Allowed

Smt v. K Bharathi v Smt v Gayathridevi

Karnataka HC4 Jan 2023CRL.P/4830/2018

Case brief

AI extract

What is this about?

This criminal petition under Section 482 Cr.P.C. sought to quash non-bailable offences prosecuted under the IPC. The High Court quashed the proceedings, holding that cognizance taken on an affidavit violated Section 200 Cr.P.C. and that the dispute was civil in nature.

What did the court decide?

The impugned proceedings in C.C.No.15233/2017 so far as it relates to the petitioner accused are quashed.

Smt v K Bharathi Vs Smt v Gayathridevi — Quashing and FIR | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4TH DAY OF JANUARY, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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CRIMINAL PETITION NO.4830/2018

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BETWEEN:

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SMT. V.K. BHARATHI W/O M.V. PRASAD BABU, AGED ABOUT 50 YEARS, R/AT NO.11/1, 'SHIVA SAI NILAYA', BEHIND BRINDAVANA RENAISSANCE APARTMENTS, SUBRAMANYAPURA MAIN ROAD, BANGALORE-560 061.

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...PETITIONER

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(BY SRI VEERANNA G. TIGADI, ADVOCATE AND SRI AVINASH B.C., ADVOCATE)

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AND:

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SMT. V. GAYATHRIDEVI D/O. LATE VASANTH RAO, AGED ABOUT 49 YEARS, C/O. SATHYANARAYAN, R/AT NO.144, II MAIN ROAD, KALKERE ROAD, RAMAMURTHY NAGAR POST, BANGALORE-560 016.

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SRI. V. LAKSHMISHA S/O LATE VASANTHA RAO, AGED ABOUT 29 YEARS R/AT NO.123/2-3E3F,

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7TH MAIN ROAD, B.S.K. 3RD STAGE, DATTATREYA NAGAR, HOSAKEREHALLI, BANGALORE-560 085.

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SRI. RAMASHANJEEVAIAH S/O M. GURUVAPPA, AGED ABOUT 45 YEARS, NO.1524, 7TH MAIN, 4TH CROSS, KENGERI UPANAGAR, BANGALORE-560 060.

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SRI. PANCHALINGAIAH S/O LATE VENKATAPPA, AGED ABOUT 48 YEARS, R/AT M.K.PURA, VIDYAPEET POST, KENGERI HOBLI, BANGALORE-560 060.

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SRI. NARASIMAIAH S/O NARASIMAIAH, AGED ABOUT 52 YEARS, R/AT SHESHAGIRI HALLI, HEZALA POST, RAMANAGAR TALUK, RAMANAGAR DISTRICT.

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SRI. RAJENDRA D S/O GOVIND NAIDU, AGED ABOUT 45 YEARS, NO.25, CANARA BANK COLONY, GOWDANAPALYA, BANGALORE-560 061.

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MRS. MUNIRATHNA W/O LATE MUNIRAJU, AGED ABOUT 34 YEARS, R/AT GANAKAL VILLAGE, BSK VITH STAGE, II BLOCK, KENGERI HOBLI, BANGALORE-560 060.

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SRI. M.K. HARI BABU S/O M.V. KANNAIAH, AGED ABOUT 40 YEARS, R/AT NO.11/1, BEHIND FARM, SUBRAMANYAPURAM MAIN ROAD, UTTARAHALLI, BANGALORE-560 061.

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SMT. V. RUKMINI W/O K.N. RAGAVENDRA, AGED ABOUT 30 YEARS, NO.470, 3RD MAIN, 50 FT MAIN ROAD, HANUMANTHANAGAR, BANGALORE-560 050.

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SMT. V. VASANTHALAKSHMI W/O K.N. RAMAMURTHY, AGED ABOUT 38 YEARS, KALLAMBELLA, SIRA TALUK, TUMKUR DISTRICT-572 135.

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SMT. B.N. SHASHIKALA OFFICE OF THE SUB-REGISTRAR, BANASHANKARI, BANGALORE.

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...RESPONDENTS

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(BY SRI RAMESH K.R., ADVOCATE FOR R1; SRI B.R. VISHWANATH, ADVOCATE FOR R2, R9 & R10; R3, R4, R5, R6, R7, R8, & R11 - SERVED)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE ENTIRE PROCEEDINGS FILED BY THE 1ST RESPONDENT AGAINST THE PETITIONER FOR THE OFFENCES PUNISHABLE

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UNDER SECTIONS 417, 418, 419, 420, 421, 423, 424, 465, 466, 467, 468, 469, 471, 195, 195(A), 196, 197, 198, 199, 200, 201, 204 AND 506(B) OF IPC PENDING ON THE FILE OF III ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN C.C.NO.15233/2017.

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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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Learned counsel for the respondent No.1 submits that

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respondent No.1-complainant is no more. Submission is placed on record.

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Respondent No.1 had filed a private compliant under

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Section 200 of Cr.P.C., alleging that the accused created an agreement of sale dated 6.11.2008 by forging her signature and also executed two registered sale deeds before the Sub-Registrar concerned by impersonation. The complainant to substantiate the allegations filed a sworn affidavit reiterating the contents of the complaint.

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The learned Magistrate on the basis of the complaint averments, the sworn affidavit and certified copy of the agreement of sale dated 6.11.2008 and also the sale deed dated

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6.11.2008 passed an order holding that, the complainant has

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made out a prima facie case to register the case against the accused and accordingly registered the case against the accused for the offences punishable under Sections 417, 418, 419, 420, 421, 423, 424, 465, 466, 467, 468,469,471 and Sec.195, 195(A), 196, 197, 198, 199, 200, 201, 204 and 506 (B) of IPC. Taking exception to the same, accused No.2 is before this Court.

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Learned counsel for the petitioner submits that cognizance taken by the learned Magistrate on the basis of the sworn affidavit filed by the complainant is contrary to Section 200 of Cr.P.C. and it is inadmissible. In support, reliance is placed on the decision of the Co-ordinate Bench of this Court in

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the case of Sri K. Venkataramaiah and Others -vs- Sri Katterao, reported in ILR 2008 KAR 474.

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He further submits that the dispute between the parties was ceased before the Civil Court in O.S.No.6571/2016 and in the said suit, the complainant has taken a specific plea that she was made forcibly to execute the registered sale deed which runs contrary to the allegations made in the complaint.

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Hence, he submits that the dispute between parties is purely civil in nature which is given a criminal texture.

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I have considered the submissions made by the learned counsel appearing for the parties.

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The learned Magistrate without recording the sworn statement of the complainant only on perusing the complaint averments and also sworn affidavit filed by the complainant has taken cognizance of the aforesaid offences. The Co-ordinate Bench of this Court in the case of Sri Venkataramaiah supra at para 10 has held as follows:

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10. When a specific procedure is contemplated under Section 200 of Cr.P.C, it cannot be deviated by adopting some other procedure which is not prescribed, even though it may be convenient to the complainant. The purpose of recording the substance of sworn statement by the Magistrate is to enable the Magistrate to satisfy himself of the allegation in the complaint to proceed further in the matter. Under Section 200 Cr.P.C, the Magistrate himself examines the complainant and the witnesses and records

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the substance of the same. The Magistrate is under obligation to reduce the substance of the statement in writing which is to be signed by the complainant and the witnesses. If an affidavit is accepted, it would go contrary to

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the provisions of Section 200 of Cr.P.C. In my opinion, Section 200 of Cr.P.C. does not contemplate acceptance of affidavit in the form of sworn statement nor affidavit partakes the character of sworn statement as required under Section 200 Cr.P.C. Sworn statement does not require any cross-examination nor requires a recording of the statement at the instance of an advocate. It is not an examination-in-chief, but it is the statement made before the Magistrate for his satisfaction. The filing of an affidavit by the complainant in support of his complaint would be contrary to the procedure under Section 200 of Cr.P.C. and it is inadmissible.

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Hence, the cognizance taken by the learned

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Magistrate on the basis of the sworn affidavit filed by the complainant is contrary to the procedure under Section 200 of Cr.P.C. and it is not admissible.

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Even otherwise, the dispute between the parties is

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purely civil in nature which is evident from the suit filed by the complainant during her life time, and in the said suit, complainant has taken specific plea that she was made to forcibly execute the registered sale deed which runs contrary to the allegations made in the complaint, hence, the continuation of the criminal proceeding against the petitioner-accused will be an abuse of process of law, since the probability of conviction is remote and bleak. Accordingly, I pass the following:

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ORDER

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i) Criminal Petition is allowed

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ii) Impugned proceedings in C.C.No.15233/2017 pending on the file of the III Additional Chief Metropolitan Magistrate, Bangalore in so far it relates to petitioneraccused is hereby quashed.

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Sd/JUDGE

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HR

Smt v. K Bharathi v Smt v Gayathridevi

Case brief

What is this about?

What did the court decide?

Smt v. K Bharathi v Smt v Gayathridevi

Case brief

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