Allowed

Sri Anilkumar M Dalavai @ Kumar v. the State of Karnataka

Karnataka HC14 Sept 2023CRL.P/175/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed two criminal petitions to quash proceedings where accused advocates were alleged of forging signatures for a writ petition. The court held that since the underlying writ was dismissed for lack of maintainability and the impugned offence of forging evidence attracted Section 195(1)(a) CrPC, the Magistrate could not take cognizance on a police report.

What did the court decide?

The impugned criminal proceedings against petitioners accused Nos. 2, 4 and 5 stand quashed; the Magistrate to proceed against other accused in accordance with law.

Sri Anilkumar M Dalavai @ Kumar Vs the… — Civil Procedure and Limitation | Karnataka HC (2023)

¶1

NC: 2023:KHC:33379 CRL.P No. 175 of 2022 C/W CRL.P No. 5298 of 2021

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF SEPTEMBER, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

¶6

CRIMINAL PETITION NO. 175 OF 2022

¶7

C/W

¶8

CRIMINAL PETITION NO. 5298 OF 2021

¶9

IN CRIMINAL PETITION NO. 175 OF 2022:

¶10

BETWEEN:

¶11

SRI ANILKUMAR M DALAVAI @ KUMAR S/O LATE MAHADEVAPPA DALAWAI AGED 56 YEARS, RESIDING AT NO.28, (272), 5TH MAIN ROAD, SAI SADANA, TATANAGAR, BANGALORE-560 094.

¶12

…PETITIONER

¶13

(BY SRI. A RAJESH, ADVOCATE)

¶14

AND:

¶15

Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA

¶16

THE STATE OF KARNATAKA BY THE STATION HOUSE OFFICER VIDHANA SOUDHA POLICE STATION, BANGALORE-560 001 REPRESENTED BY OFFICE OF SPP HIGH COURT OF KARNATAKA BANGALORE-560 001

¶17

SMT SHANTHI SHANKAR KAS RETIRED W/O LATE D V SHANKAR MAJOR, AGE NOT KNOWN TO PETITIONER

¶18

KUMARI SHANTHRUPTHI SHANKAR D/O LATE D V SHANKAR AGED ABOUT 37 YEARS

¶19

BOTH ARE RESIDING AT NO.4023, BEVERLY HILLS APARTMENTS

¶20

¶21

NC: 2023:KHC:33379 CRL.P No. 175 of 2022 C/W CRL.P No. 5298 of 2021

¶22

GEETA COLONY DELHI-110031 AND ALSO AT C/O P M SIDDAMALLAPPA ADVOCATE MYLARAIAH ASSOCIATES NO.23, GROUND FLOOR, KURUBARA BUILDING SURAJSADANA APARTMENT, 2ND CROSS, GHANDHINAGAR, BANGALORE-560 009.

¶23

…RESPONDENTS

¶24

(BY SRI. M R PATIL, HCGP FOR R-1;

¶25

V/O DATED 30.8.2023, NOTICE TO R-2 AND R-3 H/S)

¶26

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE CRIMINAL PROCEEDINGS IN C.C.NO.14761/2021 (CR.NO.679/2015) ON THE FILE OF THE XXXIX ACMM, BANGALORE FOR THE OFFENCE P/U/S 417,420,465,468,471,120B R/W 34 OF IPC AGAINST THE PETITIONER/ACCUSED NO.2 TO SERVE.

¶27

IN CRIMINAL PETITION NO. 5298 OF 2021

¶28

BETWEEN:

¶29

SRI DEEPAK J S/O JANARDHAN REDDY, AGED 39 YEARS, ADVOCATE NO.118, 2ND FLOOR, CUBBONPET MAIN ROAD, AVENUE ROAD CROSS, BENGALURU-560 002.

¶30

SRI RAHUL S REDDY S/O Y R SADASHIVA REDDY AGED 31 YEARS, ADVOCATE NO.118 2ND FLOOR, CUBBONPET MAIN ROAD AVENUE ROAD CROSS BENGALURU-560 002.

¶31

…PETITIONERS

¶32

(BY SRI. M R NANJUNDA GOWDA, ADVOCATE)

¶33

AND:

¶34

THE STATE BY ULSOORGATE POLICE STATION REP BY SPP, HIGH COURT OF KARNATAKA BANGALORE-560 001.

¶35

SHANTHI SHANKAR W/O LATE D V SHANKAR AGED ABOUT 65 YAERS.

¶36

¶37

NC: 2023:KHC:33379 CRL.P No. 175 of 2022 C/W CRL.P No. 5298 of 2021

¶38

SANTHRUPTI SHANKAR D/O LATE D V SHANKAR AGED ABOUT 37 YEARS

¶39

RES NO.2 AND 3 ARE R/AT NO.86 CQAL LAYOUT SAHAKARNAGAR, BANGALORE-560 092

¶40

…RESPONDENTS

¶41

(BY SRI. M R PATIL, HCGP FOR R-1; R-2 SERVED BUT UNREPRESENTED)

¶42

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE ENTIRE PROCEEDINGS INCLUDING THE COGNIZANCE TAKEN IN C.C.NO.14761/2021 PENDING BEFORE THE XXXIX A.C.M.M., BENGALURU FOR THE OFFENCE P/U/S 416,417,420,463,464,468,471 OF IPC REGISTERED BY THE 1ST RESPONDENT POLICE SO FAR AS THE PETITIONERS ARE CONCERNED.

¶43

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

¶44

ORDER

¶45

Since the issues involved in these petitions are similar they are taken up together, heard and disposed of by the common order.

¶46

Petitioners-accused Nos. 2, 4 and 5 are sought to be prosecuted for the offences punishable under Sections 417, 420, 468, 471, 465 r/w 34 IPC are before this Court.

¶47

The case of the prosecution is that, the husband of the respondent No.2-defacto complainant purchased the subject property under the registered sale deed dated 1.3.1982, and in pursuance of the same, his name was mutated in the revenue records. After the death of the

¶48

¶49

NC: 2023:KHC:33379 CRL.P No. 175 of 2022 C/W CRL.P No. 5298 of 2021

¶50

husband of the respondent No.2-defacto-complainant, mutation of the subject property was changed in the name of his father without the knowledge of the complainant No.1. Aggrieved by the order, the complainants filed an appeal before the Assistant Commissioner concerned, Bengaluru.

¶51

The Assistant Commissioner concerned set aside the mutation entry and directed the Tahsildar to enter the name of the complainant No.1 in the revenue records. Aggrieved, the father-in-law of the complainant No.1 filed W.P.No.15416/1997. This Court set aside the order and remanded the matter to the Tahsildar concerned. Meanwhile, the complainants shifted their residence to Delhi and used to occasionally visit Bangalore.

¶52

On one such visit, when the complainant No.1 enquired in the Tahsildar Office as to why her name was deleted from RTC and the name of her father-in-law was mutated, it was disclosed that, one P. Nanjunda Advocate had filed vakalat on 9.6.2014 on their behalf by forging their signature. The said P Nanjunda by forging their signature submitted a document giving consent to change the katha in the name of D.R. Venkatesh Gowda. The complainants have neither signed the vakalath nor met P. Nanjunda at any point of time.

¶53

It was also learnt that the order of the Tahsildar was challenged by M/s Vishal Builders in W.P.No.2648/2015 before this Court for quashing the order passed. In the said proceedings, the juniors of Sri. Y.R. Sadasiva Reddy, advocate

¶54

¶55

NC: 2023:KHC:33379 CRL.P No. 175 of 2022 C/W CRL.P No. 5298 of 2021

¶56

had filed vakalath on her behalf by forging her signature without her knowledge and also filed statement of objections. The said petition came to be dismissed as not maintainable since an efficacious remedy of appeal is provided under Section 136(2) of the Karnataka Land Revenue Act.

¶57

The respondents No. 2 and 3 though served with

¶58

notice have not chosen to appear in person or through their counsel.

¶59

Heard the learned counsel for the parties.

¶60

The allegations against the accused No.2 advocate is that he accompanied accused No.1 to secure the signatures of the advocates on the vakalath for the purpose of engaging senior counsel in W.P.No.2648/2015. C.W.4 who is the senior advocate, in his statement has not stated about the presence of accused No.2 with accused No.1 when accused No.1 visited his office to engage him. Accused No.2 has been implicated solely on the basis of the statement of accused No.1. Therefore, in the absence of any corroborative material, the implication of the accused No.2 solely on the basis of the confession statement of the accused No.1 is impermissible.

¶61

The allegation against accused Nos. 4 and 5 is that they appeared on behalf of the defacto complainant in W.P.No.2648/2015 , though the defacto-complainant had not given consent to appear on her behalf. Admittedly, accused No.1 who is an advocate by profession and notary had entrusted the vakalat to the accused Nos.4 and 5 to appear on

¶62

¶63

NC: 2023:KHC:33379 CRL.P No. 175 of 2022 C/W CRL.P No. 5298 of 2021

¶64

behalf of the defacto-complainant which is admitted by accused No.1 in his confession statement.

¶65

In the absence of any allegation or material that accused Nos. 4 and 5 forged the signature of the defactocomplainant, the petitioners cannot be prosecuted for the offences alleged against them. Even otherwise, the writ petition No.2648/2015 was dismissed as not maintainable and no legal injury was caused to the defacto-complainant.

¶66

Section 195 (1) (b) (i) specifies that no court shall take cognizance of the offence which is committed in relation to any proceedings in any Court, only upon a complaint in writing by the officer prescribed.

¶67

In the instant case, signature of the complaint is alleged to have been forged on Vakalat which was made use in the writ proceedings before this Court which was ultimately dismissed as not maintainable. The allegation if accepted constitutes an offence under Section 193 IPC.

¶68

The Hon'ble Apex court in the case of Bandekar Brothers Private Limited and another -vs- Prasad Vassudev Keni and other reported in (2020) 20 SCC 1 has held as follows:

¶69

" 48. Equally important to remember is that if in the course of the same transaction two separate offences are made out, for one of which Section 195 CrPC is not attracted, and it is not possible to split them up, the drill of Section 195(1)( b ) CrPC must be followed. Thus, in State of Karnataka v. Hemareddy [ State of Karnataka v. Hemareddy , (1981) 2 SCC 185 : 1981 SCC (Cri) 395] , this Court referred to a judgment of the Madras High Court ( V.V.L. Narasimhamurthy, In re

¶70

¶71

NC: 2023:KHC:33379 CRL.P No. 175 of 2022 C/W CRL.P No. 5298 of 2021

¶72

[ V.V.L. Narasimhamurthy v. State , 1953 SCC OnLine Mad 236 : AIR 1955 Mad 237] ) and approved its ratio as follows : ( Hemareddy case [ State of Karnataka v. Hemareddy , (1981) 2 SCC 185 : 1981 SCC (Cri) 395] , SCC pp. 190-91, paras 7-8)

¶73

................. The effect of the allegations in the complaint preferred by the complainant is that the petitioner has caused this will to come into existence intending that such will may cause the Judge before whom the suit is filed to form an opinion that the will is a genuine one and, therefore, his minor daughter is entitled to the property. The allegation, therefore, in the complaint will undoubtedly fall under Section 192 IPC. It will, therefore, amount to an offence under Section 193 IPC i.e. fabricating false evidence for the purpose of being used in the judicial proceeding. There is no doubt that the facts disclosed will also amount to an offence under Sections 467 and 471 IPC. For prosecuting this petitioner for an offence under Sections 467 and 471, a complaint by the court may not be necessary as under Section 195(1)( b ) CrPC a complaint may be made only when it is committed by a party to any proceeding in any court.

¶74

Mr Jayarama Ayyar does not give up his contention that the petitioner, though he appears only a guardian of the minor girl, is still a party to the proceeding. But it is unnecessary to go into the question at the present moment and I reserve my opinion on the question whether the guardian can be a party to a proceeding or not, as this case can be disposed of on the other point viz. that when the allegations amount to an offence under Section 193 IPC, a complaint of court is necessary under Section 195(1)( a ) CrPC and this cannot be evaded by prosecuting the accused for an offence for which a complaint of court is not necessary.’

¶75

8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a court is necessary under Section 195(1)( b ) of the Code of Criminal Procedure and an offence for which a complaint of a court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused

¶76

8 - NC: 2023:KHC:33379 CRL.P No. 175 of 2022 C/W CRL.P No. 5298 of 2021

¶77

for the offences not mentioned in Section 195(1)( b ) of the Code of Criminal Procedure should be upheld.”

¶78

The learned Magistrate has taken cognizance on the basis of the final report submitted by the Police which is impermissible in view of the bar contained in Section 195 Cr.P.C. Therefore, the continuation of the criminal proceedings against the petitioners will be an abuse of process of law.

¶79

15. Accordingly, I pass the following:

¶80

ORDER

¶81

i) The Criminal Petitions are allowed;

¶82

ii) The impugned proceedings in CC.No.14761/2022 pending on the file of the XXXIX Additional Chief Metropolitan Magistrate, Bangalore, insofar it relates to the petitioners accused Nos. 2, 4 and 5 stands quashed.

¶83

The learned Magistrate to proceed against the other accused in accordance with law, without being influenced by any of the observations made in this order, and the observation made, if any, is only for the purpose of the present petition.

¶84

Sd/JUDGE

¶85

Sri Anilkumar M Dalavai @ Kumar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Anilkumar M Dalavai @ Kumar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Radhakrishna Vs State of Karnataka by

Sri. Dhanraj Reddy Vs the State of Karnataka

Lohith v Vs the State of Karnataka

C. M. Reddy Vs State of Karnataka

Sri Harshavardhana K Vs the State of Karnataka

Sri. Ramesha Vs the State of Karnataka