IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6th DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO. 8142/2017 BETWEEN:
Mr. Mohammed Kaleem S/o Late Mohammed Jan Aged about 40 years R/o No.52/2, 7th cross, Muninanjappa Block, Dinnur Main Road, R.T.Nagar, Bengaluru-560 032. ... PETITIONER (BY Sri Bharath Kumar. V., Adv. ) AND:
1.State of Karnataka Through Station House Officer, Sanjaynagar Police Station, Bengaluru-560 094 Represented by:
State Public Prosecutor Hon’ble High Court of Karnataka, Bengaluru-560 001.
2. B.H.Vasantha D/o Late B.Hanumantha Rao, Aged about 78 years, R/o No.924/A, 18th ‘A’ main, 5th Block, Rajajinagar, Bengaluru-560 010. …RESPONDENTS (By Sandesh J.Chouta, SPP II for R-1, Sri P.S.Rajagopal, Sr. Counsel for Sri P.N.Rajeshwara Adv. for R-2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C., PRAYING TO QUASH THE FIR BEARING CR.NO.262/2017 ALONG WITH INFORMATION DATED 07.09.2017 REGISTERED WITH THE RESPONDENT SANJAYNAGAR POLICE STATION, WHEREIN THE PETITIONER HEREIN IS ARRAIGNED AS ACCUSED NO.2 FOR THE ALLEGED OFFENCES U/S. 419, 420, 468, 471, 120b R/W 34 OF IPC THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT PASSED THE FOLLOWING:-
ORDER Though an application is filed for vacating of the stay order, with consent of both the learned counsel, the matter is taken up on merits and disposed of.
2. The petitioner has approached this Court seeking quashing of F.I.R. in Crime No. 262/2017 against the petitioner and others registered for the offences punishable under Sections 419, 420, 462, 468, 471, 120-B r/w. Section 34 of IPC.
3. I have heard the arguments of the learned counsel for the petitioner and the learned counsel for 2nd respondent and perused the records.
4. The factual aspects disclose that one B.H.Vasantha, the 2nd respondent herein is undisputedly the owner of the property bearing Door No.108, PID No.100-86-108, situated at AGS Layout, New BEL Road, Bangalore-560 094. It is also not disputed that one Uma Nagaraj was a tenant under 2nd respondent. It is the allegation made by 2nd respondent that the 2nd respondent has filed a suit against the said tenant and the suit in O.S.No.6570/2002 came to be dismissed. It is the case of the 2nd respondent that she did not file any appeal against the said judgment and decree and she has not filed any suit further against the tenant in any manner. It is the allegation that one Mr.Vijayendra M., who is not even known to the 2nd respondent is alleged to have been the GPA holder of the 2nd respondent has filed R.F.A. against the judgment and decree passed in O.S.No.6570/2002, in R.F.A. No.2032/2011 as GPA holder of the 2nd respondent and in the meantime, during the pendency of the said appeal, it is also alleged that the said GPA holder executed a sale deed in respect of the property of 2nd respondent in favour of the petitioner herein. In the said appeal, the petitioner was also impleaded after the disposal of the appeal and he got an order that the 2nd respondent who was impleaded in the appeal can file a suit for recovery of the possession of the property against the tenant Uma Nagaraj. Accordingly, it appears, the said person has filed a suit in O.S.No.2403/2013 (petitioner herein) and in the said suit, there appears a compromise petition has been filed and by virtue of the same it is alleged that the petitioner has taken possession of the said property.
5. It is the specific case of the 2nd respondent that after disposal of the suit, she never filed an appeal, never executed any GPA in favour of one Vijayendra nor she executed sale deed or was a witness to the sale deed alleged to have been executed in favour of the petitioner. It is also submitted by the learned counsel for 2nd respondent that the petitioner and the alleged legal representatives of the erstwhile tenant have entered into a compromise and thereafter, the petitioner has made attempts to enter into the property and then only she came to know about all these proceedings. Immediately, she filed an application in R.F.A. to take up the matter and the application is still pending before the Court. In the meantime, she also came to know that the present petitioner and Vijayendra have colluded with each other in creating a GPA alleged to have been executed by the 2nd respondent in favour of Vijayendra. By forging the signature of 2nd respondent on the GPA, the said Vijayendra appears to have filed RFA and thereafter executed sale deed and after compromise with the tenant, made attempts to take possession of the property. Making such allegations that, the said document i.e., GPA is forged and sale deed is not valid in the eye of law, the present respondent filed an FIR before the police alleging forgery as well as offences u/s. 419, 420 r/w Section 506 of IPC and the police have registered a case and are investigating the matter. In this context, the petitioner is before this Court and has filed this petition.
6. The learned counsel for the petitioner strenuously argues before this Court that the tenant has already filed an FIR on the same allegations that there was a forgery as well as concoction of the documents in order to cheat the tenant. The said complaint is registered by the police on 15.10.2012 for offences under Section 420 r/w Section 506 of IPC, wherein the present 2nd respondent is also one of the accused. Therefore, the entire investigation cannot be once again taken up. There is no need for the 2nd respondent to file another complaint as the same is hit by Section 162 of Cr.P.C. He also contends before this court that there is no allegations in the FIR dated 07.09.2017 filed by the 2nd respondent which attract the provisions of Sections 419, 420, 468, 471, 120-B of IPC r/w Section 34 of IPC. Though there are some allegations which attracted Section 465, 467 of IPC, but those offences are non-cognizable in nature. The police cannot investigate the same without the permission of jurisdictional Magistrate.
7. Having heard the above said submissions, the undisputed facts which are available in this case are that the 2nd respondent is the owner of the said property as noted above and it was leased out to one Uma Nagaraj and a suit has been filed by the 2nd respondent and the same has been dismissed. All further subsequent transactions as alleged by the petitioner has been denied by the 2nd respondent on the main ground that the said Vijayendra is unknown to the 2nd respondent and he has colluded with the petitioner in order to create GPA, as well as, Sale Deed in favour of the petitioner and on the basis of such document i.e., Sale Deed, a suit has been filed and there was some compromise between the legal representatives of the tenant, thereby influenced the tenant to handover the possession of the property.
8. In view of the above said circumstances, this Court has to examine whether the allegations made in the first information report attract the provisions invoked by the police. It is clear from Paragraph-3 of the complaint wherein it is categorically stated that the 2nd respondent has not at all executed any GPA in favour of Vijayendra and it is also alleged that the said document has been concocted and forged by the said Vijayendra along with petitioner. Therefore, there is a clear allegation that the said GPA is created by Vijayendra in collusion with the present petitioner. Further, it is alleged that on the basis of such forged documents as well as on the basis of the alleged concocted Sale Deed, which emanated by virtue of collusion between the petitioner and the said Vijayendra, they have filed a suit and tried to dispose of the property. Even the said forged document has been used for the purpose of filing RFA before this Court. Therefore, it is categorically stated that there was an offence of cheating committed by the petitioner and the said Vijayendra.
9. In my opinion, the above circumstances stated in the first information report broadly attract the provisions invoked by the police. There need not be any meticulous information in the first information report. The police have to find out the truth or falsity of such allegations. During the course of investigation, if the police found that some of the offences are not committed and any fresh offences are committed by a party, at the time of filing of final report before the Court, the police have to file appropriate report for the offences actually committed by the accused persons. Therefore, in my opinion, it cannot be said that only offences under Sections 465 and 467 are attracted and those are not cognizable in nature and also the police cannot investigate the matter. However, the law is otherwise. Because, if the allegation makes out in the FIR if any one of the cognizable offence is available to the police, including some non-cognizable offences and if the police are not sure that whether any cognizable offences are committed, then they can register a case, including the cognizable and non-cognizable offences and proceed to investigate the matter. If ultimately the police come to the conclusion that if alleged cognizable offences are also committed, then the police can file appropriate report before the Court. Therefore, in that line, the argument of the learned counsel for the petitioner is not tenable.
10. So far as the second FIR is concerned, first FIR submitted by the tenant on 15.10.2012 is in her independent capacity, making allegations of collusion between the 2nd respondent and also with the said Vijayendra and the petitioner herein. There is a divergent stand taken by the 2nd respondent herein, because the 2nd respondent claiming that she never been the conspirator with Vijayendra or Mohammed Kaleem. On the other hand, the petitioner and Vijayendra have cheated the 2nd respondent herein. Therefore, she has separate and independent cause of action for filing the complaint. In the said complaint, the investigation cannot be made with reference to the allegations of the 2nd respondent herein, because, 2nd respondent cannot make any complaint in that particular report filed by the tenant.
11. Under the above said circumstances, when the cause of action and the claim of the 2nd respondent is altogether different and separate, under such circumstances, it cannot be called that his complaint before the police is a second complaint on the same cause of action and on the same allegations. Therefore, in my opinion, that ground is also not available to the petitioner herein.
12. Under the above said facts and circumstance, on overall looking to the materials on record, it cannot be in a conclusive manner be said that the matter is only civil in nature. The learned Senior Counsel appearing for 2nd respondent has cited a decision reported in the case of Indian Oil Corporation –vs- NEPC India Ltd., and others { (2006) 6 SCC 736 }, wherein the Apex Court has observed that “A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.”
13. As I have already noted, if the Court cannot come to a definite conclusion that it is purely civil in nature, but it is mixture of both civil and criminal liability, then the complainant is at liberty to invoke both, civil and criminal, or any one of them.
Under the above said circumstances, I do not find any strong reasons to quash the proceedings as sought for. Hence, the Petition is devoid of merits and the same is liable to be dismissed.
Accordingly, the Petition is dismissed.
In view of dismissal of the petition itself, IA.2/2017 filed for stay, does not survive for consideration. The same is dismissed.
Sd/- JUDGE snb/bk