Dismissed

Thomas a v. State of Karnataka

Karnataka HC19 Sept 2024CRL.P/6297/2024

Case brief

AI extract

What is this about?

The petitioner sought quashing of an FIR alleging forgery and impersonation regarding a property agreement. The Court held that allegations of a person who died in 1991 appearing before the Sub-Registrar in 2022 disclose prima facie offences. Reliance was placed on the Supreme Court's decision in Kamal Shivaji Pokarnekar, noting that the High Court should not conduct a roving inquiry into seriousl

What the court decided

AI extract

Thomas a Vs State of Karnataka — Landlord and Tenant | Karnataka HC (2024)

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NC: 2024:KHC:38640 CRL.P No. 6297 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 6297 OF 2024

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BETWEEN:

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THOMAS A

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S/O LATE ANTHAPPA AGED ABOUT 50 YEARS NO.539, BEHIND GOVT. SCHOOL BEGUR HOBLI KALENA AGRAHARA BENGALURU CITY KARNATAKA - 560 076

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Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA

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(BY SRI. GOWTHAMDEV C. ULLAL., ADVOCATE)

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…PETITIONER

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AND:

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STATE OF KARNATAKA

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REPRESENTED BY STATION HOUSE OFFICER WHITE FIELD POLICE STATION BENGALURU - 560 066

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NC: 2024:KHC:38640 CRL.P No. 6297 of 2024

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DR UMMER S.S. BEEJADAKATTE

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S/O LATE SAIDU BEARY AGED ABOUT 48 YEARS R/AT SATTVA MINDCOMP TECH PARK, NO.01, 140A, GROUND FLOOR EPIP 2^ND PHASE

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WHITE FIELD BENGALURU CITY

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KARNATAKA - 560 066

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…RESPONDENTS

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(BY SMT. SOWMYA R., HCGP FOR R1;

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SRI. NIKIT BALA AND SRI. SANJAY REDDY, ADVS'. FOR R2)

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THIS CRL.P IS FILED U/S 482 CR.PC PRAYING TO QUASH THE FIR IN CR.NO.204/2023 ON THE FILE ADDL. CJM (ACJM) BENGALURU RURAL DISTRICT, REGISTERED AGAINST THE PETITIONER ON THE BASIS OF COMPLAINT REGISTERED BY THE RESPONDENT NO.2 DATED 06.07.2023 AND FIR DATED 06.07.2023 BEFORE THE RESPONDENT NO.1 FOR OFFENCE P/U/S 419, 420, 465, 468, 471, 120B, 34 OF IPC VIDE ANNEXURE-A AND B, SO FAR AS THE PETITIONER IS CONCERNED.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2024:KHC:38640 CRL.P No. 6297 of 2024

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CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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The petitioner - accused No.1 is knocking at the doors of this Court in the subject petition calling in question registration of a crime in Crime No.204/2023, registered for offences punishable under Sections 419, 420, 465, 468, 471 and 120B read with Section 34 of the IPC.

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Heard the learned counsel Sri.Gowthamdev C. Ullal, appearing for the petitioner, the learned High Court Government Pleader Smt.Sowmya R., appearing for respondent No.1 and the learned counsel Sri.Nikit Bala and Sri.Sanjay Reddy, appearing for respondent No.2.

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The petitioner claims to be an agreement holder of a property, which is allegedly owned by one Milly D'Sa. The agreement is entered into on 12.12.2022. The very property is said to be in possession of the complainant, after having purchased it in the year 2004. The act of the petitioner entering into an agreement or the very property that the complainant is said to be in possession of, leads the

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NC: 2024:KHC:38640 CRL.P No. 6297 of 2024

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complainant to register the complaint, which becomes a crime in Crime No.204/2023 for the afore-quoted offences. Registration of the crime has driven the petitioner to this Court, in the subject petition.

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Learned counsel Sri.Gowthamdev C. Ullal,

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appearing for the petitioner submits that the property that the complainant's claim and the property that he has entered agreement into, are entirely different. Milly D'Sa has herself appeared before the Sub-Registrar and has registered the agreement in favour of the petitioner.

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The learned counsel takes this Court through the documents appended to the petition to demonstrate that the survey number of the agreement in favor of the petitioner is entirely different than the survey number of the complainant’s property. It is his case that Milly D'Sa appeared before the Sub-Registrar, Bengaluru and executed the agreement of sale in favour of the petitioner. Learned counsel would submit that it is at best, a matter which has to be agitated by the complainant before a competent Civil Court by filing suit for

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NC: 2024:KHC:38640 CRL.P No. 6297 of 2024

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declaration and not setting the criminal law into motion in a case which is purely civil in nature. He would contend that the petitioner should not be made to face the criminal proceedings for no fault of his.

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Per contra, the learned counsel representing the complainant would take this Court through the statement of objections so filed by the complainant to contend that Milly D'Sa died in the year 1991. The property that she was holding was bequeathed through a Will and the Will was probated before the competent Court at Mumbai. This, then comes in possession of the legal heirs of Milly D'Sa and from the hands of the of the legal heirs in the year 2004, the complainant purchased the property by way of two sale deeds. He would submit that who is Milly D'Sa who appeared before the Sub-Registrar, Bengaluru, is the question that requires investigation, as a dead person is impersonated by entering into an agreement of sale.

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Learned HCGP has placed the papers of investigation conducted till date before the Court for its perusal.

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NC: 2024:KHC:38640 CRL.P No. 6297 of 2024

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I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record.

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The afore-narrated facts at this juncture would lie in a narrow compass. The history that is narrated in the petition dates back to the year 1960. This would not require a deeper deliberation at this juncture. The complainant comes into the picture by way of a sale deed form the hands of the legal heirs of Milly D'Sa on 23.03.2004. Milly D'Sa had owned the property and executes a Will and the Will comes to be probated before the concerned Court in Mumbai. The legal heirs come into the possession of the property, as the owners and they sell the property to the complainant on all the documents concerning Milly D'Sa. The death certificate of Milly D'Sa is produced as Annexure - R1 to the statement of objections.

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Learned counsel for the petitioner tried to make a feeble attempt with regard to depiction of the survey numbers of the sale deed of the complainant and the agreement of sale entitled into in favour of the petitioner. The submissions are

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NC: 2024:KHC:38640 CRL.P No. 6297 of 2024

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noted only to be rejected, as the Court is exercising under Section 482 of the Cr.P.C., and cannot conduct a roving enquiry into seriously disputed questions of fact in the case at hand, as the allegation is impersonation and forgery. Impersonation of a person, who died in the year 1991 and appearance of the same person before the Sub-Registrar at Bengaluru in the year 2022. Therefore, these matters are to be investigated into. A given set of facts can spring into two proceedings. One, a criminal law being set into motion and the other civil remedy. It is no law that certain cases which have civil flavor, criminal law cannot be set into motion; One such case is the case at hand. As impersonation and forgery are prime facie established in he case at hand, as the person who died in 1991 has come into life in the year 2022 for registering an agreement in favour of the petitioner. Therefore, there is no warrant to exercise jurisdiction under Section 482 of the Cr.P.C., to obliterate the investigation that is to be conducted against the petitioner.

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I becomes apposite to refer the judgment of the Apex Court in the case of Kamal Shivaji Pokarnekar v. State of Maharashtra , (2019) 14 SCC 350.

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NC: 2024:KHC:38640 CRL.P No. 6297 of 2024

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" Leave granted. The trial court issued process to the respondents in the complaint filed by the appellant. The writ petition filed by the respondents against the issuance of process was allowed. The High Court set aside [Hanjarimal Khangarji Rathod v. State of Maharashtra, 2014 SCC OnLine Bom 4943] the process issued by the trial court as affirmed by the Revisional Court in the criminal writ petition filed by the respondents. Aggrieved thereby, the appellant has filed this appeal.

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2. It was alleged by the complainant that her father Shamrao Nalavade expired on 17-1-1994. The respondents were accused of forgery and preparing false documents on the basis of which a development agreement dated 11-12-2002 came into existence. On the basis of the above facts, the complainant alleged that the respondents made themselves liable for being prosecuted under Sections 420, 465, 467, 468, 471 read with Section 34 of the Penal Code, 1860 (hereinafter referred to as “IPC”). The complaint that was filed on 18-11-2008 was sent for investigation under Section 156(3) of the Criminal Procedure Code, 1973. The police submitted a report stating that the matter appeared to be of a civil nature.

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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

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NC: 2024:KHC:38640 CRL.P No. 6297 of 2024

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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 the materials would lead to a conviction or not [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265].

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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 are

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NC: 2024:KHC:38640 CRL.P No. 6297 of 2024

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disclosed, there would be no justification for the High Court to interfere. [State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri) 539].

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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 [Indian Oil Corpn. v. NEPC (India) Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188].

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

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8. Mr R. Basant, learned Senior Counsel appearing for Respondents 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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NC: 2024:KHC:38640 CRL.P No. 6297 of 2024

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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 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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10. Accordingly, the appeal is allowed and the judgment [Hanjarimal Khangarji Rathod v. State of Maharashtra, 2014 SCC OnLine Bom 4943] of the High Court is set aside. "

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The Apex Court holds that when the case projected before the Court exercising jurisdiction under Section 482 of the Cr.P.C., is shrouded with seriously disputed questions of fact, the Court would not interfere. The facts in the case at hand are a maze and it would amaze for this Court to interfere. Therefore, the petition lacking in merits stands rejected .

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NC: 2024:KHC:38640 CRL.P No. 6297 of 2024

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It is made clear that the observations made in the

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course of the order are only for the purpose of consideration of

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the case of petitioner under Section 482 of Cr.P.C., and the same shall not bind or influence the proceedings against any other accused pending before any other fora .

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Ordered accordingly.

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Sd/(M.NAGAPRASANNA) JUDGE

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KG List No.: 2 Sl No.: 9

Thomas a v. State of Karnataka

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Thomas a v. State of Karnataka

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