Anayarah Rajendran v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: ## THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN MONDAY, THE 31stTH DAY OF MAY 2013/10TH JYAISHTA 1935 ## Crl.Rev.Pet.No. 1248 of 2004 (A) --------------------------AGAINST THE JUDGMENT IN CRA 841/2001 of II ADDL.DISTRICT COURT,ERNAKULAM AGAINST THE ORDER IN CC 529/1994 of CHIEF JUDL.MAGISTRATE, ERNAKULAM DATED 12-11-2001 REVISION PETITIONER(S): -------------------- ANAYARAH RAJENDRAN, ADVOCATE, ATHANI LANE, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADVS.SRI.S.RAJEEV T.RAVIKUMAR (B/O) COMPLAINANT(S): -------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (CR.NO.R.C.22/4191) DY.S.P., C.B.I., S.P.E. KOCHI ## BY P. CHANDRASEKHARA PILLAI , STANDING COUNSEL FOR CBI & PUBLIC PROSECUTOR SRI. JOSE A.J. AEDAIODI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **N.K.BALAKRISHNAN, J.** ............................................................. **Crl.R.P. No. 1248/2004** ........................................................... Dated: 31st day of May, 2013. ## **ORDER** This Criminal Revision Petition is filed by the accused who was concurrently found guilty and convicted for offences punishable under Secs. 409, 465, 471 and 419 read with Sec. 109 of I.P.C. He was sentenced to simple imprisonment for three years and to pay fine of Rs. 50,000/- and in default to simple imprisonment for one year for the offence under Sec. 409 of I.P.C. and also S.I. for one year each for the offence under Sec. 465, 471 and 419 read with Sec. 109 I.P.C. From out of the fine amount, if collected, Rs. 30,000/- was directed to be paid to P.W.3 Chellamma. 2. P.W.3 Chellamma had sustained injuries in a motor vehicle accident. While she was undergoing treatment the accused who is an advocate approached her and obtained her signatures in the vakalath and so many papers and promised that Crl.R.P. No.1248/2004 **-: 2 :-** he would get the compensation for her. M.V. (OP) 784/1986 was filed on her behalf before the M.A.C.T.,Trivandrum. The accused/Revision Petitioner was the empanelled lawyer of the New Indian Assurance Company with which the vehicle involved in the accident was insured. Hence it was not possible for the revision petitioner to appear for P.W.3 before the M.A.C.T. and so his junior Advocate P.W.10 was entrusted to file the petition on her behalf. The petitioner himself contacted the Divisional Manager of the Insurance Company and an attempt was made to settle the matter for which the accused/revision petitioner suggested that the matter can be settled for Rs. 45,000/- and ultimately the officers of the Company agreed to settle the claim for Rs. 35,000/-. The cheque payable to P.W.3 was entrusted to the revision petitioner along with a covering letter. P.W.3 and her son (P.W.4) and also P.W.6 her stepson had contacted the revision petitioner for getting the amount. The amount was not paid. Even after the award was passed, signatures of Crl.R.P. No.1248/2004 **-: 3 :-** P.W3 were obtained by the revision petitioner in some blank papers. After receiving the cheque from the Insurance Company, the revision petitioner produced another woman before the Bank stating that she is Chellamma and opened an account in the name of that Chellamma whose address was shown as Varambil Veedu, T.C. 10/742, Vanchiyoor, Trivandrum. That account No. 2807 was opened in the Central Bank of India, Rishimangalam Branch, on 14-5-1987. The revision petitioner himself introduced that lady as Chellamma and thus the account was opened. The cheque was presented in that account. As P.W.3 and her sons contacted the petitioner for money again and again, ultimately a cheque for Rs. 3,000/- was at first given to P.W.3 and later a sum of Rs. 7,000/- was directly paid. P.W.3 was made to believe that only that much amount (Rs. 10,000/-) was obtained as per the award. 3. Investigation was taken over by the CBI where Ext. P32 the F.I.R. as R.C. 22/A/91 was registered. After Crl.R.P. No.1248/2004 **-: 4 :-** conducting investigation, the charge sheet was laid against the revision petitioner. Charge was framed against him to which he pleaded not guilty. 4. P.W.1 to P.W.22 were examined and Exts. P1 to P32 were marked on the side of the prosecution. The accused/petitioner was examined under Sec. 313 (1) (b) of Cr.P.C. No evidence was adduced on the side of the petitioner. The learned Chief Judicial Magistrate, Ernakulam accepted the evidence given by the prosecution and thus found the revision petitioner guilty, convicted and sentenced as stated above. 5. The appeal preferred by the revision petitioner was dismissed by the learned Sessions Judge. 6. The revision petitioner contends:- The courts below did not appreciate the evidence correctly. There is no convincing evidence to prove the entrustment of the amount of Rs. 35,000/-. P.W.10 (Advocate Robinson) was actually the person who appeared for P.W.3 Crl.R.P. No.1248/2004 **-: 5 :-** and he was responsible for the amounts payable to P.W.3. The evidence given by P.Ws. 7 and 9 would show that the cheques were entrusted with them by P.W.10 and so the courts below should not have found the revision petitioner responsible for payment of the amount of Rs. 35,000/- to P.W.3. If Chellamma who opened the account in the Central Bank, Rishimangalam Branch was some other lady then the prosecution should have produced that woman. The finding entered by the courts below that it was the revision petitioner who received the cheque for Rs. 35,000/from the Insurance Company is not supported by any legal evidence. There was also delay in the registration of the F.I.R. Eventhough the revision petitioner has raised the question of jurisdiction of the CBI to investigate the case against a private person no order was passed by the learned Judge on that point. No notification as required under Sec.6 of the Delhi Special Police Establishment Act, 1946 was issued and as such the CBI had no jurisdiction to investigate Crl.R.P. No.1248/2004 **-: 6 :-** the offence and if that be so, the conviction and sentence passed against the petitioner cannot be sustained. 7. It is not disputed that P.W.3 Chellamma had sustained injuries in a motor vehicle accident and the claim petition was filed before the M.A.C.T., Thiruvananthapuram. There is evidence to show that it was the petitioner who approached P.W.3 in the hospital and obtained her signatures and thump impressions in the vakalath and other papers. Her signature is only four vertical lines and nothing more. The fact that P.W.3 is an illiterate lady could not be controverted by the defence. Petitioner was the Standing Counsel/empanelled lawyer appearing for the New India Assurance Company with which the vehicle involved in this case was insured. Therefore, it was not possible for the petitioner to appear for P.W.3 the claimant. Hence, he thought of getting the vakalath executed in favour of P.W.10 who was then his junior. It was through P.W.10 the claim petition was filed. There is also evidence to show a Crl.R.P. No.1248/2004 **-: 7 :-** settlement was suggested in the matter. The amount claimed was Rs.60,000/-. The petitioner as the Advocate appearing for P.W.3 suggested the settlement figure at Rs. 45,000/-. Ultimately the company agreed to settle the matter for Rs. 35,000/-. A Cheque for the said amount was entrusted to the petitioner along with a covering letter. 8. The learned counsel for the petitioner would submit that there is no legal evidence to show that the cheque was entrusted to the petitioner. In order to attract the offence under Sec. 409, it must be proved that there was entrustment or that the petitioner was having the dominion over the property. According to the prosecution, there is clear evidence to show that the cheque for Rs. 35,000/- was in fact entrusted to the petitioner/accused who was the counsel appearing for the Insurance Company in the M.A.C.T. case (M.V. (OP) 784/ 1986). That fact is also not disputed by the petitioner. The learned counsel for the petitioner has vehemently argued that P.W.10 was the real Crl.R.P. No.1248/2004 **-: 8 :-** villain of the show and in order to wriggle out of the criminal liability he gave a distorted version as if it was the petitioner who was behind in getting the claim settled and that the cheque was obtained by the petitioner. 9. It is argued that P.W.10 was actually the advocate who was appearing for the claimant, certainly, it was he who was to account for the money received by him. But the evidence given the officers of the Insurance Company who were examined before Court are definite and categoric that the Cheque for Rs. 35,000/- was infact entrusted to the petitioner. There is also evidence in abundance to show that on receipt of the cheque, the petitioner produced the woman before the Bank and the petitioner himself introduced that lady as Chellamma and her address was furnished as Varampil Veedu, T.C. 10/742, Vanchiyoor, Thiruvananthapuram. It is not disputed that it was he who introduced Chellamma to the bank officials. The petitioner wanted to explain that he did not actually go to the bank but Crl.R.P. No.1248/2004 **-: 9 :-** as P.W.10 requested, in the form supplied for opening the account, he signed introducing the woman as Chellamma. The explanation so put forward by the petitioner/accused was rightly disbelieved by the Courts below. There is also unimpeachable evidence to show that after Ext.P3 cheque for Rs. 35,000/- was deposited in the Central Bank the petitioner forged the signature of the account-holder Chellamma and encashed the entire amount. 10. P.W.20, the Manager of the Central Bank of India has produced the ledger extract pertaining to A/c. No. 2807 which was the account opened in the name of the fictitious person Chellamma. That ledger extract was marked as Ext. P29. It was stated that Ext. P3 the cheque for Rs. 35,000/was credited to that account and thereafter the entire amount was withdrawn by issuing Ext. P9 cheque for Rs. 10,000/-, Ext.P10 cheque for Rs. 15,000/- and Ext. P22 cheque for the balance amount. P.W. 21, the Accountant has testified that Chellamma who is shown as the account holder Crl.R.P. No.1248/2004 **-: 10 :-** as per Ext. P13 (the account opening form) whose specimen signatures are found in Ext. P14 was introduced by the petitioner herein on 14-09-1997. It was further testified by him that infact Chellamma had actually accompanied the petitioner when she went to the bank for opening the account. Therefore, the contention raised by the petitioner that he had only obliged P.W.10 to sign Ext. P13 the account opening form, is proved to be a travesty of truth. Not only that there is also the evidence given by P.W.3 the claimant and her sons P.W.4 and P.W.6 who also testified before Court that the petitioner herein was their counsel who appeared for P.W.3 and that P.W.3 had transaction only with the petitioner and not with P.W.10. The evidence to that effect given by the prosecution was rightly accepted by the trial Court and also by the appellate Court. It was also pointed out by the prosecution that Ext. P9 cheque was encashed by P.W.7 while Ext.P10 was encashed by P.W.9. There is evidence to show that P.W.7 and P.W.9 are the close friends of the Crl.R.P. No.1248/2004 **-: 11 :-** petitioner, though they did not support the prosecution, the evidence would show that those cheques were got encashed by P.W.7 and P.W.9. Ext. P22 the third cheque was encashed through one Joseph Andrew. That Joseph Andrew was not examined by the prosecution. But the evidence and circumstances would clearly show that the entire amount of Rs. 35,000/- which was credited to the account of that fictitious person Chellamma was withdrawn. The circumstances delineated earlier would show that the said amount was withdrawn by forging the signature of Chellamma who was shown as the account holder. 11. Since it was the petitioner who introduced that lady by name Chellamma it is for him to explain how he happened to sign the account opening form and how he happened to introduce the lady Chellamma of the address mentioned earlier. It was in that account the cheque for Rs. 35,000/issued by the Bank in the name of P.W.3 was presented and it was from out of that amount the petitioner withdrew the Crl.R.P. No.1248/2004 **-: 12 :-** amounts by the three separate cheques mentioned earlier. Therefore, the contention advanced by the petitioner that he had absolutely nothing to do with the cheuqe for Rs. 35,000/- sent or entrusted by the Insurance Company or regarding the withdrawal of that amount form the Bank cannot be countenanced at all. 12. The petitioner contended that it was in fact P.W.10 who was liable to pay the amount to P.W.3. It was further contended that when P.W.3 and her sons started creating trouble, though the amount was infact payable by P.W.10, since P.W.10 was his junior he (the petitioner) thought of paying the amount and accordingly he issued a cheque for Rs. 3,000/- to P.W.3 and later another sum of Rs. 7,000/- was paid in cash. The contention that it was only to help P.W.10 the sum of Rs. 10,000/- was paid by him in total as stated above is nothing but a brazen lie. If P.W.10 was actually the lawyer who appeared for P.W.3, there was no reason why the petitioner should open the account in the Crl.R.P. No.1248/2004 **-: 13 :-** name of P.W.3. The petitioner was only the standing counsel/empanelled Advocate of the Insurance Company. There was no occasion or necessity for him to open an account in the name of Chellamma, a claimant. 13. P.W.3 is definite and categoric in her statement that she did not open any account and she did not sign any paper for that purpose. In fact there is no case for the petitioner that Chellamma whose name appears as the person who opened the account mentioned earlier is P.W.3. It was not P.W.3 who opened the account with the Central Bank, Rishimangalam Branch bearing No. 2807. It is nearly impossible for the investigating agency or for the prosecution to produce the woman by name Chellamma who appeared before the Bank Manager for opening an account. That fact is within the special knowledge of the accused/petitioner and he alone can say who that lady is/was. The contention that since that lady has not been produced before the Court as a witness or as an accused, the prosecution case must fail is Crl.R.P. No.1248/2004 **-: 14 :-** denuded of any merit. It is only within the special knowledge of the petitioner/accused as to whom or where that lady was and so it was not possible for the prosecution to get the particulars of that lady. 14. P.W.3 is definite in her statement that it was the petitioner who approached her when she was undergoing treatment in the hospital and told that he will make arrangements for getting compensation by filing the petition and for that purpose the petitioner obtained her signature (four vertical lines) and thump impressions in the vakalath and other papers. There was no reason for P.W.3 to speak against the petitioner if as a matter of fact it was P.W.10 who obtained her signatures and made arrangements for filing the claim petition before the M.A.C.T.,Trivandrum. The courts below have analysed the evidence in the correct perspective and found that the evidence given by P.W.3 inspires confidence. P.W.4 and P.W.6 have deposed that they had approached the petitioner for getting the amount ordered in Crl.R.P. No.1248/2004 **-: 15 :-** favour of P.W.3. That also supports the case that it was the petitioner who was responsible for non-accounting of the amount of Rs. 35,000/- which was the amount awarded in the M.A.C.T. Case. 15. It is also important to note that Ext. P11 the specimen handwriting of the accused/petitioner given by him during investigation to the C.B.I. was found identical to the signatures and handwriting found in the disputed document. Those aspects would also lend support to the case of the prosecution that it was the petitioner who forged the signatures and manipulated or fabricated the account. It is also pertinent to note that the address of that lady who appeared before the Bank as Chellamma was actually that of a fictitious person as could be found out referring to the fact that there was no house by name as "Varampil House" and no lady by name Chellamma ever resided in Building No. 10/587. If 10/587 was a new number assigned to the building, there was no reason why the petitioner did not Crl.R.P. No.1248/2004 **-: 16 :-** produce any document in respect of the building bearing No. 10/742. I do not mean that the burden is on the petitioner to produce the document. It is proved that house No.10/742 (of which the present number is 10/587) is not that of a person by name Chellamma nor was Chellamma a resident of that house. So it is clear that such a name and address of a fictitious person was furnished by the petitioner with intent to beguile the authorities if not to hoodwink the Court as well. 16. Ext.P14 is the specimen signature of the account holder whose name was shown as Chellamma and Ext.P15 is the specimen signature of the petitioner which also appeared in the account opening form/ introduction form furnished by the petitioner who opened the account in the name of Chellamma as mentioned above. The address furnished therein is totally different from the address of P.W.3. Hence, the courts below were perfectly justified in holding that Chellamma who was stated to have opened the account is actually a fictitious person, set up by the petitioner with Crl.R.P. No.1248/2004 **-: 17 :-** dubious designs and miasmatic motives. 17. The evidence given by P.W.11 to P.W.13 would sow that the address given by P.W.13 while introducing a lady called Chellamma to open an account in the Central Bank of India, was actually fictitious. The fact that it was the petitioner who introduced that lady is beyond any challenge. Even admittedly, it was the petitioner who signed the account opening form introducing that lady as Chellamma whose address was mentioned earlier. That address was found to be totally incorrect. The signature of the petitioner in the account opening form of Chellamma mentioned above was marked as Ext.P14. The evidence given by P.W.14 the Manager of Central Bank of India would prove as to how account No. 2807 was opened in the name of Chellamma, that it was the petitioner who introduced that lady and got that account opened. 18. P.W.15 the Manager of the State Bank of Travancore, Trivandrum, was examined to prove Ext.P16 the Crl.R.P. No.1248/2004 **-: 18 :-** extract of the ledger pertaining to the account of the petitioner. It was sworn by him that Rs. 3,000/- was withdrawn on 25-10-1988 from that account as per the cheque issued by the petitioner. That particular cheque was marked as Ext.P7. In fact it was admitted by the petitioner that he had issued a cheque for Rs. 3,000/- and had also paid to P.W.3, a sum of Rs. 7,000/- in cash. The fact remains that a total sum of Rs. 10,000/- was paid by the accused/revision petitioner to P.W.3 Chellamma. Therefore, the contention that he has nothing to do with the opening of the account or the withdrawal of the amount etc. stood stultified by his own admission. These towering circumstances projected by the prosecution would unmistakably lead to the irresistible conclusion that it was the petitioner who received the cheque for Rs. 35,000/- as the compensation payable to P.W.3 and in order to divert or misappropriate the amount covered thereunder he got an account opened by using a lady of his choice and from that account he withdrew the amount. But Crl.R.P. No.1248/2004 **-: 19 :-** only a total sum of Rs. 10,000/- was paid to P.W.3. 19. It was argued by the learned counsel for the petitioner that there was delay in the registration of the F.I.R. It is a case where the Central Bureau of Investigation started the investigation after the investigation was entrusted to them. It was thereafter the F.I.R. was registered in their unit as spoken to by P.W.22. 20. The decision of the Supreme Court in **Anand Mohan v. State of Bihar – (2012) 3 SCC Crl. 328** relied upon by the learned counsel for the petitioner has absolutely no relevance to the facts of this case. That was a case where one District Magistrate was murdered by persons belonging to a procession who were instigated by the petitioner Anand Mohan and Others who made provocative speeches. Here, it is not a murder case. The charge against the accused has nothing to do with the delay in registering the F.I.R. Even if it was delayed for one or two years, it will not make any difference since the evidence relied upon by the prosecution Crl.R.P. No.1248/2004 **-: 20 :-** is covered by the unimpeachable documents. The role of the accused could be proved through those documents. The fact that a preliminary inquiry was conducted before the registration of the F.I.R. also will not come to the rescue of the petitioner since that must have been done in the light of the decision of the Supreme Court in **Sirajudheen v. State of Madras – AIR 1971 SC 520** . Even if it is assumed that there was delay in the registration of the F.I.R. that is not fatal to the prosecution case. 21. The F.I.R. (Ext.P32) was registered by PW22, who was the Inspector of Police, C.B.I., Kochi. Ext.P32 was registered based on source information. In Ext.P32 it was stated that reliable information was received that Sri.V.V.Thomas, who was shown in that F.I.R. as A1, was functioning as the Divisional Manager, New Indian Assuarance Company, Thiruvananthapuram during the period 30.5.1985 to 25.5.1987, It was also mentioned that the petitioner herein, who was then shown as the 2nd accused Crl.R.P. No.1248/2004 **-: 21 :-** was an Advocate, in the Advocate's panel of the Assurance Company aforesaid and in that capacity, he was authorised to conduct the M.A.C.T. cases the numbers of which are seen mentioned in Ext.P32. There was allegation to the effect that he and the 1st accused, mentioned earlier, shared major portion of the claim amounts awarded in those cases. 22. It was stated by PW22 that after the investigation no sufficient materials could be collected to lay charge sheet against the 1st accused (Sri.V.V.Thomas) mentioned above and so while submitting the final report his name was deleted from the array of accused. The revision petitioner herein contended that the name of V.V.Thomas was deleted because of extraneous reasons or with oblique motives. That suggestion was refuted by PW22. Ext.P32 - the F.I.R. was registered on 20.8.1991 and it reached the Court on 21.8.1991. 23. The gist of the allegations against the persons who were arrayed as accused in Ext.P32 have been mentioned Crl.R.P. No.1248/2004 **-: 22 :-** therein. From whom or how the information for registration of F.I.R. was received is not something which can be disclosed by PW22. The question is whether the information was reliable so as to register the F.I.R.. The offence disclosed as per Ext.P32 is a cognizable offence. 24. It is argued that anyone can set the criminal law in motion and that locus standi of the complainant is a concept foreign to criminal jurisprudence except where the Statute creating an offence provides otherwise. Therefore the registration of the F.I.R., based on such reliable information, cannot be faulted with. Since the registration of the F.I.R. would be for larger good of the society, the right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight jacket formula of locus standi which is unknown to criminal jurisprudence.. (See the decision in **A.R. Antulay v. Ramdas Sriniwas Nayak - AIR 1984 SC 718** ) 25. It is also pointed out by the learned Public Crl.R.P. No.1248/2004 **-: 23 :-** Prosecutor that as usual the preliminary enquiry would be conducted in cases involving commission of offences under the Prevention of Corruption Act, in view of the directions issued by the apex Court in **P.Sirajudeen (supra)** and it is based on the materials collected in the enquiry so conducted, the F.I.R. is used to be registered. Here there was allegation against Sri.V.V.Thomas who was shown as the 1st accused, who was a public servant - being the Divisional Manager of New Indian Assuarance Company and so the fact that the F.I.R. was not registered based on a particular complaint cannot in any way affect the charge sheet laid against the accused. Since the F.I.R. was registered only after collecting such materials and based on the source information mentioned earlier, the contention that there was delay in the registration of the F.I.R. is unsustainable. 26. The other point that has been very much pressed into service by the learned counsel for the revision petitioner is as to the competency of PW22 to investigate the offence. Crl.R.P. No.1248/2004 **-: 24 :-** But when PW22 was examined, no question whatsoever was put to him that the C.B.I. was not competent to investigate the offence nor was there any specific suggestion that PW22 was legally incompetent or was not having jurisdiction to investigate that offence. It is vehemently argued by the learned counsel for the petitioner that even if no such question was put by the defence to PW22 challenging the competency or jurisdiction of the C.B.I. to investigate the offence, it was the bounden duty of the prosecution to produce the relevant order or notification issued under section 6 of the The Delhi Special Police Establishment Act, 1946. But the learned Public Prosecutor would submit that since PW22 - the Inspector of the C.B.I. has given evidence that the investigation in this case was conducted by him, his competency should have been questioned by the defence. No such question was put by the defence. It is further contended that had any such questions been put, then certainly the copy of the notification and other records would have been Crl.R.P. No.1248/2004 **-: 25 :-** produced to prove that aspect. 27. When the petitioner/accused was questioned under section 313(1)(b) of Cr.P.C., he made an omnibus denial of the incriminating circumstances which appeared against him in evidence. No specific contention was put forward disputing the competency or jurisdiction of PW22 to investigate the offence nor was any other ground put forward by him. 28. The revision petitioner vehemently argued that the investigation was conducted by the C.B.I. without the consent of the State Government as required under section 6 of The Delhi Special Police Establishment Act, 1946 and therefore, the learned Magistrate should not have taken cognizance of the offence based on the final report filed by the C.B.I. and so the congnizance taken by the Court itself is bad. Hence, according to the learned counsel the whole further proceedings should be held null and void and as such the conviction cannot be sustained. Section 3 of that Act provides that the Central Government may, by notification in the Crl.R.P. No.1248/2004 **-: 26 :-** official gazette, specify the offences or class of offences which are to be investigated by the Delhi Special Police Establishment. Section 6 stipulates that the consent of the State Government is required to exercise the powers and jurisdiction in any area falling within that particular State so as to exercise the powers and jurisdiction of the C.B.I. within that particular State. It was argued that no notification was issued in this case by the State of Kerala empowering the C.B.I. to exercise their power and jurisdiction to investigate this case and as such, the investigation is void ab initio, the learned counsel further submits. 29. The learned Public Prosecutor submits that the Government of Kerala had given consent and it was based on the said consent the investigation was entrusted to the C.B.I. It is also pointed out that the petitioner/accused approached this court by filing Crl.R.P. No.1194/1995 contending that the cognizance taken by the trial court is bad, as the C.B.I. had no power or authority to investigate the case against the Crl.R.P. No.1248/2004 **-: 27 :-** petitioner and file a charge sheet. It was contended before this Court in the Crl.R.P. that no notification under section 6 of the Act was issued by the Government of Kerala. But those contentions were negatived by this Court holding that the notification required under section 6 of The Delhi Special Police Establishment Act, 1946 was issued by the Government of Kerala. The relevant portion the order passed by this court in the above Crl.RP. No. 1194/1995 is quoted hereunder: _"The other point pressed by the counsel for the petitioner is that the C.B.I. has no power or authority to investigate the case against the petitioner and file a chrge-sheet. This argument is based on Section3 and Section 6 of The Delhi Special Police Establishment Act, 1946 (hereinafter referred to as "the Act"). Section 3 of the Act confers power on the Central Government to issue notification in the gazette specifying the offence or class of offences which are to be investigated by the special police i.e., C.B.I. Section 6 of the Act confers power on the C.B.I. to investigate the offence with the consent of the State Government. Though it is argued that no such consent was granted by the State Government, relevant_ Crl.R.P. No.1248/2004 **-: 28 :-** _Government Orders were placed before the court below and also me produced before for my perusal. Notification of the Government of India, dated 6.11.1956 which is issued under Section 3 of the Act takes in, within its purview, offences under various sections of I.P.C., which includes the Sections under which the petitioner is charge-sheeted. Consequently, notification u/s. 6 of the Act was issued by the Government of Kerala on 14.12.1956 and was published in the Kerala Gazette. Though the counsel would argue that notificationn was not published in the gazette, even the notification shows that it is being published in the Kerala Government Gazette. That apart, no point is taken in the Crl.R.P. that the notification was not published in the gazette. In the light of the notification, it cannot be argued that the case of the petitioner cannot be investigated and he cannot be charge-sheeted by the officers of the C.B.I. So, this point also fails._ _This court as per the order in Crl.R.P. No.268/1992 has considered a similar question and held that notifications under Section 3 and 6 was published in the gazette and the officers of the C.B.I. is empowered to investigate the offences punishable under I.P.C., even_ Crl.R.P. No.1248/2004 **-: 29 :-** ## _against private parties."_ Therefore, the argument vehemently advanced by the learned counsel for the petitioner that the C.B.I. had no jurisdiction to investigate the offence and as such the cognizance taken by the trial court is bad in law, cannot be sustained. 30. In the decision in **Major E.G. Barsay v. State of Bombay (AIR 1961 SC 1762)** it was held by the apex Court that substantial compliance of the provisions of section 6 of The Delhi Special Police Establishment Act is sufficient. Here, in fact, the notification was produced before this court when Crl.R.P. No.1194/95 was considered. 31. Even though res judicata as in section 11 of C.P.C. is not applicable to the proceedings before a criminal court, the principle of res judicata is equally applicable to matters relating to criminal prosecution as well. When a particular question of jurisdiction or competency was challenged before court and when a finding regarding the same attained Crl.R.P. No.1248/2004 **-: 30 :-** finality, the accused cannot re-agitate that issue again at the time of trial or thereafter. 32. Where an issue has been decided by a competent court on a former occasion, such a finding constitutes an estoppal or res judicata against the parties to that proceedings. It will operate as a bar to reception of evidence to disturb that finding in a subsequent trial or proceedings. It was so held by the Division Bench of this court in **Chellappan v. State of Kerala - 1994 (2) KLT 346** . 33. In Crl.R.P. No. 1194/95 the question as to the jurisdiction of the C.B.I. to investigate into the offences was specifically raised, and after adverting to the notifications and orders pertaining to the same, the contention to that effect raised by the petitioner herein was negatived and so it is not open to the petitioner to re-agitate that issue. The rule of res judicata is founded on consideration of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions and is also in the public interest that Crl.R.P. No.1248/2004 **-: 31 :-** parties should not be vexed twice over the same kind of litigation. The decision, so far as it relates to the issue whether the C.B.I. had jurisdiction to investigate the offence or not, became final by the order passed by this court in Crl.R.P. No.1194/95 and so it is not open to the petitioner to render that decision ineffective and to re-adjudicate that question in the subsequent trial. (See the decisions of the Supreme Court in **Daryao v. State of U.P. - AIR 1961 SC 1457, Kirit Kumar v. Union of India - AIR 1981 SC 1621** and **K.Karunakaran v. State of Kerala 1997 (2) KLT 128** ). 34. Yet another ground that was argued before the Appellate Court is that the very same Officer, P.W.22 has detected and investigated the case. That plea is totally unsound and untenable. Here, it is not a case of detection so as to contend that the detecting officer himself conducted the investigation and so there is likelihood of prejudice being caused to the accused. Here P.W.22 has only investigated Crl.R.P. No.1248/2004 **-: 32 :-** the case. It was not a case detected by him. The gist of the case is that the accused who was the counsel appearing for the Insurance Company acted as the advocate before the claimant also and collected the cheque from the Insurance Company and he got it deposited in the account opened by himself in the name of a fictitious person and the said amount was misappropriated by him. It is not something which was detected by P.W.22. 35. Admittedly, only Rs. 10,000/- was paid to P.W.3. The balance sum of Rs. 25,000/- was misappropriated by the petitioner. It was thus rightly found that the accused is guilty of the offence punishable under Sec. 409 I.P.C. The amounts were taken from account No. 2807 by forging the signature of a lady who was shown as the account holder. Hence, the petitioner was rightly convicted for the offence of forgery as well. It was held that he had used such cheques knowing that those cheques are forged cheques. Though the other lady who impersonated herself as Chellamma could Crl.R.P. No.1248/2004 **-: 33 :-** not be apprehended, the fact remains that the petitioner is proved to have abetted commission of impersonation by instigating that woman to personate herself as Chellamma the claimant, that too by furnishing incorrect and misleading address. Therefore, the appellant was rightly convicted for the offence under Sec. 419 read with Sec. 109 I.P.C. as well. 36. It is a case where P.W.3 the claimant lady was proved to be an illiterate lady. The petitioner who is an Advocate has misused his position and misappropriated the amount. Needless to say, much damage has been done by him to the noble profession, the learned Public Prosecutor submits. The courts below have made a thorough scrutiny of the entire evidence and came to the right conclusion. There is no illegality, irregularity or impropriety in the findings so entered by the courts below. In the peculiar circumstances of the case, the sentence awarded by the Trial Court which was confirmed by the Appellate Court does not require any interference. Crl.R.P. No.1248/2004 **-: 34 :-** In the result, this Crl. Revision Petition is dismissed. The learned Chief Judicial Magistrate shall take steps immediately to execute the sentence. Dated this the 31st day of May, 2013. **N.K.BALAKRISHNAN,** JUDGE ani/