Jeevarathna Anand vs. The State Of Karnataka

CAV ORDER

The petitioners/accused 1 and 2 are knocking at the doors of this Court calling in question registration of a crime in Crime No.299 of 2023 registered for offences punishable under Sections 120B, 406, 420, 469, 470 and 471 of the IPC and pending before the III Additional Chief Metropolitan Magistrate, Bengaluru.

One N.Nagappa had two sons – N.S. Anandappa/2nd respondent and N.T.Ramesh and 3 three daughters. N.Nagappa, father of the complainant had purchased a property i.e., Site No.141, 13th Main Road, 3rd Block, Jayanagar, Bengaluru measuring 43’x59’ and constructed ground and first floors. The 2nd respondent,

4 son of N.Nagappa institutes a suit for partition and separate possession in O.S.No.6811 of 1990 against his parents and four other siblings. The said suit comes to be dismissed on 28-11-2001 on the ground that respondent No.2 failed to prove that he has 1/3rd share in the property and the property was a joint family property. The 2nd respondent/complainant prefers regular second appeal before this Court in R.F.A.No.312 of 2002 which comes to be dismissed on 24-06-2006. 4. The father/N.Nagappa executes a gift deed in favour of his wife Smt. Pavithramma and delivered possession of the ground floor of the property on 12-08-2011. A Will is then executed by N.Nagappa and Smt. Pavithramma bequeathing all the immovable and movable properties in favour of three children viz., Thejeshwari, Nagalakshmi and N.T.Ramesh. Thejeshwari and N.Nagappa die in the years 2015 and 2017 respectively. After a long drawn proceedings, the mother/Smt. Pavithramma dies. Khata of first floor of the property was transferred in the name of the daughter of the 1st petitioner. It is then the 2nd respondent/complainant causes a legal notice on the other siblings

5 to part with his share both immovable and movable properties which were either gifted or subject matter of Will. He later registers the impugned complaint against these petitioners on the score that they fraudulently obtained signatures of his parents when they were alive and he was not allowed to perform the last rites of his father and hence it was an organized plan against the complainant. The complaint becomes a crime in Crime No.299 of 2023. The registration of crime is what has driven the petitioners to this Court in the subject petition. A co-ordinate Bench of this Court granted an interim order of stay of further investigation on 14-12-2023. The same is in subsistence even today.

6 proceedings. He could not do so for the reason that he has lost all civil cases filed against members of the family. Therefore, he registers the impugned complaint. It is his submission that on 02-11-2023 itself the complainant sought to register a complaint against these petitioners and the petitioners were called to the Police Station to tender explanation and the complaint was closed holding that it is purely civil in nature. Ten days thereafter comes the 2nd complaint that is the impugned complaint.

7

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ಇಂ ತಮZ 1ƒಾaI ¸À»/-“

10 The backdrop of the complaint is necessary to be noticed. The relationship of persons in the family is as noticed hereinabove. A Will dated 07-02-2014 comes to be executed. In the Will observations about the present complainant are necessary to be noticed, as they assume certain significance. It reads as follows: “…. ….. ….

11 SCHEDULE

Out of the Four Allotments made in favour of N.Nagappa by CITB and became the owner of site measuring East to West 60 ft. and North to South 75 ft. consisting of Ground Floor Main Building bearing Old No.141, New No. 13/1-3, PID No.60-131- 13/1-3 constructed on site bearing No.141, 27th Cross, 13th Main, 3rd Block East, Jayanagar, Bangalore – 560 011 measuring East to West 43 ft. North to South 59 ft. with a building consisting of Ground Floor with open space and First Floor on the Ground Floor. Out of which Mrs. Pavithramma is the owner of Ground Floor and open space as per the registered Gift Deed dated 12th August 2011 and Mr. Nagappa is the owner of the First Floor on the property of Mrs. Pavithramma bounded on –

East by: Property of Mrs. Indira Swamy bearing No.141/13/1-2. West by: Property bearing No.2327. North by: Building bearing No.141/13/1-4 of Mr. N.T. Ramesh & Mrs. Nagalakshmi Shankar. South by: 27th Cross Road.

Details of Bank Accounts standing in the name of First of us.

N.Nagappa dies. Properties devolve into the hands of Smt. Pavithramma, the mother. The mother executes a Will. Certain clauses of the Will are required to be noticed. They read as follows:

12

“…. …. ….

WHEREAS Mrs. Tejeshwari Onkarappa W/o Dr. K.Onkarappa our youngest daughter was taking very good care of my husband Mr. N.Nagappa and myself. Neither another daughter Mrs. Nagalakshmi Shankar nor son Mr. N.T.Ramesh have not taken care of us. Even the funeral rituals of my husband N.Nagappa were carried out by my son-in-law Dr. K.Onkarappa.

WHEREAS my daughter Mrs. Tejeshwari Onkarappa who was the only person taking care of all our needs died on 3rd October, 2015 and my husband N.Nagappa died on 4th January 2017. WHEREAS after the demise of my daughter Tejeshwari Onkarappa, her husband Dr. K. Onkarappa and his daughter Mrs. Jeevarathna Anand have been supporting me by attending to all my needs. Though my grand-daughter Mrs. Jeevarathna Anand stays far away from my residence, constantly in touch with me and take me to her house often wherein I stay for few days with my great grand children Kumari. Ruthvika Anand B.G. and Kumari Boomika Annand B.G. (i.e., daughters of my grand daughter Mrs. Jeevarathna Anand)…..”

Why the properties are bequeathed to other family members and not to the complainant is clearly indicated. Smt. Pavithramma dies in the year 2022. Then comes the first complaint of misappropriation by the present complainant. The Police are said to have summoned these petitioners and rendered an endorsement terming the complaint to be a non-cognizable one. Thereafter the present complaint emerges.

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….

….

1 (2023) 3 SCC 423

14 that records in brief the assertions in the complaint, to hold that Respondent 2 complainant had shown that “a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of the statements made by Shubhankar P. Tomar and Sakshi Tilak Chand”. The order states that Respondent 2 complainant had filed photocopy of “one” email as per Documents 1 to 34, but the narration and the contents of the email is not adverted to and elucidated. ….

….

….

(a) the accused was entrusted with property, or entrusted with dominion over property;

(b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and (c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.

15 evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally quiet, albeit, it states that “a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand”. A mere wrong demand or claim would not meet the conditions specified by Section 405IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if Respondent 2 complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 405IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405IPC, a mere dispute on monetary demand of Rs 6,37,252.16p, does not attract criminal prosecution under Section 406IPC.

16 clarification as well as the ratio explaining Sections 415, 464, etc. IPC.] , observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security.

17 forgery by making a false document or false electronic record or part thereof. Further, to constitute the offence under Section 471IPC, it has to be proven that the document was “forged” in terms of Section 470 [“470. Forged document.—A false document [or electronic record] made wholly or in part by forgery is designated “a forged document or electronic record”.”] , and “false” in terms of Section 464IPC [ “464. Making a false document.—A person is said to make a false document or false electronic record— First.—Who dishonestly or fraudulently—(a) makes, signs, seals or executes a document or part of a document;(b) makes or transmits any electronic record or part of any electronic record;(c) affixes any electronic signature on any electronic record;(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature,with the intention of causing it to be believed that such document or part of a document, electronic record or *[electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or* Substituted for “digital signature” by Act 10 of 2009, Section 51(e) (w.e.f. 27-10-2009)Secondly.—Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; orThirdly.—Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.”] .

(i) fraudulent or dishonest use of a document as genuine; and

18 (ii) knowledge or reasonable belief on the part of the person using the document that it is a forged one.

Section 470 defines a “forged document” as a false document made by forgery.

(i) if he has made or executed a document claiming to be someone else or authorised by someone else; (ii) if he has altered or tampered a document; or (iii) if he has obtained a document by practising deception, or from a person not in control of his senses.

19 bill was sent to Faridabad, JIPL had added the GST in the invoice. It is argued that had Respondent 2 complainant supplied the goods, instead of GST, VAT as applicable in Delhi would have been levied, as Respondent 2 complainant was based in Delhi. This argument is rather fanciful and does not impress us to justify summoning for the offence under Section 471IPC. Besides, the assertion is not to be found in the complaint, and cannot be predicated on the pre- summoning evidence.

20 matter Sections 420 or 471. The material on record does not reflect and indicate that JIPL indeed had the dishonest/culpable intention for the commission of the alleged offences under the IPC. Unless the ingredients of aforesaid Sections of the IPC are fulfilled, the offence under Section 120-BIPC, for criminal conspiracy, would not be made. In fact, a combined reading of the complaint and the pre-summoning evidence does not disclose any element of criminal conspiracy as per Section 120-AIPC. The complaint discloses a civil dispute and grievance relating to the claim made by JIPL. What is challenged by Respondent 2 complainant is the demand of Rs 6,37,252.16p raised by JIPL as the amount payable till the year ending 2016. This assertion made by JIPL is questioned as incorrect. The demand, even if assumed to be wrong, would not satisfy the ingredients of Section 405, or Sections 420 or 471IPC, so as to justify the summoning order. As noted above, JIPL had filed a criminal case under Section 138 of the NI Act as two cheques for Rs 1,93,776 and Rs 4,99,610 issued by them, on presentation, were dishonoured on account of “insufficient funds”.

21

(Emphasis supplied)

The Apex Court, in the subsequent judgment of USHA CHAKRABORTY v. STATE OF WEST BENGAL2, while considering the entire spectrum of law on civil cases being dressed with a colour of crime, has held as follows: “….

….

….

“12. While exercising its juri iction under Section 482 of the Code of the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to 2 2023 SCC OnLine SC 90

22 secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of the facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.”

“13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings.”

…. ….

….

23

Offence punishable under Section 323, IPC.

(i) causation of hurt by another person; (ii) that he caused such hurt voluntarily; (iii) that such a case is not covered under Section 334, IPC.

Offence of extortion punishable under Section 384, IPC.

(i) intentionally putting a person in fear of injury to himself or another; (ii) dishonestly inducing a person so put in fear to deliver to any person any property, or valuable security.

Offence of criminal breach of trust punishable under Section 406, IPC.

(i) Entrustment of the property or any dominion over property with accusation; (ii) The person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust or willfully causing sufferance to any other person so to do. Offence punishable under Section 423, IPC.

The essential ingredients to constitute an offence under Section 423, IPC is that the sale deed or deed subjecting an immovable property to a charge was contained a false statement relating to the consideration or relating to the persons or whose use or benefit, it was intended to operate. Thus, it is evident that Section 423, IPC deals with twin specific frauds in the matter of execution of deeds or instruments of transfer or charge, idest, (i) false recital as to consideration or false recital as to the name of beneficiary.

24

Offence punishable under Section 467, IPC.

Virtually, the offence under Section 467 is an aggravated form of the offence under Section 466, IPC. The essential ingredients to constitute the offence punishable under this Section are (i) commission of forgery; (ii) that such commission of forgery must be in relation to a document purporting to be (a) a valuable property; or (b) a will; or (c) an authority to adopt a son; or (d) which purports to give authority to any person to make or transfer any valuable security; or (e) the receive the principle, interest or dividends thereon; or (f) to receive or deliver any money, movable property or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or (g) an acquittance or receipt for the delivery of any movable property or valuable security.

Offence punishable under Section 468, IPC.

(i) Commission of forgery, (ii) that he did so intending that the document or electronic record forged shall be used for the purpose of cheating.

Offence punishable under Section 420, IPC.

To constitute the said offence there must be deception i.e., the accused must have deceived someone; that by such deception the accused must induce a person (i) to deliver any property; or (ii) to make, alter, destroy a whole or part of the valuable security or anything which is signed or sealed and which is capable of being converted into a valuable property; or (iii) that the accused must have done so dishonestly. The offence punishable under Section 120B, IPC, to constitute criminal conspiracy, there must be agreement between two or more persons. The agreement should be to do or cause to be done

25 some illegal act, or some act which is not illegal, by illegal means, provided that where the agreement is other than one to commit an offence, the prosecution must further prove; or (iv) that some act besides the agreement was done by or more of the parties in pursuance of it.

26 this proceeding would reveal that the respondent was in fact ousted from the membership of the trust. In the counter affidavit filed in this proceeding, the respondent has virtually admitted the pendency of the suit filed against his removal from the post of Secretary and the trusteeship and its pendency. The factum of passing of adverse orders in the interlocutory applications in the said Civil Suit as also the prima facie finding and conclusion arrived at by the Civil Court that the respondent stands removed from the post of Secretary and also from the trusteeship are also not disputed therein. Then, the question is why would the respondent conceal those relevant aspects? The indisputable and undisputed facts (admitted in the counter-affidavit by the respondent) would reveal the existence of the civil dispute on removal of the respondent from the post of Secretary of the school as also from the trusteeship. Obviously, it can only be taken that since the removal from the office of the Secretary and the trusteeship was the causative incident, he concealed the pendency of the civil suit to cover up the civil nature of the dispute.

27 adverted to hereinbefore would reveal that the allegations are vague and they did not carry the essential ingredients to constitute the alleged offences. There is absolutely no allegation in the complaint that the appellants herein had caused hurt on the respondent so also, they did not reveal a case that the appellants had intentionally put the respondent in fear of injury either to himself or another or by putting him under such fear or injury, dishonestly induced him to deliver any property or valuable security. The same is the position with respect to the alleged offences punishable under Sections 406, 423, 467, 468, 420 and 120 B, IPC. The ingredients to attract the alleged offence referred to hereinbefore and the nature of the allegations contained in the application filed by the respondent would undoubtedly make it clear that the respondent had failed to make specific allegation against the appellants herein in respect of the aforesaid offences. The factual position thus would reveal that the genesis as also the purpose of criminal proceedings are nothing but the aforesaid incident and further that the dispute involved is essentially of civil nature. The appellants and the respondents have given a cloak of criminal offence in the issue. In such circumstance when the respondent had already resorted to the available civil remedy and it is pending, going by the decision in Paramjit Batra (supra), the High Court would have quashed the criminal proceedings to prevent the abuse of the process of the Court but for the concealment.

28 despite such removal he got a right to get informed of the affairs of the school and also the trust, would only support the said conclusion. For all these reasons, we are of the considered view that this case invites invocation of the power under Section 482 Cr. P.C. to quash the FIR registered based on the direction of the Magistrate Court in the afore-stated application and all further proceeding in pursuance thereof. Also, we have no hesitation to hold that permitting continuance of the criminal proceedings against the appellants in the aforesaid circumstances would result in abuse of the process of Court and also in miscarriage of justice.”

(Emphasis supplied)

Following the law laid down in all the aforesaid cases, the Apex Court in the case of NARESH KUMAR v. STATE OF KARNATAKA3 has held as follows: “….

….

….

3 2024 SCC OnLine SC 268

29 “12. While exercising its juri iction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.” (emphasis supplied)

30

(Emphasis supplied)

The Apex Court, in the afore-quoted judgments, considers all the issues that are projected in the case at hand and holds that issues that are civil in nature and are rendered a colour of crime should be nipped in the bud, when it comes before the Court in exercise of juri iction under Section 482 of the Cr.P.C. Therefore, it becomes a too well settled principle of law that criminal law cannot be permitted to set into motion on the issues which are purely civil in nature. Wherefore, permitting further investigation would become an abuse of the process of law and result in miscarriage of justice.

31

O R D E R

(i) Criminal petition is allowed.

(ii) FIR in Crime No.299 of 2023 registered at Thilaknagar Police Station and pending before the III Additional Chief Metropolitan Magistrate, Bengaluru stands quashed.

(iii) It is made clear that the observations made in the case at hand are only for the purpose of consideration of the case of the petitioners under Section 482 of the Cr.P.C., and the same would not bind or influence any proceedings pending between the parties. (M. NAGAPRASANNA) JUDGE

Bkp CT:MJ