IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23rd DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3275 OF 2017 BETWEEN:
MR ARSHAD AHMED AGED ABOUT 42 YEARS, S/O MR.ABDUL KAREEM, R/AT MIR MANZIL, KOTEKAR POST, MANGALURU-575002 DAKSHINA KANNADA DISTRICT. ... PETITIONER (BY SRI: NISHIT KUMAR SHETTY, ADVOCATE) AND 1. STATE OF KARNATAKA BY STATION HOUSE OFFICER,. ULLAL POLICE STATION, MANGALORE, DAKSHINA KANNADA DISTRICT. REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, BENGALURU-560001 2. SMT NOOR JEHAN I.SHEIK AGED ABOUT 62 YEARS, W/O SRI IBRAHIM ABDUL SHAIK, R/AT NO.202(B) BLOCK, SOMARSET APARTMENT, MIDFORD GARDENS NO.18, M.G.ROAD, BANGALORE-560018 ... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SRI: KIRAN .J., ADVOCATE FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE CASE AGAINST THE PETITIONER IN C.C.NO.165/2016 (CRIME NO.157/2015 OF ULLAL POLICE STATION) FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 406, 420, 465, 471, 468 OF IPC PENDING ON THE FILE OF I ADDITIONAL SR. CIVIL JUDGE AND C.J.M., MANGALURU, DAKSHINA KANNADA.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner has called in question the charge-sheet filed against him in C.C.No.165/2016 for the offences punishable under sections 406, 420, 465, 471 and 468 Indian Penal Code.
Heard learned counsel for petitioner, learned counsel for respondent No.2 and learned Addl. SPP for respondent No.1. Perused the records.
2. The main contention urged by learned counsel for the petitioner is that on the basis of the very same allegation, respondent No.2 has filed a civil suit in O.S.No.4/2015 seeking cancellation of the general power of attorney on the ground that the executant of the said power of attorney was not in a fit condition to execute the said document. In view of pendency of the said suit, prosecution of the petitioner on the same set of allegations is unwarranted and abuse of process of Court.
3. Learned counsel for respondent No.2 as well as learned Addl. SPP for respondent No.1 however submit that the material collected by the investigating agency prima-facie disclose that as on the date of alleged execution of power of attorney, husband of complainant was suffering from ‘Primary CNS Lymphoma(Cancer) with left sided Hemi paresis’ and he was on supportive care treatment and he was unable to subscribe his signature and under the said circumstances, the alleged transactions entered into by the petitioner on the strength of a forged and concocted document prima-facie make out ingredients of the alleged offences and hence, there is no ground to quash the proceedings.
Considered the rival submissions and perused the records.
4. The material allegations levelled against the petitioner are that on the strength of power of attorney purported to have been executed by the deceased husband of the complainant, the petitioner herein withdrew a sum of Rs.48,19,531/- from the joint account held by him and the husband of the complainant. The very assertions made in the charge sheet indicate that the joint bank account was maintained by the petitioner as well as the husband of the complainant. Be that as it may, the complainant herself has filed a suit in O.S.No.4/2015 for cancellation of power of attorney executed by her husband. Under the said circumstances, the genuineness of the said general power of attorney and the capacity of her husband to execute said power of attorney has been seized by the civil court. The prosecution has relied only on the medical report to show the physical condition of husband of the complainant in the year 2013. The above suit has been filed on the strength of power of attorney alleged to have been executed in the year 2015. Thus, taking into consideration all the above facts and circumstances, it is appropriate for the parties to secure an order from the civil court before proceeding against the petitioner on the basis of the alleged accusations. Though the allegations made in the charge sheet relate to forgery of power of attorney, but the other circumstances discussed above would indicate that even the complainant has relied upon the power of attorney executed by her husband. In that view of the matter, the prosecution of the petitioner on the basis of the alleged accusations, required to be quashed.
Accordingly, the petition is allowed. The prosecution initiated against the petitioner in C.C.No.165/2016 pending on the file of learned 1st Addl. Civil Judge(Sr.Dn.) & CJM, Mangaluru is quashed, reserving liberty to the respondents to prosecute the petitioner on the same set of allegations, subject to findings or the result of the civil suit in O.S.No.4/2015.
Petition is allowed in terms of the above order.
Sd/- JUDGE *mn/-