paid a substantial amount of Rs.4,50,000/- possession of the suit land in question. The respondent, not having been able to secure possession, on the ground that the document was illegal and forged, has chosen to seek the Court to initiate criminal proceedings, which were not maintainable on the face of it, in the light of the fact that the dispute, if any, is purely of a civil nature and 5 hence, the Magistrate, having taken cognizance after a delay of 10 years upon the police having reported that there was no criminal case made out, results in grave hardship and injustice to the petitioner, who is now faced with the prospect of having to appear before the criminal Court in respect of the dispute, which is clearly of a civil nature. Therefore, the Counsel for the petitioner would seek indulgence of this Court to set at rest the criminal proceedings, which have been vexatiously instituted by the present respondent. Incidentally, the learned Counsel for the petitioner would also submit that the suit for injunction was filed in O.S.No.30/2003 and that was decreed by the competent Court, which was unsuccessfully challenged in a Regular Appeal and subsequently, in a Regular Second Appeal before this Court, which also came to be dismissed. Hence, there is a finality insofar possession of the petitioner of the suit property is concerned and this was in addition to suit for specific performance, which was also instituted in the year 2000. S 6

The Counsel for the respondent, on the other hand would submit that, it would not be correct characterize every dispute as being purely of civil nature and that no criminal proceedings could be initiated in respect of the same set of facts. He would submit that it is a matter, which would have to be decided with reference to the material available on merits of the case as to whether the circumstances give rise to both civil and criminal liability. The Counsel would further submit in the present case on hand, the complainant’s husband was known to be mentally ill and he was under treatment by three medical practitioners, in respect of which there is ample documentation. Therefore, the complaint is based on material evidence, which would bring home the charge against the accused. Even if the contentions of the petitioner are to be accepted, namely that even if all the allegations are to be accepted, it would only indicate that the dispute is purely of civil nature, it is open for him to 7 demonstrate the same before the learned Magistrate at the appropriate time, for which the criminal law does provide the remedy. Therefore, he would submit Magistrate, only now having taken cognizance, it would be premature for this Court to hold that there is no criminal case, that is made out insofar as the present petitioner is concerned. Insofar as the ‘B’ report filed by the police pursuant to the investigation directed by the Court of Magistrate, it does not assume finality and the report filed by the police does not bind the Magistrate. The Magistrate having taken cognizance has exercised his discretion, which cannot be said to be illegal or irregular at this point of time and therefore, the remedy being available to the petitioner to make out a case for discharge before the Magistrate at the appropriate time, the present Revision Petition is to be dismissed. Insofar as the contention that the suit for injunction has been decreed and has attained finality in a Regular Second Appeal before this Court is concerned, the learned 8 Counsel for the respondent would submit that such a suit is filed against third parties and not against the present respondent. The said decree is not binding on the respondent and that would have no bearing insofar as the criminal case is concerned.

In the light of above contentions, as rightly pointed out by the learned Counsel for the respondent, even if the complaint does not disclose a criminal case, it is for the Magistrate to appreciate the material placed before him to take a decision that the dispute is purely of a civil nature and that the parties should workout their respective rights in a civil case, which is said to be pending. It is the matter within the jurisdiction of the Magistrate and it is the Magistrate who is in a vantage position to examine the material, which is produced by both the parties. This Court need not, at this point of time embark on sifting the evidence and material parties may rely upon. 9