Mr. Mohammed Kaleem vs State of Karnataka

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.

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.

I have heard the arguments of the learned

counsel for the petitioner and the learned counsel for

2nd respondent and perused the records.

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.

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.

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.

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.

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.

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.

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.

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.

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."

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.