- 1 - NC: 2025:KHC:16051 CRL.A No. 42 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.42 OF 2025 BETWEEN: 1. S. NUSRUTHUNISSA BEGUM D/O LATE SYED SIRAJUDDIN, AGED ABOUT 69 YEARS, R/AT NO.1040/B, 12TH CROSS, UMMARNAGAR, GOVINDAPURA MAIN ROAD, ARABIC COLLEGE POST, BENGALURU - 560 045 …APPELLANT (BY SRI. ASGAR ALI KHAN, ADVOCATE FOR SRI. RAJESH G.S., ADVOCATE) AND: 1. JOSEPH KANTHARAJ S/O. LATE FRANCIS KARUNAKARAN, AGED ABOUT 69 YEARS. 2. AGNES MARY W/O. JOSEPH KANTHARAJ, AGED ABOUT 59 YEARS. 3. ANANDARAJ S/O LATE FRANCIS KARUNAKARAN, AGED ABOUT 61 YEARS. ALL ARE R/AT NO.2, SOUTH SECOND CROSS, OIL MILL ROAD, MARUTHISEVANAGAR POST, BENGALURU - 560 033. …RESPONDENTS Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16051 CRL.A No. 42 of 2025 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 341 OF CR.P.C. (380 OF BNSS) BY THE ADVOCATE FOR THE APPELLANT/S PRAYING TO SET ASIDE THE ORDER PASSED IN CRL.MISC.NO.776/2023 DATED 11.11.2024 BY XL ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-8) AND BE PLEASED TO DIRECT THE LEARNED TRIAL COURT JUDGE AS AFORESAID TO LODGE A COMPLIANT AGAINST THE RESPONDENT FOR THE ALLEGED OFFENCES PUNISHABLE UNDER SECTIONS 193, 198, 205, 209, 260, 408, 466 OF IPC. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard the learned counsel for the appellant. 2. This appeal is filed against the order of dismissal on the complaint filed under Sections 195 and 340 of Code of Criminal Procedure, 1973. 3. The factual matrix of the case of the appellant is that respondent Nos.1 and 2 knowing well about the death of Sri.J.Anthonyswamy, with fraudulent and malafide intention of illegal knocking off the property had obtained a fake counterfeit or Tahalagi stamp paper of proof for a denomination of Rs.100/- and out of manual typing and rubber seal of such fake stamp paper said to have purchased on 10.06.1997, typed its - 3 - NC: 2025:KHC:16051 CRL.A No. 42 of 2025 content as total sale consideration amount of Rs.1,05,000/- and an amount of Rs.75,000/- received as advance in the presence of witnesses, they have forged the signature of J.Anthonyswamy on the said document and created fake and forged document of agreement to sell. The agreement to sell is said to have been made and executed in favour of all the respondents on 11.06.1997. The respondent No.1 by the aid of such fake and forged agreement of sale has instituted the original suit for specific performance on 12.03.1999 against Joseph Sundari Augustine Reddy, S.Aktharunissa Begum and S.Nusruthunissa Begum without any prior notice to the said parties in O.S.No.2089/1999 before the learned XI Additional City Civil Judge (CCH-88) at Bengaluru. 4. The respondent No.1 during the pendency of the original suit produced Ex.P2-Medical certificate to show that an over writing is done as "12.50 p.m." and the certificate is said to have been obtained on 28.09.2001. The appellant throughout the trial of O.S.No.2089/1999 had raised the defence that such documents produced by the respondents are tampered, concocted, fabricated and created. The appellant came to know of the offence committed by the respondents - 4 - NC: 2025:KHC:16051 CRL.A No. 42 of 2025 against the administration of justice and placed Ex.P1 and its forged signature for Forensic Report. The counterfeit stamp paper was sent to the Central Printing Press, Nasik. The respondents had jointly and severally with a common intention committed the offences under Sections 193, 198, 205, 209, 260, 408 and 466 of the Indian Penal Code, 1860. The respondents have committed the alleged offence from the institution of the original suit till the pendency of the appeal proceedings. Since, the original suit is not pending; there is no impediment or bar to proceed against the respondents in this Criminal Miscellaneous proceeding. The same is pleaded by invoking Section 195 and Section 340 of the Cr.P.C. 5. The trial court having considered the grounds urged in the petition, formulated the following point for consideration; (i) Whether the petitioner made out a case to lodge the complaint by the court and the same would be necessary? 6. Having considered the material on record, the trial court particularly in para 11 has taken note of the material on record and has also taken note of filing of the suit as well as - 5 - NC: 2025:KHC:16051 CRL.A No. 42 of 2025 RFA and in para 12, it comes to the conclusion that law is settled that court has to ascertain prima facie case but also has to ascertain whether it is in public interest to allow criminal proceedings to be instituted while invoking Section 340 and Section 195 (1)(b) of Cr.P.C. In para 13 of the judgment, the trial court has taken note of the allegation of forgery for using the forged document and has also taken note of Section 340 of Cr.P.C, which confers only a discretionary power on the court to conduct a preliminary enquiry for such determination. However, where the court is otherwise in a position to form an opinion regarding the imitation of proceedings / making complaint in terms of Section 340 Cr.P.C , the court may dispense with the preliminary enquiry. The object of Section340 of Cr.P.C is to ascertain whether any offence affecting administration of justice has been committed in relation to any proceedings before or any document produced / given in evidence in court, during the time when the document or evidence was in custodia legis and whether is also expedient in the interest of justice to take such action. 7. Having taken note of the material on record into consideration, the trial court comes to the conclusion that the - 6 - NC: 2025:KHC:16051 CRL.A No. 42 of 2025 said circumstances does not arise since Section 340 of Cr.P.C cannot be invoked for personal vendettas and also taken note of the judgment of the apex court in 'IQBAL SINGH MARWAH & ANR VS MEENAKSHI MARWAH & ANR.', (2005) 4 SCC 370 wherein also held with regard to Section 195(1) would be attracted only when the offences enumerated in Section 195(1)(b)(ii) have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e., during the time when the document was in custodia legis. If such offence is committed prior to its production or giving in evidence in court, no complaint by court would be necessary and a private complaint would be maintainable. 8. The trial court taking into consideration the principles laid down in the decision of the Apex court comes to the conclusion that question of invoking Section 340 or Section 195 of Cr.P.C does not arise. The learned counsel for the appellant also vehemently contends that the document is forged, created and concocted and the same was used in the proceedings and in view of the judgment of the Apex Court it is very clear that he can file a separate complaint and remedy is - 7 - NC: 2025:KHC:16051 CRL.A No. 42 of 2025 elsewhere and not before the court unless the document which is in custodia legis, tempered in the Court proceedings and hence the question of invoking Section 340 and 195(1)(b)(ii) of Cr.P.C does not arise. Hence, I do not find any error committed by the trial court in dismissing the application filed by the appellant. The appeal is devoid of merits, the same is dismissed. Sd/- (H.P.SANDESH) JUDGE SS List No.: 1 Sl No.: 33