Mr. K v Venugopala Vs State of Karnataka

THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN FIR IN CR.NO.236/2020 OF SRINIVASAPURA POLICE STATION FOR THE OFFENCE P/U/S 419 AND 420 R/W 34 OF IPC IN PURSUANCE OF THE ORDER DATED 19.11.2020 PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., SRINIVASAPURA IN PCR NO.82/2020 REFERRING THE COMPLAINT U/S 156(3) OF CR.P.C. FOR INVESTIGATION AND REPORT.

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

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CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ

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ORAL ORDER

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Petitioners are aggrieved by the registration of FIR in Crime No.236/2020 at Srinivasapura Police Station for the offence Punishable under Section 419 and 420 read with Section 34 of IPC as well as the order passed by the learned Magistrate referring the complaint to the police for investigation under Section 156(3) of Cr.P.C.,

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Heard both sides and perused the material on

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record.

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Respondent No.2 herein filed a complaint under

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Section 200 of Cr.P.C. before the Court of Principal Civil Judge and JMFC Srinivasapura in PCR.No.82/2020, on 17.11.2020

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alleging that his father late Venkateshappa has 4 sons and 2 daughters and during his lifetime, he partitioned the property between the 4 male children and schedule E property was allotted to his share. After the said partition, parties are in possession of their respective share, but the Khatha was not mutated. However, petitioners namely, his brothers by submitting a false genealogical tree before the Revenue Officer on 14.02.2014, where only the names of his sister Sarashwathamma, second brother Krishna Reddy and K.V.Venugopala were shown and name of the rests were not shown and thus fraudulently got mutated the Khatha in respect of Survey No.48/3 measuring 0-1 1/4 guntas including 0-1/2 half guntas of land belonging to the complainant.

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Learned Magistrate was pleased to refer the matter for investigation, consequent to which the police registered a case in Crime No.236/2020 against the petitioners for the offence Punishable under Section 419 and 420 read with Section 34 of IPC.

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It is contended by the learned counsel for petitioners that the complaint filed under Section 200 of Cr.P.C.

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was not accompanied with an affidavit and therefore, the learned Magistrate was not right in referring the matter for investigation under Section 156(3) of Cr.P.C., which is contrary to the judgment of the Apex Court in PRIYANKA SRIVASTAVA & ANOTHER V/S. STATE OF UTTARPRADESH AND OTHERS reported in ( 2015) 6 SCC 287 .

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Learned counsel would further contend that after a period of 6 years from the date of mutation entry, the complaint was filed with an ulterior motive and a suit filed by one of the brothers seeking partition is also pending and therefore, dispute is civil in nature.

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It is also contended by the learned counsel that the complainant has not challenged the mutation entry before the Revenue Authorities, on the other hand he has filed the complaint alleging cheating etc., though, the ingredients of the said offence are not made out.

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Learned counsel appearing for respondent No.2 would contend that petitioners have suppressed the fact and submitted a false genealogical tree before the Revenue

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Authority by not showing the name of the complainant and got mutated the Khatha in respect of land bearing survey No.48/3 measuring 0-1 guntas including 0–1/2 guntas belonging to him and only after coming to know about the said fraud committed by the petitioners, he has filed a complaint. He further contended that the suit for partition does not include the property in question and the said suit for partition was filed by one of the brothers in respect of the property which was not the subject matter of partition effected by his late father.

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In Priyanka Srivastava’s case, the Apex Court has held that applications under Section 156(3) of Cr.P.C. are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the Jurisdiction of the Magistrate and there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3) and an application under Section 156(3) to be supported by an affidavit, so that the person making an application should be conscious and also endeavour to see that no false affidavit is made.

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I have perused the complaint which is accompanied with a verifying affidavit. What is relevant to see is that, the complainant has not filed any application under Section 156(3) of Cr.P.C., seeking a direction by the learned Magistrate to refer the matter to police for investigation.

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This Court in A. ALAM PASHA V/s. MURUGESH. R NIRANI & OHTHERS, reported in AIR Online 2021 KAR

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213 , after referring to Priyanka Srivastava's case ( supra ), in a case of similar nature, has clarified that an affidavit is required only when complainant seeks reference of complaint to police under Section 156(3) of the Code and if the Magistrate himself in exercise of his power under Section 190 of the Code chooses to refer the complaint to police for investigation, requirement of filing of an affidavit does not arise and non filing of an affidavit does not vitiate either the order of reference or subsequent charge sheet filed by the police.

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Delay in filing the complaint is not a ground to thwart the investigation at its inception. The allegations have to be investigated into. It is the contention of the learned counsel appearing for respondent No.2 that the suit for partition filed by

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one of the brothers does not include the property in question. This Court cannot make any observation with regard to the rights of the parties with regard to property in question or the subject matter of the suit. Since the investigation is under progress, it is the prerogative of the police to conduct investigation in respect of allegations made in the complaint and to file an appropriate report. If the petitioners are aggrieved by any adverse report filed against them by police, they are at liberty to challenge the same.

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With the above observation, petition is dismissed .

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Sd/(MOHAMMAD NAWAZ) JUDGE

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LDC List No.: 1 Sl No.: 14 CT: BHK

Mr. K v. Venugopala v State of Karnataka

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Mr. K v. Venugopala v State of Karnataka

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