The court affirmed that the burden of proving an alibi lies with the accused during trial, and the discharge application must be evaluated based on available material.

ORDER :

H.P. Sandesh, J.

Heard the learned counsel for the petitioner, the learned AAG for respondent No.1 and the learned counsel for respondent No.2.

2. This criminal petition is filed praying this Court to set aside the impugned order dated 23.12.2022 passed by the learned Senior Civil Judge and JMFC at Belur, Hassan, in C.C.No.452/2019 rejecting the discharge application filed by this petitioner, who is arrayed as accused No.3, for the offences punishable under Sections 419, 420, 465 and 468 of IPC, registered by the respondent police.

3. The factual matrix of the case of the complainant/respondent No.2 is that, in the complaint he has made an allegation that this petitioner along with other accused persons have indulged in creation of documents. Based on the complaint dated 02.08.2019, the police have registered the FIR in Crime No.156/2019. The main allegation in the complaint is that one Siddegowda S/o Chandregowda, who is the father of accused No.1 and grandfather of the complainant died on 25.04.1996. However, accused No.1, father of the complainant, after the death of his father by impersonation executed a relinquishment deed dated 06.02.2007 in favour of accused No.2, who happens to be the father of this petitioner in respect of the land bearing Sy.No.65/3 measuring 15 guntas. Accused No.2 based on the said relinquishment deed got the revenue records mutated in the name of this petitioner. The police based on the complaint allegations, investigated the matter and filed the charge sheet for the offences punishable under Sections 419, 420, 465 and 468 of IPC and the same is registered as C.C.No.452/2019.

4. The petitioner submits that he filed Crl.P.No.2717/2020 along with his father and other accused persons for quashing of the criminal proceedings and this Court was pleased to reject the same vide order dated 12.02.2021. The learned counsel for the petitioner submits that this petitioner had filed an application under Section 239 of Cr.P.C seeking for his discharge on the ground of alibi contending that the petitioner has been out of India and working as Engineer at Hamburg in Germany since 27.06.2005. It is contended that between 19.06.2006 to 01.12.2008, he never visited India. The Trial Judge has committed an error in dismissing the same without giving credence to the said contention.

5. The learned counsel for the petitioner reiterating the grounds which have been urged in the discharge application contend that as per the allegations made in the complaint, specific allegation is made that accused Nos.2 to 4 together have induced accused No.1 to commit the alleged offence of creating of relinquishment deed. The learned counsel contend that the petitioner was not in India and also produced the passport details and the Trial Court failed to appreciate the documents available on record. The learned counsel contend that O.S.No.102/2019 is pending in respect of the subject property instituted by respondent No.2/complainant against the petitioner and others. When a civil suit is pending, ought not to have initiated the criminal proceedings and the same is only with an ulterior motive to harass the petitioner and others for illegal demand. It is contended that the petitioner is innocent and has not involved in the alleged offence and hence it requires interference of this Court.

6. Per contra, the learned counsel for respondent No.2/complainant would contend that he has filed the statement of objections and in the statement of objections, in detail set out the factual aspects of the case. It is a clear case of fraud and with an intention to cheat the complainant/respondent No.2, all of them have indulged in creation of document of relinquishment deed and also produced topography of the property bearing Sy.Nos.65/3 and 58/2, copy of the sale deed dated 28.03.1987, encumbrance certificate, copy of mutation register, copy of RTC, copy of the death certificate of Siddegowda, copy of the registered release deed dated 06.02.2007, co