Dismissed

Keshava Reddy v. State by Varthur Police

Karnataka HC16 Sept 2021CRL.P/138/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed two criminal petitions seeking to quash FIRs involving allegations of cheating and forgery. The court held that since the complaint disclosed a prima facie offence and civil remedies were available, the proceedings could not be quashed, applying the Kamal Shivaji Pokarnekar ratio.

What did the court decide?

Criminal petitions under Section 482 Cr.P.C. seeking to quash pending criminal proceedings were dismissed as they lacked merit.

Keshava Reddy Vs State by Varthur Police — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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CRIMINAL PETITION NO. 138/2017 C/W CRIMINAL PETITION NO.863/2017

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IN CRL.P. NO.138/2017

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BETWEEN:

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KESHAVA REDDY, S/O. NYATHAPPA, AGED ABOUT 47 YEARS, R/AT GUNJUR VILLAGE, VARTUR HOBLI, BENGALURU EAST TALUK - 560 087.

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... PETITIONER

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(BY SRI. H. R. VISHWANATH, ADVOCATE)

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AND:

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STATE BY VARTHUR POLICE, BENGALURU RURAL, BENGALURU

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REP. BY S.P.P., HIGH COURT BUILDING, BENGALURU - 560 001.

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SRI. LAKSHMANA S/O. LATE PILLAPPA, AGED ABOUT 46 YEARS, R/AT HEGGONDANAHALLI, GUNJUR POST, ANEKAL TALUK,

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BENGALURU RURAL DISTRICT. PIN CONDE 562 106.

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... RESPONDENTS

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(BY SMT. NAMITHA MAHESH B.G.,, HCGP FOR R1; SRI. D. ASHWATHAPPA, ADVOCATE FOR R2)

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IN CRL.P. NO.863/2017

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BETWEEN:

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M. BYRAPPA, S/O. HEGGONDANAHALLI MUNIYAPPA AGED ABOUT 60 YEARS, R/AT MEDUR VILLAGE, NANDAGUDI HOBLI, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT - 562 114.

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... PETITIONER

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(BY SRI. H. R. VISHWANATH, ADVOCATE) AND

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STATE BY VARTHUR POLICE, BENGALURU RURAL, BENGALURU REP. BY S.P.P., HIGH COURT BUILDING, BENGALURU - 560 001.

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SRI. LAKSHMANA S/O. LATE PILLAPPA, AGED ABOUT 46 YEARS, R/AT HEGGONDANAHALLI, GUNJUR POST, ANEKAL TALUK, BENGALURU RURAL DISTRICT. PIN CONDE 562 106.

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....RESPONDENTS

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(BY SMT. NAMITHA MAHESH B.G., HCGP FOR R1, SRI. D. ASHWATHAPPA, ADVOCATE FOR R2)

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THESE CRIMINAL PETITIONS ARE FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR IN CR. NO. 334/2016 DATED 23.12.2016 PENDING ON THE FILE OF A.C.J.M., BENGALURU RURAL DIST., BENGALURU.

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THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court calling in question the proceedings before Addl. C.J.M., Bengaluru Rural, District Bengaluru in Crime No.334/2016.

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Heard Sri. H. R. Vishwanath, learned counsel appearing for petitioner, Smt. Namitha Mahesh, learned High Court Government Pleader appearing for respondent No.1 and Sri. D. Ashwathappa learned counsel appearing for respondent no.2.

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The facts in brief are as follows:

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The Complainant on 22.12.2016 registers a complaint against the petitioners herein alleging

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offences punishable under Section 419, 420, 465, 468 504, 506 of Indian Penal Code (for short 'IPC').

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The complaint against the petitioner is that the petitioner in Criminal Petition No.863/2017 is the vendor and the petitioner in Criminal Petition No.138/2017 is the purchaser of the property in question. The petitioner in Criminal Petition No.863/2017 is a stranger. He is neither a member of the family nor is related to the family of the complainant. Forging a family/genealogical tree of the family of the complainant the petitioner M. Byrappa enters into an agreement with petitioner Keshava Reddy depicting him to be one of the member of family and got revenue entries changed in his name.

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A little history to the complaint is also a germane to be noticed that, on the strength of the aforesaid alleged forged family tree revenue entries were changed by the Tahasildar. This change of entry was

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called in question by the complainant before the Assistant Commissioner, who dismissed the petition confirming the change of entries in the name of M. Byrappa of the land belonging to the complainant. This was called in question before this Court only to be relegated to the Deputy Commissioner to file an appeal against the order passed by the Assistant Commissioner. The Deputy Commissioner after the matter being remitted by this Court confirms the order passed by the Assistant Commissioner changing the entry bringing in the name of M. Byrappa as being one of the family member of the complainant and mutating the subject land in his name.

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This was called in question by the complainant before this Court in Writ Petition No.62107/2016; this Court by an order dated 13.12.2016 quashed the orders of the Assistant Tahasildar, Assistant Commissioner and the Deputy

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Commissioner and directed that the dispute has to be settled before the Civil Court as the question is of inheritance and succession which was seriously disputed by the parties to lis.

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It transpires that the petitioners herein challenged the said order before the Division Bench in Writ Appeal Nos.2289-2290/2017 which came to be dismissed confirming the order passed by the learned Single Judge. A Special Leave Petition filed by the petitioner is also turned down by the Hon'ble Apex Court. It is after these proceedings, the complaint is registered by the complainant alleging that M. Byrappa and Keshava Reddy being hand in glove have forged a family tree and got their names entered into revenue records of the land belonging to the complainant.

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The complaint insofar as it is germane for consideration of the subject lis is extracted for the purpose of quick reference as follows;

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" Such being the fact one Mr. Bairappa, who is totally stranger to out family, has sough for change of mutation entries in his name with respect our aforesaid land of 6 acres and 8 guntas before the Special Tahasildar, K.R. Puram, Bengaluru East Taluk, claiming that he is the sole legal heir of our grandfather late. Sri. Chinnappa I further state that Mr. Bairapa had claimed the transfer of mutation entries in his name with respect to our land on the basis of a created and forged family tree. In the said forged and created family tree, he has shown that he is the grandson of Chinnappa Urf Munishamappa and Chinnappa Urf Munishamappa had only one son by name Heggondanahally Muniyappa, and he is the sole son of Heggondanahally Muniyappa. We do not know how and on what documents the concerned revenue department officials have issued the said family tree in his name. After coming to know about his illegal act we contested the transfer of revenue entries in his name before the revenue courts. But said Bairappa somehow managed to get revenue records of our land changed in his name and thereafter executed registered sale agreement dated 16.10.2014 in favor of Mr. Keshava Reddy with respect to out 6 Acres and 8 Guntas of land. I further state that we had challenged the orders of revenue courts before the Hon'ble High Court in W.P. No.62107/2016 and the Hon'ble High Court by its order dated 13.12.2016 set aside the orders of revenue courts and restored revenue

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entries of land in our grandfather name i.e. late Sri. Chinnappa.

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I state that Mr. Bairappa is no where related to our family and he is not the grandson of Sri. Chinnappa as claimed by him in his created family tree. The claim of Mr. Bairappa that my grandfather's name is Chinnappa urf Munishamappa son of Benkataramanappa and he has son named Heggondanahally Muniyappa is absolute false and created for the purpose of creating the family tree. I further state that my grandfather late. Sri. Chinnappa never had any name as Chinnappa urf Munishamappa and his wife name was not Chowdamma and he had no son named Heggondanahally Muniyappa as shown by Mr. Bairappa in his created and forged family tree.

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I state that I and my brothers verified about said Mr. Bairappa and we came to know that said Bairappa is a resident of Medur village, Nandagudi Hobli, Hoskote Taluk and his father name is Muniyappa and grandfather's name is Sri. Munishamappa and his great grandfather name is Sri. Basappa. I further state that at no point of time neither Bairappa nor his ancestors ever resided in our Heggondanahalli Village and they are totally Stranger to out family and village.

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I state that during our verification we came to know that Mr. Bairappa is a close associate of aforesaid Mr. Keshava Reddy and with his assistance he created the forged family tree in order to get the revenue entries changed in his name so that he could execute

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sale agreement in favor said Keshava Reddy is resident of Gunjuru Village which is next to out Village and he is politically influenced person having good connection of officials in the revenue department and he knows about our family and also knows that aforesaid land belongs to us and since many years he had been forcing and demanding us to sell him our 6 acres 8 guntas of land in his favor and we had refused him to sell our land hence he, in order to blackmail us to sell our land in his favor, created the family tree with assistance of Mr. Bairappa and got sale agreement with respect to our land in his favor. We also learnt that due to his illegal activity a criminal case has been registered against him in Cr. No.327/2016 in the Banasawadi Police Station, Bengaluru for the offense under section 420 of IPC with respect to other properties.

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The narration in the complaint would in unmistakable terms reveal that the allegations against M. Byrappa or Keshava Reddy is one of forgery and cheating as the intention of both the petitioners as alleged in the complaint is to cheat the petitioners and knock off the land of 06 Acres 08 guntas to which the petitioners claim to be the absolute owners.

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The allegations are of cheating under Section

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420 of IPC is as defined under Section 415 of IPC. The intention of the petitioners as alleged in the complaint is to cheat the petitioners by forging the documents, if no transaction had happened pursuant to the alleged forgery, it was a different circumstance. The petitioner M. Byrappa sells or enters in to an agreement to sell with Keshava Reddy. Therefore, the intention of the petitioners appears to be to create documents and enter into transaction which is a matter of trial. Merely because the issue arises out of certain civil disputes, it is not the case where criminal proceedings should be quashed on the ground that the dispute is civil in nature. I find that the allegations in the complaint would require a trial.

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The Apex Court in its latest judgment in the case of Kamal Shivaji Pokarnekar Vs. State of

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Maharashtra and others reported in (2019) 14 SCC

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350 at paragraphs 3 to 9 held as follows;

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3. The Trial Court recorded the statement of the husband of the Appellant and directed issuance of process to the Respondents. The Respondents filed a revision challenging the issuance of process against them which was dismissed. The High Court allowed the Writ Petition filed by the Respondents, holding that the dispute is of a civil nature, and criminal proceedings against the Respondents would be an abuse of the process of law. The High Court recorded a finding that the disputed document cannot be stated to be a sham document, as Shamrao during his lifetime stated on oath that he had handed over the possession of the land to the Respondents. The submission made on behalf of the Respondents that the matter is entirely of a civil nature was accepted by the High Court.

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4. The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether

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the materials would lead to a conviction or not.

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5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence aredisclosed, there would be no justification for the High Court to interfere.

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6. Defences that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At that stage, the only question relevant is whether the averments in the complaint spell out the ingredients of a criminal offence or not.

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7. Relying upon the aforementioned judgments of this Court, Mr. M. N. Rao, learned Senior Counsel appearing for the Appellant submitted that the High Court acted in excess of its jurisdiction in setting aside the order of the Trial Court by which process for summoning the accused was issued. He further submitted that the evaluation of the merits of the allegations

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made on either side cannot be resorted to at this stage.

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8. Mr. R. Basant, learned Senior Counsel appearing for the Respondent Nos.2 to 6 and 8 to 11 submitted that a proper evaluation of the material on record would disclose that the complaint is frivolous. He submitted that the dispute is essentially of a civil nature and the ingredients of the offences that are alleged against the Respondent are not made out. By making the above statement, Mr. Basant commended to this Court that there is no warrant for interference with the judgment of the High Court.

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9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.

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Therefore in facts obtaining in the case at

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hand and law laid down by the Apex Court in Kamal Shivaji Pokarnekar (supra), I do not find any ground to quash the proceedings pending before the Addl. C.J.M., Bengaluru Rural, District Bengaluru in Crime No.334/2016.

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For the aforesaid reasons, both Criminal Petitions

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lack merit and are dismissed.

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Sd/JUDGE

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UN/SMM

Keshava Reddy v. State by Varthur Police

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Keshava Reddy v. State by Varthur Police

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