Shri Shekharappa Shrigiri S/O Kalakappa Shrigiri Vs the State of Karnataka

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. SEEKING TO QUASH THE ENTIRE PROCEEDINGS IN P.C.R/1/2023 PENDING ON THE FILE OF COURT OF CIVIL JUDGE & JMFC, LAXMESHWAR, GADAG, REGISTERED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 419, 465, 468 READ WITH SECTION 34 OF IPC, PURSUANT TO THE COMPLAINT DATED 30.12.2022, MARKED AT ANNEXURE-A, INSOFAR AS PETITIONERS/ACCUSED NO. 1 AND 4 ARE CONCERNED AND GRANT ANY OTHER RELIEF AS DEEMED FIT, IN THE INTEREST OF JUSTICE.

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

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CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL ORDER

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This petition is filed by the petitioners - accused Nos.1 and 4 under Section 482 of Cr.P.C praying to quash the entire proceedings in PCR No.1/2023 pending on the file of Civil Judge and JMFC, Laxmeshwar, Gadag, registered for offences punishable under Sections 419, 465, 468 r/w. Section 34 of Indian Penal Code [ hereinafter referred to as ‘IPC’ for short ].

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Learned counsel for respondent No.2 has filed a private complaint in PCR No.1/2023 against the petitioners and others for offences punishable under Sections 419, 465, 468 r/w. Section 34 of IPC. The allegations in the said complaint are that the husband of respondent No.2 is the owner of agriculture land bearing No.40 measuring 14 acres 36 guntas situated at Kusalapur village of Shirahatti Taluk, Gadag District. Out of the said extent of the land,

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the husband of respondent No.2 - complainant executed the agreement of sale dated 03.11.2008 to an extent of 7 acres 18 guntas of agriculture land bearing RS No.40/1.

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The husband of respondent No.2 namely Ningappa Holeyappa Timmapur died on 20.10.2010 living behind his mother, wife and children. It is alleged that during the lifetime of Ningappa Holeyappa Timmapur all the accused persons with a common intention in order to deceive respondent No.2 have executed the agreement of sale dated 03.11.2008 to which Basappa Mallikarjunappa Halli - accused No.2 was a bond writer and Badi.G.N - accused No.3 was the witness. It is further alleged that Shakharappa Kalakappa Srigeri - accused No.1 has filed a suit for specific performance of agreement of sale dated 03.11.2008 in OS No.65/2011 and the said suit came to be decreed exparte on 20.03.2013. The said decree was put to execution in EP No.112/2014. In the said execution petition, a Court Commissioner was appointed to execute the sale deed in favour of the decree holder. The said Commissioner is arrayed as accused No.7 in the private complaint. The Court Commissioner in the presence of witnesses i.e., accused No.4 - petitioner No.2 and accused No.5 were the attesting witnesses in the sale deed and

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accused No.6 was a licensed bond writer. The respondent No.2 alleges that all the accused persons have committed the offences punishable under Sections 419, 465, 468 r/w. Section 34 of IPC and prayed the Court for referring the matter for investigation.

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The learned Magistrate has referred the said complaint for investigation under Section 156(3) of Cr.P.C. The said complaint has been registered in Crime No.4/2023. The petitioners who are accused Nos.1 and 4 in the said Crime registered in PCR No.1/2023 have sought for quashing of the said complaint in this petition.

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Heard the learned counsel for the petitioners and the learned Additional Government Advocate for respondent No.1-State.

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Learned counsel for petitioners would contend that the complainant who is respondent No.2 herein and her two children remained exparte, even after service of suit summons in OS No.65/2011 and the said suit filed for

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specific performance of sale agreement dated 03.11.2008 came to be decreed by judgement and decree dated 20.03.2013. He further submits that the defendants of the said suit, have not filed any appeal or any petition seeking to set aside the exparte decree. The petitioner No.1 was the plaintiff in that suit, filed EP No.112/2014 praying for execution of the decree passed in OS No.65/2011. He submits that as per the order of the executing Court, the Commissioner has been appointed who is accused No.7 in the complaint and Commissioner has executed a sale deed dated 18.12.2021. The Commissioner has submitted a report along with a copy of the said sale deed and the learned Civil Judge noting that the said sale deed is executed not only on behalf of the judgement debtor Nos.1 to 3 but, it is also executed on behalf of the other three persons namely Dyamavva W/o. Holeyappa Timmapur, Chamundeshwari D/o. Ningappa Timmapur and Yashoda D/o. Ningappa Timmapur has rejected the said sale deed and directed the Commissioner to cancel the registered sale deed and also directed the Court

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Commissioner to execute the fresh Commission as per the decree in OS No.65/2011 by order dated 22.08.2022. He further submits that as the degree passed in OS No.65/2011 is not challenged by the respondent No.2 and her children and now they cannot contend that the sale agreement is forged or fabricated. He submits that as the sale deed is executed by the Court Commissioner she is a Court Officer, the respondent No.2 cannot allege any involvement of the petitioners in executing the said sale deed. The said sale deed is now rejected by the executing

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Court, the said order of rejection is challenged in WP No.10042/2022 and it is pending consideration. He further submits that the Court Commissioner steps into the shoes

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of the Court and if the Court Commissioner commits any mistakes in executing the sale deed on behalf of the other two persons who are not the judgements debtors. The petitioners cannot be alleged to be involved in creating the said sale deed. He further submits that the petitioner No.1 has paid the stamp duty and registration charges for the said sale deed. He submits that as names of seven

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persons are in RTC, the Commissioner has executed the sale deed on behalf of the other three persons who are not the judgment debtors as insisted by the Sub-Registrar. There is no role of the petitioners in execution of the sale deed by the Court Commissioner. With this, he prayed to allow the petition.

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6. Learned counsel for respondent No.2 contended

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that the husband of respondent No.2 was a educated person and as his LTM is fixed to the sale agreement, creates a doubt regarding genuineness of the said sale agreement. The learned counsel for respondent No.2 submits that the respondent No.2 or her two children have not challenged the said decree passed in OS No.65/2011. He submits that the very fact that the Court Commissioner has executed the sale deed on behalf of three other persons who are not the judgment debtors, it self shows involvement of the petitioner and other accused in creating the sale deed. He further submits that there are

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no grounds for quashing as sought for and seeks for dismissal of the petition.

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The learned Additional Government Advocate

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has reiterates the grounds urged by respondent No.2 and prays for dismissal of the petition.

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Having heard the learned counsels and the

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learned Additional Government Advocate, this Court has perused the materials placed on record.

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The petitioner No.1 - accused No.1 based on

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the sale agreement dated 03.11.2008 executed by Ningappa husband of respondent No.2 has filed a suit in OS No.65/2011 against the respondent No.2 and her two children, as the said Ningappa died prior to filing of the said suit. The suit summons were served on the defendant No.1 and minor guardian of defendant Nos.2 and 3 in OS No.65/2011 and they remained absent and placed exparte. The Court appointed the Advocate as a Court Guardian for minor defendant Nos.2 and 3 and the Court

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Guardian has filed written statement and contested the suit. The said suit came to be decreed by the judgement

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and decree dated 20.03.2013. The respondent No.2 who was defendant No.1 in the said suit, has not challenged the judgement and decree passed in OS No.65/2011 dated 20.03.2013. The petitioner No.1 who was the plaintiff in the said suit has filed EP No.112/2014 for executing the said decree passed in OS No.65/2011. In the said execution petition, notice was issued to the judgement debtors and they did not appear. The Court Commissioner

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has been appointed to execute the sale deed as per the decree. The accused No.7 is the said Court Commissioner. The Court Commissioner has executed the sale deed dated 18.12.2021 and filed a report and produced the sale deed to the executing Court. The Court on perusal of the said report and sale deed has observed that the sale deed is executed by three persons who are not the judgment

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debtors and rejected the said sale deed. The Court directed the Court Commissioner to cancel the registered sale deed dated 18.12.2021 and also directed to execute

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the fresh commission work as per decree in OS No.65/2011 dated 20.03.2013. The said order passed by the Executive Court has been questioned by the petitioner No.1 in WP No.10042/2022. It is submitted by both the parties that it is pending before this Court. This Court by interim order dated 12.12.2022 has stayed the operation of the order passed in execution case.

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As the respondent No.2 and her two children have not challenged the decree passed in OS No.65/2011, now they cannot contend that the sale agreement dated 03.11.2008 is forged and fabricated by the petitioner No.1 and another accused. The other allegations of respondent No.2 is that the petitioners and other accused in collusion with the Court Commissioner have executed a sale deed dated 18.12.2021, even though the Court Commissioneraccused No.7 had no authority to execute a sale deed on behalf of three persons who are not the judgement debtors. The Court Commissioner is the Officer of the Court, if the Court Commissioner has exceeded his

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authority under the warrant issued by the Court, the Commissioner is answerable to the Court. Considering the said aspect that the Court Commissioner has exceeded his authority given under the commission warrant, the executing Court has rejected the Court Commissioner’s report and sale deed and directed the Court Commissioner to cancel the registered sale deed and execute a fresh commission work as per the decree in OS No.65/2011. Merely because, the Commissioner has exceeded his powers/ authority, it cannot be alleged that petitioners and other accused have role in executing the sale deed in collusion with the Court Commissioner. The Court Commissioner might have executed the sale deed on behalf of the three other persons who are not the judgment debtors only based on the fact that, their names appearing in the Record of Rights. For an act which has taken place during the pendency of Court proceedings, a private complaint cannot be filed. If the Court Commissioner commits any mistake, no fault can be found with petitioner No.1. The petitioner No.1 as a decree

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holder has paid stamp duty and registration charges of the said sale deed.

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Considering all these aspects, the offences

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alleged against the petitioners are not attracted. In the result the following:

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ORDER

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i) The petition is allowed .

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ii) The proceedings against the petitioners-accused Nos.1 and 4 in PCR No.1/2023 pending on the file of Civil Judge and JMFC, Laxmeshwar, Gadag, registered for offences punishable under Sections 419, 465, 468 r/w. Section 34 of IPC in Crime No.4/2023 of Shirahatti Police Station are quashed .

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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PJ/ CT-ASC List No.: 1 Sl No.: 7

Shri Shekharappa Shrigiri S/O Kalakappa Shrigiri v. the State of Karnataka

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Shri Shekharappa Shrigiri S/O Kalakappa Shrigiri v. the State of Karnataka

Case brief

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