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Judgment
Hemant Chandangoudar, J
Respondent No.2 lodged the FIR alleging that, accused No.1 and his father, N.Khaleel stating that they would get the name of respondent No.2 entered in the property records maintained by the BBMP collected all the original documents pertaining to the subject property, and by forging her signature conveyed the subject property in favour of one A.Aafaq Ahmed through a registered sale deed dated 14.08.2009. The police registered the FIR for the offences punishable under Sections 120B, 406, 419, 420, 465, 471 and 468 read with 34 of IPC. Taking exception of the same, accused Nos.1 to 3 are before this Court.
Sri.Tomy Sebastian, learned Senior Counsel representing the petitioners submits that the registered sale deed was executed in favour of one A.Aafaq Ahmed by Wasim Khan, and not the petitioner/accused or deceased father, and in the absence on any material that the petitioner/accused forged the signature of respondent No.2, the registration of FIR for the aforesaid offences is impermissible. He further submits that a suit in O.S.No.25070/2018 was filed to declare that the respondent No.2 is the owner of the subject properties and also declare the sale deed dated 14.08.2009 executed in favour of the A.Aafaq Ahmed as null and void, and the same was dismissed for non payment of deficit court fee. Therefore, he submits that the dispute between the parties is purely civil in nature, however given a criminal texture.
Learned HCGP for the respondent-State submits that accused No.4 has categorically admitted in his voluntary statement that at the instance of the petitioners/accused and their father he executed the sale deed in favour of accused No.1 A.Aafaq Ahmed, and the said statement is corroborated by the allegations made by the complainant and witnesses and the police after considering the same have rightly registered the FIR. Therefore, the allegations made in the FIR disclose the commission of cognizable offences, and the veracity of the allegation requires to be investigated, and at this stage, the registration of FIR does not warrant any interference.
I have considered the submissions made by the learned counsels for the parties.
The specific allegation in the FIR is that the documents pertaining to the subject property were handed over to the father of the petitioners/accused Nos.1 to 3 for the purpose of registering Khata in favour of the defacto-complainant in the records of BBMP, and by misusing the said documents created a fabricated power of attorney by forging the signature of the 2nd respondent, and the father of the petitioners/accused as well as the petitioner/accused conniving with accused No. 4 conveyed the subject property in favour of one A. Aafaq Ahmed.
The police during the course of the investigation have not sent the disputed signature to the FSL, so as to ascertain, whether the signature of the defacto complainant was forged or not. The sale deed was executed on 14.08.2009. The informant has stated that her sister Marriet Fernandes who was in India informed her that a notice was published in the English daily newspaper dated 18.04.2017 inviting objections relating to sale of the subject property and also her name was reflected in the said newspaper publication, and upon applying the encumbrance certificate and certified copies of the sale deed, she came to know that her property was conveyed under a registered sale deed dated 14.8.2009 by forging her signature.
The sale deed conveying the subject property in favour of the respondent No.2 was executed on 30.6.2001 by the owner represented by his GPA holder viz: N Khaleel, the father of the petitioners herein.
Mohammad Wasim Khan as GPA holder of the second respondent sold sites Nos.36 and 37 to A.Aafaq Ahmed through a registered sale deed dated 14.8.2009. The father of the petitioners as GPA holder of Hanumaiah executed a confirmation deed in favour of A.Aafaq Ahmed on 12.10.2009 by which Hanumaiah confirmed that A.Aafaq Ahmed is the absolute owner of the property and confirmed the sale deed dated 14.08.2009.
On 6.4.2017 Mohammad Wasim Khan as GPA holder of 2nd respondent executed a rectification deed in favour of A.Aafaq Ahmed by which site no.36 is rectified as site no. 44.
The informant has alleged that the documents pertaining to the subject properties were handed over to the father of the petitioner – accused herein and petitioner No.1 in the year 2008. The sale deed conveying the subject property by impersonation and forgery was on 14.8.2009. The confirmation deed was executed on 12.10.2009. The rectification deed executed by Mohammad Wasim Khan as GPA holder of 2nd respondent in favour of A.Aafaq Ahmed was on 6.4.2017.
The FIR was lodged on 16.11.2017. The respondent No.2 filed the suit in OS No.25070/2018 on 11.1.2018 challenging the sale deed executed in favour of A.Aafaq Ahmed. The suit is dismissed for non-payment of deficit court fee. The allegation is that the documents pertaining to the properties were handed over to N.Khaleel and his sons who are the petitioners herein. In the objection notice dated 21.4.2017 given by Philomina Ross (Advocate) on the instructions of 2nd respondent, the allegation of forgery and using forged documents as genuine is attributed only to accused No.4 and there is no allegation against the petitioners herein. The allegation of executing the rectification deed as GPA holder is against the father of the petitioners and except that, petitioner-accused No.3 was an attesting witness.
In the FIR it is alleged that the petitioner-accused No.1 was present when the documents pertaining to the properties were handed over to the father of the petitioners. The FIR is lodged by Shingoti Syed Yusuf claiming to be the GPA holder of the 2nd respondent. The statement of objection on behalf of respondent No.2 is filed by the Special Power of Attorney Holder. The Special power of attorney is dated 4.11.2017 and authorization is given to deal with the scheduled properties and also to take appropriate legal steps to file civil and criminal cases pertaining to the properties. As on the date when the power of attorney was executed, the 2nd respondent was aware of the sale deed executed allegedly by forging a signature which is evident from the reply/objection sent by her counsel Philomina Ross on 21.4.2017 to the public notice dated 19.4.2017. However, in the power of attorney there is no reference with regard to the sale deed executed by forging the signature of the 2nd respondent. The sale deed alleged to have been executed by impersonation and forging the signature of the 2nd respondent in favour of A.Afaq Ahmed was on 14.8.2009. The suit filed by the Power of Attorney holder of the 2nd respondent in O.S.No.25070/2018 has been dismissed for non-payment of deficit court fee, and in the said suits declaration was sought to declare that the respondent No.2 is absolute owner and sale deed executed in favour of A.Afaq Ahmed is null and void and is not binding alleging that the sale deed was executed by impersonation and by forging the signature.
The Hon'ble Supreme Court In The Case Of State Of A.P. V. M. Madhusudhan Rao reported in (2008) 15 Scc 582 has held as follows:
“30. Time and again, the object and importance of prompt lodging of the first information report has been highlighted. Delay in lodging the first information report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained.”
There is no evidence to prima facie to establish that the petitioners herein connived with accused No.4 in executing the sale deed in favour of A.Aafaq Ahmed by impersonation and forging the signature of the 2nd respondent. The fact that the suit filed by the 2nd respondent represented by GPA holder which is dismissed for non-payment of deficit court fee also establishes that the FIR was lodged with malice and without probable cause for extraneous consideration. Therefore, the continuation of the investigation will be an abuse of the process of law. Accordingly, I pass the following:
ORDER
i. Criminal petition is allowed
ii. The impugned FIR in Crime No.495/2017 registered by the Konanakunte Police Station, Bengaluru, insofar it relates to the petitioners herein stands quashed.