Attesting Witness To Sale Deed Can't Be Held Criminally Liable For Cheating In Absence Of Any Allegations Against Them: Karnataka High Court

The Karnataka High Court has reiterated that an attesting witness to a sale deed cannot be dragged into a case of cheating if there is no other allegation against him except that he is an attesting witness.

Justice M Nagaprasanna thus allowed the petition filed by one Rajesh Totaganti and quashed the proceedings initiated against him for offences punishable under sections 420, 465, 467, 468, 471, 474 read with Section 34 of the IPC.

"While accused No.1 gets all the benefits, accused No. 2 and 3 have been in active support of acts of accused No.1. The benefit of the forgery is the sale deed. A perusal at the sale deed would indicate that the petitioner is an attesting witness to the sale deed. Except this allegation of the petitioner acting as an attesting witness and a friend of accused No.1, there is no other allegation against the petitioner that would touch upon any of the ingredients of the alleged offences."

On October 7, 2015, the second respondent/complainant filed a private complaint against three accused, with the petitioner being accused No. 2. The Magistrate referred the private complaint for investigation, leading to the registration of crime for offences under Sections 420, 465, 467, 468, 471, 474, read with Section 34 of IPC.

Subsequently, a charge sheet was filed against the petitioner. The petitioner approached the Court challenging the proceedings initiated against them.

The petitioner's counsel argued that the complainant's allegations are primarily against accused No. 1, who happens to be a relative of the complainant. It was contended that the petitioner was neither a beneficiary of any alleged fraud nor someone who purchased property based on the alleged General Power of Attorney (GPA). Instead, he was merely an attesting witness. Therefore, the petitioner sought to have the entire proceedings against him quashed.

The prosecution opposed the plea saying that since the police have filed a charge sheet after investigation, it is now the petitioner's responsibility to prove their innocence during the trial. 

The bench on going through the records noted that the averment in the complaint was that accused Nos.1 to 3 are friends and they are known to the complainant as well. It was evident that the primary allegations were against accused No. 1, with the petitioner's role being that of an attesting witness to a sale deed.

The Court also referred to a Supreme Court case in M. Srikanth Vs. State of Telangana and Anr which established that an attesting witness cannot be held criminally liable solely for being an attesting witness, especially when there are no other allegations against them related to the alleged offences.

“In the case at hand as well, a perusal at the complaint or the summary of the charge sheet (supra), would indicate no other allegation except the fact that the petitioner was a friend of accused No.1 and an attesting witness to the sale deed. The sale deed is alleged to be the subject of fraud. Therefore, the submission of the learned counsel for the petitioner would merit acceptance and outweigh the submissions made by the learned HCGP for the State.”

Given these circumstances, the Court concluded that allowing the proceedings against the petitioner to continue would constitute an abuse of legal process and result in a miscarriage of justice.

It also clarified that its observations pertain only to the petitioner's case under Section 482 of Cr.P.C., without affecting the proceedings against the other accused.

Accordingly, the petition was allowed. 

Appearance: Advocates R.H Angadi & Pooja Savadatti for Petitioner.

HCGP V.S. Kalasurmath for R1.

Citation: 2023 LiveLaw (Kar) 380

Case Title: Rajesh Totaganti And State of Karnataka & Anr

Case No: CRIMINAL PETITION NO. 100659 OF 2023

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