IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 01^ST DAY OF DECEMBER, 2021

BEFORE

THE HON9BLE MR. JUSTICE SREENIVAS HARISH KUMAR

CRIMINAL PETITION NO. 7257 OF 2019

BETWEEN:

Mr. M.M.Bhemaiah,

Son of Late M.M.Muthanna,

Aged about 72 years,

Resident of Kolathodu Bygodu Village,

Hathur Post, Virajpet Taluk,

Kodagu District-571218.

Also at

No.63, Wheeler Road Extension,

G.K.Garden,

St.Thomas Town Post Office,

Bengaluru-560084.

&Petitioner

(By Smt. Bharti Paril, Advocate)

AND:

Col.M.M.Aiyanna

Son of late M.M.Muthanna,

Aged about 72 Years,

Residing of Kolathodu,

Virajpet Taluk,

Kodagu District-571218.

&Respondent

(By Sri Col.M.M.Aiyanna, Party in Person)

This Criminal Petition is filed under Section 482

of

Cr.P.C.,

praying

to

quash

the

order

dated

12.07.2019 passed by the Additional Civil Judge and

:: 2 ::

JMFC,

Virajpet,

in

C.C.No.679/2019

in

taking

cognizance of the complaint dated 21.01.2019 and

registering Criminal Case against the petitioner for the

offence punishable under Section 191 of IPC and etc.

This Criminal Petition coming on for admission

this day, the Court made the following:

ORDER

This is a petition filed under section 482

Cr.P.C. for quashing the order dated 12.7.2019

passed by Addl. Civil Judge and JMFC, Virajpet in

C.C.No.679/2019 arising out of PCR.No.39/2019.

The petitioner is the accused and respondent is

the complainant.

2. The facts are that the respondent instituted

a suit for partition, O.S.No.50/2006 in the court of

Sr. Civil Judge, Virajpet against the petitioner who

is none other than his brother. In the suit, the

petitioner filed written statement contending about

the oral partition between him and the respondent

and in this regard an issue was framed. While

giving evidence, the respondent filed his affidavit

:: 3 ::

reiterating the oral partition. The trial court

answered issue no.3 relating to oral partition in

negative and partly decreed the suit for partition.

Aggrieved

by

the

judgment,

the

respondent

preferred an appeal to the District Court where the

judgment of the Sr. Civil Judge was modified and

the suit came to be decreed in entirety as prayed

for by the respondent. In this background the

respondent,

thereafter

initiated

a

proceeding

against the petitioner under section 200 Cr.P.C.

alleging that the respondent committed an offence

punishable under section 193 IPC by a filing false

written statement and affidavit contending about

the oral partition. The learned Magistrate took

cognizance of the offence and aggrieved by this

order the petitioner is before this court.

3. The learned counsel for the petitioner

argues that the complaint filed by the respondent

under

section

200

Cr.P.C.

is

not

at

all

:: 4 ::

maintainable.

In

a

suit

for

partition,

if

the

petitioner

being

the

defendant

took

up

a

contention with regard to oral partition, it9s quite

surprising

that

the

respondent

has

made

an

allegation of giving false evidence. It is the right

of a party to a suit to take any defence and in this

view the petitioner cannot be prosecuted at all. It

may be a fact that the trial court partly decreed

the

suit

and

thereafter

the

appellate

court

modified the judgment decreeing the suit in its

entirety. But the petitioner has now preferred a

second appeal to the High Court and it is still

pending. In this view the petitioner cannot be

prosecuted at all and the learned Magistrate ought

not to have taken cognizance of the offence. No

offence under section 191 read with 193 IPC is

constituted. Therefore petition is to be allowed.

4. The respondent who appeared in person

argued that the petitioner knew very well that the

:: 5 ::

oral partition had not at all taken place and yet he

falsely

contended

in

the

suit

that

after

the

partition of the joint family properties was effected

in the year 1981, the 8D9 schedule p