Baby Mathew and Maymol Joseph v. State of Kerala and A.T. Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942** **Crl.MC.No.2227 OF 2020(G)** **OS 42/2019 OF SUB COURT, PALA** **CRIME NO.1163/2019 OF Ponkunnam Police Station , Kottayam** ## **PETITIONERS/1ST AND 2ND ACCUSED:** |**1**|**BABY MATHEW**| |---|---| ||**AGED 50 YEARS**| ||**SON OF K.D.MATHEW,**| ||**RESIDING AT KILRUPARAMBIL,**| ||**VADAKKUMBHAGOM KARA,**| ||**PONKUNNAM P.O.,**| ||**CHIRAKKADAVU VILLAGE,**| ||**KANJIRAPPALLY TALUK,**| ||**KOTTAYAM DISTRICT,**| ||**PIN-686565.**| |**2**|**MAYMOL JOSEPH,**| ||**SON OF K.D.MATHEW,**| ||**RESIDING AT KILRUPARAMBIL,**| ||**VADAKKUMBHAGOM KARA,**| ||**PONKUNNAM P.O.,**| ||**CHIRAKKADAVU VILLAGE,**| ||**KANJIRAPPALLY TALUK,**| ||**KOTTAYAM DISTRICT,**| ||**PIN-686565.**| **BY ADVS. SRI.ABRAHAM GEORGE JACOB SRI.C.MURALIKRISHNAN (PAYYANUR)** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682031.**| |**2**|**A.T.THOMAS,**| ||**SON OF THOMAS, RESIDING AT ATHIYALIL HOUSE,**| ||**T.C.2/2196, ADARSH NAGAR, PATTOM P.O., PATTOM**| ||**KARA, PATTOM VILLAGE, THIRUVANANTHAPURAM TALUK,**| ||**THIRUVANANTHAPURAM DISTRICT, PIN-685004.**| 2 Crl.M.C No..2227 of 2020 **R2 BY ADV. SRI.P.A.MOHAMMED SHAH R2 BY ADV. SRI.SOORAJ T.ELENJICKAL R2 BY ADV. SMT.HELEN P.A. R2 BY ADV. ARUN ROY R2 BY ADV. SRI.SHAHIR SHOWKATH ALI** **SRI..C.R.SYAMKUMAR, SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 3 Crl.M.C No..2227 of 2020 ## ALEXANDER THOMAS, J. -----------------------------------Crl.M.C No.2227 of 2020 -----------------------------------Dated this the 9[th] day of November, 2020 ## **O R D E R** The case of the petitioners herein is that, Anx.A2 agreement for sale of land has been duly executed by the 2[nd] respondent herein and his wife in favour of the petitioners on 03-06-2017 and after receiving advance sale consideration of an amount of Rs.18,50,000/- out of the total agreed sale consideration of Rs.58.5 Lakhs, the 2[nd] respondent and his wife have resiled from their promise to execute the sale deed, though the petitioners were fully willing at all times to comply with their part of the obligations. That thereupon the petitioners have instituted a civil suit as O.S No.25/2019 before the Sub Court, Pala, in which the 2[nd] respondent and his wife have been arrayed as the defendants therein, seeking specific performance of the sale transaction covered by Anx.A2 agreement for sale dated 03-06-2017 executed by the 2[nd] respondent and his wife in favour of the petitioners. 2. Further that now the 2[nd] respondent has given a complaint to the police that Anx.A2 agreement for sale is not a genuine 4 Crl.M.C No..2227 of 2020 document and that it is forged by the petitioners and that on this basis the police has registered the impugned Anx.A7 FIR in Crime No.1163/2019 of Ponkunnam Police Station on 13-06-2019 for offences punishable under Sec.465, 467, 468, 471 and 34 of the IPC. Now in a purported part of the course of the investigation, the Police Investigating Agency in regard to Anx.A7 FIR has filed Anx.A8 application dated 24-02-2020 in the said O.S No.25/2019 before the Civil Court concerned (Pala Sub court), seeking for orders of the Court to handover the custody of the original of Anx.A2 agreement for sale to the Police agency for sending the same to the Forensic Science Laboratory for ascertaining as to whether Anx.A2 agreement for sale is forged or genuine, etc. The petitioners would seek quashment of the impugned criminal proceedings at Anx.A7 and all steps taken in consequence thereof, including Anx.A8 on the ground that, the very conduct of the 2[nd] respondent in not filing any such complaint before the Police raising such allegation of forgery earlier and having resorted to trigger an FIR as per Anx.A7 only after the filing of the abovesaid civil suit filed by the petitioners, seeking specific performance, would show that the very basis of the impugned criminal proceedings is belated and lacks _bonafides_ and credibility 5 Crl.M.C No..2227 of 2020 and would be an abuse of the process of the court and that in such cases, it has been held by the Apex Court and various High Courts that resort to simultaneous proceedings both at the Civil Court as well as the in the Criminal Court, is not a proper course of action and that the impugned criminal proceedings at Anx.A7 would deserve interdiction at the hands of this Court, by invoking Sec.482 of the Cr.PC. 3. Sri.Abraham George Jacob, the learned counsel appearing for the petitioners (accused) would place reliance on the decisions of Apex Court as in _**Sardar Ali Khan v. State of U.P**_ [AIR 2020 SC 626] and _**Rajeshbhai Muljubhai Patel and others v. State of Gujarat and another**_ [(2020) 3 SCC 794], etc. 4. Per Contra, the learned Public Prosecutor and Sri.C.R.Shyamkumar, learned counsel appearing for the 2[nd] respondent (defacto complainant) would place reliance on decisions of the Apex Court as in _**Mahesh Chaudhary v. State of Rajasthan and another**_ [(2009) 4 SCC 439] and _**Mosiruddin Munshi v. Mohd.Siraj and another**_ [(2014) 14 SCC 22], to contend that the abovesaid pleas of the petitioner are not to be allowed and that the powers of the police to conduct investigation in 6 Crl.M.C No..2227 of 2020 a case like this cannot be fettered merely on the ground of pendency of civil suit. Further the learned counsel for the 2[nd] respondent would urge that the 2[nd] respondent and his wife came to know about the alleged existence of Anx.A2 agreement for sale only when he had received summons from the Civil Court on the filing of the abovesaid civil suit by the petitioners herein and immediately thereafter he has acted upon with all expedition and without any delay in approaching the police to complain about the forgery of the document in question. 5. Now it is brought to the notice of this Court that the 2[nd] respondent herein has already filed an application as I.A No.4/2020 in the abovesaid Civil Suit (O.S No.25/2019) before the Sub Court, Pala, praying that the original of Anx.A2 document may be sent to the Forensic Science Laboratory for expert analysis to ascertain as to whether the signatures in Anx.A2 is that of the 2[nd] respondent and his wife as alleged by the petitioners. In that regard, the 2[nd] respondent would urge that FSL may examine as to the authenticity of the claimed signatures in Anx.A2 _vis-a-vis_ the admitted signatures of the 2[nd] respondent and his wife and as per the admitted documents. 6. After hearing both sides, it is seen that now both the civil 7 Crl.M.C No..2227 of 2020 proceedings as well as the criminal proceedings have already been set in motion. There is no dispute that the petitioners herein have already secured bail in relation to the involvement of the accused persons in Anx.A7 FIR in Crime No.1163/2019 of Ponkunnam Police Station. 7. Having regard to the nature of the allegations and counter allegations of the rival parties and having regard to the pendency of both proceedings and to ensure that the rights and interests of both sides are not in any way prejudiced and also to ensure that the truth of the matter is brought out on record, the following directions and orders are passed: _(i) The Sub Court, Pala will immediately take up for consideration the matters in I.A 4/2020 in O.S No.25/2019 and may take steps to ensure that the original of Anx.A2 agreement for sale is sent to the FSL for expert analysis to ascertain the authenticity of the said document and the claimed signatures therein and in that regard, the specimen signatures of the 2[nd] respondent and his wife, who are the defendants in the said suit/the respondents in the said I.A, also be taken as per the procedure in that regard and_ 8 Crl.M.C No..2227 of 2020 _originals of the documents admitted by the 2[nd] respondent and his wife (defendants in the suit), which bear their admitted signatures, may also be sent to the FSL to have a comprehensive expert analysis regarding the authenticity of Anx.A2 and the claimed signatures therein. Steps in that regard may be duly ordered by the Sub Court, Pala after hearing both sides, as well as the learned District Prosecutor/District Government Pleader, who has appeared in Anx.A8 application before the said Civil Court without much delay._ _(ii) Upon receipt of the relevant papers in the matter of Anx.A2 document, the Director of FSL and the competent expert officials concerned should ensure that the process of expert analysis and submission of the final opinion in that regard is duly tendered by them to the Sub Court, Pala, who is dealing with O.S No.25/2019, without much delay, preferably within a period of four months, at any rate, within an outer time limit of five months from the date of receipt of the papers in that regard from the abovesaid Civil Court. While doing so, the competent officials, FSL should ensure that a copy of the_ 9 Crl.M.C No..2227 of 2020 _said final opinion along with copies of the relevant documents if any, may also be sent to the Investigating officer concerned (SHO, Ponukunnam Police Station), who is dealing with the investigation in Anx.A7 FIR in crime No.1163/2019 of Ponkunnam Police Station._ _(iii) It will be open to the Investigating Officer in Anx.A7 FIR to make an application through the learned Prosecutor/District Government Pleader before the Sub Court, Pala, who is dealing with the abovesaid O.S No.25/2019 to give a certified copy of the said expert report of the FSL regarding the analysis of Anx.A2 agreement as well as certified copies of the documents relevant in that regard, including Anx.A-2 to the Police Investigating Agency and upon receipt of such applications, the abovesaid Civil Court may ensure that certified copies of such documents are immediately furnished to the Investigating Officer, without any further delay, if those applications are otherwise in order._ - _(iv) The Civil Court may ensure that consideration and passing of orders on Anx.A8 may be deferred, until the receipt of the abovesaid final opinion from the FSL regarding in relation to_ 10 Crl.M.C No..2227 of 2020 _Anx.A2 document. Thereafter, it is for the Civil Court to consider and pass orders on Anx.A8 application, in the light of the abovesaid aspects after hearing the plaintiffs and defendants in the suit as well as the applicant in Anx.A8 application (Investigating Officer concerned) thorough the Public Prosecutor/District Government Pleader as the case may be. In the meanwhile, the Investigating Officer may proceed with the further course of the investigation into various aspects of the matter, other than the aspects relating to the expert opinion of the FSL, which is to be awaited._ _(v) After receipt of the intimation regarding the final opinion of FSL in relation to Anx.A2 document as well as the attendant documents, the Investigating Officer may seek the expert legal advice of the Director General of Prosecution, as to the manner in which the investigation is to be further proceeded with and to finalise the same in accordance with law, and as to the steps taken for finalisation of the investigation in the manner known to law and based on such advice, the Investigating Officer will be at liberty to proceed further for the culmination and finalisation of the investigation in_ 11 Crl.M.C No..2227 of 2020 _relation to Anx.A7 crime in the manner known to law. Thereupon, in case the petitioners or the 2[nd] respondent have any legally justiciable grievances, in relation to the steps that will be taken by the Investigating Agency in relation to Anx.A7, FIR, they will be at liberty to work out their remedies in the manner known to law. The Civil Court may also proceed independently for the finalisation of the matter in the abovesaid Civil Suit, in the manner known to law._ 8. All rival contentions on the merits of the matter are left open to be raised and decided in appropriate proceedings, in the manner known to law. With these observations and directions the above Criminal Miscellaneous Case will stand finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** KAS 12 Crl.M.C No..2227 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF SALE DEED NO.1157 OF 2017 OF THE KANJIRAPPALLY SRO DATED 03.06.2017. ANNEXURE A2 TRUE COPY OF THE AGREEMENT FOR SALE OF LAND EXECUTED BY THE 2ND RESPONDENT AND HIS WIFE IN FAVOUR OF THE PETITIONERS DATED 03.06.2017.** **ANNEXURE A3 TRUE COPY OF THE PLAINT FILED IN O.S.NO.25 OF 2019 OF THE SUB COURT PALA DATED 20.05.2019. ANNEXURE A4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND RESPONDENT AND HIS WIFE DATED 20.07.2019 IN O.S.NO.25 OF 2019 OF THE SUB COURT PALA. ANNEXURE A5 TRUE COPY OF SALE DEED DATED 26.03.2019 NO.667 OF 2019 OF THE KANJIRAPPALLY SRO. ANNEXURE A6 TRUE COPY OF SALE DEED NO.334 OF 2019 DATED 27.03.2019 OF THE VAZHOOR SRO ANNEXURE A7 TRUE COPY OF THE FIR IN CRIME NO.1163 OF 2019 OF THE PONKUNNAM POLICE STATION DATED 13.06.2019. ANNEXURE A8 TRUE COPY OF THE APPLICATION DATED 24.02.2020 IN O.S.NO.25 OF 2020 OF THE PALA SUB COURT FILED BY THE INSPECTOR OF POLICE PONKUNNAM. ANNEXURE A9 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 03.03.2020 FILED BY THE FIRST PETITIONER IN O.S.NO.25 OF 2019 OF SUB COURT PALA.** 13 Crl.M.C No..2227 of 2020 |**ANNEXURE A10**|**TRUE COPY OF THE COMMON ORDER DATED**| |---|---| ||**22.06.2019 PASSED IN CRL.M.P.NO.1800 OF**| ||**2019 AND 1801 OF 2019 BY THE COURT**| ||**SESSIONS KOTTAYAM DIVISION.**| |**ANNEXURE A11**|**TRUE COPY OF THE PLAINT DATED**| ||**25.07.2019 IN O.S.NO.42 OF 2019 OF THE**| ||**SUB COURT, PALA.**| **RESPONDENT'S/S EXHIBITS: NIL**