Dismissed

Smt. a. P. Navitha v. the State of Karnataka

Karnataka HC13 Jul 2021CRL.P/4426/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a petition seeking quashing of criminal proceedings for theft and mischief arising from a dispute over property possession. The court held that pendency of a civil suit does not preclude criminal prosecution unless absolutely no material exists to constitute an offence, distinguishing these facts from prior precedents.

What did the court decide?

The petition seeking quashing of the criminal proceedings in C.C. No. 303/2016 was dismissed.

Smt. a. P. Navitha Vs the State of Karnataka — Property and Title | Karnataka HC (2021)

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Crl.P.No.4426/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JULY 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL PETITION No.4426/2016

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BETWEEN :

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SMT.A.P.NAVITHA D/O A.K.PEMMAIAH W/O D.C.DHRUVA AGED 36 YEARS NISARGA LAYOUT VIRAJPET TALUK – 571 218 KODAGU … PETITIONER

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(BY SRI.N.RAVINDRANATH KAMATH, ADV.)

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AND :

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THE STATE OF KARNATAKA BY VIRAJPET POLICE STATION VIRAJPET, REPRESENTED BY ITS SUB INSPECTOR REPRESENTED BY SPP HIGH COURT BUILDING BANGALORE – 560 001

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THEETHIMADA KAVERAPPA S/O LATE MEDAPPA AGE:MAJOR V.BADAGA VILLAGE KUTTANDI POST VIRAJPET TALUK – 571 218 KODAGU … RESPONDENTS

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(BY SRI.M.T.NANAIAH, SENIOR COUNSEL FOR SRI.M.R.C.MANOHAR, ADV. FOR R2; SRI.K.S.ABHIJITH, HCGP FOR R.1)

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Crl.P.No.4426/2016

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.303/2016 ON THE FILE CIVIL JUDGE AND JMFC, VIRAJPET, KODAGU AGAINST THE PETITIONER.

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 7^TH JULY 2021, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Accused No.1 has filed the above petition seeking quashing of the proceedings against her in C.C.No.303/2016 on the file of the Civil Judge and JMFC, Virajpet. She is being prosecuted in the said case for the offences punishable under Sections 447 and 379 IPC on the basis of the charge sheet filed by Virajpet Police in Crime NO.181/2014 of their Police Station.

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Crime No.181/2014 was registered against the petitioner and her two sisters for the aforesaid offences on the basis of the complaint of the second respondent as per Annexure-C dated 24.12.2014. For the purpose of convenience, the parties will be referred according to their ranks before the trial Court.

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Coffee plantation bearing Sy.No.127/6 of V.Badaga village measuring 2 acres devolved on

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A.K.Kalappa the paternal grandfather of accused by inheritance. A.K.Kalappa and his sons A.K.Pemmaiah and A.K.Kuttappa sold the said property to the second respondent/complainant under the registered sale deed dated 20.06.2002. Kalappa had another daughter by name Monnamma M.K. Accused are the daughters of A.K.Pemmaiah.

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The accused filed O.S.No.213/2014 against Kalappa and his children before the Senior Civil Judge, Virajpet claiming that Sy.No.127/6 and the other properties shown in the suit schedule were ancestral joint family properties and they also have 3/5^th share in the said properties. They further claimed that Kalappa due to his old age was not in sound state of mind to execute the sale deed and there was no legal necessity. They sought declaration that the sale deeds dated 20.06.2002 and 13.03.2008 executed in favour of T.M.Kaverappa and Mullengada Kuttappa were null and void. They further sought decree of partition and separate possession and permanent injunction against alienation of property.

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In the said suit, complainant was arrayed as first defendant. The complainant filed written statement denying the right and possession of the accused over the properties and the allegation of undue influence over Kalappa in execution of the sale deed. He contended that the sale was for legal necessity and the suit was barred by time. Along with the written statement, he filed counter claim alleging that on 23.12.2014 at 2.00 p.m. the accused trespassed into the suit property, harvested the coffee beans through their labours, thereby caused damage to him to the tune of Rs.1,50,000/- (Crop value).

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The suit was filed on 08.12.2014. On

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24.12.2014 the complainant filed complaint as per Annexure-C against the accused alleging that they trespassed into the property without any right, harvested the coffee beans with the aid of 15 labours and took away the same. He further alleged that when the Estate Manager questioned, the accused threatened him. On the basis of such complaint, the impugned FIR as per Annexure-B was registered against the petitioner.

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On investigation, the first respondent-Police

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charge sheeted the petitioner, accused Nos.2 and 3 for the offences punishable under Sections 447 and 379 IPC. The learned Magistrate on taking cognizance registered the case in C.C.No.303/2016 and summoned the petitioner and other accused to face the trial.

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Reiterating the grounds of petition, Sri N.Ravindra Kamath, learned counsel for the petitioner seeks quashing of the proceedings on the following grounds:

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i) Admittedly, civil suit in O.S.No.213/2014 in respect of the subject of the offence was pending and there was an interim order in the said suit. Therefore, the criminal proceedings against the petitioner in respect of same subject matter are unsustainable;

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ii) In an offence under Section 379 of IPC, the recovery of the subject matter of theft is material, but the Investigating Officer has not seized the coffee beans allegedly stolen or the proceeds of the same. Therefore, apparently the charge under Section 379 IPC is unsustainable;

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iii) There are material contradictions in the

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complaint, counter claim filed in the suit and the charge sheet regarding the value of the stolen property; and

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iv) During the period of the alleged offence, the petitioner was suffering from medical condition which is supported by the medical documents. Therefore, the complaint is apparently false.

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In support of his contentions, he relies upon the

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following judgments:

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i) Indian Oil Corporation vs. NEPC India Ltd and others¹

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ii) Suresh vs. Mahadevappa Shivappa Danannava and another²

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iii) Thermax Limited and others vs. K.M.Johny and others³

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Sri K.S.Abhijith, learned HCGP and Sri M.T.Nanaiah, learned senior counsel appearing for Sri M.R.C.Manohar, advocate on record for the second respondent opposed the petition on the following grounds:

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1 (2006)6 SCC 736

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2 (2005)3 SCC 670

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3 (2011)13 SCC 412

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i) Though the complainant purchased the property in the year 2002, with malafide intention of exploiting him the accused filed the suit after 12 years. The suit was apparently vexatious and barred by time;

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ii) Interim injunction was against the alienation of the property and not to the effect that the accused were in possession of the property as on the date of the suit. Therefore, the said suit and interim injunction in no way advance the case of the accused;

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iii) Taking advantage of the said suit and interim injunction the accused highhandedly trespassed into the property, harvested the coffee beans and took away the same threatening the estate manager.

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iv) When there are eye-witnesses to the incident,

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non recovery of corpus dilecti is not fatal;

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v) The accused themselves contended in their pleading that the vendors were in joint possession of the property. Under the registered sale deed, the vendors have claimed that they were in exclusive possession of the property and delivered the possession to the complainant. Therefore, mere pendency of the suit does not bar the

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complainant from filing the complaint, investigating the case and taking cognizance if prima facie case is made out;

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vi) The proceedings cannot be quashed merely on the ground of pendency of the civil suit. If the criminal intention of the accused is shown both civil and criminal proceedings can be proceeded simultaneously; and

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vii) The medical ground in the nature of alibi may

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be a defence in the trial. On that ground the proceedings cannot be quashed.

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Regarding the pendency of civil suit and non recovery of corpus delicti.

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It is settled position of law that the criminal proceedings shall not be quashed invoking the inherent powers under Section 482 Cr.P.C. to scuttle the investigation or trial at the inception unless it is shown that such proceedings amount to abuse of the process of the Court and lead to failure of justice.

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While drawing conclusion when the

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proceedings can be quashed and when they cannot, in paras 23 (x) and (xiv) of the judgment in M/s.Neeharika

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Infrastructure Pvt. Ltd. vs. State of Maharashtra & Ors⁴ ,

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the Hon'ble Supreme Court held as follows:

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In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

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x) Save in exceptional cases where noninterference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

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xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law,

4 AIR 2021 SC 1918

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more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;”

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While considering whether pendency of civil proceedings bar the criminal proceedings between the parties, the Hon'ble Supreme Court in Indian Oil Corporation’s case held that even though the dispute is civil in nature, if the facts alleged make out an offence the criminal proceedings can be continued.

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The reading of the above judgments makes it clear that mere existence of the civil dispute or pendency of civil suit do not divest an aggrieved person from filing a complaint alleging commission of offence or Police from investigating such complaint and the Court taking cognizance and proceeding against the accused in such cases.

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The only consideration is whether absolutely there is no material in the charge sheet to proceed against the accused. If the acts alleged in addition to giving rise to the civil dispute make out an offence, there is no bar for

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registering the FIR, investigating the matter and taking cognizance. Therefore this Court has to see whether there is absolutely no material in the charge sheet records to constitute the offence alleged.

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The accused themselves admitted in their suit the execution of the sale deed dated 20.06.2002 by their grand father, father and uncle. Though Kalappa had another daughter, she did not challenge the said sale deed for more than 12 years. The accused filed the suit after 12 years. The registered sale deed contained the recital that complainant was put in possession of the property. The charge sheet contains the statement of eye witnesses. Recovery of stolen property is only a circumstantial evidence. When the case is based on direct evidence of the eye witnesses, it cannot be said that nonrecovery of corpus dilecti makes the prosecution ab-initio void.

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If there is any contradiction or inconsistencies in mentioning the value of the stolen property in the complaint, counter claim and charge sheet, that may assist

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the accused in impeaching the evidence of the witnesses during trial. But only on such ground the proceedings cannot be quashed.

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The interim injunction was against the alienation of the property that too it was an ex-parte temporary injunction. In that order nowhere the Civil Court opined that the accused were in possession of the property. Therefore, there is no merit in the contention that during the operation of injunction order, no complaint could be filed.

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Regarding medical ground:

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The petitioner claims that during the period of alleged offence, she was suffering from fever for one month, therefore her presence at the scene of occurrence is a falsehood. The said contention is in the nature of plea of alibi . That may constitute a defence for the accused in the trial. The Hon'ble Supreme Court in State of Haryana vs. Sher Singh⁵ has held that when an accused pleads alibi, the burden of proof under section 103 of the Evidence Act, 1872 is on the accused. Therefore the

5 AIR 1981 SC 1021

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petitioner has to prove her plea of alibi by producing the medical records and proving the same during the course of the trial. On that ground the proceedings cannot be quashed.

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In Suresh’s case referred to supra relied on by the learned counsel for the petitioner there was 10 years delay in filing the private complaint alleging cheating. Therefore it was held that the case was civil in nature and there was no prima facie disclosure of commission of offence.

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In Thermax Ltd ’s case referred to supra based on the facts of the said case it was held that with an intention to circumvent the jurisdiction of the Civil Court, the complainant initiated criminal case to make private gain. The said decisions are not applicable to the facts of the case.

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