Bala M. Nair v. State of Kerala and R. Mohana Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** ## **WEDNESDAY, THE 18TH DAY OF MAY 2016/28TH VAISAKHA, 1938** ## **Crl.Rev.Pet.No. 2688 of 2009 ( )** ## **--------------------------------CMP NO. 4314/2008 IN CC NO. 671/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, VAIKOM** **----------------------** ## **REVISION PETITIONER/ACCUSED 3 :** **-------------------------------------------------------** **MISS. BALA M. NAIR W/O.MADHUSOODHANAN NAIR, PANTHAPPALLIL HOUSE, KOCHU KAVALA, VAIKOM P.O., NADUVILE VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT.** ## **BY ADV. SRI.S.RAJEEV** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT :** **----------------------------------------------------------------------------** **1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO. 697 OF 2004 OF VAIKKOM POLICE STATION)** **2. R. MOHANA KUMAR S/O.RAMACHANDRA PANICKER, SREERAGAM, AARATTUKULANGARA, NADUVILE VILLAGE, VAIKOM TALUK, KOTTAYAM.** - **R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN R2 BY ADVS. SRI.GEO PAUL SRI.SANU MATHEW** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Mn** **...2/-** ## **Crl.Rev.Pet.No. 2688 of 2009 ( )** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** **ANNEXURE I : TRUE COPY OF THE PETITION SUBMITTED BY THE DEFACTO COMPLAINANT ON 28.7.2008.** ## **RESPONDENT'S ANNEXURES :** **//TRUE COPY//** **P.A. TO JUDGE** **Mn** ## **BABU MATHEW P. JOSEPH, J. --------------------------------Crl.R.P.No.2688 of 2009** ## **------------------------------Dated this the 18[th ] day of May, 2016** ## **ORDER** This Criminal Revision Petition has been filed challenging the correctness, legality or propriety of the order dated 23-05-2009 on Crl.M.P.No.4314(A) of 2008 in C.C.No.671 of 2005 on the files of the Judicial First Class Magistrate's Court, Vaikom. 2. Heard the learned counsel appearing for the petitioner, learned Public Prosecutor appearing for the first respondent and the learned counsel appearing for the second respondent. 3. The petitioner is the third accused in C.C.No.671 of 2005 on the files of the court below. The second respondent is the de facto complainant in that case. He preferred Ext.P1 complaint before the court below alleging the offences under Sections 465, 467, 468, 471, 474 and 477 read with Section 34 of IPC against three accused in **Crl.R.P.No.2688 of 2009** **2** the case. The court below forwarded that complaint to the local police under Section 156(3) of Cr.P.C. for investigation. Thereupon, the local police investigated the case and submitted the Final Report before the court below under Section 173(2) against the accused alleging the offences under Sections 465, 467, 468, 471, 474 and 477 read with Section 34 of IPC. On receipt of the Final Report, the court below had taken cognizance of the offences alleged against the accused and summonses were issued to the accused. The accused entered appearance and pleaded not guilty to the charge framed against them. Thereafter, the prosecution witnesses were examined. PW1 is the de facto complainant. After examining the prosecution witnesses, the de facto complainant filed Crl.M.P.No.4314(A) of 2008 before the court below praying for an order for further investigation of the case. The accused objected to the petition contending that the petition was a delayed one and the evidence in the case was practically over. After **Crl.R.P.No.2688 of 2009 3** considering that petition, by the impugned order, the court below directed the Investigating Officer to conduct further investigation in the case, especially with special reference to the points highlighted by the complainant. 4. Learned counsel for the petitioner submits that the impugned order was passed by the court below based on a petition preferred by the de facto complainant for further investigation. The court below had taken cognizance of the offences alleged against the accused in the case was based on the Final Report submitted by the investigating agency after conducting due investigation. After taking cognizance of the offences alleged in the Final Report submitted by the investigating agency and examining the prosecution witnesses, it was illegal on the part of the court below to order a further investigation of the case at the instance of the de facto complainant. Learned counsel relied on the ruling of the Honourable Supreme Court in **Reeta Nag v. State of West Bengal [(2009) 9 SCC 129]** . Learned counsel for the second **Crl.R.P.No.2688 of 2009 4** respondent, on the contrary, submits that the order passed by the court below directing further investigation of the case was really warranted in the facts and circumstances of the case and it was necessary for securing the ends of justice in relation to the peculiar facts of the case. There is no impediment in ordering further investigation by the court below even at the instance of the de facto complainant in this case. The ruling relied on by the learned counsel for the petitioner is not at all applicable to the facts of the case in as much as it relates to a case where reinvestigation was ordered at the instance of the de facto complainant when some of the accused were dropped by the investigating agency. Moreover, the Honourable Supreme Court considered the matter in the light of the powers of the trial court under Section 319, Cr.P.C. as it was possible for adding more accused in that case if it was found necessary during the course of trial, contends the learned counsel for the second respondent. **Crl.R.P.No.2688 of 2009** **5** 5. The case was originated at the instance of the de facto complainant/second respondent by way of filing a complaint before the court below. The court below, in turn, forwarded that complaint under Section 156(3) of Cr.P.C. to the local police for investigation. Accordingly, the local police investigated the case and submitted the Final Report before the court below alleging the offences against the accused. The court below narrated the facts and reasons stated by the de facto complainant in the impugned order in paragraphs 4 and 5. A perusal of the same will be beneficial for understanding the case of the de facto complainant necessitating a further investigation of the case. Hence those paragraphs are reproduced below: “4. The grievance of the de facto complainant is that, the investigation by the Vaikom Police is shabby after a direction for investigation was given by the court under S.156(3) of Cr.P.C. It was also alleged that the police was not ready, earlier, to register even a crime when information was directly given by the de facto complainant to the police. 5. The petitioner would claim that, his **Crl.R.P.No.2688 of 2009** **6** enquiry revealed that the final report in the case was filed without conducting a proper investigation. The basic document, i.e. the partnership deed dated 7.8.1984, was not seized or produced by the police to prove the offence committed by the accused. It is alleged that, no earnest effort was taken by the investigating agency to question the material witnesses in order to ascertain the circumstances under which the deed was made. No investigation was conducted to ascertain whether the disputed document was concealed. It was further alleged that written statement has been filed by the first accused herein as defendant in O.S.497/05 before the Sub Court, Kottayam admitting the existence of the disputed deed. It was further contended that the first accused had also written a letter to the de facto complainant in the month of August, 2003 requesting him to put his signature in the application for the renewal of the dealership licence. The above crucial facts were not considered by the investigating agency. The petitioner is also aggrieved to highlight that no sincere effort was made to compare the admitted signature of the petitioner with the disputed signature seen in the forged deed. Many crucial documents which are highly necessary for establishing the guilt of the accused were not seized by the investigating officer and many of the material witnesses, who could have given material evidence were not questioned by them. It is further submitted that many relevant documents which would negative the contention of execution of disputed deed by the de facto complainant are still **Crl.R.P.No.2688 of 2009** **7** available with Banks, Income Tax Authorities and also with Bharath Petroleum. Those documents are to be seized by the police. The petitioner would further submit that he is ready to give all the necessary details to the investigating agency regarding the above said documents. Moreover, the petitioner is apprehensive that, if the above evidence is not produced, the prosecution will not be able to prove the guilt of the accused. It is further alleged that the prosecuting agency is rather interested in ensuring the acquittal of the accused than conducting a proper investigation.” In the premise of these facts and reasons, the court below considered the matter. The reasons and findings of the court below appear in paragraph 8 of the impugned order which reads as follows: “8. After going through the records, in the light of the contentions raised by the petitioner, this court can only agree with the petitioner that the investigation conducted is not proper. The police, after investigation, has come to a conclusion that the accused are liable for offence under Ss.465, 467, 468, 471 r/w 34 IPC. So the police had admitted the allegation of the complainant that a document was forged by the accused and it was used by them. But that document was not seen seized or produced and no plausible reason is seen tendered by the police for not producing that document. **Crl.R.P.No.2688 of 2009** **8** The prosecution records are also silent regarding certain relevant documents mentioned by the petitioner. There is merit in the contentions raised by the petitioner, which warrants further investigation by the police. Delay cannot be treated as a valid objection when the failure of investigation is so patent to defeat justice. So the investigating officer is directed to conduct further investigation in the above case, especially with special reference to the points highlighted by the complainant and to produce further materials, if any.” 6. The most important document which has to be perused and considered by the court below in this case is the partnership deed. Ext.P2 is a copy of that partnership deed. Whether its original is forged or not is a crucial question in this case. Unless the original partnership deed in question is seized and produced before the court, the allegations attracting the offences alleged cannot be proved at all. Therefore, not only for that purpose but also in relation to other matters raised by the de facto complainant, a further investigation of the case is necessary. The ruling of the Honourable Supreme Court in **Reeta Nag** (supra) cannot be applied to the facts of **Crl.R.P.No.2688 of 2009** **9** this case. The Honourable Supreme Court was dealing with a case in which the factual situation was different. Therefore, the learned counsel for the second respondent was right in her submission that that ruling cannot be applied to the facts of this case. In view of the facts and reasons stated by the second respondent for ordering a further investigation in this case and the reasons stated by the court below for arriving at the conclusion and for directing the Investigating Officer to conduct a further investigation, this Court does not find any illegality or impropriety with the impugned order passed by the court below. For arriving at a just decision in the case, for the reasons stated by the second respondent in his petition filed before the court below, a further investigation is absolutely necessary. Therefore, this revision petition is devoid of any merit and hence it is only to be dismissed. 7. In the result, this revision petition is dismissed. Learned counsel for the petitioner now submits that the petitioner is a lady who apprehends harassment at the **10** **Crl.R.P.No.2688 of 2009** hands of the police during the course of further investigation. This Court does not find any reason for the petitioner to entertain such an apprehension. Therefore, it is not necessary to issue any direction to the investigating agency in regard to such an apprehension urged by the learned counsel for the revision petitioner. Sd/- **BABU MATHEW P. JOSEPH JUDGE** MJL