Shekhar Vs State of Karnataka

SHEKHAR S/O. DODDAHANUMAIAH, AGED ABOUT 52 YEARS, RESIDING AT GARADIGARAPALYA, MADHURE HOBLI, KANASWADI POST, DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT – 561 203.

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... PETITIONER

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(BY SRI PAVANA CHANDRA SHETTY H., ADVOCATE)

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AND:

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Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka

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1 . STATE OF KARNATAKA BY ITS DODDABALLAPURA TOWN POLICE STATION, BENGALURU DISTRICT REPRESENTED BY HIGH COURT SPP, BENGALURU - 560 001.

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2 . VENKAT RANJITH PATTIBANDLA, S/O. JAIPAL PATIBANDLA, AGED ABOUT 44 YEARS, NO.103, JENASIS NILADRI ROAD, DODDATHOGURU, ELECTRONICITY,

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BENGALURU.

... RESPONDENTS

(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1; SRI SAMMITH S., ADVOCATE FOR R-2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.123/2024 REGISTERED BY THE DODDABALLAPURA TOWN P.S., BENGALURU DISTRICT, PENDING ON THE FILE OF THE COURT OF ADDITIONAL CIVIL JUDGE (JR.DN) AND JMFC COURT, DODDABALLAPURA, BENGALURU RURAL DISTRICT, FOR THE OFFENCE P/U/S 34, 409, 419, 465, 468 OF IPC, PRODUCED HEREWITH AS DOCUMENT NO.1 AND ETC.,

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 12.12.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CAV ORDER

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Petitioner/accused No.4 is knocking at the doors of this Court calling in question registration of a crime in Crime No.123 of 2024 registered for offences punishable under Sections 409, 419, 465, 468 and 34 of the IPC and pending before the Additional Civil Judge

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(Junior Division) and JMFC Court, Doddaballapura, Bengaluru Rural District.

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Heard Sri Pavana Chandra Shetty, learned counsel

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appearing for the petitioner, Sri B.N. Jagadeesha, learned Additional State Public Prosecutor appearing for respondent No.1 and Sri Sammith S, learned counsel appearing for respondent No.2.

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Facts in brief, germane are as follows:-

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A complaint comes to be registered by the 2^nd respondent

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alleging that property bearing Sy.No.21/2 measuring 1 acre 30 guntas; Sy.No.21/3 measuring 1 acre; Sy.No.21/4 measuring 1 acre 30 guntas and Sy.No.21/5 measuring 1 acre belonged to his father-in-law one Sri Yalamanchali Jithin Kumar. The allegation is that the property purchased in the year 2019 was the subject matter of General Power of Attorney in favour of the complainant to administrate the property, as his father-in-law is a resident of Andhra Pradesh. The case of the complainant projected is that, on 08-08-2024 he discovers that one Y.M.Jithin Kumar, son of

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Janardhana Rao, accused No.1 has entered into a sale agreement with accused Nos.2 and 3 in respect of the afore-mentioned property for a consideration of ₹1.15 crores.

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A crime then comes to be registered in Crime No.123 of 2024 on the aforesaid facts, on the ground of impersonation of Sri Yalamanchali Jithin Kumar and execution of agreement of sale on forged documents. The sale deed is not yet taken place. The petitioner is accused No.4 and the Sub-Registrar of Doddaballapura is accused No.5. The two are drawn into the web of crime on the score that the petitioner/accused No.4 is a deed writer. It is the petitioner who has scribed the deed along with a seal of his in the deed of him being the deed writer. The moment crime is registered, the petitioner has knocked at the doors of this Court in the subject petition.

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The learned counsel appearing for the petitioner would vehemently contend that the petitioner is only a deed writer. Whatever document is given to him, on those documents he would write the deed. Beyond this, there is no role of the petitioner. All

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that the petitioner has to see was revenue records and the RTC that were standing in the name of a particular party. He has verified those documents and written the deed. It is his submission that in terms of the Karnataka Registration (Deed Writers’ Licence) Rules, 1979 (‘the Rules’ for short) beyond what the petitioner has done, he has no role to play. He would, therefore, submit that none of the allegations are attributable to him. It can, at best, be qua accused Nos. 1, 2 and 3.

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Per contra, the learned counsel Sri Sammith S appearing for the 2^nd respondent would take this Court through the statement of objections to contend that Sri Yalamanchali Jithin Kumar has been impersonated by some person said to be the resident of Bengaluru. The actual person is a resident of Hyderabad, Telangana. He would, therefore, contend that there is prima facie evidence of impersonation and execution of agreement. The petitioner’s role is not limited to writing whatever any person who come to him to write. The statute enjoins certain duty on the deed writers. The petitioner has deviated that duty. Therefore, the offences under Sections 409, 419, 465 and 468 are prima facie met

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against the petitioner as well. He would seek dismissal of the petition.

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I have given my anxious consideration to the submissions

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made by the respective learned counsel and have perused the material on record.

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The afore-narrated facts are not in dispute. The petitioner is a licensed deed writer having secured a licence under the Rules. The Rules are framed exercising the powers conferred upon the State under the Registration Act, 1908 (‘the Act’ for short). The owner of the property is one Sri Yalamanchali Jithin Kumar. Yalamanchali Jithin Kumar executes a General Power of Attorney in favour of the complainant, son-in-law, on the ground that he is in Hyderabad and to administrate the property he would require the assistance of his son-in-law. The General Power of Attorney is registered before the jurisdictional Sub-Registrar at Bengaluru. It has photographs inscribed at the time of registration. One Y.M. Jithin Kumar who describes himself to the son of Janardhana

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Rao and shows himself as a resident of Bengaluru executes

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agreement of subject property in favour of accused Nos. 2 and 3. The agreement of sale has become the subject matter of crime. Accused Nos. 1, 2 and 3 are not before Court. It is the 4^th accused, the deed writer who is before Court. The contention of the learned counsel for the petitioner is that the deed writer cannot be hauled into any kind of proceedings, as he has only written the deed and in the case at hand, his contention is that an Advocate came and gave him the draft and he has put his signature and seal as a deed writer. No allegation can be made against him. The submission is unacceptable for reasons more than one.

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Aadhar card of Yalamanchali Jithin Kumar is appended to

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the statement of objections. The photographs in the Aadhar card and the General Power of Attorney executed completely match even on cursory look. The photograph in the agreement of sale is completely different even on its prima facie look. Therefore, the petitioner, the deed writer, ought to have looked into the documents produced before him, as the statute enjoins a duty to be performed by him.

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The Rules are notified in exercise of powers conferred

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under Section 69 of the Act. Certain provisions of the Rules are necessary to be noticed. Rule 2 dealing with definitions reads as follows:

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“2. Definitions. – In these rules, unless the context

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otherwise requires:-

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(i) “Deed Writer” means a person engaged in the profession of preparing or writing deeds for registration, which includes the work of conveyancing, investigation of title, preparation of draft deed and engrossing deed on stamp paper;

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(ii) “ Form ” means a form appended to these Rules;

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(iii) “ Licence ” means a Deed Writers’ Licence granted under these Rules;

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(iv) “ Licensing Authority ” for the purpose of these Rules shall in respect of each District or sub-district be the concerned District Registrar.”

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(Emphasis supplied)

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Rule 2(i) defines who is a deed writer. Rule 2(iii) defines Licence.

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Rule 7 deals with issuance of licence. Rule 10 deals with conditions

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attached to the Deed Writers’ Licence and reads as follows:

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“10. Conditions attached to the Deed Writers’ Licence - The following conditions shall be deemed to be attached to the Deed Writers’ Licence:

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(a) That the Licensee shall abide by the rules relating to the licensing of Deed Writers’.

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(b) That he shall not demand or receive any fees in excess of the amount specified in the schedule of fees appended to these rules, for the services rendered by him as a document writer.

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(c) That he shall exhibit the schedule of fees in a conspicuous place in his office.

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(d) That he shall maintain the registers, receipt books and other records prescribed by these rules to be maintained or required to be maintained by the Licensing Authority from time to time.

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(e) That he shall render true and correct accounts of the moneys, he received from the parties.

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(f) That he shall write documents legibly and in accordance with the instructions that may be issued from time to time by the Licensing Authority.

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(g) That he shall write or caused to be written deeds carefully, properly and in clear and unambiguous terms.

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(h) That he shall obey all directions that may from time to time be issued by the Licensing Authority regarding the preparation of transcription of documents.”

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Rule 2(i) which defines who is a deed writer defines him to be a person engaged in the profession of preparing or writing deeds for registration which includes the work of conveyancing, investigation of title, preparation of draft deed and engrossing deed on stamp paper. Therefore, it cannot be said that the petitioner who is a

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licensed deed writer, in terms of the Rules he has no duty to look into all the papers, as his duty includes conveyancing and investigation of title. The petitioner seeks to put up a defence that all that was necessary to see is RTC of the property. According to him, the RTC is in the name of Yalamanchali Jithin Kumar and according to the learned counsel for the petitioner J.M. Jithin Kumar is Yalamanchali Jithin Kumar. The name found in the RTC which is produced by the petitioner himself is Y.J. Kumar. It is not shown as Y.M. Jithin Kumar, as is observed in the agreement of sale. Once having executed a power of attorney in favour of the son-in-law, it is ununderstandable as to how the petitioner could scribe a deed for which no document is seen. The son-in-law of the property owner is not the executant of the agreement of sale. It is some person by name Y.M. Jithin Kumar. Therefore, prima facie , there appears to be a forgery and impersonation in the case at hand, may be accused Nos. 1 to 3. But, the petitioner being a deed writer has some duty enjoined on him under the Rules as afore-quoted.

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The learned counsel for the petitioner projects that what is necessary as a qualification under the Rules is a pass in 8^th

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standard. That rule has been amended. Even otherwise, the petitioner when he has put his seal and signed on the disputed instrument, it shows that he has his qualification as bachelor of arts. Therefore, the said projection cannot be made before this Court for seeking quashment of entire proceedings qua accused No.4. Even the signature appears to be different in General Power of Attorney and in the disputed document – agreement of sale. But, this would require further investigation. On totality of circumstances what is unmistakably discernible is that such matters do require investigation as they are seriously disputed questions of fact.

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Deed writers must be aware that they are functioning on grant of a licence under the Rules and certain duty cast upon them. The definition itself defines what is the work of a deed writer. The petitioner has prima facie failed to perform his duty. He has admittedly affixed his signature and seal on the document without verifying anything that is necessary to be verified. The submission of the learned counsel for the petitioner that some Advocate got him the document and he has, in good faith, affixed his seal is neither here nor there. Merely because he is a deed writer, the

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proceedings against him cannot be quashed, as the offence of forgery and using forged document to be genuine and criminal breach of trust by the petitioner are prima facie met. Therefore, these are matters where investigation would be required. It becomes apposite to refer to the judgment of the Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH¹ , wherein it is held as follows:

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“…. …. ….

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9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the

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1 (2021) 9 SCC 35

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FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the chargesheet is filed along with such material as to how far and to what extent reliance can be placed on such material.

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9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised

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sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.

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9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

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10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27-10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also

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required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

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11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 2710-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.

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12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction

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in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

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13. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.

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In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed.”

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(Emphasis supplied)

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The Apex Court in KAPTAN SINGH directs that this Court when confronted with seriously disputed questions of fact should not exercise its jurisdiction under Section 482 of the Cr.P.C.,

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particularly when the offences are prima facie met. The offences are prima facie met in the case at hand against the petitioner.

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Finding no merit in the petition, the petition stands rejected .

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It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C., and the same shall not bind or influence the proceedings against the accused pending before the learned Magistrate or before any other fora.

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Consequently, I.A.No.3 of 2024 also stands disposed.

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SD/(M. NAGAPRASANNA) JUDGE

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Bkp CT:MJ

Shekhar v. State of Karnataka

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Shekhar v. State of Karnataka

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