Pushpa S. Shetty vs State

K.N. Phaneendra, J.—Heard the learned counsel for the petitioners, learned counsel for the second respondent and the learned High Court Government Pleader for the first respondent-State. Perused the records.

The learned counsel for the petitioners strenuously contends that there are several civil disputes pending between the parties and there is a restraint order passed by the High Court restraining the complainant (respondent No. 2 herein) from interfering with the possession and enjoyment of the property i.e. site No. 3 to 5 carved out of survey No. 73/1 of Kaggadasapura Hobli, Bangalore East Taluk, making certain false allegations in the complaint, the respondent No. 2 has lodged a complaint before the X Addl. Chief Metropolitan Magistrate Court, Mayohall, Bangalore City, for the offence punishable u/s 418, 419, 463, 464, 465, 466 and 470 of IPC. The learned Magistrate in fact, referred the said complaint for investigation and report u/s. 156(3) of Cr.PC and the Police are investigating into the matter. At this stage, the petitioner has approached this Court for quashing of the entire investigation and consequently the complaint filed by the respondent No. 2 herein.

The learned counsel for the respondent No. 2 contended that the allegations made in the complaint itself are sufficient to attract the offences alleged against the petitioners. The truth or falsity of the allegations made in the complaint cannot be considered by this Court by looking into any other extraneous material i.e., the admission of the investigating agency. The parties are at liberty to approach the investigating officer by producing all the necessary documents in order to enable the investigating officer to make impartial investigation and to file fair report before the Court. Therefore, at this stage, the Court cannot interfere with the investigation.

On careful perusal of the complaint averments in PCR No. 51678/2013, it is seen that land bearing survey No. 73/1 of Kaggadasapura Village measuring 1 acre 15 guntas was subjected to partition between one Ramakka-wife, Kempamma and Mallakka-daughters of Papaiah, who died intestate. The said Mallakka sold her share in favour of one M. Srinivas on 26.6.2008 under a registered sale deed. It is alleged that the said land was sold as an agricultural land and the said M. Srinivas in-turn sold it to the complainant by two different sale deeds dated 22.12.2008 and 07.05.2009 respectively. It is further submitted that the complainant got converted the said land on 11.6.2011 from agriculture to residential purpose.

It is the specific contention of the complainant that subsequently at the time of registering the sale deed by Ramakka in favour of one Vasudeva Rai, the husband of the second petitioner, there was a mention that the said land was converted into No.ALN.SR. 2324/1975-76 dated 16.4.1975. It is specifically alleged that such conversion Order was not in existence but by acts of cheating fabricated the conversion order for the purpose of getting her sale deed registered before the concerned Sub-Registrar, registered Site No. 3 falsely showing the fabricated conversion Order on 21.7.1989 for her benefit to deceive the land owners. It is further alleged that A3 to A6 who are the children of deceased Mr. Vasudeva Rai have fabricated the sale deed dated 22.8.1989 in respect of Site bearing No. 4 by cheating the registering authorities in showing their documents the fabricated conversion order with dishonest intention to enrich themselves by forging the signatures of the concerned Tahsildar, South Taluk by fabricating the conversion order and produced a photocopy before the concerned Sub-Registrar for the purpose of registering the documents. The complainant alleged that the complainant came to know about the fraudulent act of cheating in the month of May, 2013 when his vendor Mr. Srinivas handed over the endorsement dated 1.6.2009 issued by the Special Tahsildar, Bangalore East Taluk. On these allegations, it is alleged that by virtue of the fabricated documents, the respondents or petitioners are claiming wrongly, a portion of the property of the complainant by wrongly identifying it.

It is true that the parties have already before the Civil Court in OS No. 5106/12 and admittedly, some other suits are also pending before the Civil Court prior to the lodging of the complaint. Looking to the above allegations made, the learned Magistrate was persuaded himself with the contents of the complaint and on looking into the complaint averments, some allegations of fraudulent and cheating acts have been alleged against the accused persons. Therefore, the learned Magistrate has referred the complaint to the Police for investigation u/s.156(3) of Cr.PC.

I have carefully perused the complaint averments. It is seen that the age of the accused No. 3 Sumithra is shown as 31 years, Accused No. 4 Smt. Pavithra K.V. is shown as 29 years, accused No. 5 Miss Suchitra K.V., is also shown as 29 years and Sri Sudarshan K.V. accused No. 6 is shown as 20 years. The allegations against Vasudev Rai is that he has concocted the documents particularly, the conversion Order and also forging signature of the Tahsildar etc., alleged to have been done in the year 1989. At that time, A3 to A6 are minors and they were tender aged children of the said Vasudev Rai. There is no specific allegation against these persons as to how in that tender age they could participate along with their father for the purpose of concocting the said documents. Then there is no specific allegations as such made against these accused persons. The learned Magistrate would have looked into the contents of the records and ascertained that these children were minors at that point of time, and how the allegations are sufficient to constitute any offence against them. In the absence of such exercise by the learned Magistrate he would not have referred the case for investigation so far as these petitioners i.e., A3 to A6 are concerned.

The learned counsel for the respondent No. 2 strenuously contends that because of the petitioners have committed the offences, the children are claiming the property by way of inheritance, pertaining to the property of Mr. Vasudev Rai. Therefore, they have to take not only the benefit out of those documents but also the burden. I do not agree with the arguments of the learned counsel for the petitioners for the simple reason that there cannot be any vicarious liability so far as Criminal liability is concerned. If father has committed any offence, the children who have to take the property as alleged against the father, therefore, the initiation of the proceedings so far as A3 to A6 are concerned is bad in law and in fact, the same is liable to be quashed.

So far as the second respondent is concerned, it is the specific allegation that she has appeared before the Civil Court and filed affidavit specifically contesting the proceedings and also specifically taking active part in the act done by her husband during his life time. Further, it is alleged that petitioner Nos. 1 and 2 were present along with others while Vasudev Rai has committed the offences.

The counsel for the petitioners would like to submit certain documents before this Court i.e., registered sale deed alleged to have been executed in favour of one Vasudev Rai, his previous vendor and also the subsequent document to show that these lands were already converted and these facts are well within the knowledge of the complainant and knowing fully well, the conversion Order passed by the Tahsildar in the year 1975 itself, a false complaint has been lodged. But, with due respect to the submission made by the learned counsel, those documents are extraneous so far as complaint is concerned, at this stage while exercising power u/s. 482 of Cr.PC, those documents can''t be considered.

The said documents may be helpful to the accused in order to prove their case against the complainant. When the Court has ordered for investigation, the investigating officer has to collect all the materials from the complainant as well as the accused in order to make an impartial investigation and to submit fair report before this Court. Therefore, whatever documents the learned counsel would like to rely upon to show that the allegations made in the complaint are false, those have to be produced before the investigating officer. In spite of production of those documents, if the police files any charge sheet before the court, then also, the entire materials would be available to the court before taking cognizance, the Court has to look into all these documents including limitation period with regard to taking cognizance alleged to have been taken place in the year 1989. Therefore, all these things have to be done either by the investigating officer or by the Trial Court. This court cannot venture upon to exercise power of the Trial Court as well as the investigating officer. Therefore, in the above factual background, in my opinion, the petitioners are at liberty to approach the investigating officer and produce all the documents to enable the investigating officer to submit appropriate report to the Court.

With the above observations, the Petition is partly allowed and the proceedings against A3 to A6 only are hereby quashed.