Mallikarjunaswamy vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the petitioner.

The learned counsel Shri. Krishnamurthy G Hasyagar having appeared for the proposed respondent. I.A. No. 1/2014 is formally allowed.

The petitioner is said to be the accused before the Trial Court. The allegation against the petitioner is that the property bearing Nos. 616/1, F-17/1 and 616/2, F-17/2 near Padma Theatre, Mysore, belongs to one Nagamma. Nagamma is said to have acquired this property by way of a registered gift deed. She is said to have died on 08.01.1994.

It is claimed that the complainant found that the petitioner claiming under a so called Will executed by Nagamma, had sought to'' sell the aforesaid property under a registered agreement of sale in favour of CW7. It further transpires that CW7 having discovered that the present petitioner-accused did not have any valid title to the property had cancelled the agreement of sale by a registered cancellation deed.

Thereafter, there was an attempt to sell the property again by way of an agreement of sale in favour of CW8. It is at that point, that the complainant had discovered the designs of the petitioner and lodged a police complaint alleging that the petitioner had created a forged Will of Nagamma and though he was no relative of hers was seeking to dispose of the property which rightfully belonged to the legal representatives viz., the nine children of Nagamma including the complainant. It is on that basis that a case has been registered against the petitioner.

At the stage of hearing before charge, the petitioner had filed an application under Section 239 of Code of Criminal Procedure, 1973 and the Court below having addressed the circumstances of the case has held that there is sufficient material to frame charges against the petitioner and accordingly, has dismissed the application. That having been carried in a revision petition, the revisional Court has also affirmed the decision of the trial Court. It is that, which is under challenge in the present petition.

The learned counsel for the petitioner states that the claim set up by the complainant is false and without any substance. The present petitioner who had taken care of Nagamma, which had prompted her to execute a Will in favour of the petitioner as of the year 1994. It is only recently that the complainant and others have sought to set up a claim in respect of the property. Though a civil suit. was sought to be filed against the present petitioner, that has resulted in the appellate Court setting aside the judgment and decree for bare injunction, which had been obtained by the complainant. Therefore, the petitioner is in possession of the property in question and the claim, if at all, is to be adjudicated in civil proceedings and that there cannot be any criminal proceeding initiated against the petitioner in the above background that he has been in possession and enjoyment of the property since the year 1994 under a. validly executed Will of late Nagamma.

However, given the facts and circumstances and the Courts below having found that there was sufficient material, which requires the petitioner to stand trial, the matter shall be adjudicated in due course. The contention that there was also a civil proceeding though it was only a suit for bare injunction, it would not have given the complainant any mileage insofar as the claim over the property is concerned. It is wholly irrelevant and it is not. unusual that in a given circumstance that there can be both civil and criminal proceedings. Giver the allegations against the petitioner the criminal proceedings also having been initiated is not out of place. In any event the dismissal of this petition would not prejudice the case of the petitioner as the matter would have to run its course. The petitioner is not seriously prejudiced in the Courts having proceeded to frame charges and it is also stated by the learned counsel for the respondent that the trial has commenced. Placing that on record, the petition stands dismissed without prejudice to the case of the petitioner.