IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.7559/2015 Between:
1. Smt. Gowramma, Aged about 54 years, W/o Sri.Lakshmaiah, 2. Sri.Lakshmaiah, Aged about 61 years, S/o Yellappa, Both Petitioner Nos.1 and 2 are Residing at Kaveramma Layout, Rotary Nagar, Kodichikkahalli Village, Begur Hobli, Bengaluru South Taluk – 560 068.
3. Sri.Y.Krishnappa, Aged about 55 years, S/o late Nadavathi Yellappa, Previously Residing at No.15, 1st Cross, Anjaneya Temple Street, Adugodi, Bengaluru – 560 030.
Now at Banahalli Village, Attibele Hobli, Anekal Taluk, Bengaluru City – 562 107.
4. Sri.Y.Rajappa, Aged about 53 years, S/o late Nadavathi Yellappa, No.15, 1st Cross, Anjaneya Temple Street, Adugodi, Bengaluru – 560 030. …Petitioners (By Sri Abhinav R., Advocate) And:
1. State of Karnataka, Represented by Adugodi Police Station and by its Station House Officer.
2. Smt. Shantha, Aged about 46 years, W/o late Sri.Y.Gopal Krishna, 3. Sri.Shivakumar G., Aged about 23 years, S/o late Sri.Y.Gopal Krishna, Respondent Nos.2 and 3 are r/a. No.15, 1st Cross, Anjaneya Temple Street, Adugodi, Bengaluru – 560 030. ...Respondents (By Sri.Vijayakumar Majage, Addl. S.P.P., for R1; R2 and R3 are served and unrepresented) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to quash the entire proceedings pursuant to the complaint dated 28.09.2014 lodged by Respondents 2 and 3 at Annexure – ‘A’ and the resultant F.I.R. registered by the I Respondent Police in Crime No.318/2014 dated 28.09.2014 at Annexure – ‘B’ to the Criminal Petition.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Petitioners are aggrieved by the registration of FIR against them in Crime No.318/2014 in Adugodi Police Station under sections 404, 465, 468, 420, 504, 506 read with 34 of Indian Penal Code.
Heard learned counsel for petitioners and learned Addl. SPP for respondent No.1. Respondent Nos.2 and 3 are served and unrepresented.
2. A joint complaint was filed by respondent Nos.2 and 3 before Adugodi Police alleging that petitioners herein forged the document purporting to be the last Will and Testament of late Y.Gopalakrishna and registered the same before the Senior Sub-Registrar of Basavanagudi (Banashankari), Bengaluru after the death of Y.Gopalakrishna and got transferred the revenue documents in their names.
3. Learned counsel for petitioners submits that the Will in question was presented for registration after the death of testator, in terms of sections 40 of the Registration Act, 1908 (“Act” for short). The Senior Sub-Registrar, Basavanagudi (Banashankari) conducted necessary enquiry as required under section 41(2) of the Act and on satisfying himself of due execution thereof, registered the said Will in Book No.III. Respondent Nos.2 and 3 have filed a civil suit on identical allegations and have sought for a declaration that the Will dated 31.07.2013 registered in the office of Senior Sub-Registrar, Banashankari is forged, illegal, null and void and not binding on the respondent Nos.2 and 3. The Civil Court having seized of the matter, invocation of criminal process by the respondents is illegal and intended to coerce the petitioners to agree to the illegal demands of respondent Nos.2 and 3 and to settle personal score with the petitioners. Effective remedy is available to respondent Nos.2 and 3 before the Civil Court and hence criminal process initiated by the respondents is an abuse of process of court and is liable to be quashed.
4. Learned Addl. SPP appearing for respondent No.1, however, has argued in support of the impugned action contending that, specific allegations of forgery and falsification of documents have been alleged against petitioners. The matter calls for investigation and hence, there is no ground to quash the proceedings.
5. The facts narrated above go to show that the Will said to have been executed by Sri.Y.Gopalakrishna was presented for registration after his death. The order passed by the Senior Sub-Registrar dated 06.02.2014 (Annexure-‘D’) indicates that the Senior Sub-Registrar conducted enquiry as per section 41(2) of the Act and having satisfied himself that Will in question was executed by the deceased Y.Gopalakrishna, registered the same in accordance with the provisions of the Act.
6(i). Section 75 of the Act casts a duty on the Sub- Registrar to register a document when he finds that the document has been executed and the requirements of law have been complied with. The said section empowers the Sub- Registrar to summon and enforce the attendance of any of the witnesses and compel them to give evidence, as if he were a Civil Court.
(ii) Section 76 deals with order of refusal by Registrar.
As per the said provision, every Registrar refusing to register a document, shall make an order of refusal and no appeal lies from any order by a Registrar under the said section.
(iii) Section 77 which is relevant for our purpose reads as under:-
“77. Suit in case of order of refusal by Registrar.- (1) Where the Registrar refuses to order the document to be registered, under section 72 or a decree section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree.
(2) The provisions contained in sub- sections (2) and (3) of section 75 shall, mutatis mutandis, apply to all documents presented for registration in accordance with any such decree, and, notwithstanding anything contained in this Act, the documents shall be receivable in evidence in such suit.”
7. Undisputedly, in the instant case, Senior Sub- Registrar having conducted necessary enquiry as contemplated under section 41(2) of the Act, has registered the Will in question. No doubt, a Will is not compulsorily registerable document and the same is amenable for challenge on any of the ground including forgery or such other suspicious circumstances. Due execution of the Will under the said circumstances could be proved only before the competent court and not before any criminal authorities. Merely because the complainants allege forgery of the document, it cannot be presumed that the document in question has been brought about by committing an act of fraud and the dispute raised by the beneficiaries by itself does not get converted into a criminal offence. The dispute raised by the respondent Nos.2 and 3 essentially relate to the proof of the Will which is already seized by the Civil Court in O.S.No.8342/2014. The complainants have already sought for cancellation of the said registered Will on the ground of forgery and misrepresentation. The dispute, therefore, having been seized by the Civil Court, in my view, the criminal process invoked by respondent Nos.2 and 3 is unjustified. In this context, it may be useful to refer to the decision of the Hon’ble Supreme Court in SARDOOL SINGH & Another vs. Smt. NASIB KAUR, 1987 (Supp) SCC 146, wherein in identical set of facts, the Hon’ble Supreme Court has observed as under:-
“… The civil court is therefore seized of the question as regards the validity of the Will. The matter is sub judice in the aforesaid two cases in civil courts. At this juncture the respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the Will is a forged one. That question will have to be decided by the civil court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the Will is being tested before a civil court.”
In view of the above factual and legal position, the proceedings initiated against the petitioners, in my view, are liable to be quashed.
Accordingly, petition is allowed. The FIR registered against petitioners in Crime No.318/2014 by respondent No.1 Adugodi Police Station is quashed.
In view of disposal of petition, I.A.No.1/2015 for stay does not survive for consideration and it is also disposed of.
Sd/- JUDGE Bss