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Bangalore District Court
Sajjan Jony vs Chikkabylappa And Others on 16 April, 2025
KABC030163372011
Presented on : 18-05-2011
Registered on : 18-05-2011
Decided on : 16-04-2025
Duration : 13 years, 10 months, 29 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 16th Day of April, 2025
C. C. No.16309/2011
(Crime No.158/2009)
State by Gangammanagudi Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
1. Sri Chikkabylappa @ Byralingappa,
Aged about 45 years,
S/o Sri Late Bylappa,
R/at No.169, Lakshmipura Grama,
Vidyaranyapura Post,
Bengaluru North Taluk,
Bengaluru City
KABC030163372011 CC No.16309/2011
2. Sri K.V.Naidu,
Aged about 47 years,
S/o Sri K.C.Naidu,
R/at No.13, 4th Cross,
Gowdara Colony, 1st Main,
R.M.V. 2nd Stage, Dolor's Colony,
Bengaluru-94.
3. Sri Marasandra Muniyappa,
Aged about 50 years,
S/o Sri Muninarasappa,
R/at Maya White House,
Ambedkar Nagara,
Kanshiram Nagara,
Bengaluru City. ...... Accused
(Represented by Sri. Nagabhushan M.R., Advocate for
Accused No.1)
(Represented by Sri M.S. Murthy., Advocate for
Accused No.2)
(Represented by Sri D.A.Shivakumar, Advocate for
Accused No.3)
1. Date of commission of 13-10-2009
offence
2. Date of FIR 13-11-2009
3. Date of Charge sheet 06-02-2011
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KABC030163372011 CC No.16309/2011
4. Name of Complainant Sri Sajjan Johny
5. Offences complained of Under Section 447,
427, 506, 465, 468,
471 read with Sec.34
of IPC
6. Date of framing charge 08-12-2021
7. Charge Pleaded not guilty
8. Date of commencement 13-10-2022
of Evidence
9. Date of Judgment is 16-04-2025
reserved
10. Date of Judgment 16-04-2025
11. Final order Accused No.1 is
convicted for the
offences punishable
under section 465,
468, 471 of IPC and
Accused No.2 and 3
are acquitted for the
offences punishable
under section 465,
468, 471 of IPC and
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KABC030163372011 CC No.16309/2011
accused No.1 to 3 are
acquitted for the
offences punishable
under section 427,
448, 506 read with
Section 34 of IPC
12. Date of Sentence of Separate order
accused No.1
JUDGMENT
The Police Inspector of Gangammanagudi Police
Station submitted charge sheet against accused No.1
to 3 for the offences punishable under Section 447,
427, 506, 465, 468, 471 read with Sec.34 of Indian
Penal Code.
2. Prosecution Case: CW2 namely Sri Thomas
Nainan is the owner of 1 acre land situated at
Sy.No.11, Hissa No.192, Lakshmipura Village,
Yeshwanthpura Hobli, Bengaluru North and in the
same survey No.11, Hissa No.195 (Podi No.70) he
have 1 acre 15 guntas land. When CW2 was in
Qatar, accused No.1 created fake GPA on 25-09-2006
by forging CW2’s signature and on the basis of said
GPA, accused No.1 and 2 used the said document as
genuine and sold the 15 guntas of land to accused
No.2 under the execution of Sale Deed dated 23-03-
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KABC030163372011 CC No.16309/2011
2009 and also entering the names in Revenue
records, and also to sell the other parts of the said
land by way of also misrepresentation as it is part of
Podi survey No.70. Further the accused persons
illegally trespassed into the said land and removed
the fence which was put surrounding of land by CW2
and caused loss of Rs.2,60,000/- to him. On 13-10-
2009 at 4.00 p.m. when CW1 sent the said property
and questioned about the act of accused persons, the
accused No.1 to 3 with common intention put life
threat to CW1. Further, the accused No.3 trespassed
into the some portion of Sy.No.11, Hissa No.192 and
build a house and compound and living therein.
3. First Information Report: On the basis of
first information given by informant cum CW1 namely
Sri Sajjan Johny, CW9/PW5 the then HC of
Gangammanagudi Police Station Sri Prasanna Kumar
registered Crime No.158/2009 against the accused
for the offences punishable under Section 447, 427,
506 R/W Sec.34 IPC, prepared FIR as per Ex.P6 and
sent the same to the Court and to his superior
officers.
4. Investigation: After registration of case,
CW11/PW5 drawn spot mahazar on 13-11-2009 as
per Ex.P2 from 8.45 am to 9.45 a.m. in presence of
CW3 and CW5 and also seized documents under
seizure mahazar as per Ex.P3, collected the
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KABC030163372011 CC No.16309/2011
documents and obtained report from FSL and
submitted the charge sheet against accused No.1 to 3
for the alleged offences.
5. On receipt of charge sheet, this Court took
cognizance of offences alleged against the accused No.
1 to 3.
6. The accused No.1 to 3 were enlarged on bail
by the order dated 19-08-2011, 10-11-2011 and 09-
07-2012 respectively.
7. Copies of prosecution papers as required
U/Sec.207 of Cr.P.C have been furnished to the
accused persons.
8. Charge: After hearing learned Sr.APP and
counsel for accused No. 1 to 3, charge for the offences
punishable U/Sec.465, 468, 471, 427, 447, 506 read
with Section 34 of Indian Penal Code, has been
framed, read over and explained to the accused No.1
to 3 in the language known to them, who, in turn,
pleaded not guilty and claimed to be tried.
9. Prosecution Evidence: The prosecution in
order to establish its case cited 11 witnesses and
examined 7 witness and exhibited 12 documents and
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KABC030163372011 CC No.16309/2011
closed their side. The examination of CW8 was
dropped out by order dated 08-11-2023 as he
reported to be dead. The examination of CW6 and
CW7 were dropped by the order dated 06-02-2024 as
they could not be secured. The examination of CW10
was dropped out by order dated 28-11-2025 as he
was reported to be dead.
10. Accused statement as per section 313 of
CrPC: After completion of evidence of prosecution, the
accused persons examined as per section 313 Cr.P.C,
wherein they denied all incriminating evidence
appearing in the statement of prosecution witness
and did not lead any rebuttal evidence.
11. Heard the arguments and perused the
written arguments of APP. Perused materials on the
record.
12. The following point are arises for
consideration is as follows;
1. Whether the prosecution
proved beyond all reasonable
doubt that the uncle of CW1 i.e.
CW2 namely Thomas Nainan is
the owner of Sy.No.11/192 land
of Lakshmipura Village,
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KABC030163372011 CC No.16309/2011
Yeshwantapura Hobli,
Bengaluru north, measuring 1
acre and in same Sy.No.1/195
there is a land under Phodi
No.70 measuring 1 acre 15
guntas. On 25-09-2006 when
CW2 was in Qatar nation,
accused No.1 and 2 with
common intention got created
GPA by forging his signature
with an intention to sell the
aforesaid land, thereby resulted
in commission of the offence
punishable under U/s.465 read
with Sec.34 of IPC?
2. Whether the prosecution
proved beyond all reasonable
doubt that on 25-09-2006
when CW2 was in Qatar Nation,
in furtherance of common
intention accused No.1 sold 15
guntas land of CW2 in favour of
Accused No.2 on 23-03-2009
and also sold part of said land
by representing it as Podi of
Sy.No.70 land with dishonest
intention of cheating CW2
thereby resulted in commission
of the offence punishable
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KABC030163372011 CC No.16309/2011
U/sec. 468 read with Sec.34 of
IPC?
3. Whether the prosecution
proved beyond all reasonable
doubt that on the above said
time, date and place the
accused No.1 and 2 in
furtherance common intention
to commit an offence forged the
GPA and used the same as
genuine knowingly well that the
document is forged document
thereby resulted in commission
of an offence punishable
U/sec.471 read with Sec.34 of
IPC?
4. Whether the prosecution proved
beyond all reasonable doubt
that on the above said
duration, accused No.1 and 2
with the help of aforesaid
created GPA and sale deed in
favor of accused No.2 and
accused No.3 with an intention
to encroach the part of land of
CW2 mentioned above, illegally
destroyed a barbed wired fence
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KABC030163372011 CC No.16309/2011
put around his land and
caused loss of Rs.2,60,000/- to
CW2 thereby resulted in
commission of an offence
punishable U/sec.427 read
with Sec.34 of IPC?
5. Whether the prosecution
proved beyond all reasonable
doubt that on the above said
duration, accused No.1 and 2
with the help of aforesaid
created GPA and sale deed in
favor of accused No.2 and
accused No.3 with an intention
to encroach the part of land of
CW2 mentioned above, illegally
trespassed into the said
Sy.No.11/195 thereby resulted
in commission of an offence
punishable U/sec.447 read
with Sec.34 of IPC?
6. Whether the prosecution
proved beyond all reasonable
doubt that on 13-10-2009 at
4.00 p.m, at above said place
when CW1 namely Sri Sajjan
Johny questioned about the act
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KABC030163372011 CC No.16309/2011
of accused persons, the
accused No.1 to 3 with common
intention threatened the CW1
with dire consequences thereby
resulted in commission of an
offence punishable U/sec.506
read with Sec.34 of IPC?
7. What order?
13. The findings on the above points are as
under:
Point No.1-3 : In the Affirmative as far
as accused No.1 is
concerned and in the
Negative as far as
accused No.2 and 3 is
concerned
Point No.4-6 : In the Negative
Point No.7 : As per final orderREASONS
14. Point No.1 to 6: These points are taken up
together for the purpose of common discussion in
order to avoid repetition of facts as they form the
same part of transaction. In support of prosecution
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KABC030163372011 CC No.16309/2011
case as narrated in paragraph 2 and the point for
consideration in paragraph 12 of this judgment, the
prosecution examined the following witnesses
i. CW1 by name Sri Sajjan Johnny, being
informant examined as PW1 deposed that, CW2 is
his uncle, he was in Qatar with his family and he had
1 acre land and another land measuring 15 gunta is
Lakshmipura, Yeshwanthapura Hobli, Bengaluru,
both lands are situated adjacent to each other. In
2009 we had barbed both lands, when we went to
spot the neighbors told that barbed wire were
removed by accused No.1 and 2 and encroached by
them, after enquiry, he came to know that accused
No.1 and 2 had purchased land and they had
encroached the same by forming sites, then he lodged
complaint as per Ex.P1 with all documents. Police
summoned accused persons and they produced
documents which depicts that accused No.1 had
created a forged GPA in the name of CW2 in the year
2006 when he was in Qatar, with the help of forged
GPA, accused No.1 executed a Sale Deed in favor of
accused No.2 and he developed the land by forming
sites in the name Shirdi Layout and sold all the sites.
The Police obtained specimen signatures of CW2 and
forwarded the same to Lab, which proved that above
document is forged, in the year 2010 he have lodged
additional complaint before police, on 13.11.2009
police have conducted spot mahazar as per Ex.P2 and
at that time he along with CW2 to CW5 have signed
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KABC030163372011 CC No.16309/2011
said mahazar. He identified his signatures as per
Ex.P1(a) and 2(a).
ii. CW5 Sri Muralidhar, the pancha witness
examined as PW2 and deposed that on 22-11-2011,
he along with CW3 and CW4 put their signatures on
Ex.P3 mahazar, at Gangammanagudi PS and
identified GPA dated 02-04-2009 as Ex.P4 and Sale
agreement dated 9-2-2006 a Ex.P5 and his signature
as per Ex.P3(a).
iii. CW4 by name Sri Anu George, pancha
witness examined as PW3 and deposed that she along
with CW1 and CW5 put their signatures on Ex.P2 at
Sy.No.70 of CW1’s land.
iv. CW11 by name Sri Somalingappa Chabbi,
the then PI of Gangammanagudi PS examined as PW4
and deposed that, on 13-10-2009 he received
complaint from CW1 as per Ex.P1 and registered FIR
No.158/2009 as per Ex.P6, drawn spot mahazar as
per Ex.P2 in presence of CW3 and CW4 from 11.15
a.m. to 12.00 a.m. and recorded the statement of
CW3, CW5 and further statement of PW1. Further
deposed that, on 14-11-2009 he received survey
report from Tahasildar, North Division with regard to
place and on 15-11-2009 CW1 and CW5 produced
the purchase certificate of Sy.No.11 Hissa 70 for the
year 1974-75 and seized the GPA dated 25-9-2006,
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KABC030163372011 CC No.16309/2011
Sale deed dated 9-2-2006 produced by one
K.P.Naidu, under mahazar as per Ex.P3 in the
presence of CW3 and CW5 and further he identified
GPA as per Ex.P7 and original sale agreement as per
Ex.P5. He sent the specimen signature of CW2,
handwriting, GPA and documents received from CW1
to FSL for examination and after completion of
investigation submitted charge sheet against accused.
Further he identified the documents as per Ex.P8 to
Ex.P10.
v. CW9 by name Sri Prasanna Kumar, the
then HC of Gangammanagudi PS examined as PW5
and deposed that, on 04-11-2010, as per the order of
CW11, he handed over the documents, seized in
Crime No.158/2009 to FSL and obtained a receipt as
per Ex.P9 and handed over it to CW11.
vi. CW2/PW6 Sri K.Thomas Nainan, victim,
deposed that he worked in Qatar from 1975 to 2015,
after that he returned to Bengaluru. Without his
knowledge, his property in Lakshmipura was sold to
someone by forging his signature. He doesn’t know
who Chikkabailappa was. He had given the GPA to
his friend Chako to sell his property, but since he did
not receive any information or money from him, he
cancelled the said GPA, later, he gave the GPA related
to his property to CW1 to file a case. Since he was in
Qatar at that time, he gave the GPA to his son-in-law
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KABC030163372011 CC No.16309/2011
i.e. CW1, who was conducting this case on his behalf.
He identified his e-mail and original passport as
Ex.P11 and 12.
vii. Sri Krishnamurthy, advocate, examined as
PW7 and deposed that he have not seen the accused
persons, he do not know CW2. He seen the original
document in Ex.P7 in the court file and the seal,
signature and writing in GPA was not his, when the
GPA is notarized, the person who writes appears
before him and after verifying the identity documents
related to him, he give a number in his book and then
write its details in the notary register book and write
his signature and the signature of the parties. On 25-
09-2006, he was practicing notary profession, at that
time, he kept notary register book, and if the notary
had done before him, he would have made an entry in
the book, since he did not give the number in this
way for the said registration, it means that they did
not appear before him, therefore, Ex.P7 was not
registered as per the Notary Act. He do not know
whether the register book is in his possession for
2006 or not. They send a copy of the notary book to
the District Judge and the government every year.
Further deposed that he has seen Ex.P7 for the first
time, and the witnesses who have entered in the same
did not appear before him, which means that the
signature in Ex.P7 does not belongs to him, the
Advocate Kumar did not make the signature of the
witnesses in front of him.
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15. The counsel for the accused No.1 with
vehemence argued and relied upon Section 18 and
Section 33 of Indian Stamp Act which reads as under
18. Instruments other than bills
and notes executed out of India.–
(1) Every instrument chargeable
with duty executed only out of
2[India], and not being a bill of
exchange 3*** or promissory note,
may be stamped within three
months after it has been first
received in 2[India].
(2) Where any such instrument
cannot, with reference to the
description of stamp prescribed
therefore, be duly stamped by a
private person, it may be taken
within the said period of three
months to the Collector, who shall
stamp the same, in such manner
as the 1[State Government] may
by rule prescribe, with a stamp of
such value as the person so
taking such instrument may
require and pay for.
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Section 33 in The Indian Stamp
Act, 1899 which reads as under
33. Examination and impounding
of instruments.
(1)Every person having by law or
consent of parties authority to
receive evidence, and every person
in charge of a public office, except
an officer of police, before whom
any instrument, chargeable, in his
opinion, with duty, is produced or
comes in the performance of his
functions, shall, if it appears to
him that such instrument is not
duly stamped, impound the same
(2)For that purpose every such
person shall examine every
instrument so chargeable and so
produced or coming before him, in
order to ascertain whether it is
stamped with a stamp of the value
and description required by the
law in force in India when such
instrument was executed or first
executed:
Provided that
(a)nothing herein contained shall
be deemed to require any
Magistrate or Judge of a Criminal
Court to examine or impound, if17
KABC030163372011 CC No.16309/2011he does not think fit so to do, any
instrument coming before him in
the course of any proceeding
other than a proceeding under
Chapter XII or Chapter XXXVI of
the [Code of Criminal Procedure,
1898 (5 of 1898)] [ Now see the
Code of Criminal Procedure, 1973
(2 of 1974).];
(b)in the case of a Judge of a High
Court, the duty of examining and
impounding any instrument
under this section may be
delegated to such officer as the
Court appoints in this behalf
(3)For the purposes of this
section, in cases of doubt,(a)[the
[State Government] [Substituted
by A.O.1937, for “the Governor-
General in Council” .]] may
determine what offices shall be
deemed to be public offices;
and(b)[the [State Government]
[Substituted by A.O.1937, for “the
Governor-General in Council” .]]
may determine who shall be
deemed to be persons in charge of
public offices.
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KABC030163372011 CC No.16309/2011
It appears from the Ex.P4 GPA given by the PW6
to informant/PW1 makes it very clear that the stamp
duty paid is Rs. 100/- on 13/03/2009 so such being
the case requisite the stamp duty being paid to the
Government of Karnataka. The process of
adjudication before the District Collector is only for
the collection of stamp duty.
16. When the stamp duty is sufficiently paid, the
question of adjudication before the District Collector
as per Section 31 of Indian Stamp Act is required. In
this context, it is relevant mention the decision of
Hon’ble Madras High Court, in Manoharan v. Velu,
(1998) III M.L.J 272, held that a power of attorney
executed on proper stamp need not be produced
before the Collector for the purpose of certification or
adjudication that the full duty with which it is
chargeable has been paid. It was
observed Manoharan v. Velu as under
“5. This power document satisfies
the definition ‘power of attorney’
as defined in Sub-sec.(21) of Sec.2
of the Act. It is not in dispute that
this power document is engrossed
on Indian Non-Judicial stamp
paper of the value of Rs.5, which
is the proper stamp duty, payable
on that instrument. On these
facts, the question that arises for19
KABC030163372011 CC No.16309/2011consideration is whether the said
power document should be
necessarily produced before the
Collector to certify by
endorsement on such instrument
that the full duty with which it is
chargeable has been paid or not.
To decide this question, the court
has to necessarily look into
Secs.31 and 32 of the Act. Sec.32
of the Act starts with the following
words’ “When an instrument
brought to the Collector under
Sec.31, is etc., etc. Therefore, if
the provisions of Sec.32 of the Act
have to be applied, then the
instrument should have been
necessarily produced under the
provisions of Sec.31 of the Act
before the Collector concerned.
Sec.31 of the Act enable a person
bringing to the Collector any
instrument whether executed or
not and whether previously
stamped or not, to have his
opinion as to the duty (if any) with
which it is chargeable and
thereupon the Collector on
payment of a fee, shall determine
the duty (if any) with which, in his20
KABC030163372011 CC No.16309/2011judgment the instrument is
chargeable. Sub-sec.(2) of Sec.31
of the Act deals with the power of
the Collector to collect materials,
in order to determine the stamp
duty, if any, chargeable on the
instrument produced before him.
However in this regard, the Hon’ble Kerala High
Court, quoting above portions from Manoharan v.
Velu, it was held in the case of Anitha Rajan v.
Revenue Divisional Officer, reported AIR 2010
Ker153, that it was not necessary to produce the
power of attorney, even if executed outside India, for
adjudication if it was sufficiently stamped. Such
being the case, the adjudication before the collector is
for collection of revenue for the State of Karnataka
but there is no material produced by the accused
No.1 to 3 to corroborate that the stamp duty as on
13/03/2009, is more than Rs.100/- for the purpose
of adjudication before the District Collector. hence the
contention of the accused No.1 that the Ex.P4 GPA
cannot be relied upon as it was not conferred any
power to the PW1 from the PW6 cannot be accepted.
In addition to which, PW6 had given evidence by
sanctifying the Ex.P4 was given by him and attested
his signature before the Indian Embassy.
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17. The another question arises whether the
complaint could be lodged through PA holder in
criminal cases? The present case is lodged for the
offences punishable under Section 447, 427, 506,
465, 468, 471 read with Sec.34 of IPC and these
offences does not fall under section 198 of CRPC
wherein the aggrieved person has to file a complaint.
However it is relevant to rely upon in the case of
Deepalakshmi vs K.Murugesh by the Hon’ble Madras
High Court held in paragraph 17 that
“17.In view of the above
discussion, we hold that,
(i)With regard to the first issue,
the complaint even if not signed
by the power of attorney on behalf
of the complainant but singed in
his own name, is maintainable
and not bad in law because it is
more procedural than
substantive;
(ii)regarding the second issue,
though the General Power of
Attorney at initial stage fails to
produce the deed of power of
attorney or the affidavit of the
complainant in proof of execution
of power of attorney, the same can
be rectified by producing the same
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KABC030163372011 CC No.16309/2011
at a subsequent stage of the
proceedings as and when the
validity of the power of attorney is
questioned by the accused and
the Court could then be called
upon to decide the genuineness or
the validity of the power of
attorney; and
(iii)in respect of third issue, it is
not required to record the sworn
affidavit of the complainant also
on a future date to enable the
Court to exercise its discretion.”
28.The learned senior counsel has
relied on yet another judgment of
the Honourable Supreme Court in
Shankar Finance and Investments
Vs State of Andhra Pradesh
reported in ((2008) 8 SCC 536).
That was also a case of
prosecution launched by the
power of attorney holder on behalf
of his principal. There also, the
Honourable Supreme Court has
held that a compliant filed by the
power of attorney holder on behalf
of the principal is certainly
maintainable but he can only
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KABC030163372011 CC No.16309/2011
speak about the facts, which are
within his personal knowledge
and he cannot speak to the facts,
which are in the exclusive
knowledge of his principal.
29.From these two judgments, it
is very clear that there is no bar
in our Indian Criminal
Jurisprudence for a power agent
to file a private compliant on
behalf of his principal. But the
only restraint is that the power
agent cannot speak to a fact of
which he has got no knowledge. It
is after all a very elementary
principle of rule of evidence as
envisaged in the Indian Evidence
Act.
Except the said raider, absolutely, there is no
bar for a power agent to file a complaint. In the
modern world, either on account of employment or for
some other purpose, people go abroad or to a distant
State in this country and settle down either
permanently or temporarily. It is also possible that a
NRI may be an aggrieved person of an offence who
may not be in a position to visit India to file a
complaint and to attend the future hearings. In such
a situation, the offender cannot be allowed to go
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KABC030163372011 CC No.16309/2011
scotfree and after all it is purely procedural and not
substantive. Therefore, this court held that a power
agent (PW1) can file a complaint representing his
principal (PW6). Apart from giving the complaint
through PA holder as per Ex.P1 on 09/11/2009, PW6
had also given the complaint through fax to the Circle
Inspector of Police, Gangammagudi Police Station,
Bangalore on 18/11/2009 as per Ex.P11.
18. The present case is charge sheeted accused
No.1 namely Sri Chikkabailappa @ Bharathilingappa
S/o Late Bailappa and Accused No.2 namely Sri K.
V.Naidu S/o K.C.Naidu based upon the complaint
lodged by the CW1 who is none other than son-in-law
and GPA holder of CW2 for the offence punishable
under section 465, 468, 471 R/W Section 34 of IPC.
CW2/PW6 had given concurrence to the complaint
lodged by the PW1 on his behalf in his evidence. The
relevant provision of forgery is as under
463. Forgery.–3 [Whoever makes
any false document or false electronic
record or part of a document or
electronic record, with intent to cause
damage or injury], to the public or to
any person, or to support any claim or
title, or to cause any person to part
with property, or to enter into any
express or implied contract, or with25
KABC030163372011 CC No.16309/2011intent to commit fraud or that fraud
may be committed, commits forgery.
Section 464 in The Indian Penal Code
Making a false document.– [A person
is said to make a false document or
false electronic record– First –Who
dishonestly or fradulently
(a) makes, signs, seals or executes a
document or part of a document;
(b) makes or transmits any electronic
record or part of any electronic record;
(c) affixes any [electronic signature]
on any electronic record;
(d) makes any mark denoting the
execution of a document or the
authenticity of the [electronic
signature],
with the intention of causing it to be
believed that such document or part
of document, electronic record or
[electronic signature] was made,
signed, sealed, executed, transmitted
or affixed by or by the authority of a
person by whom or by whose
authority he knows that it was not
made, signed, sealed, executed or
affixed; or
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KABC030163372011 CC No.16309/2011
Secondly–Who, without lawful
authority, dishonestly or fraudulently,
by cancellation or otherwise, alters a
document or an electronic record in
any material part thereof, after it has
been made, executed or affixed with
[electronic signature] either by himself
or by any other person, whether such
person be living or dead at the time of
such alteration; or
Thirdly–Who dishonestly or
fraudulently causes any person to
sign, seal, execute or alter a document
or an electronic record or to affix his
[electronic signature] on any electronic
record knowing that such person by
reason of unsoundness of mind or
intoxication cannot, or that by reason
of deception practiced upon him, he
does not know the contents of the
document or electronic record or the
nature of the alteration.]
465. Punishment for forgery.–
Whoever commits forgery shall be
punished with imprisonment of either
description for a term which may
extend to two years, or with fine, or
with both.
27
KABC030163372011 CC No.16309/2011
Section 468:- Forgery for purpose of
cheating whoever commits forgery,
intending that the document or
electronic record forged shall be used
for the purpose of cheating, shall be
punished with imprisonment of either
description for a term which may
extend to seven years, and shall also
be liable to fine.
Thus, it is culled out the main ingredients of
forgery from aforesaid sections are:
1. Making a False Document
2. As per Section 463 IPC, forgery
involves making any false
document or false electronic
record or part of a document or
electronic record.
3. Section 464 IPC further defines
when a person is said to have
made a false document:
Dishonestly or fraudulently
making, signing, sealing, or
executing a document, with the
intention of causing it to be
believed that such document was
made, signed, sealed, or executed28
KABC030163372011 CC No.16309/2011by or by the authority of a person
by whom or by whose authority
the maker knows it was not made,
signed, sealed, or executed
Dishonestly or fraudulently
altering a document or electronic
record in any material part after it
has been made or executed
4. Dishonestly or fraudulently
causing any person to sign, seal,
execute, or alter a document or
electronic record, knowing that
the person does not know the
contents or nature of the
alteration due to unsoundness of
mind or intoxication
5. Intention to Cause Damage,
Injury, or Fraud
6. The false document must be
made with the intent to cause
damage or injury to the public or
any person, support any claim or
title, cause a person to part with
property, enter into a contract, or
commit fraud.
7. Knowledge of Forgery
29
KABC030163372011 CC No.16309/2011In this backdrop, the present case is taken up
for evaluation of oral and documentary evidence to
ascertain whether the prosecution has made out the
case for forgery.
19. It is the case of prosecution that the
CW2/PW6 namely Sri K. Thomas Nainan is the owner
of the survey Number 11 (eleven) situated at
Lakshimipura Village, Yeshwanthapura Hobli,
Bangalore North Taluk measuring 1 acre and
bounded on the East by Chikkkan’s land, West by
Veeraswamy Reddy’s garden, North by Hanumakk’s
Land and South by Narayappa’s land as per Ex.P11
having purchased on 06/08/1996 from one Sri
Kanakmalla S/o. Late Harakchand represented by his
PA Holder Sri C. B. Gowder and the said ownership of
PW6 through Ex.P11 was not disputed by the
accused No.1.
20. However the accused No.1 has created Ex.P7
wherein the CW2/PW6 claims to have executed power
of attorney in favour of accused No.1 on 25/09/2006
for 15 guntas in the aforesaid property survey No.11
and description of the property in the GPA as under
-ಷೆಡ್ಯೂಲ್ ವಿವರ- ಬೆಂಗಳೂರು ಉತ್ತರ
ತಾಲ್ಲೂಕು, ಯಶವಂತಪುರ ಹೋಬಳಿ,
ಲಕ್ಷ್ಮೀಪುರ ಗ್ರಾಮದ ಸರ್ವೆ ನಂ.11 ರ ಒಟ್ಟು30
KABC030163372011 CC No.16309/20112-00 ಎಕರೆ ಪೈಕಿ 0-15 (ಹದಿನೈದು ಗುಂಟೆ)
ಜಮೀನಿಗೆ ಚೆಕ್ಕುಬಂದಿ :
ಪೂರ್ವಕ್ಕೆ : ಮಾರಾಟಗಾರರ ಬಾಬ್ತು ಸ್ವತ್ತಿನ
ಪೈಕಿ ಉಳಿಕೆ ಸ್ವತ್ತು
ಪಕ್ಚಮಕ್ಕೆ : ವೀರಾಸ್ವಾಮಿ ರೆಡ್ಡಿ ಗಾರ್ಡನ್
ಉತ್ತರಕ್ಕೆ : ಥಾಮಸ್ ನಿನನಿಯವರಿಗೆ
ಸೇರಿದ ಜಮೀನು
ದಕ್ಷಿಣಕ್ಕೆ : ಬೈರಲಿಂಗಪ್ಪನವರ ಜಮೀನುಈ ಮಧ್ಯಕ್ಕೆ ಇರುವ 0.15 (ಹದಿನೈದು ಗುಂಟೆ)
ಖುಷ್ಕ್ ಜಮೀನು ಮಾತ್ರ ಈ ಜನರಲ್ ಪವರ್
ಅಫ್ ಅಟಾರ್ನಿ ಪತ್ರಕ್ಕೆ ಒಳಪಟ್ಟಿರುತ್ತೆದೆ.
and the property conveyed to the accused No.2 by the
accused No.1 by the registered sale deed dated
23/03/2009 which are as follows;
schedule
All that piece and parcel of the
unconverted agricultural land in
Survey No. 70, measuring 15
guntas out of total extent
measuring 1 acre 30 guntas
situated at Lakshmipura Village,
Yeshwanthapura Hobli, Bangalore
North Taluk and bounded on theEast by Land belongs to K. V.
Naidu31
KABC030163372011 CC No.16309/2011West by Private property
Northy by property belongs to K V
Naidu
South by Byralingappa’s landIt is the case of prosecution that the CW2/PW6
was not in the country and was in Qatar country and
relied upon the passport of CW2 wherein it shows
that the CW2/PW6 left to 13/02/2006 and was
returned only on 14/12/2007. The PW4/IO sent the
disputed power of attorney to FSL, Bangalore on
08/06/2010 through HC 3189 wherein the Expert
namely Sri Lakshminarayan (CW8) had given his
opinion that the signature was done by imitation
process in their production however was not
examined before this court.
21. The prosecution when the author of FSL
report (CW8) was unavailable on account of his
death, summoned the notary namely Sri
Krishnamurthy who alleged to be the notary of GPA
dated 25/09/2006 wherein he had given his evidence
that CW2 /PW6 did not appear before him and has
not seen the CW2/PW6 and the signature on Ex.P7
does not belongs to him and accused No.1 too did not
appear before him. In fact, PW6 deposed whilst cross
examining by the accused No.1 in page No.4 that32
KABC030163372011 CC No.16309/2011“xxxxx Ex.P7 was shown to the
witness and posed to question
that it was prepared by Chacko
witness after seeing the
documents it was written in
Kannada and he does know about
the same. Signature of accused
No.1 was not seen in the Ex.P7 for
which witness answered that he
does not know who is
Chikkabyalappa. It is false to
suggest that accused No.1 did
not execute any sale deed of my
property to accused No.2, I did
not met the purchaser of my
property”.
Such being the case, the prosecution has
successfully the Ex.P12 (passport of PW6) coupled
with the Ex.P7 (GPA dated 25/09/2006 and evidence
of PW6 and evidence of PW7 makes it very clear that
the CW2/PW6 was not in India and was in Qatar as
on the date of execution of GPA dated 25/09/2006
and does not who is the accused No.1 and accused
No.2 then how the Ex.P7 came into existence and
how the property was conveyed to the accused No.2
through Accused No.1 as PA holder of PW6, the
burden shifts upon the accused No.1 to rebut the
same. In this regard, this court relies upon Section
106 of Indian Evidence Act which reads as under
33
KABC030163372011 CC No.16309/2011
Burden of proving fact especially
within knowledge
When any fact is especially within
the knowledge of any person, the
burden of proving that fact is
upon him.
Such being the case, the accused No. 1 never
rebutted the Ex.P12 and the evidence of PW6 that the
CW2/PW6 was present in Bangalore, India on
25/09/2006 before the said Notary Sri R.T.
Krishnamurthy vide Law 438 LCL 88 and CW2/PW6
has affixed his signature before the alleged witness
namely Sri D. Krishnappa and and identified by
Advocate Sri C A Kumar BSC(Ag) LLB, Advocate City
Civil Court complex, Bangalore. The advocate for
accused No.2 and 3 has argued that witness to the
power of the attorney (Ex.P7) and advocate was not
made as a witness to prove the case of forgery by the
prosecution but it ought to be seen that the
prosecution produced the statutory document i.e.,
passport of PW6 is very clear that the PW6 has exited
from India on 13/02/2006 and returned from, Qatar
back to India on 14/12/2007 and the same was not
rebutted by the accused No.1 except the bare denial
in the cross examination which does not disqualify to
rebut the statutory document passport without any
cogent rebuttal evidence. The advocate for the
accused No.1 has disputed his identity in the Ex.P7
dated 25/09/2006 however the said Shri34
KABC030163372011 CC No.16309/2011Chikkabyalappa S/o. Bylappa (accused No.1) filed
Crl. Misc. No. 3614/2011 wherein he had given
particulars as “Sri Chikkabylappa @ Byralingappa,
Aged about 52 years S/o Sri Late Bylappa, No. 59,
Lakshmipura Grama, Vidyaranyapura Post,
Bengaluru -560 059 and the same are concurring
with the identity of the accused No.1 in this case. If
the accused No. 1 has any other identity than the
identity mentioned, he would have rebutted the same
with cogent evidence.
22. The defence of accused No.1 was that the
sale consideration amounts were transferred to the
account of the PW6, if such so, what prevented the
accused No.1 to produce the statement of account
except arguing on the said contention by the counsel
for accused No.1 and the specimen signature of
accused No.1 was not obtained by IO/PW4 and hence
this court cannot fix the charge of forgery against the
accused No.1 however the particulars of accused No.1
and the purchase of the property by the accused No.
2 from the accused No.1 as the GPA holder of PW6
was not disputed by the accused No.2 and such being
the case, the burden is heavily upon the accused
No.1 to rebut the statutory passport document as per
Ex.P12 and Ex.P12A whether the PW6 came to India
and under what circumstances the Ex.P7 (GPA dated
25/09/2006) came into existence.
35
KABC030163372011 CC No.16309/2011
23. The defence of accused No.1 was that the
PW6 was not investigated and hence cannot be held
guilty for forgery but the PW6 deposed that he sent
his specimen signatures to PW1 through post and
passport documents, then what is left out for PW4 to
investigate the PW6 when the entire cases rests on
the documentary evidence. Thus the prosecution has
established that the accused No.1 has committed the
forgery. Merely the accused No.2 purchased the land
from the accused No.1, he cannot be made culpable.
The prosecution has not whispered anywhere in the
record that accused No.2 was a part of forgery of
signature of PW6 and creation of forgery GPA dated
25/09/2006 except he purchased the land.
24. No doubt, CW1/PW1/informant deposed
that the accused No.2 after purchase of land from
accused No.1 has developed the lands and sold the
same to public. The prosecution has not established
that the accused No.2 had knowledge about the
alleged forgery GPA dated 25/09/2006. IO/PW4
clearly had deposed that he seized the GPA dated
25/09/2006, original sale deed from the possession
of the accused No.2 in the presence of CW3 namely
K.G. Thomas and CW5 namely Sri Muralidhar upon
the seizure mahazar as per Ex.P3 (seizure mahazar)
on 22/11/2009. The defence argued that the
evidence of CW3 and CW5 cannot be relied upon as
they are interested witnesses as CW5 is working with
36
KABC030163372011 CC No.16309/2011
the PW1 however enmity or any previous animosity
was established by the defence that they are
interested persons in conviction of accused persons,
this court cannot term the PW2 as interested
witnesses. The prosecution has not established that
the accused No.2 had knowledge or in connivance
with the accused No.1 has created GPA dated
25/09/2006 and forged the signature of CW2/PW6.
Thus, the accused No.1 is held guilty for the offence
punishable under section 465 of IPC.
25. In addition to which, the accused No.1 has
used the said forged GPA dated 25/09/2006 for
selling the land 15 guntas of land to the accused No.2
on 23/03/2009 through the registered sale deed.
Sections 468 and 471 of IPC reads as follows:
468. Forgery for purpose of
cheating.–Whoever commits
forgery, intending that the
1[document or electronic record
forged] shall be used for the
purpose of cheating, shall be
punished with
imprisonment of either
description for a term which may
extend to seven years, and shall
also be liable to fine.
37
KABC030163372011 CC No.16309/2011
471. Using as genuine a forged
1[document or electronic record].
–Whoever fraudulently or
dishonestly uses as genuine any
1[document or electronic record]
which he knows or has reason to
believe to be a forged 1[document
or electronic record], shall be
punished in the same manner as
if he had forged such 1[document
or electronic record].
26. It has been held in the case of Mir Nagvi
Askari vs. Central Bureau of Investigation reported in
AIR 2010 SUPREME COURT 528 decided by the
Hon’ble Supreme Court wherein it was observed and
held as under:
“A person is said to make a false
document or record if he satisfies
one of the three conditions as
noticed hereinbefore and provided
for under the said section.
The first condition being that the
document has been falsified with
the intention of causing it to be
believed that such document has
been made by a person, by whom
the person falsifying the
document knows that it was not38
KABC030163372011 CC No.16309/2011made. Clearly the documents in
question in the present case, even
if it be assumed to have been
made dishonestly or fraudulently,
had been made with the intention
of causing it to be believed that
they were made by or under the
authority of someone else.
The second criteria of the section
deals with a case where a person
without lawful authority alters a
document after it has been made.
There has been no allegation of
alteration of the voucher in
question after they have been
made. Therefore in our opinion
the second criteria of the said
section is also not applicable to
the present case.
The third and final condition of
Section 464 deals with a
document, signed by a person
who due to his mental capacity
does not know the contents of the
documents which were made i.e.,
because of intoxication or
unsoundness of mind etc. Such is
also not the case before this court39
KABC030163372011 CC No.16309/2011for consideration. Indisputably
therefore the accused No.1 falls
under first category that he
created the false document -GPA
dated 25/09/2006 under the
authority of the CW2/PW6.
27. In the case of Mohammed Ibrahim & Ors. vs.
State of Bihar & Anr reported in (2009) 8 SCC 751
wherein it was held that
” 11. In short, a person is said to
have made a `false document’, if
(i) he made or executed a
document claiming to be someone
else or
authorized by someone else; or
(ii) he altered or tampered a
document; or
(iii) he obtained a document by
practicing deception, or from a
person not in control of his
senses.
28. It appears from the record that the copy of sale
deed dated 23/03/2009 executed by the accused
No.1 falls under the first categories of `false
documents’ and the accused No.2 has not denied the
land of PW6 purchased by the accused No.2 from the
40
KABC030163372011 CC No.16309/2011
accused No. 1 who sold in the capacity of PA Holder
of CW2/PW6. It therefore remains to be seen whether
the claim of informant and PW6 that the execution of
sale deeds by the accused No.1, who was in no way
connected with the land, created GPA by forging the
signature of PW6 with the intention of defrauding
PW6’s land as if PW6 had given authority to sell the
aforesaid property measuring 15 guntas would bring
the case under the first category by falsely claiming to
be authorized or empowered by the owner, to execute
the deed on owner’s behalf. The prosecution has not
whispered anywhere in the record that accused No.2
was a part of forging the signature of PW6 or part of
creation of forgery GPA dated 25/09/2006 except
accused No.2 purchased the aforesaid property and
the accused No.3 being a local leader of the said place
where the property is situated. The prosecution has
not established that the accused No.2 and 3 had
knowledge about the alleged forgery GPA dated
23/03/2009 and took part in the act of forgery. The
prosecution has not established that the accused
No.2 and 3 was in connivance with the accused No.1
has created GPA dated 25/09/2006 and forged the
signature of CW2/victim/PW6. Thus, the accused
No.2 and 3 are not held guilty for the offence
punishable under section 465 of IPC.
41
KABC030163372011 CC No.16309/2011
29. In addition to which, the accused No.1 has
used the said forged GPA dated 25/09/2006 for
selling the aforesaid land to the accused No.2 on
23/03/2009 through the registered sale deed and the
accused No.2 has sold the aforesaid lands to the
public as per suggestion posed in the cross
examination of PW1. The suggestion posed by
advocate for accused No.3 in cross examination of
PW1 that the accused No.2 purchased the land based
upon the GPA dated 25/09/2006 on 23/03/2009.
The copy of sale deed was made available and merely
the certified copy was not marked, the accused No. 1
cannot escape from his mischief /fraudulent acts. It
is relevant to mention Sections 468 and 471 of IPC
reads as follows:
468. Forgery for purpose of
cheating.–Whoever commits
forgery, intending that the
1[document or electronic record
forged] shall be used for the
purpose of cheating, shall be
punished with imprisonment of
either description for a term
which may extend to seven years,
and shall also be liable to fine.
471. Using as genuine a forged
1[document or electronic record].
--Whoever fraudulently or
42
KABC030163372011 CC No.16309/2011
dishonestly uses as genuine any
1[document or electronic record]
which he knows or has reason to
believe to be a forged 1[document
or electronic record], shall be
punished in the same manner as
if he had forged such 1[document
or electronic record].
30. The essential ingredients of Section 471 are (i)
fraudulent or dishonest use of document as genuine
(ii) knowledge or reasonable belief on the part of
person using the document that it is a forged one.
31. Section 471 is intended to apply to persons
other than forger himself, but the forger himself is not
excluded from the operation of the Section.
32. To attract Section 471, it is not necessary
that the person held guilty under the provision must
have forged the document himself or that the person
independently charged for forgery of the document
must of necessity be convicted, before the person
using the forged document, knowing it to be a forged
one can be convicted, as long as the fact that the
document used stood established or proved to be a
forged one.
43
KABC030163372011 CC No.16309/2011
32. The act or acts which constitute the
commission of the offence of forgery are quite
different from the act of making use of a forged
document. The expression ‘fraudulently and
dishonestly’ are defined in Section 25 and 24 of IPC
respectively. For an offence under Section 471, one of
the necessary ingredients is fraudulent and dishonest
use of the document as genuine. The act need not be
both dishonest and fraudulent. The use of document
as contemplated by Section 471 must be voluntary
one. For sustaining conviction under Section 471 it is
necessary for the prosecution to prove that accused
No.2 and 3 knew or had reason to believe that the
GPA (Ex.P7) to be a forged one. Whether the accused
No.2 and 3 knew or had reason to believe the GPA in
question as per Ex.P7 to be a forged is not clear from
record as they purchased the aforesaid property for
sale consideration and the contents of the sale deed
contents were not rebutted by the prosecution that
these documents were not executed for the sale
consideration as alleged.
34. Under the IPC, guilt in respect of almost all
the offences is fastened either on the ground of
“intention” or “knowledge” or “reason to believe”.
“Knowledge” is an awareness on the part of the
person concerned indicating his state of mind.
“Reason to believe” is a higher level of state of mine.
44
KABC030163372011 CC No.16309/2011
35. Section 26 of IPC explains the meaning of
the words “reason to believe” thus:
26 – “Reason to believe”: A person
is said to have ‘reason to believe’ a
thing, if he has sufficient cause to
believe that thing but not
otherwise.”
In substance what it means is that a person
must have reason to believe if the circumstances are
such that a reasonable man would, by probable
reasoning, conclude or infer regarding the nature of
the thing concerned. Such circumstances need not
necessarily be capable of absolute conviction or
inference; but it is sufficient if the circumstances are
such creating a cause to believe by chain of probable
reasoning leading to the conclusion or inference
about the nature of the thing. These two
requirements i.e. “knowledge” and “reason to believe”
have to be deduced from various circumstances in the
case and the said principle is appreciated in the case
of Joti Parshad v. State of Haryana reported in AIR
1993 SC 1167. As discussed, the prosecution failed
to prove that the accused No.2 had the knowledge
about the GPA dated 25/09/2006 Ex.P7 and also had
reason to believe that the document was a forged one
before the accused No.2 purchased the aforesaid
property under sale deed dated 23/03/2009 and the45
KABC030163372011 CC No.16309/2011accused No.3 was part of GPA dated 25/09/2006 as
per Ex.P7.
36. It has been held in the case of Mir Nagvi
Askari vs. Central Bureau of Investigation reported in
AIR 2010 SUPREME COURT 528 decided by the
Hon’ble Supreme Court wherein it was observed and
held as under:
“A person is said to make a false
document or record if he satisfies
one of the three conditions as
noticed hereinbefore and provided
for under the said section.
The first condition being that the
document has been falsified with
the intention of causing it to be
believed that such document has
been made by a person, by whom
the person falsifying the
document knows that it was not
made. Clearly the documents in
question in the present case, even
if it be assumed to have been
made dishonestly or fraudulently,
had been made with the intention
of causing it to be believed that
they were made by or under the
authority of someone else.
46
KABC030163372011 CC No.16309/2011
The second criteria of the section
deals with a case where a person
without lawful authority alters a
document after it has been made.
There has been no allegation of
alteration of the voucher in
question after they have been
made. Therefore in our opinion
the second criteria of the said
section is also not applicable to
the present case.
The third and final condition of
Section 464 deals with a
document, signed by a person
who due to his mental capacity
does not know the contents of the
documents which were made i.e.,
because of intoxication or
unsoundness of mind etc. Such is
also not the case before this court
for consideration. Indisputably
therefore the accused No.3 falls
under first category that she
created the false document -GPA
dated 25/09/2006 claims to be
under the authority of the
CW2/Victim namely Sri. Thomas
Ninan47
KABC030163372011 CC No.16309/2011
37. In the case of Mohammed Ibrahim & Ors. vs.
State of Bihar & Anr reported in (2009) 8 SCC 751
wherein it was held that
” 11. In short, a person is said to
have made a `false document’, if
(i) he made or executed a
document claiming to be someone
else or authorized by someone
else; or
(ii) he altered or tampered a
document; or
(iii) he obtained a document by
practicing deception, or from a
person not in control of his
senses.
Thus, the sale deed dated 23/03/20096
executed by the accused No.1 in favour of accused
No.1 falls under the first categories of `false
documents’. It therefore remains to be seen whether
the claim of the victim (PW6) that the purchase of
property by the accused No.2 from the accused No.1
who was in no way connected with the creation of
GPA by forging the signature of CW2/PW6 with the
intention of defrauding his land as if he had given
authority to sell the aforesaid property to the accused
No.1 would bring the case under the first category by
falsely claiming to be authorized or empowered by the
48
KABC030163372011 CC No.16309/2011
owner, to execute the deed on owner’s behalf.
Therefore, execution of such document by the
accused No.1 claiming to be authorized by the
CW2/PW6 falls under execution of a false document
as defined under section 464 of the Code so the
accused No.1 has executed false document GPA dated
25/09/2006 as per Ex.P7 and sale deed dated
23/03/2009, there is a forgery on the part of accused
No.1 is established by prosecution and not against
the accused No.2 and 3. When the forgery is
established, then section 467 or section 471 of the
Code are attracted.
38. In the case of Sheila Sebastian vs. R.
Jawaharaj & Anr reported in (2018) 7 SCC 581, it
was observed and held as under:
“25. Keeping in view the strict
interpretation of penal statute i.e.,
referring to rule of interpretation
wherein natural inferences are
preferred, we observe that a
charge of forgery cannot be
imposed on a person who is not
the maker of the same. As held in
plethora of cases, making of a
document is different than
causing it to be made. As
Explanation 2 to Section 46449
KABC030163372011 CC No.16309/2011further clarifies that, for
constituting an offence under
Section 464 it is imperative that a
false document is made and the
accused person is the maker of
the same, otherwise the accused
person is not liable for the offence
of forgery.
26. The definition of “false
document” is a part of the
definition of “forgery”. Both must
be read together. „Forgery‟ and
„Fraud‟ are essentially matters of
evidence which could be proved as
a fact by direct evidence or by
inferences drawn from proved
facts. In the case in hand, there is
no finding recorded by the trial
Court that the respondents have
made any false document or part
of the document/record to
execute mortgage deed under the
guise of that „false document‟.
Hence, neither respondent no.1
nor respondent no.2 can be held
as makers of the forged
documents. It is the imposter who
can be said to have made the false
document by committing forgery.
50
KABC030163372011 CC No.16309/2011
In such an event the trial court as
well as appellate court misguided
themselves by convicting the
accused. Therefore, the High
Court has rightly acquitted the
accused based on the settled legal
position and we find no reason to
interfere with the same.”
Thus, in the light of the principles laid down by
the Hon’ble Supreme Court, it is evident that to
attract the offence of forgery, the accused No.1 must
be the maker of the forged document. In the instant
case, perusal of the order on charge dated 08.12.2021
does not show that that the accused No.2 and 3 had
created a false document or part of the document on
record in order to execute the General Power of
Attorney (GPA) on the pretext of using the said false
document. Therefore, in the opinion of this court, as
the charge of forgery cannot be imposed on a person
who is not the maker of the forged document, the
charges framed against the accused No.2 and 3 under
Sections 468 and 471 IPC does not survive for
consideration when the prosecution did not explain
the role of forging the signature of PW6 on GPA dated
25/09/2006. Therefore the accused No.1 has held
guilty of offence under section 468 and 471 of IPC.
Accordingly the point No.1 to 3 is answered in
affirmative as far as the accused No. 1 is concerned
consequently the point No.1 to 3 is answered in
51
KABC030163372011 CC No.16309/2011
negative as far as the accused No.2 and 3 is
concerned.
39. Point No. 4 to 6: The fourth charge is for
section 427 of IPC. The expression “mischief” has
been defined in Section 425 IPC to mean an act done
with intent to cause or knowing that it is likely to
cause wrongful loss or damage to the public or to any
person causes the destruction of any property etc.
Section 427 IPC reads as follows:
“Whoever commits mischief and
thereby causes loss or damage to the
amount of fifty rupees or upwards
shall be punished with imprisonment
of either description for a term which
may extend to two years or with fine,
or with both.”
In the instant case, the accused No.1 to 3
damaged the barbed wired fence and caused loss of
Rs. 2,60,000/- however the Ex.P2 spot mahazar was
dated 13/11/2009 was removed the stone fencing
however the IO/PW5 did not seize the stone fencing
or any bills for loss occurred by the PW6. When the
accused No.2 has purchased the property from the
accused No.1, then the question of encroachment
does not arise. Added to which, it appears from the
Ex.P2 that the accused No.2 is making attempt to
encroach the northern side of land belongs to one Sri
Marasandra Muniyappa but the said Sri Marasandra
52
KABC030163372011 CC No.16309/2011
Muniyappa was not made as a party to the witness.
In this regard, it is relevant to extract the relevant
portion of chief and cross examination of PW1
it is true to suggest that CW2 to
CW5 have signed the said
mahazar along with me. A3 is a
local leader. He has no direct
involvement in the above case.
But he was part and parcel of
scam in development of above
said land by A1 and 2.
Cross examination by accused No.
3
“It is true to suggest that, A3 has
not caused any obstruction to us
in enjoying our lands. It is true to
suggest that, he has not
encroached or trespassed our
land and he has not made any
galata. It is true to suggest that
there is no nexus between A3 and
land developed by A1 and 2. it is
true to suggest, A3 has not signed
any document pertaining to our
lands. Witness volunteers but
when we had been to spot, some
henchmen had warned us saying
53
KABC030163372011 CC No.16309/2011
that said lands belongs to A3. But
A3 has not personally threatened
us any time and I have not seen
him.
Cross examination of accused No.
1 and 2 in page 3
ಸದರಿ ಜಾಗದಲ್ಲಿ ಫೆನ್ಸಿಂಗ್ ವೈರ್ ಹಾಕಿದ ಬಗ್ಗೆ
ಫೋಟೋಗಳನ್ನು ಪೊಲೀಸರಿಗೆ
ಕೊಟ್ಟಿರುತ್ತೇನೆ. ಶಿರಡಿ ಲೇಔಟ್ ನ ಮಾಲೀಕರು
ಕೆ ವಿ ನಾಯ್ಡು ಇರುತ್ತಾರೆ. ಸದರಿ ಲೇಔಟ್ ಆ
ಸಮಯದಲ್ಲಿ ಡೆವೆಲಪ್ ಆಗುತ್ತಿತ್ತು. ನಮ್ಮ
ಪಕ್ಕದ ಜಮೀನಿನಲ್ಲಿ ಮನೆಗಳು ಕಟ್ಟಿರುತ್ತಾರೆ.
ಸದರಿ ಲೇಔಟ್ ದೂರು ದಾಖಲಿಸುವ
ಸಮಯದಲ್ಲಿ ಯಾವ ಸ್ಥಿತಿಯಲ್ಲಿತ್ತು ಎಂದು
ತೋರಿಸುವ ಫೋಟೋ ಮತ್ತು
ವಿಡಿಯೋವನ್ನು ನಾವು ಪೊಲೀಸರಿಗೆ
ಕೊಟ್ಟಿರುತ್ತೇವೆ.
in addition in page 4 on 6th line
that
ಆರೋಪಿತರು ಫೆನ್ಸಿಂಗ್ ವೈರ್ ನ್ನು ತೆಗೆದು
ಹಾಕಿರುವುದನ್ನು ನಾನು ನೋಡಿಲ್ಲ. xxxxxxx
22-01-2020 ರಲ್ಲಿ ದಾವೆ ಭಾಗಾಂಶ ಡಿಕ್ರಿ
ಆಗಿರುತ್ತದೆ ಎಂದು ಹೇಳುತ್ತಾರೆ. ದಿ. 13-11-
2022 ರಂದು ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಹೇಳಿರುವ
ಸಾಕ್ಷ್ಯದಲ್ಲಿ ಸದರಿ ದಾವೆ ಡಿಕ್ರಿ ಬಗ್ಗೆ ಹೇಳಿಲ್ಲ
ಎಂದರೆ ಸರಿ. ನಾವು ಮುಳ್ಳುತಂತಿ ಹಾಕಲು
54
KABC030163372011 CC No.16309/2011
ತಗುಲಿರುವ ವೆಚ್ಚದ ಬಗ್ಗೆ ಯಾವುದೇ ದಾಖಲೆ
ನ್ಯಾಯಾಲಯಕ್ಕೆ ಸಲ್ಲಿಸಿಲ್ಲ ಎಂದರೆ ಸರಿ.
ಸ್ವತ್ತಿನ ಜಾಗಕ್ಕೆ ಹೋದಾಗ ತಂತಿ ತೆಗೆದು
ಹಾಕಿದ ಬಗ್ಗೆ ನಮಗೆ ಸಾರ್ವಜನಿಕರು
ಹೇಳಿದರು.
however no such photographs were produced by
the prosecution to corroborate that the accused No.1
to 3 have removed the stone fencing barbed wire
around the subject property and further PW1 himself
had not seen that accused No.1 to 3 have removed
the fencing and hence the prosecution i.e., PW4 failed
to produce any document given by the PW1 about the
fencing of the land of PW6. Thus, it is clear that there
is no cogent or probable evidence produced by the
prosecution that stone barbed fencing wire were
damaged and no evidence was produced to that
extent except claiming that it was damaged. The
prosecution failed to produce any document that the
PW1 or PW6 has put stone barbed fencing wire
before lodging of complaint as per Ex.P1 and Ex.P11.
Then on what basis, this court come to a conclusion
that the accused No.1 to 3 has removed the stone
barbed fencing wire to corroborate the loss incurred
to the PW6.
40. In fact, PW1 himself deposed that he did not
see that the accused No.1 to 3 removed the stone
barbed fencing wire .
55
KABC030163372011 CC No.16309/2011
41. There is no independent witness to the
alleged incident that the accused No.1 to 3 has
removed stone barbed fencing wire thereby the
ingredients of Section 427 of IPC was not proved.
42. The fifth charge against accused No.1 to 3
under section 448 of IPC provides punishment for
house-trespass which is defined under Section 442 of
the IPC which states that
“whoever commits criminal
trespass by entering into or
remaining in any building, tent or
vessel used as human dwelling or
any building used as a place for
worship, or as a place for the
custody of property”. Meaning
thereby to constitute house
trespass, it must be a criminal
trespass.
Criminal trespass is defined under Section 441
of the IPC. Basic ingredient to satisfy criminal
trespass is (i) entry into or upon property in the
possession of another, (ii) if such entry is lawful then
unlawfully remaining upon such property, (iii) such
entry or unlawful remaining must be with intent (a) to
commit an offence; or (b) to intimidate, insult or
annoy the person in possession.
56
KABC030163372011 CC No.16309/2011
43. In order to constitute offence under Section
441 of IPC, the accused No.1 to 3 must enter into
property in the possession of another with intent to
commit an offence or to intimidate, insult or annoy
any person in possession of such property. It is clear
from the wording of the section that there can be no
criminal trespass unless the “intent” specified in the
section is present. The phrase “any person in
possession of such property” is also to be
remembered. The intent to annoy and intimidate
must be not with respect to any and every person
connected with the property but with respect to any
person in actual possession of such property. It is
aimed to protect possession and not the ownership.
44. Mere entry upon another’s land, under
however preposterous a claim of right or even without
any claim of right, is no offence unless this entry is
accompanied by one of the specific intents provided
for in Section 441 of IPC.
45. The presence of such criminal intent may be
manifested by the act or may be inferred from other
circumstances. But in either case there must be an
intention to commit an offence or to intimidate, insult
or annoy any person in possession of such property.
However accused No.2 has developed the subject
property based upon the sale deed dated 23/03/2009
57
KABC030163372011 CC No.16309/2011
unless the prosecution has established that sale deed
dated 23/03/2009 was not for any sale consideration
cannot aver or state that there was a criminal
trespass on the part of the accused No.2 and such
being the case, the question of criminal trespass
does not arise.
46. The prosecution failed to produce
relationship of accused No. 3, 1 and 2 are part of Sri
M/s Mahalakshmi Properties forming Shridi Layout
cannot come to a conclusion that there was criminal
trespass.
47. Added to which, spot mahazar witness did
not support the prosecution case as per Ex.P2 and
Ex.P3. Therefore, the prosecution failed to prove the
charges against the accused beyond all reasonable
doubt thereby this court answer the above point No. 5
in the negative.
48. It appears from provision of 506 of IPC, it is
clear that in order to satisfy the ingredients of
criminal intimidation, there has to be a threat of
injury to person, reputation or property to the PW1 by
the accused persons, which should be with an
intention to cause alarm to that person or cause that
person to do any act which he is not legally bound to
do, or to omit to do so as to avoid the execution of
58
KABC030163372011 CC No.16309/2011
such threat. It has been held in the case of MANIK
TANEJA AND ANOTHER v. STATE OF KARNATAKA
AND ANOTHER reported in (2015) PART 7 SCC 423,
the Hon’ble Supreme Court examined the ingredients
of Section 503 and 506 of the IPC as under
”11. Section 506 IPC prescribes
punishment for the offence of criminal
intimidation. “Criminal intimidation”
as defined in Section 503 IPC is as
under:
“503.Criminal intimidation.–
Whoever threatens another with any
injury to his person, reputation or
property, or to the person or
reputation of any one in whom that
person is interested, with intent to
cause alarm to that person, or to
cause that person to do any act which
he is not legally bound to do, or to
omit to do any act which that person
is legally entitled to do, as the means
of avoiding the execution of such
threat, commits criminal intimidation.
Explanation.–A threat to injure the
reputation of any deceased person in
whom the person threatened is
interested, is within this section.” A
reading of the definition of “criminal59
KABC030163372011 CC No.16309/2011intimidation” would indicate that
there must be an act of threatening to
another person, of causing an injury
to the person, reputation, or property
of the person threatened, or to the
person in whom the threatened
person is interested and the threat
must be with the intent to cause
alarm to the person threatened or it
must be to do any act which he is not
legally bound to do or omit to do an
act which he is legally entitled to do.”From the foregoing proposition of law, it is clear
that in order to constitute offence of criminal
intimidation, there must be threat with intention to
cause alarm to the PW1 or to do any act which is not
legally bound to do. Mere expression of any words
without any intention to cause alarm to the PW1 or to
make him to do, or omit to do any act, is not
sufficient to bring the act within the definition of
criminal intimidation and there is no particulars of
date and time and place when the accused No.1 to 3
have threatened the PW1 with dire consequence.
Therefore, in the instant case, the ingredients of
Section 506 of IPC are not made out against the
accused No.1 to 3 thereby Point No.6 is answered in
negative.
60
KABC030163372011 CC No.16309/2011
49. Point No.7:- The learned counsel for the
accused No.2 and 3 with vehemence argued that the
criminal law cannot be set into motion as per Ex.P1
as it is clothed with civil liability. PW1 and PW6
alleged that the accused No. 1 has committed forgery
by forging the signature of PW6 and created Ex.P7
GPA dated 25/09/2006. A dispute over forged
documents can lead to both civil and criminal
actions, forgery itself is primarily a criminal offense. A
civil dispute might arise from the consequences of the
forgery, such as disputes over property or contracts,
but the forgery itself is a crime that can be pursued
through criminal proceedings. The Hon’ble High
Court of Karnataka in the case of Vasanth Vs Sri
Umesh GD reported in NC: 2024:KHC:16162 in
CRL.P No. 9791 of 2017 dated 23/04/2024 held that
victims of forgery can file both a criminal complaint
and a civil suit, as the civil court cannot punish for
the criminal offence of forgery. Criminal proceedings
and civil proceedings for forgery are separate and
distinct. The criminal court will focus on the criminal
act of forgery, while the civil court will focus on the
consequences of the forgery and the remedies
available to the victim and hence the complaint is not
maintainable has to be negated.
61
KABC030163372011 CC No.16309/2011
50. Added to which, merely the PW6 did not seek
for possession of the disputed property does not
mean that he had given his consent to the forgery act
committed by the accused No. 1 and based upon the
forged GPA, sale deed dated 23/03/2009 having
executed by the accused No.1 as a PA holder in
favour of accused No. 2. It is well settled principle of
law that ‘Fraud vitiates every solemn Act and the said
principle is appreciated in the case of SONAMATI
DEVI & ORS -Vs- MAHENDRA VISHWAKARMA &
ORS reported in Laws (SC) -2021-9-176, so, any act
done through the forgery, all the proceedings
including legal proceedings gets vitiated.
51. In view of the above findings and reasons
given on point No.1 to 6, this Court proceeds to pass
the following:
ORDER
i) Acting Under Section 248(2) of
Cr.P.C, the accused No.1 is
convicted for the offences
punishable under section 465,
468, 471 read with Sec.34 of IPC62
KABC030163372011 CC No.16309/2011
ii) Acting Under Section 248(1) of
Cr.P.C the accused No.2 and 3 are
acquitted from the offences
punishable under section 465,
468, 471 read with Sec.34 of IPC
iii) Acting Under Section 248(1) of
Cr.P.C the accused No.1 to 3 are
acquitted from the offences
punishable under section 427,
448, 506 read with Sec.34 of IPC
iv) Accused No.1 shall be heard on
the sentence under Sec. 248(2) of
Cr.P.C.
(Typed from the reasons by me in my laptop, corrected and then
pronounced by me in open Court on this the 16th day of April, 2025.)
(Deepa.V.),
VIII Addl. Chief Judicial
Magistrate, Bengaluru City.
63
KABC030163372011 CC No.16309/2011
Heard on sentence from APP and the advocate for
accused No. 1.
:ORDER ON SENTENCE:
1. Accused No.1 submitted that he is aged about
69 years, has BP and diabetics and bread earner of
the family and his family is totally depended upon
him for their livelihood and prays to take a lenient
view.
2. The learned Sr. Asst. Public Prosecutor has
replied that considering the magnitude of the fraud,
maximum possible sentence be imposed on the
accused No.1. He also further has argued that the
accused is liable to compensate the victim PW1
towards the loss suffered by him. The question is
whether the accused No.1 should be sentenced to
maximum possible sentence or any leniency can be
shown to him? Admittedly the accused is aged about
61 years. Having regard to the magnitude of the
fraud and taking into consideration the
circumstances obtaining in the case, I deem it just
and expedient to pass the following sentence.
ORDER
i) For the offence under Section
465 of IPC accused No.1 is
convicted and sentenced to
undergo Simple Imprisonment for
64
KABC030163372011 CC No.16309/2011
two years and shall pay a fine of
Rs.50,000/- and in default of
payment of fine he shall undergo
SI for six months.
ii) For the offence under Section
468 of IPC accused No.1 is
convicted and sentenced to
undergo Simple Imprisonment for
5 years and shall pay a fine of
Rs.25,000/- and in default of
payment of fine he shall undergo
SI for three months.
iii) For the offence under Section
471 of IPC accused No.1 is
convicted and sentenced to
undergo Simple Imprisonment for
2 years and shall pay a fine of
Rs.25,000/- and in default of
payment of fine he shall undergo
SI for three months.
iv) The substantive sentences
shall run concurrently.
v) Under Section 357(1) of the
Cr.P.C., the 75% of the fine
amount on recovery shall be paid
as compensation to the PW6
65
KABC030163372011 CC No.16309/2011
which is the victim of the fraud.
The remaining 25% shall be
defrayed as prosecution expenses.
vi) Under Section 357(2) of the
Cr.P.C., the accused No.1 is given
time to pay the fine amount till
the appeal period.
vii) The bail bond of accused No.1
shall stand cancelled.
viii) In view of Section 437-A of
Cr.P.C, the bail bonds of accused
No.2 and 3 shall be in force for 6
(six) months
ix) Copy of the judgment be given
to the accused No.1 to 3 at free of
cost.
(Dictated to the stenographer directly to the computer, corrected and
then pronounced by me in open Court on this the 16 th day of April,
2025.)
(Deepa.V.),
VIII Addl. Chief Judicial
Magistrate, Bengaluru City.
66
KABC030163372011 CC No.16309/2011
ANNEXURE
Witnesses examined for Prosecution :
PW1: Sri Sajjan Ajohnny Informant
PW2: Sri Muralidhar Pancha witness
PW3: Sri Anu George Pancha witness
PW4: Sri Somalingappa PI/IO
Chabbi
PW5: Sri Prasanna Kumar HC
PW6: Sri K.Thomas Nainan Victim
PW7: Sri Krishnamurthy.R.T. Notary to Ex.P7Documents marked on behalf of Prosecution:
Ex.P1: Complaint PW1
Ex.P2: Spot Mahazar PW1
Ex.P3: Seizure mahazar PW2
Ex.P4: GPA PW2
Ex.P5: Sale Agreement PW4
Ex.P6: FIR
Ex.P7: GPA
Ex.P8: Letter addressed to FSL
67
KABC030163372011 CC No.16309/2011
Ex.P9: Acknowledgment
Ex.P10: Sale Deed dated 06-08-1996
Ex.P11: Additional Compliant PW6
Ex.P12: Passport PW6Material Objects marked on behalf of the
prosecution: NILWitnesses examined for the defence:Nil
Documents marked on behalf of the defence:Nil
VIII Addl. Chief Judicial
Magistrate, Bengaluru City.
68
KABC030163372011 CC No.16309/2011
16-04-2025
(Judgment pronounced in the open court vide separately)
ORDER
i) Acting Under Section 248(2) of
Cr.P.C, the accused No.1 is
convicted for the offences
punishable under section 465,
468, 471 read with Sec.34 of IPC
ii) Acting Under Section 248(1) of
Cr.P.C the accused No.2 and 3 are
acquitted from the offences
punishable under section 465,
468, 471 read with Sec.34 of IPC
iii) Acting Under Section 248(1) of
Cr.P.C the accused No.1 to 3 are
acquitted from the offences
punishable under section 427,
448, 506 read with Sec.34 of IPC
iv) Accused No.1 shall be heard on
the sentence under Sec. 248(2) of
Cr.P.C.
VIII Addl. Chief Judicial
Magistrate, Bengaluru City.
69
KABC030163372011 CC No.16309/2011
Orders on Sentence pronounced in the
open court vide separately
ORDER
i) For the offence under Section
465 of IPC accused No.1 is
convicted and sentenced to
undergo Simple Imprisonment for
two years and shall pay a fine of
Rs.50,000/- and in default of
payment of fine he shall undergo
SI for six months.
ii) For the offence under Section
468 of IPC accused No.1 is
convicted and sentenced to
undergo Simple Imprisonment for
5 years and shall pay a fine of
Rs.25,000/- and in default of
payment of fine he shall undergo
SI for three months.
iii) For the offence under Section
471 of IPC accused No.1 is
convicted and sentenced to
undergo Simple Imprisonment for
2 years and shall pay a fine of
Rs.25,000/- and in default of
70
KABC030163372011 CC No.16309/2011
payment of fine he shall undergo
SI for three months.
iv) The substantive sentences
shall run concurrently.
v) Under Section 357(1) of the
Cr.P.C., the 75% of the fine
amount on recovery shall be paid
as compensation to the PW6
which is the victim of the fraud.
The remaining 25% shall be
defrayed as prosecution expenses.
vi) Under Section 357(2) of the
Cr.P.C., the accused No.1 is given
time to pay the fine amount till
the appeal period.
vii) The bail bond of accused No.1
shall stand cancelled.
viii) In view of Section 437-A of
Cr.P.C, the bail bonds of accused
No.2 and 3 shall be in force for 6
(six) months
ix) Copy of the judgment be given
to the accused No.1 to 3 at free of
cost.
VIII Addl. Chief Judicial
71
KABC030163372011 CC No.16309/2011
Magistrate, Bengaluru City.
72
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