IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1059 OF 2016 BETWEEN:
SRINATH S OLEKAR, S/O SATHYANARAYANA, AGED ABOUT 52 YEARS, R/O RAJENDRANAGAR, OPPOSITE TO ROTARY SCHOOL, SHIVAMOGGA – 577 201. …PETITIONER (BY SRI.P.N.HARISH, ADV.,) AND:
1. STATE BY JAYANAGAR POLICE STATION, BY ITS SUB INSEPCTOR OF POLICE, SHIVAMOGGA, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 560 001.
2. N.GIRISH, S/O LATE K.NANJUNDAPPA, AGED 43 YEARS, R/O GEJJANAHALLI, SHIVAMOGGA TALUK, SHIVAMOGGA – 577 201.
... RESPONDENTS (BY SRI DILDAR SHIRALLI, HCGP FOR R1;
SRI.K.N.DAYALU, ADV., FOR R2 (ABSENT)) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR BEARING NO.28/2015 DATED 04.03.2015 FILED BY THE FIRST RESPONDENT IN PCR NO.46/2015 ON THE FILE OF III ADDL. CIVIL JUDGE AND JMFC, SHIVAMOGGA IN CR.NO.292/2015 AND THEREBY DISMISS THE COMPLAINT FILED IN PCR NO.46/2015 PENDING ON THE FILE OF III ADDL. CIVIL JUDGE AND JMFC, SHIVAMOGGA BY ALLOWING THIS PETITION.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Learned counsel for respondent No.2 is absent.
Heard learned counsel for petitioner and learned High Court Government Pleader for respondent No.1. Perused the records.
2. Petitioner has filed this petition seeking to quash the FIR registered in Crime No.28/2015 for the alleged offences punishable under Sections 423, 420, 465, 468 and 426 of IPC. The said FIR is registered on the basis of the private complaint filed by second respondent alleging that during his evidence before the Court in O.S.No.149/2009, the petitioner herein deposed that he has issued two cheques bearing No.909678 for Rs.1 lakh on 18.07.2009 and bearing No.909677 for Rs.2 lakh on 15.07.2009 to the second respondent. According to second respondent, he has not received any such cheques and therefore contending that the petitioner has committed the offences under Sections 420, 423, 426, 465, 467 and 468 of IPC. FIR has been registered against the petitioner.
3. The averments made in the complaint clearly indicate that the complainant has based the prosecution on the evidence given before the Civil Court in O.S.No.149/2009. The said suit was filed by the second respondent challenging the sale deed executed by his mother in favour of the petitioner herein on the ground that he is also one of the joint owners of the said property. The said suit has been dismissed. In the said circumstances, the question arises as to whether the second respondent can take recourse to criminal prosecution against the petitioner based on the evidence given before a Civil Court?
4. The case of the petitioner is that the second respondent though is not possessed of any right in the property purchased by him from the mother of second respondent, yet on account of false claim made by second respondent to avoid any litigation in that regard, a sum of Rs.3 lakhs which was paid to the second respondent through the aforesaid two cheques. The factum of the payment of the said amount by the petitioner is proved during the course of trial and a finding to this effect is recorded by the trial Court in paragraph No.33 of the aforesaid judgment, which reads as under:-
“33. PW-1 got produced Ex.P21 cheque to prove that the defendant No.4 after purchase of the suit property from defendant No.1 issued him a cheque for Rs.1 lakh to settle the claim, but however, he did not chosen to encash the said cheque. However, the plaintiff has not chosen to denied the testimony of DW.1 when he has categorically deposed that he had issued 3 cheques in favour of PW.1 bearing cheque No.909677 dated 15.07.2009 for Rs.2 lakhs. Cheque bearing No.909678 dated 18.07.2009 amounting to Rs.1 lakh and a cheque bearing No.916723 dated 25.07.2009 for a sum of Rs.1 lakh. DW.1 has categorically deposed that except the Ex.P21 cheque the other 2 cheques totally amounting Rs.3 lakhs was already encashed by this plaintiff. PW.1 himself got produced Ex.P35, 36 cheques. The Ex.P35 and P36 documents proves that both the cheques were presented for encashment by the plaintiff and both the cheque amount was encashed by the plaintiff after presenting the same before the Bank. Ex..35(a) P36(a) are the signature of the plaintiff for having encashed the cheque amount in his name. This clearly proves that even though the plaintiff received a total sum of Rs.3 lakhs from the defendant No.4 through two separate cheques by claiming his right over the suit property and received the consideration, the plaintiff is only with an intention to harass this defendant and make wrongful gain to extract some more money from the defendant No.4 filed this suit by falsely claiming that he has having 5/8th share in the suit property and as such the defendant No.1 has no absolute right to alienate suit property in favour of defendant No.4. As I have discussions supra, the plaintiff in this suit has not chosen denied contents of Ex.P3 and no allegations was made against defendant No.1 that she sold said property to fulfill her unlawful and immoral needs. The plaintiff has not made allegations against defendant No.1 that she has utilize the sale consideration amount for the immoral needs. Admittedly in the plaint averments as well as in the evidence of PW-1 he is not made any allegations against the character and conduct of the defendant No.1 and also against defendant No.1 for misusing the sale consideration amount for illegal and immoral purpose. Even according to defendant No.1 she sold the suit property for family and legal necessity and to clear debt borrowed for the improvement of the family and also for the maintenance of the family. In such situation the case of the plaintiff that, the sale deed executed by the defendant No.1 is null and void and not binding upon his right over the suit property and she has no absolute right to alienate the suit property cannot acceptable and it holds no merits. Admittedly the Ex.P2 sale deed is standing in the name of defendant No.1 and she by exercising her absolute right over the suit property for family legal necessity and also improvement of the family and to clearly out standing loan sold the suit property for valuable sale consideration amount in favour of defendant No.4 and said sale is binding upon the plaintiff.”
5. Apart from the above finding, it is also a matter of record that in the course of trial, the second respondent disputed the signatures on those cheques and sought to send the same for the opinion of finger print expert. The said prayer having been rejected, second respondent approached this Court in W.P.No.5254/2015 and even the said petition came to be dismissed.
6. All these facts and circumstances clearly indicate that the petitioner herein had paid a sum of Rs.3 lakhs to the second respondent and the same was realized by the second respondent, though he was not legally entitled thereto. The findings of the Civil Court indicate that the said amount was extracted by the second respondent by laying a false claim to the property purchased by the petitioner. Even assuming that such an amount was not paid to the second respondent, even then, in the absence of any material to show that there has been any legal transaction between the parties, which entitled the second respondent to claim the said amount from the petitioner, and that with intent to cheat the complainant the alleged cheques were fabricated, the statement made in the course of evidence in a civil suit does not give raise to any criminal offences much less the offences under Sections 423, 420, 465, 468 and 426 of IPC. Except the statements made in the course of civil proceedings, the second respondent has not produced any independent material to show that the petitioner herein has forged or fabricated any document so as to entail his prosecution under Sections 465, 468 and 426 of IPC.
7. The averments made in the complaint even if accepted on its face value as true do not disclose the ingredients of the offences under Sections 423, 420, 465, 468 and 426 of IPC and hence, the prosecution initiated against the petitioner is wholly illegal and abuse of process of Court.
Accordingly, the petition is allowed. The proceedings pending on the file of III Additional Civil Judge & JMFC, Shivamogga in Crime No.28/2015 (PCR No.46/2015) are quashed.
Sd/- JUDGE VMB