Dismissed

C Chandra v. State of Karnataka

Karnataka HC1 Mar 2021CRL.P/227/2021

Case brief

AI extract

What is this about?

In this criminal petition under Section 482 Cr.P.C. to quash an FIR alleging forgery of a Will, the Karnataka High Court rejected the plea. The Court held that since the civil court had not specifically found forgery or produced a forensic report, the finding did not amount to res judicata, and the investigating officer must probe the alleged criminal culpability.

What did the court decide?

The petition to quash the FIR was rejected. The petitioner is given liberty to approach this Court after the filing of the final investigation report.

C Chandra Vs State of Karnataka — Cheating and Forgery | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF MARCH, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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CRIMINAL PETITION No.227/2021

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BETWEEN:

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C. CHANDRA S/O LATE CHELLAPPA AGED ABOUT 62 YEARS RESIDING AT I FLOOR OF D.NO.7/1, NEW No.11/1 NEW SAYYAJI RAO ROAD NEAR RMC, DEVARAJA MOHALLA MYSURU-560021.

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… PETITIONER

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(BY SRI VIJAYAKUMAR PRAKASH, ADVOCATE)

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AND:

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1 . STATE OF KARNATAKA

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BY S.H.O. MANDI POLICE STATION NARASIMHARAJA SUB-DIVISION MANDI MOHALLA MYSURU-570001 NOW REP. BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BUILDING BENGALURU-560001.

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2 . V. CHANDRA

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S/O LATE K.V. VARADARAJ AGED ABOUT 55 YEARS R/AT NO.H-3, SHAKTHI SUNSHINE APARTMENTS 8^TH CROSS, 10^TH MAIN, MARUTHI NAGAR MALLESHPALYA

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BENGALURU-560075.

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… RESPONDENTS (BY SRI MAHESH SHETTY, HCGP FOR R1; SRI D.R.RAVISHANKAR, ADVOCATE FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE FIR IN CR.NO.97/2020 DATED 03.10.2020 AT ANNEXURE-A REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 468, 469, 470, 420, 447, 120B OF IPC BY THE FIRST RESPONDENT, MANDI POLICE, AND PENDING BEFORE THE PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC, MYSURU.

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

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O R D E R

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This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the FIR in Crime No.97/2020 dated 03.10.2020 at Annexure-A, registered for the offences punishable under Sections 468, 469, 470, 420, 447 and Section 120B of IPC on the file of Principal Civil Judge and J.M.F.C., at Mysuru.

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The factual matrix of the case is that respondent

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No.2 herein had filed the complaint before the police stating that he is the joint owner of the portion of the property bearing

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No.7/1, New No.11/1, situated at New Santhepet, Devaraja Mohalla, Mysuru city. The said property originally belonged to one late Sri.V.Chinnagiriyappa, who is the maternal uncle of the respondent No.2. It is further alleged in the complaint that the said Sri.V.Chinnagiriyappa had executed the registered Will dated 29.05.1978 and under the said Will, the aforementioned property was bequeathed to three persons including respondent No.2. It is also alleged that another property bearing No.2203/26 ”A”, new No.24/1, situated at New Santhepet, Devaraj Mohalla, Mysuru City measuring East to West 25 feet and North to South 39 feet, was given in favour of the petitioner. The Registered Will dated 29.05.1978 was within the knowledge of the petitioner even the before the demise of the testator. It is further alleged in the complaint that after the demise of Chinnagiriyappa on 15.10.1991, his estranged wife had filed a suit in O.S.No.451/1998 before the II Additional Senior Civil Judge, Mysuru and claimed the rights over the immoveable property. In the said suit, the complainant is also a party to the proceedings and claimed the right based on the Will of the year

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1978 and this petitioner also claimed the right in respect of the property based on the Will of the year 1991.

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It is also the allegation in the complaint that Will dated 22.09.1991 is a forged Will and hence, the police have registered the case for the above said offences. The learned counsel for the petitioner would vehemently contend that in the Civil Suit in O.S.No.451/1998, the stand of the petitioner is accepted. The finding given in the said suit is that the Will claimed by the petitioner is proved and the Will claimed by respondent No.2 herein has not been proved and suffered an order at the hands of the Civil Court. The same has been challenged in R.A.No.183/2015 and the Appellate Court dismissed the appeal on the ground that the appeal is not maintainable, which came to be challenged before this Court in R.S.A.No.1794/2017 and the said appeal was disposed off on 18.11.2019.

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The present complaint is filed on 03.10.2020. When respondent No.2 became unsuccessful in the civil suit, the present complaint is filed with an intention to harass the

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petitioner herein. The Court has already decided the issue with regard to the forgery and when such being the facts and circumstances of the case, if the proceedings is continued against the petitioner, it would amounts to an abuse of process which leads to miscarriage of justice.

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Learned counsel brought to the notice of this Court the finding given by the Trial Court in respect of the claim made by the petitioner herein. Learned counsel in support of his contention, relied upon the judgment of the Apex Court in the case of KISHAN SINGH (DEAD) THROUGH LRS. V. GURPAL

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SINGH AND OTHERS reported in (2010) 8 SCC 775 and brought to the notice of this Court para No.22, wherein the Apex Court has observed with regard to when the Civil Court decided the issue involved between the parties and initiating the criminal proceedings with an ulterior motive of wreaking vengeance is nothing but an abuse of process, which leads to miscarriage of justice and where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal

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proceedings, the Court may take a view that it amounts to an abuse of process of law.

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Learned counsel referring to this judgment would

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bring it to the notice of this Court all the facts of the case and would vehemently contend that it is a fit case to exercise the powers under Section 482 of Cr.P.C. Learned counsel also made the submission that suit was filed in the year 1998 and the specific issue was also framed. The respondent No.2 and also the petitioner herein are the co-defendants in the said suit. When such being the facts and circumstances, there cannot be any criminal proceedings.

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Per contra , learned counsel for respondent No.2 would vehemently contend that the Civil Courts have not given the finding in respect of execution of the Will. Though the Trial Court has given the finding and the same has been questioned before the Appellate Court, the appeal is dismissed on the ground that the appeal is not maintainable. Learned counsel appearing for respondent No.2 also brought to the notice of this Court para Nos.4 and 5 of the judgment of this Court passed in

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R.S.A.1794/2017, wherein this Court has observed that appeal could be disposed of confirming the dismissal of the first appeal in R.A.No.183/2015 clarifying that the finding by the Trial Court on the Will dated 29.05.1978 claimed by the appellants would

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not operate as res judicata if there were to be any further dispute on the execution of the Will dated 29.05.1978.

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8. Learned counsel, referring to the observation made

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by this Court, would contend that it would not operate as res judicata . Learned counsel also would submit that the specific defence was taken in para No.5 of the written statement before the Trial Court that the alleged Will is a fabricated Will. From the beginning, it is contended that the Will is a forged Will. Learned counsel also brought to the notice of this Court the contents of the Will, particularly, the allegation made in the complaint with regard to the Will is a forged Will and further submits that the forensic examination report before the Court states that the Will is not forged, if that is the case, then respondent No.2 would not proceed with the case. It is also contended by the counsel that the complainant was impleaded in the year 2014 and the said

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suit was filed in the year 1998. In the appeal also, an application was filed under ORDER 26 RULE 10A of Civil Procedure Code, to refer the documents for opinion of the forensic expert and in view of the appeal being dismissed as not maintainable, no logical end and conclusion is arrived with regard to the forgery. When such being the facts and circumstances of the case, when the specific allegation is made that the signature of the original owner V.Chinnagiriyappa was forged on the guise of disposing of the civil suit, cannot be a ground to quash the proceedings.

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Learned counsel also relied upon the judgment of this Court passed in Crl.P.No.5641/2020 and referred the relevant paragraphs of this judgment, wherein this Court held that the offence of forgery is a criminal offence and if the criminal culpability is found, the proceedings can be continued and the same cannot be dismissed on the ground that the matter between the parties is of civil in nature.

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The learned High Court Government Pleader appearing for the State would submit that petitioner herein is

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also not assisting the investigating officer in view of the stay granted by this Court and also not produced the original Will, which is not disputed. Hence, he could not able to conclude the investigation.

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Learned counsel for the petitioner replying to the arguments of the learned counsel for respondent No.2 and learned High Court Government Pleader appearing for the State, would submit that the original Will was produced before the Court and no steps has been taken in the Trial Court. Despite, the Trial Court has given the findings that the Will has been proved. When such being the facts and circumstances of the case, the question of continuing the criminal proceedings amounts to an abuse of process.

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Having heard the learned counsel for the petitioner

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and also the respective counsel, this Court has to appreciate the contents of the complaint. Before appreciating the contents of the complaint, it is not in dispute that the civil suit in O.S.No.451/1998 was adjudicated and the petitioner as well as the complainant are the defendants in the said suit. Both of

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them have claimed the Will and with regard to the Will, the findings were given by the Trial Court.

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Learned counsel for the petitioner also brought to

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the notice of this Court para No.64 of the judgment in O.S.No.451/1998, wherein the Trial Court has made an observation with regard to the execution of the Will. As a result,

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the petitioner became the absolute owner of the property bequeathed under the said Will. It is also emerged in the records that in the civil case, the disputed document has not been sent to the FSL and there is no any FSL Report before the Court. The Trial Court has given the finding with regard to the execution of the document or examination of the witnesses. It is

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also an undisputed question of fact that the appeal was dismissed on the ground that it is not maintainable and subsequently, in RSA also, it has been categorically held that the findings of the Trial Court will not amount to res judicata .

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Now this Court has to examine the contents of the

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complaint. While continuing the proceedings particularly the criminal prosecution, the Court has to look into the contents of

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the complaint. No doubt, this complaint is given on 03.10.2020 after the disposal of the appeal in R.S.A.No.1794/2017 and in the complaint, the specific allegation is made that the signature of the original owner V.Chinnagiriyappa has been forged and further, the complainant contend that the forensic examiner had given a clear report that there is absolutely, no resemblance in the admitted signatures of the said V.Chinnagiriyapa in the Court proceedings and the signatures which are found on the notary Will dated 22.09.1991, on the basis of which, the petitioner is claiming the right. Insofar as the Will dated 22.09.1991 claimed by the petitioner herein, an allegation is made that there is an apparent act of forgery and that the Will is not only fabricated but also forged the signature of V.Chinnagiriyappa. He also sought to use the Will as genuine Will and also sought to claim the interest over the property on the basis of the forged Will. All these days no action could have been taken in respect of the Will as civil proceedings were pending. It is only by virtue of the order of the High Court in R.S.A.No.1794/2017 passed on 18.11.2019, this entire issue could have been dealt with examination of Criminality of the action of Sri.Chandra. Hence,

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the investigation has to be conducted and the matter has to be probed.

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Having perused the contents of the complaint, the specific allegation is that the signature found on the Will in question is forged. It is also important to note that I have already pointed out that the Civil Courts have not given the absolute finding with regard to the Will is concerned. The First Appeal as well as the appeal in RSA are dismissed on the ground of maintainability and it would not come in the way of examining the same. Hence, the findings of the Trial Court with regard to proving of the document will not amounts to res judicata . When such being the facts and circumstances of the case, the specific allegation is made in the complaint that the Will is forged. The High Court Government Pleader submits that the petitioner herein had not come forward to produce the original Will during the course of the investigation. Hence, they could not get the FSL report.

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It is also brought to the notice of this Court by the learned counsel for respondent No.2 that an application was filed

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in R.S.A.No.1794/2017 under ORDER 26 RULE 10A of Civil Procedure Code, for referring the document to FSL. In view of dismissal of R.S.A., the application did not reach its logical end. When the complaint discloses the allegation of cognizable offence, it is the duty of the investigation officer to probe the same. The High Court should not venture to collect and appreciate the material available on record as Appellate Court. When once the complaint discloses the prima facie commission of a cognizable-offence, the High Court should stay its hand and allow the investigating officer to probe the matter in view of the judgment of the Apex Court in the case of DINESHBHAI CHANDUBHAI PATEL v. THE STATE OF GUJARAT reported in (2018) 3 SCC 104.

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No doubt, the Apex Court also in the judgment referred by the learned counsel for the petitioner in para No.22 has held that there should not be any abuse of process, when the Civil Court has given the findings with regard to forgery and other offence and frustrated litigants should not be permitted to

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give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court.

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This Court has already pointed out that, in this case on hand, the final verdict is not given with regard to proving of the Will and has kept it open making the observation that res judicata will not apply. It is also important to note that the Apex Court also in the case of VIJAYANDER KUMAR AND OTHERS

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v. STATE OF RAJASTHAN AND ANOTHER reported in (2014) 3 SCC 389 and in the case of M. KRISHNAN v. VIJAY SINGH AND ANOTHER reported in (2001) 8 SCC 645 , has held that the proceedings initiated against the accused cannot be quashed only on the ground that the civil suit filed by the accused disputing the genuineness of the document, cannot be a ground to quash the criminal proceedings. This Court has also held the same view in the case of RAY CONSTRUCTIONS LIMITED, IIT

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MARKET, POWAI, MUMBAI AND OTHERS v. STATE OF KARNATAKA AND ANOTHER reported in 2020 (4) KAR.L.J. 555.

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Referring to the above judgments, learned counsel would contend that the legality of it is well-settled that when given set of facts may make out a civil liability as also a criminal offence and only because civil remedy may also be available to the complainant, that itself cannot be a ground to quash the criminal proceedings. The real test is that whether the allegations disclose a criminal offence or not.

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In the case on hand also when the criminal culpability is urged in the complaint, and when an FIR is registered, the investigation has to be probed by the investigating officer and he has to unearth the crime as to whether the disputed Will is a forged document or not. When such being the facts and circumstances, I am of the opinion that it is not a fit case to exercise the powers under Section 482 of Cr.P.C. only on the ground that the Civil Court has given the findings that the Will has already been proved with regard to the forgery is concerned. In the Civil Court also, there was no any material as to whether the signature available on the subject matter is a forged signature or not and also there is no FSL

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report before the Civil Court. Under the circumstances, the matter requires to be probed for which the investigating officer has to be allowed to probe the same and unearth the crime.

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