IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE K.N.PHANEENDRA CRL. P. NO.1932/2016 BETWEEN SMT. SULOCHANA D W/O B.RAMACHANDRA BHAT, AGED 63 YEARS, R/A BENAKA, NEAR KAPIKAD, 2ND CROSS, BEJAI, MANGALURU-575 004. ... PETITIONER (BY SRI. MANMOHAN P N, ADV.) AND 1. SRI. K. NARASIMHA PRABHU S/O LATE K.SUBBANNA PRABHU, AGED ABOUT 77 YEARS, GANESH PRASAD, NEAR KAPIKAD II CROSS, BEJAI, MANGALURU-575 004.
2. THE STATE OF KARNATAKA REPRESENTED BY THE STATION HOUSE OFFICER URWA POLICE STATION, MANGALORE CITY-575007. ... RESPONDENTS (BY SRI. P P HEGDE, ADV. FOR R1, SRI. SANDESH J.CHOUTA, SPP-II FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO i) SET ASIDE THE ORDER DATED 08.01.2016 PASSED IN CRL.RP.NO.191/2014 PASSED BY THE COURT OF THE IV ADDL. DIST. AND S.J., D.K., MANGALORE (PRODUCED AS DOCUMENT NO.1). ii)SET ASIDE THE ORDER DATED 23.11.2013 PASSED IN CR.NO.67/2011 IN (C.C.NO.3738/2013) PASSED BY J.M.F.C.-III COURT, MANGALORE (PRODUCED AS DOCUMENT NO.2) AND CONSEQUENTLY ACCEPT THE 'B' REPORT FILED BY THE 2ND RESPONDENT AND iii)QUASH THE ENTIRE PROCEEDINGS IN CR.NO.67/2011 REGISTERED AS C.C.NO.3738/2013 PENDING BEFORE THE J.M.F.C.-III COURT, MANGALORE.
THIS CRL.P COMING ON FOR ‘ADMISSION’, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner and respondent. Perused the records. Respondent No.1 lodged a complaint on 24.10.2011 making allegations that he has purchased 0.07 cents of land under sale deed dated 22.10.1976 from one D Madhava Rao, father of the accused. The vendor of the complainant, Shri Madhava Rao was residing along with his daughter (petitioner), who is the neighbour of the complainant and was also very much aware of the sale deed in favour of the complainant. It is alleged that in order to cause harassment to respondent No.1, the petitioner-accused has committed forgery and by using her influence, she has got changed the RTC in respect of one cent of land given to her by way of Will by her father in her name which was alleged to have been purchased by the complainant and respondent No.1. She was shocked to know that one cent of land out of that 7 cents of land was already been mutated in the name of the accused. Thereafter respondent No.1 filed a complaint stating that on the basis of forged document, the accused/petitioner got changed the RTC into her name. Therefore, he requested the police to register a criminal case and take action against the accused and also concerned revenue officials. The said complaint was thoroughly investigated by the police and police have submitted ‘B’ summary report before the court stating that the acquisition of the land by the petitioner is altogether separated from the land sold by way of registered Sale Deed in favour of the petitioner. The said ‘B’ report came to be challenged by filing protest petition by respondent No.1 herein. The learned Magistrate has taken cognizance on the basis of the protest petition and rejected the ‘B’ report and provided an opportunity to respondent No.1 herein to lead evidence by way of sworn statement. After recording the sworn statement and going through the contents of the protest petition, the learned Magistrate has ordered to register a criminal case against the petitioner and ordered to issue summons.
2. Said order was called in question by the petitioner in Crl.RP.No.191/2014 on the file of the IV Addl. District & Sessions Judge, D.K. Mangaluru. The learned Sessions Judge, by a detailed order, has dismissed the said revision petition holding that there are no grounds to set aside the order passed by the learned Magistrate for taking cognizance. Being aggrieved by the said order present petition is filed.
3. Learned counsel for the petitioner strenuously argued that neither in the protest petition nor in the private complaint, respondent No.1 has stated the details of transaction. Further he suppressed the proceedings before the revenue authorities, which are taken place much earlier to filing of the complaint before the police. He also drawn the attention of this Court that the revenue authorities have categorically, in detail have held an enquiry and rejected the applications filed by the first respondent herein. Being aggrieved by the orders of the revenue authorities, respondent No.1 filed O.S.No.163/2016, which is pending before the Civil Judge(Sr.Dn.) Mangalurau. Therefore, looking to the materials on record, in the complaint, respondent No.1 has again suppressed the material, which clearly discloses that he has not approached the court or police with clean hands. Therefore, considering these materials, this Court could appropriately come to the conclusion that the dispute between the parties is purely a matter of civil in nature and the same has already been challenged before the Revenue Courts as well as before the Civil Court, therefore criminal proceedings if continued, it amounts to abuse of process of law.
4. Per contra, learned counsel Sri P.P. Hegde, appearing for respondent No.1 strenuously argued that there is some civil dispute between the parties that will not take away the jurisdiction of the criminal court to deal with the criminal offence as alleged. There are allegations of forgery of the sale deed executed by the vendor of respondent No.1, which has to be established in a criminal court. Therefore, he contends that the learned Magistrate and the learned Sessions Judge after considering the matter have come to the conclusion that one more chance is to be given to respondent No.1. Therefore, when the factual aspects have already been discussed by the courts below, while exercising power under section 482 Cr.P.C., this Court should not normally interfere with such proceedings.
5. Of course there is no doubt if the matter is exclusively of criminal in nature that could be tried by the Magistrate and police can also investigate such matters. But on careful perusal of the entire materials on record, if court comes to the conclusion that essentially the dispute between the parties is of civil in nature, which has given a criminal colour. In such an eventuality, if the parties are already before the Civil Court, criminal transaction should not be allowed to continue . However liberty can be given to the parties after civil dispute is over, if still they feel that criminal act has been committed, then the parties can proceed even before the Criminal Court.
6. In this particular case, both the Magistrate and the learned Sessions Judge shall have to only work out the remedies to the parties considering only the contents of protest petition and the sworn statement. The courts are debarred from looking into any other extraneous materials. However, the said barricade is not available to this Court. So far as trial court is concerned, while exercising the power under section 482 of Cr.P.C., where the documents produced before the court are of conclusive in nature and they can be relied upon by the court for allowing those documents to be proved during the course of evidence, when such materials are available and the court can draw inference on the basis of such document.
7. In this back ground, if it is seen from the records the petitioner has produced all the records of the proceedings taken place before the Tahsildar Mangalurau on 17.12.2009 in CDS:Bhoomi/RRT.73/2009-10, wherein the present respondent No.1 has filed a petition before the Tahsildar for enquiry into the matter. The above said dispute is with reference to one cent of land which has been alleged to have been acquired by the petitioner on the basis of a will. The Tahsildar after enquiry has passed a detailed order rejecting the said application filed by respondent No.1. Being aggrieved by the said order, respondent No.1 has preferred an appeal before the Assistant Commissioner Mangalore, dated 25.4.2011 in CDS:R.R.T:SR:573/09-10. The Assistant Commissioner, in fact set aside the order of the Tahsildar and remitted the matter to the Tahsildar for fresh enquiry. Again the Tahsildar after further detailed enquiry, by order dated 24.5.2012 held that the application filed by respondent No.1 before the Tahsildar is devoid of merits and the same has been rejected. Being aggrieved by the same, again respondent No.1 has approached the Assistant Commissioner in CDA:R.R.T.S.R.:336/2012-13. The Assistant Commissioner vide order dated 24.4.2016 has also rejected the said appeal and directed the parties to approach the civil court as the matter is of civil in nature. Being failed in the revenue courts, it appears the first respondent has also filed a suit in O.S.No.163/2016 against the petitioner and the Tahsildar Mangalore, for declaration that, the plaintiff is the absolute owner of the Plaint schedule property acquired under a Will and directing defendant No.2 to enter the RTC in the name of the plaintiff by deleting the name of first defendant and for such other reliefs etc., 8. Therefore looking to the above facts and circumstances of the case, it reveals that there is dispute between the parties with reference to only one cent of land but not with regard to any other properties acquired by the petitioner under the Will executed by her father. Therefore, whether the said will is a concocted one, which has to be established during the course of full dressed trial. Under the above said facts and circumstances, when this very aspect was known to the first respondent in the year 2009 itself, the respondent having failed in revenue courts, not made any efforts to file complaint before the police and complaint was filed as noted above in the year 2011. Under the above said circumstances, it appears civil case has been given a colour of Criminal Case. Under the above said circumstances, considering the surrounding circumstances of this very case, in my opinion criminal prosecution cannot be ordered to be continued, otherwise it amounts to abuse of process of law.
9. In the above said facts and circumstances of the case, particularly so far as this case is concerned, the proceedings deserve to be quashed. However, liberty is given to the respondent No.2 to approach the Criminal court once again, if it is established in the Civil case that the petitioner has forged the said documents, because the said document is also the subject matter before the Civil court.
10. Under the above said circumstances I proceed to pass the following:
:ORDER:
The petition is allowed. Consequently, C.C.No.3738/2013, which is pending on the file of JMFC III Court Mangalore, is hereby quashed.
Sd/- JUDGE CT-HR PSG/PL