IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.6092/2016 C/W. CRIMINAL PETITION Nos.6091/2016, 6090/2016 & 6089/2016 IN CRL.P.No.6092/2016:
BETWEEN:
SMT. SIDDAGANGAMMA W/O VENKATARAMANA AGED ABOUT 54 YEARS SECOND DIVISION ASSISTANT TUMKUR MAHANAGAR PALIKE TUMKUR-572101. ...PETITIONER (BY SMT SWAMINI GANESH MOHANAMBAL, ADV. FOR SRI SANDEEP S. PATIL, ADV.) AND:
1. STATE OF KARNATAKA BY TUMKUR TOWN CIRCLE POLICE TUMKUR TOWN-572101 REPT BY PUBLIC PROSECUTOR.
2. G.S.SIDDALINGAPPA S/O LATE G.M.SOMASHEKARIAH AGED ABOUT 57 YEARS R/AT GENERAL KARIYAPPA ROAD OPPOSITE TO PLANET MAX K.R. EXTN. TUMKUR-572101. …RESPONDENTS (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R-1; SRI M.B.CHANDRACHOODA, ADV. FOR R-2.) THIS CRL.P. IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO [1] QUASH THE PRIVATE COMPLAINT IN PCR No.11/2016 REGISTERED AS CR.NO.78/2016 PENDING ON THE FILE OF THE PRL. C.J. [SR. DN.] AND C.J.M., TUMKUR; [2] SET ASIDE THE ORDER OF REFERRING TO INVESTIGATION U/S. 156[3] OF CR.P.C. DATED 16.04.2016 PASSED BY THE PRL. CIVIL JUDGE [SR. DN.] AND C.J.M., TUMAKURU IN PCR. No.11/2016; AND ETC., IN CRL.P.No.6091/2016:
BETWEEN:
SRI SHEKAR BABU M.G., S/O GANGACHIKKANNA AGED ABOUT 43 YEARS REVENUE INSPECTOR TUMKUR MAHANAGAR PALIKE TUMKUR-572101. ...PETITIONER (BY SMT SWAMINI GANESH MOHANAMBAL, ADV. FOR SRI SANDEEP S. PATIL, ADV.) AND:
1. STATE OF KARNATAKA BY TUMKUR TOWN CIRCLE POLICE TUMKUR TOWN-572101 REPT BY PUBLIC PROSECUTOR.
2. G.S.SIDDALINGAPPA S/O LATE G.M.SOMASHEKARIAH AGED ABOUT 57 YEARS R/AT GENERAL KARIYAPPA ROAD OPPOSITE TO PLANET MAX K.R. EXTN. TUMKUR-572101. …RESPONDENTS (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R-1; SRI M.B.CHANDRACHOODA, ADV. FOR R-2.) THIS CRL.P. IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO [1] QUASH THE PRIVATE COMPLAINT IN PCR No.11/2016 REGISTERED AS CR.NO.78/2016 PENDING ON THE FILE OF THE PRL. C.J. [SR. DN.] AND C.J.M., TUMKUR; [2] SET ASIDE THE ORDER OF REFERRING TO INVESTIGATION U/S. 156[3] OF CR.P.C. DATED 16.04.2016 PASSED BY THE PRL. CIVIL JUDGE [SR. DN.] AND C.J.M., TUMAKURU IN PCR. No.11/2016; AND ETC., IN CRL.P.No.6090/2016:
BETWEEN:
SRI TUKARAM NAIK S/O IRAPPA AGED ABOUT 46 YEARS REVENUE OFFICER TUMKUR MAHANAGAR PALIKE TUMKUR-572101. ...PETITIONER (BY SMT SWAMINI GANESH MOHANAMBAL, ADV. FOR SRI SANDEEP S. PATIL, ADV.) AND:
1. STATE OF KARNATAKA BY TUMKUR TOWN CIRCLE POLICE TUMKUR TOWN-572101 REPT BY PUBLIC PROSECUTOR.
2. G.S.SIDDALINGAPPA S/O LATE G.M.SOMASHEKARIAH AGED ABOUT 57 YEARS R/AT GENERAL KARIYAPPA ROAD OPPOSITE TO PLANET MAX K.R. EXTN. TUMKUR-572101. …RESPONDENTS (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R-1; SRI M.B.CHANDRACHOODA, ADV. FOR R-2.) THIS CRL.P. IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO [1] QUASH THE PRIVATE COMPLAINT IN PCR No.11/2016 REGISTERED AS CR.NO.78/2016 PENDING ON THE FILE OF THE PRL. C.J. [SR. DN.] AND C.J.M., TUMKUR; [2] SET ASIDE THE ORDER OF REFERRING TO INVESTIGATION U/S. 156[3] OF CR.P.C. DATED 16.04.2016 PASSED BY THE PRL.
CIVIL JUDGE [SR. DN.] AND C.J.M., TUMAKURU IN PCR. No.11/2016; AND ETC., IN CRL.P.No.6089/2016:
BETWEEN:
SRI ASHADR. SHARIFF S/O Z.R.SHARIFF AGED ABOUT 39 YEARS COMMISSIONER TUMKUR MAHANAGAR PALIKE TUMKUR-572101. ...PETITIONER (BY SMT SWAMINI GANESH MOHANAMBAL, ADV. FOR SRI SANDEEP S. PATIL, ADV.) AND:
1. STATE OF KARNATAKA BY TUMKUR TOWN CIRCLE POLICE TUMKUR TOWN-572101 REPT BY PUBLIC PROSECUTOR.
2. G.S.SIDDALINGAPPA S/O LATE G.M.SOMASHEKARIAH AGED ABOUT 57 YEARS R/AT GENERAL KARIYAPPA ROAD OPPOSITE TO PLANET MAX K.R. EXTN. TUMKUR-572101. …RESPONDENTS (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R-1; SRI M.B.CHANDRACHOODA, ADV. FOR R-2.) THIS CRL.P. IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO [1] QUASH THE PRIVATE COMPLAINT IN PCR No.11/2016 REGISTERED AS CR.NO.78/2016 PENDING ON THE FILE OF THE PRL. C.J. [SR. DN.] AND C.J.M., TUMKUR; [2] SET ASIDE THE ORDER OF REFERRING TO INVESTIGATION U/S. 156[3] OF CR.P.C. DATED 16.04.2016 PASSED BY THE PRL. CIVIL JUDGE [SR. DN.] AND C.J.M., TUMAKURU IN PCR. No.11/2016; AND ETC., THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioners in all the above four petitions, learned Additional Special Public Prosecutor for respondent No.1 and learned counsel for complainant – respondent No.2. Perused the records. Petitioners are accused Nos.19 to 22 before the Trial Court.
2. Accused No.19 was the Commissioner of Tumkur Mahanagara Palike; accused No.20 was the Revenue Inspector; Accused No.21 was the Revenue Officer and Accused No.22 was the Second Division Assistant of the said Mahanagara Palike at the relevant time. Accused No.1 made an application before the Commissioner, Municipal Corporation under Section 114 of the Karnataka Municipal Corporations Act, 1976 seeking change of Khata in respect of the properties comprised in Khata No.947/2018, PID No.39984 to her name. The second respondent filed objection to the said application. After hearing the parties, an order was passed by the Commissioner directing change of Khata in the name of accused No.1. Respondent No.2 herein has filed a private complaint against accused Nos.1 to 8 and the present petitioners arraigning them as accused Nos.19 to 22 and another accused No.23 seeking action against them under Section 420 of IPC.
3. The allegations made against the petitioners are that eventhough the complainant has filed his objection to the change of Khata and legal opinion was given by the Department was against accused No.1, yet petitioners herein passed an order directing mutation of Khata in the name of the accused No.1 thereby committed the offence under Section 420 of IPC.
4. The above allegations even if accepted in toto in my opinion, do not furnish a cause of action for the complainant to proceed against the petitioners in the absence of any evidence to show that the petitioners have been parties to the alleged act of cheating or deception under Section 420 of IPC. The only allegation made in para 4 of the complaint is that eventhough the Khata was not standing in the name of accused No.1 as on that date, the petitioners herein colluded with accused No.1 so as to change the Khata in her name. If the Khata was standing in the name of accused No.1, there was no necessity at all for accused No.1 to seek for change of Khata in her name. The very fact that accused No.1 has made an application for change of Khata in her favour indicates that accused No.1 had supporting material to substantiate the claim. Under the said circumstances, the Municipal Authorities having passed a quasi judicial order for change of Khata, appropriate remedy was available to the complainant to challenge the said order either by seeking review under Section 114A of the Karnataka Municipal Corporations Act, 1976 or by approaching Judicial Forum.
5. It is stated by the learned counsel for the petitioners that till date, the complainant has not challenged the order passed by the Commissioner, as such the complainant has no cause of action to proceed against the petitioners. Moreover, the petitioners having changed the Khata in favour of accused No.1, in discharge of their official function, even if there was any excess committed by the accused, the same are covered under Section 197 of Cr.P.C. Therefore, no prosecution could have been launched against the petitioners without prior sanction under Section 197 of Cr.P.C. The averments made in the complaint read as a whole disclose that the petitioners have mutated the records in discharge of their lawful duties under the provisions of the Karnataka Municipal Corporation Act.
6. It is also pointed out that the petitioners have resorted to Section 200 of Cr.P.C without exhausting the remedy under Section 154 of Cr.P.C as laid down by the Hon'ble Supreme Court in PRIYANKA SRIVASTAVA AND ANOTHER vs. STATE OF UTTAR PRADESH AND OTHERS reported in (2015) 6 SCC 287.
7. No affidavit has been filed in support of the accusations made against the petitioners. In any case, as the allegations made against the petitioners do not prima facie disclose the ingredients of the offence under Section 420 of IPC insofar as the petitioners are concerned the proceedings initiated against them are liable to be quashed.
Accordingly, the petitions are allowed. Proceedings in Cr.No.78/2016 pending on the file of Principal Civil Judge [Sr. Dvn] & CJM, Tumkur are quashed only in so far as accused Nos.19 to 22 are concerned.
Investigation shall proceed against other accused in accordance with law.
Sd/- JUDGE NC.