Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Online)(KAR) 6290

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

CRIMINAL PETITION NO.4830/2018

BETWEEN:

SMT. V.K. BHARATHI
W/O M.V. PRASAD BABU,
AGED ABOUT 50 YEARS,
R/AT NO.11/1, 'SHIVA SAI NILAYA',
BEHIND BRINDAVANA RENAISSANCE APARTMENTS,
SUBRAMANYAPURA MAIN ROAD,
BANGALORE-560 061.
...PETITIONER
(BY SRI VEERANNA G. TIGADI, ADVOCATE AND
SRI AVINASH B.C., ADVOCATE)

AND:
1. SMT. V. GAYATHRIDEVI
D/O. LATE VASANTH RAO,
AGED ABOUT 49 YEARS,
C/O. SATHYANARAYAN,
R/AT NO.144, II MAIN ROAD,
KALKERE ROAD,
RAMAMURTHY NAGAR POST,
BANGALORE-560 016.

2. SRI. V. LAKSHMISHA
S/O LATE VASANTHA RAO,
AGED ABOUT 29 YEARS
R/AT NO.123/2-3E3F,

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7TH MAIN ROAD, B.S.K. 3RD STAGE,
DATTATREYA NAGAR, HOSAKEREHALLI,
BANGALORE-560 085.

3. SRI. RAMASHANJEEVAIAH
S/O M. GURUVAPPA,
AGED ABOUT 45 YEARS,
NO.1524, 7TH MAIN,
4TH CROSS, KENGERI UPANAGAR,
BANGALORE-560 060.

4. SRI. PANCHALINGAIAH
S/O LATE VENKATAPPA,
AGED ABOUT 48 YEARS,
R/AT M.K.PURA, VIDYAPEET POST,
KENGERI HOBLI, BANGALORE-560 060.

5. SRI. NARASIMAIAH
S/O NARASIMAIAH,
AGED ABOUT 52 YEARS,
R/AT SHESHAGIRI HALLI,
HEZALA POST, RAMANAGAR TALUK,
RAMANAGAR DISTRICT.

6. SRI. RAJENDRA D
S/O GOVIND NAIDU,
AGED ABOUT 45 YEARS,
NO.25, CANARA BANK COLONY,
GOWDANAPALYA,
BANGALORE-560 061.

7. MRS. MUNIRATHNA
W/O LATE MUNIRAJU,
AGED ABOUT 34 YEARS,
R/AT GANAKAL VILLAGE,
BSK VITH STAGE,
II BLOCK, KENGERI HOBLI,
BANGALORE-560 060.

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8. SRI. M.K. HARI BABU
S/O M.V. KANNAIAH,
AGED ABOUT 40 YEARS,
R/AT NO.11/1, BEHIND FARM,
SUBRAMANYAPURAM MAIN ROAD,
UTTARAHALLI,
BANGALORE-560 061.

9. SMT. V. RUKMINI
W/O K.N. RAGAVENDRA,
AGED ABOUT 30 YEARS,
NO.470, 3RD MAIN,
50 FT MAIN ROAD,
HANUMANTHANAGAR,
BANGALORE-560 050.

10. SMT. V. VASANTHALAKSHMI
W/O K.N. RAMAMURTHY,
AGED ABOUT 38 YEARS,
KALLAMBELLA, SIRA TALUK,
TUMKUR DISTRICT-572 135.

11. SMT. B.N. SHASHIKALA
OFFICE OF THE SUB-REGISTRAR,
BANASHANKARI,
BANGALORE.
...RESPONDENTS

(BY SRI RAMESH K.R., ADVOCATE FOR R1;
SRI B.R. VISHWANATH, ADVOCATE FOR R2, R9 & R10;
R3, R4, R5, R6, R7, R8, & R11 - SERVED)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH
THE ENTIRE PROCEEDINGS FILED BY THE 1ST RESPONDENT
AGAINST THE PETITIONER FOR THE OFFENCES PUNISHABLE

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UNDER SECTIONS 417, 418, 419, 420, 421, 423, 424, 465,
466, 467, 468, 469, 471, 195, 195(A), 196, 197, 198, 199, 200,
201, 204 AND 506(B) OF IPC PENDING ON THE FILE OF
III
ADDITIONAL
CHIEF
METROPOLITAN
MAGISTRATE,
BENGALURU IN C.C.NO.15233/2017.

THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:

A Magistrate cannot take cognizance of a complaint based solely on a sworn affidavit filed by the complainant. Section 200 of the Cr.P.C. requires the Magistrate to record the substance of the sworn statement of the complainant and witnesses.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 200 - COMPLAINT - SWORN AFFIDAVIT - ADMISSIBILITY
Fact of the Case:

A private complaint was filed under Section 200 of the Cr.P.C., alleging forgery and impersonation in the creation of an agreement of sale and execution of sale deeds. The Magistrate took cognizance of the complaint based on the sworn affidavit filed by the complainant.
Finding of the Court:

The court held that the Magistrate erred in taking cognizance of the complaint based solely on the sworn affidavit filed by the complainant. The court relied on a previous decision of a Co-ordinate Bench, which held that Section 200 of the Cr.P.C. requires the Magistrate to record the substance of the sworn statement of the complainant and witnesses, and that an affidavit is not a substitute for such a sworn statement.
Issues: Whether the Magistrate can take cognizance of a complaint based solely on a sworn affidavit filed by the complainant.
Ratio Decidendi: Section 200 of the Cr.P.C. requires the Magistrate to record the substance of the sworn statement of the complainant and witnesses before taking cognizance of a complaint. An affidavit is not a substitute for such a sworn statement.
Final Decision: The court allowed the criminal petition and quashed the impugned proceedings against the petitioner-accused.

Learned counsel for the respondent No.1 submits that

respondent No.1-complainant is no more. Submission is placed

on record.

Respondent No.1 had filed a private compliant under

Section 200 of Cr.P.C., alleging that the accused created an

agreement of sale dated 6.11.2008 by forging her signature and

also executed two registered sale deeds before the Sub-Registrar

concerned by impersonation. The complainant to substantiate

the allegations filed a sworn affidavit reiterating the contents of

the complaint.

The learned Magistrate on the basis of the complaint

averments, the sworn affidavit and certified copy of the

agreement of sale dated 6.11.2008 and also the sale deed dated

6.11.2008 passed an order holding that, the complainant has

made out a prima facie case to register the case against the

accused and accordingly registered the case against the accused

for the offences punishable under Sections 417, 418, 419, 420,

421, 423, 424, 465, 466, 467, 468,469,471 and Sec.195,

195(A), 196, 197, 198, 199, 200, 201, 204 and 506 (B) of IPC.

Taking exception to the same, accused No.2 is before this Court.

Learned counsel for the petitioner submits that

cognizance taken by the learned Magistrate on the basis of the

sworn affidavit filed by the complainant is contrary to Section

200 of Cr.P.C. and it is inadmissible. In support, reliance is

placed on the decision of the Co-ordinate Bench of this Court in

the case of Sri K. Venkataramaiah and Others -vs- Sri Katterao,

reported in ILR 2008 KAR 474.

He further submits that the dispute between the

parties was ceased before the Civil Court in O.S.No.6571/2016

and in the said suit, the complainant has taken a specific plea

that she was made forcibly to execute the registered sale deed

which runs contrary to the allegations made in the complaint.

Hence, he submits that the dispute between parties is purely

civil in nature which is given a criminal texture.

I have considered the submissions made by the

learned counsel appearing for the parties.

The learned Magistrate without recording the sworn

statement of the complainant only on perusing the complaint

averments and also sworn affidavit filed by the complainant has

taken cognizance of the aforesaid offences. The Co-ordinate

Bench of this Court in the case of Sri Venkataramaiah supra at

para 10 has held as follows:

10. When a specific procedure is contemplated

under Section 200 of Cr.P.C, it cannot be deviated by

adopting some other procedure which is not prescribed,

even though it may be convenient to the complainant. The

purpose of recording the substance of sworn statement by

the Magistrate is to enable the Magistrate to satisfy himself

of the allegation in the complaint to proceed further in the

matter. Under Section 200 Cr.P.C, the Magistrate himself

examines the complainant and the witnesses and records

the substance of the same. The Magistrate is under

obligation to reduce the substance of the statement in

writing which is to be signed by the complainant and the

witnesses. If an affidavit is accepted, it would go contrary to

the

provisions

of Section

200 of

Cr.P.C.

opinion, Section

200 of

Cr.P.C.

does

not

contemplate

acceptance of affidavit in the form of sworn statement nor

affidavit partakes the character of sworn statement as

required under Section 200 Cr.P.C. Sworn statement does

not require any cross-examination nor requires a recording

of the statement at the instance of an advocate. It is not an

examination-in-chief, but it is the statement made before

the Magistrate for his satisfaction. The filing of an affidavit

by the complainant in support of his complaint would be

contrary to the procedure under Section 200 of Cr.P.C. and

it is inadmissible.

Hence,

the

cognizance

taken

the

learned

Magistrate on the basis of the sworn affidavit filed by the

complainant is contrary to the procedure under Section 200 of

Cr.P.C. and it is not admissible.

Even otherwise, the dispute between the parties

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