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2023 DIGILAW 648 (KAR)

Jayavant Kalasappa Kale v. Suresh Kalasappa Kale

2023-04-21

J.M.KHAZI

body2023
JUDGMENT 1. The petitioner who is complainant before the Trial Court has filed this petition under Sec. 482 Cr.P.C. with a prayer to set aside order dtd. 18/1/2020 passed by the Trial Court dismissing the complaint in C.C.No.23/2016, on the ground that there is civil suit and its finding would be binding on the criminal Court and that there are no grounds to continue with the matter. 2. Brief facts leading to the filing of this petition are that land bearing CTS No.5325 of Jamakhandi is the property of partnership firm, Hotel Prashant, constituted between petitioner and his sister-Sushilabai Shingi. Through the registered partnership dtd. 19/4/1985 the said property was brought into the stock of the firm. By mortgaging the said property loans were raised from KSFC. After toiling for several years petitioner was able to repay the loans and got reconveyance/release dead dtd. 7/8/2002 in favour of the partnership firm. Sushilabai Shingi was unmarried. She died on 13/8/2011. After her death partnership was reconstituted and business is going on. 2.1. When things stood thus, one Rekha Pranjape claimed that Sushilabai Shingi has executed will 24/3/2008 and 20/7/2009 bequeathing certain properties including CST No.5325 and that the wills were allegedly registered on 7/2/2011 after her death. Respondent No.1 also claimed that under will dtd. 16/4/2008 Shushilabai Shingi has bequeathed said properties to him and allegedly got registered it on 24/11/2011 after her death. They also moved the Tahasildar Jamakhnadi. 2.2. However petitioner got the wills examined through hand writing experts and found that they do not bear her signature and it is fraudulently created to knock out the valuable properties. Therefore, petitioner filed PC No.13/2012 and 14/2012. They were referred to concerned police for investigation under Sec. 156(3) of Cr.P.C. Despite coming to know about the concoction the investigation officer filed 'B' report. Petitioner filed protest petition and based on the material placed on record, the Trial Court has taken cognizance and registered the case in C.C.No.23/2016. 2.3. Some of the respondents approached this Hon'ble Court tin Crl.P.No.101033 and 101034/2016 to quash the criminal proceedings. As per the directions given by this Court in the above petitions the Trial Court recorded the sworn statement of petitioner and took cognizance. Crl.P.No.101118/2017 filed by respondents against the said order contending that civil suit is pending was dismissed. Proceedings before the trial Court continued. As per the directions given by this Court in the above petitions the Trial Court recorded the sworn statement of petitioner and took cognizance. Crl.P.No.101118/2017 filed by respondents against the said order contending that civil suit is pending was dismissed. Proceedings before the trial Court continued. However, on 18/1/2020 the Trial Court has abruptly dismissed the complaint on the ground that civil suit is pending in O.S. No.05/2014. It is a suit filed by respondents seeking half share. In the said suit Rekah Pranjape claiming to be a beneficiary of will has filed counter claim. 3. Challenging the impugned order dismissing the complaint, petitioner has filed this petition contending that the defence of respondents that civil suit is pending is rejected by this Hon'ble Court in Crl.P.No.101118/2017 and in the light of the same the Trial Court ought not to have dismissed the complaint on the ground that pendency of civil suit. After taking cognizance under Sec. 204 Cr.P.C, the Magistrate cannot change his view whimsically. 4. The handwriting experts has given opinion unequivocally that the signatures in the alleged will are forged. Respondents are making use of the forged document to stake claim on the valuable property. Such being the case, the respondents are guilty of offences punishable under Ss. 467, 468, 471, 474, 120-B R/w Sec. 149 of Indian Penal Code. Pendency of civil suit for partition is not a ground for dismissing the criminal complaint against respondents. The lackadaisical attitude of the Trial Court has resulted in miscarriage of justice. In civil suit, the Court can examine only the civil rights of the parties and it cannot impose punishment for forgery and other offences committed by respondents. Without affording opportunity to the complainant to prove the allegation, the Trial Court cannot summarily dismiss the same and prays to allow the petition. 5. In support of his arguments, learned counsel for petitioner has relied upon the following decisions: i) Syed Askarilhadi Ali Augustine Imam and Another vs. State (Delhi Administration) and another., (2009) 5 SCC 528 . (Syed) ii) K. Munirathnam S/o Venkatasubba Naidu vs. The State of Karnataka and others.[Crl.P.No.5641/2020 dtd. 22/1/2021] (K.Munirathnam) 6. 5. In support of his arguments, learned counsel for petitioner has relied upon the following decisions: i) Syed Askarilhadi Ali Augustine Imam and Another vs. State (Delhi Administration) and another., (2009) 5 SCC 528 . (Syed) ii) K. Munirathnam S/o Venkatasubba Naidu vs. The State of Karnataka and others.[Crl.P.No.5641/2020 dtd. 22/1/2021] (K.Munirathnam) 6. On the other hand learned counsel representing the respondents submitted that as against the order dismissing the complaint Criminal Revision Petition under Sec. 397 of Cr.P.C. ought to have been filed instead petition under Sec. 482 of Cr.P.C. There is no culpability attracting criminal liability. The dispute between the parties is purely civil in nature and prays to dismiss the petition. 7. In support of his arguments, learned counsel for respondents has relied upon the following decisions: i. Manharibhai Muljibhai Kakadia and another V/s shaileshbhai Mohanbhai Patel and others, (2012) 10 SCC 517 . (Manharibhai) ii. Mrs.Anjula Divedi and others V/s State represented by Sub-Inspector of Police, Kyathasandra Police Station, Tumkur[Crl.P.4478/2015 dt: 31/3/2016](Anjula Divedi) 8. Heard argument and perused the records. 9. From the material placed on record it is evident that petitioner is no other than the brother of late Sushilabai Shingi petitioner, respondent No.1-Suresh, Gopal, Pundalik and late Sushilabai Shingi are siblings, being the children of Kalasappa Shingi @ Kale. Late Sushilabai Shingi was unmarried and she owned certain properties. It is also not in dispute that petitioner and Late Sushilabai Shingi entered into a partnership firm to run hotel business. They have secured loan from KSFC and other sources and utilized the same for running the hotel business. Petitioner claims that by virtue of the partnership the properties belonging to late Sushilabai Shingi were brought into the stock of the firm under Clause 9 in accordance with Sec. 14 of the Indian Partnership Act, 1932 and after her death, the partnership has been reconstituted. 10. Alleging that Rekha Paranjape the daughter of Gopal and respondent No.1-Suresh Kale have concocted three separate Wills said to have executed by late Sushilabai Shingi to stake their claim over her properties. After getting the signatures in the alleged Wills examined by handwriting expert, petitioner filed a private complaint. It was referred to investigation under Sec. 156(3) Cr.P.C. to the concerned police. However, when the concerned police filed 'B report', petitioner filed protest petition and after recording his sworn statement the trial Court has taken cognizance and issued summons. After getting the signatures in the alleged Wills examined by handwriting expert, petitioner filed a private complaint. It was referred to investigation under Sec. 156(3) Cr.P.C. to the concerned police. However, when the concerned police filed 'B report', petitioner filed protest petition and after recording his sworn statement the trial Court has taken cognizance and issued summons. In fact accused have appeared and contested the case. 11. In the meanwhile respondent No.1 filed O.S.No.5/2014 against petitioner, Rekha Paranjape, Sitaram s/o Pundalik and petitioner's son Shashikant for partition and separate possession of half share in the properties belonging to late Sushilabai Shingi contending that respondent No.1- Suresh Kale and petitioner being the full brothers of late Sushilabai Shingi have succeeded to her properties equally. Since Gopal and Pundalik, the other two siblings predeceased late Sushilabai Shingi, their children i.e., defendants No.2 and 3 are not entitled for any share. In the said suit, respondent No.1, who is plaintiff therein is not claiming any right based on alleged Will dtd. 16/4/2008. On the other hand, Rekha Paranjape has filed counter claim based on Will dtd. 24/3/2008 and 20/7/2009. 12. It is the definite case of the petitioner that Wills in question are concocted and created to lay a false claim over the properties of late Sushilabai Shingi and after getting the signatures therein examined by the handwriting expert, he has chosen to initiate criminal proceedings against respondent No.1 and others. However when the case was posted for evidence before charge, abruptly the trial Court has chosen to dismiss the complaint solely on the ground that till the civil suit is concluded the cause of action would be premature as the findings of the civil Court would be binding on the criminal case. 13. At the outset it is relevant to note that a particular act may attract civil as well as criminal liability giving rise to a cause of action to proceed under both civil and criminal law. Having regard to the fact that in the civil suit respondent No.1 is not claiming any right based on alleged Will dtd. 16/4/2008 and he is only claiming half share, based on the fact that he and petitioner herein being full brothers are entitled for half share each, there is no occasion for the civil Court to give any findings on that aspect. 16/4/2008 and he is only claiming half share, based on the fact that he and petitioner herein being full brothers are entitled for half share each, there is no occasion for the civil Court to give any findings on that aspect. Even where respondent No.1 were to claim right based on such Will and already Rekha Paranjape has claimed such right based on Will, the Civil Court may only give a finding whether the Wills are genuine or not. In the event of giving a finding that the Wills are not executed by late Sushilabai Shingi, it has no jurisdiction to impose punishment for such concoction. The criminal court is required to proceed against respondent No.1 independent of the civil rights urged in the original suit. Therefore the criminal court has erred in passing the impugned order, abruptly dismissing the complaint. 14. In Syed case, the Hon'ble Supreme Court held that ordinarily a criminal proceeding will have primacy over civil proceedings. If primacy is to be given to a criminal proceeding, indisputably the civil suit must be determined on its own merits, keeping in view the evidence brought before it and not in terms of the evidence brought in the criminal proceedings. In K.Munirathnam, the co-ordinate bench of this Court held that pendency of civil proceeding is not a ground for dismissal of criminal proceeding. 15. In Manharibhai, the Hon'ble Supreme Court held that when the complaint is dismissed u/sec.203 Cr.P.C., whether at the stage of Sec.200 itself or after following process contemplated U/sec.202, in the revision petition, the accused gets a right of hearing as is expressly provided U/sec.401 (2) Cr.P.C., notwithstanding that order impugned in revision was passed without his participation. Relying upon this decision, the learned counsel for respondents submitted that against the impugned order petitioner was required to file revision and not a petition U/sec.482 Cr.P.C. 16. In Manharibhai, the emphasis is on the fact that even where the complaint is dismissed without the appearance of accused, then also in the revision before the Sessions Court or the High Court, the accused get a right of audience. In Manharibhai, the emphasis is on the fact that even where the complaint is dismissed without the appearance of accused, then also in the revision before the Sessions Court or the High Court, the accused get a right of audience. Infact, in Anjula Divedi referred to supra relied upon by respondents, the Hon'ble Supreme Court held that in a petition challenging trial Court taking cognizance of the offence and issuing process, though the remedy is available U/sec.397 Cr.P.C., a petition U/sec.482 Cr.P.C. is maintainable and in such an event the jurisdiction U/sec.482 Cr.P.C. will be exercised by the High Court with utmost care and caution, sparingly and under extraordinary circumstances. At para 31, the Hon'ble Supreme Court observed that the power of the revisional Court U/sec.397 Cr.P.C. and 482 Cr.P.C. may overlap to certain extent because both are aimed at securing the ends of justice and both have an element of discretion. 17. In the present case, after recording sworn statement, the trial Court has taken cognizance and issued summons. Infact, respondents who are accused have appeared and participated in the proceedings. When the stage was for evidence before charge, abruptly the trial Court chosen to dismiss the complaint on the ground that civil suit is pending and its finding would be binding on it. Such being the case, this Court is of the considered opinion that petition U/sec.482 Cr.P.C. is maintainable. 18. In the result, the impugned order is liable to be set aside with a direction to the trial Court to proceed with the matter from the stage at which the complaint came to be dismissed and accordingly, I proceed to pass the following: ORDER Petition is allowed. The impugned order dtd. 18/1/2020 passed in C.C.No.23/2016 (P.C.No.14/2012) by the Principal Senior Civil Judge and J.M.F.C., Jamkhandi is hereby set aside. The trial Court is directed to proceed with the case from the stage at which the impugned order came to be passed.