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KARNATAKA HIGH COURT
H.P. Sandesh, J.
Jayaprakash M.R. – Petitioner
versus
State of Karnataka by Belur Police Station and Anr. – Respondents
Criminal Petition No.2947 of 2023
Decided on 23.11.2024
Indian Penal Code, 1860 – Sections 419, 420, 465 and 468 [Bharatiya Nyaya Sanhita, 2023 – Sections 319(2), 318(4), 336(2) and 336(3)] – Criminal Procedure Code, 1973 – Section 239 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 262] – Cheating and forgery – Rejection of discharge application – While exercising power under Section 239 of Cr.P.C for discharge, Court has to take note of material on record – In case on hand, in complaint specific allegations are made against all accused persons that all of them have joined hands together in getting relinquishment deed and complainant’s father was taken to Sub-Registrar Office, who was not having any worldly knowledge as alleged and also specific allegation is made that khatha was transferred in name of this petitioner and also his other brother and all of them have allegedly joined hands together with an intention to knock off property – Based on complaint, case has been registered and police have investigated matter and filed charge-sheet – As on the date of mutating property in favour of petitioner, he was very much in India and whether he has played role to invoke offences in getting property transferred also to be considered at the time of trial – Trial Court cannot discharge him on the ground that he was not present at the time of execution of relinquishment deed – Petitioner has played a role in getting property transferred in his name has to be considered only in trial – Revisional power cannot be exercised in a casual or mechanical manner and it can be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected – Plea of alibi is a matter of trial – Criminal Petition dismissed. (Paras 15, 16, 21 and 22)
Result: Criminal Petition dismissed.
Certainly. Based on the provided legal document, the following key points can be summarized:
The exercise of revisional powers must not be casual or mechanical; it is reserved for correcting manifest errors of law or procedure that would result in injustice if left uncorrected (!) (!) (!) .
The plea of alibi is a matter that can only be proved during the trial stage and cannot be considered at the discharge stage or during the exercise of revisional jurisdiction (!) (!) .
The court emphasized that the material on record at the time of considering a discharge application must be carefully examined, but the final assessment of the truth of defenses like alibi is reserved for the trial court during trial proceedings (!) (!) .
The court held that the allegations against the petitioner, including involvement in creating documents and transferring property, are matters that require a full trial for proper adjudication, and the trial court’s decision to reject the discharge application was justified (!) (!) (!) .
The court observed that the petitioner was present in India at the time of property mutation, contrary to his claim of being abroad, based on available records such as travel documents and passport details (!) (!) .
The court noted that the records related to property mutation were missing, and departmental inquiries had been initiated against officials responsible for the missing records, which further complicated the case but did not warrant discharge at this stage (!) (!) .
The court reaffirmed that the decision to reject the discharge application was appropriate, and the matter should proceed to trial where the petitioner can substantiate his defenses, including his claim of being out of the country during relevant periods (!) (!) .
The court dismissed the criminal petition challenging the lower court’s order, emphasizing that the material on record sufficiently justifies the continuation of the case and that the allegations, if proven, could constitute the offences charged (!) (!) .
The court also directed the authorities to submit a report regarding the missing records within four weeks, with the understanding that if no evidence of misconduct is found against certain officials, they should not be penalized (!) .
These points reflect the court’s reasoning and conclusions based on the material presented and the applicable legal principles.
ORDER (CAV)
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, copy of
(1) Revisional power cannot be exercised in a casual or mechanical manner.(2) Plea of alibi is a matter of trial.
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.
The court highlighted the necessity for a thorough evaluation of evidence before rejecting a discharge application, emphasizing that mere suspicion without substantial proof is insufficient for prose....
At the discharge stage, the court must assume the prosecution's materials are true and evaluate if they disclose all elements of the alleged offence.
The main legal point established in the judgment is that the court must consider the existence of grounds for charges against the accused before framing charges, and the lack of prima facie evidence ....
At the stage of considering a discharge application, the court must assume the truth of the prosecution's evidence and determine if there is sufficient ground for presuming that the accused has commi....
Public servants cannot be prosecuted without necessary sanction under Section 197 of the CPC. The court must evaluate evidence for a prima facie case while deciding discharge applications.
At the discharge stage under Section 227 Cr.P.C., the court must consider only the prosecution's materials, and strong suspicion is sufficient to proceed with the trial.
Trial court must appropriately apply its judicial mind while deciding discharge application and not reject it summarily without examining evidence.
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