Crl.M.C. No.1434/13 (D) & W.P.(C) No.17405/13

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 23RD DAY OF MAY 2014/2ND JYAISHTA, 1936** **Crl.MC.No. 1434 of 2013 (D)** **---------------------------------------** **[CRIME NO. 230 OF 2013 OF BALARAMAPURAM POLICE STATION , THIRUVANANTHAPURAM DISTRICT]** **..........** ## **PETITIONERS/ACCUSED:** **------------------------------------** **1. S.K. JOYKUMAR, S/O.A.J.SASIKUMAR, AGED 45 YEARS, RESIDING AT 'NANDANAM', PULIYOORKONAM, PAYATTUVILA P.O, BALARAMAPURAM, THIRUVANANTHAPURAM-695 501.** **2. V. RAJAPPAN, S/O.VELLAYAMBAN, AGED 48 YEARS, "USHUS", THEMPAMUTTAM, BALARAMAPURAM, THIRUVANANTHAPURAM-695 501.** **3. JAYANKUMAR S.K., S/O.A.J.SAIKUMAR AGED 44 YEARS, VADAKKUMKARA PUTHAN VEEDU, PEZHUOORKONAM, THEMPAMUTTAM, BALARAMAPURAM, THIRUVANANTHAPURAM-695 501.** **BY ADVS.SRI.SANTHEEP ANKARATH, SRI.ARUN MATHEW VADAKKAN.** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **--------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, BALARAMAPURAM POLICE STATION, BALARAMAPURAM-695 501, THIRUVANANTHAPURAM.** **2. MOHANDAS, S/O.PONNAYYAN, ANJANEYA, VADAKKUMKARA HOUSE, THEMPAMUTTAM PEZHOORKONAM, BALARAMAPURAM P.O - 695 501.** **R1 BY PUBLIC PROSECUTOR SRI. C.K. JAYAKUMAR, R2 BY ADV. SRI.RAJESH P.NAIR.** **THIS CRIMINAL MISC . CASE HAVING BEEN FINALLY HEARD ON 23-05-2014, ALONG WITH W.P.(C).NO.17405/2013,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** **CRL.M.C. NO.1434/2013 - D:** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE- A1: TRUE COPY OF SALE DEED NO.986/992 DTD. 06/04/1992 OF S.R.O.,BALARAMAPURAM. ANNEXURE-A2: TRUE COPY OF THE SALE DEED NO.985/92 DTD. 06/4/1992 OF BALARAMAPURAM S.R.O. ANNEXURE-A3: TRUE COPY OF THE SALE DEED NO.1899/2003 DTD. 11/06/2003 OF BALARAMAPURAM S.R.O. ANNEXURE- A4: TRUE COPY OF THE SALE DEED NO.1961/2012 DTD. 06/06/2012 OF BALARAMAPURAM S.R.O. ANNEXURE-A5: TRUE COPY OF THE SALE DED NO.2270/1995 DTD. 01/07/1995 OF BALARAMAPURAM S.R.O. ANNEXURE-A6: TRUE COPY OF THE PETITION DTD. 30/05/2012 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE REVENUE DIVISIONAL - OFFICER, THIRUVANANTHAPURAM. ANNEXURE-A7: TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 2ND PETITIONER DTD. 18/06/2012. ANNEXURE-A8: TRUE COPY OF THE SURRENDER DEED NO.3192/09 OF BALARAMAPURAM S.R.O. DTD. 21/10/2009. ANNEXURE-A9: TRUE COPY OF THE PETITION DTD. 14/11/2012 SUBMITTED BY 2ND AND 3RD PETITIONERS AND FATHER OF THE 1ST AND 3RD PETITIONERS BEFORE THE DEPUTY COLLECTOR (VIGILANCE). ANNEXURE-A10: TRUE COPY OF THE PETITION DTD. 19-11-2012 SUBMITTED BY THE 2ND PETITIONER BEFORE THE INSPECTOR GENERAL OF - REGISTRATION, THIRUVANANTHAPURAM. ANNEXURE-A11: CERTIFIED COPY OF FIRST INFORMATION REPORT DTD. 16/03/.2013 IN CRIME NO.230/2013 OF BALARAMAPURAMPOLICE STATION.** ## **RESPONDENTS' ANNEXURES: NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.D. RAJAN, J.** ------------------------------------------- Crl.M.C. No.1434/13 & W.P.(C)No.17405/13 ---------------------------------------------Dated this the 23[rd] day of May, 2014 ## **ORDER** This petition is filed u/s.482 of Cr.P.C. to quash AnnexureA11 FIR in Crime No.230/2013 of Balaramapuram Police Station, which was registered u/s.120(b), 420, 468, 471 r/w.34 IPC. The above complaint was filed by the 2[nd] respondent alleging that, at the time of his marriage, his father-in-law executed a gift deed of 30 cents in favour of the 2[nd] respondent and his wife by document No.2270/1995 of Balaramapuram SRO. While so, on 10.2.2012, while the 2[nd] respondent was proceeding to his property with certain articles in a mini lorry, the accused obstructed him by claiming that the property is their own. In such circumstances, in order to demarcate 30 cents of property, the 2[nd] respondent filed a complaint before the Survey Officer, Neyyattinkara and the petitioners obstructed such measurement. Subsequently, after verifying the records from Crl.M.C.No.1434/13 & con.case 2 the Athiyannoor Village Office, it is revealed that as per the conspiracy of the 2[nd] and 3[rd] petitioner, 1[st] petitioner transferred 3 ¼ cents of property in Re.Sy.No.37/22/1 and 37/22-2 in favour of the 2[nd] petitioner and his wife. Hence, the petitioners committed the afore said offences and Balaramapuram Police registered the above crime and investigation is progressing. 2. The petitioners contended that there was no forgery committed by them. Actually, they transferred the property as per the title received earlier. If investigation is proceeded and trial is committed, it will be a mere abuse of process of the Court. Civil dispute is pending before civil court. Hence, they approached this Court to quash the above criminal proceedings. 3. The inherent jurisdiction u/s.482 Cr.P.C. can be invoked for the three grounds mentioned therein, i.e to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of the Court or otherwise to secure the ends of justice. Apex Court in _**State of Haryana**_ V. _**Bhajanlal**_ , [1992 SCC (Crl) 426] pointed out Crl.M.C.No.1434/13 & con.case 3 that: “where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the proceedings are liable to be quashed”. 4. The learned counsel appearing for the petitioners contended that they are in possession of property by virtue of Annexures-A3 and A4. As per Annexure-A3, the 1[st] petitioner executed a sale deed of 15 cents of property from 16.5 cents included in Annexure-A1 in favour of his sister and the 2[nd] petitioner and remaining 1.5 cents of property was assigned in favour of the aforementioned assignees. No property was obtained from the 2[nd] respondent in the aforesaid transfer. 5. The learned counsel appearing for the 2[nd] respondent strongly opposed the argument and contended that there was no survey number as stated by the petitioners. They created a false survey number as 37/22-2 and transferred 3 ¼ cents of property to the 2[nd] petitioner and his wife. Therefore, they transferred the 2[nd] respondent's property by making a false survey number and forging the documents and thus committed the aforesaid offence. If any Crl.M.C.No.1434/13 & con.case 4 interference is made at this stage, it will affect the right the of 2[nd] respondent. The 2[nd] respondent filed W.P.(C) No.17405/2013 before this Court seeking a direction to the investigating officer to complete the investigation in a time bound manner. 6. Now the question that arises for consideration is whether this is a fit case to invoke the inherent jurisdiction to quash the proceedings or to give a direction to the investigating officer. 7. It is the admitted case of both parties that they purchased property from one Ramlabeevi, who was in possession of 66.5 cents of property in the year 1992. She executed two sale deeds, one in favour of Augustine and another in favour of Joy kumar. As per Annexure-A1 sale deed, 16.5 cents of property was transferred to one Joy Kumar and as per Annexure-A2, 50 cents of property was assigned to Augustine, who is the paternal uncle of the 1[st] and 3[rd] petitioners. Thereafter, on 1.7.1995, 30 cents of property was given by a settlement deed in favour of the 2[nd] respondent and his wife and they are enjoying that property Crl.M.C.No.1434/13 & con.case 5 by virtue of title deed No.2270/1995. Joy Kumar gave 15 cents of property in favour of his brother-in-law and sister in Re.Sy.No.37/23 by virtue of sale deed No.1899/2003 and he also transferred 1.5 cents of property comprised in Re.Sy.No.37/22-2 and in the same survey number 1 ½ cents was granted to the 2[nd] respondent and his wife. In the circumstances, the 2[nd] respondent filed the above complaint before Sub Inspector of Police, Balaramapuram and registered the above case. Both parties admitted that they purchased the property from the same owner and they are using the property for a pretty long time. In this context, I have considered the statement submitted by the Sub Inspector of Police, Neyyattinkara. In the statement, he submitted that the vigilance enquiry is going on and the matter is pending before the tribunal, Revenue Divisional Officer, Tahsildar and Village Officer. The Village Officer, Athiyannoor submitted a certificate, which reveals that in survey No.37/22-2 , the area of 3 ¼ cents of land is a disputed portion and stopped receiving revenue tax from both parties. Nothing was mentioned in his report as to whether Crl.M.C.No.1434/13 & con.case 6 re-survey was finally settled and after the settlement, new numbers were given to that properties in that locality. Without verifying that aspect, the Inspector of Police submitted the report. He seeks more time to collect evidence and for verifying the revenue records. The investigation is progressing. It is submitted that during the course of the investigation, if it is revealed that the case is not true, the police itself will refer the case as false. He assured the maximum earnest efforts for completing the investigation. Both parties purchased the property from Ramlabeevi in the old survey No.5/1A, 4/1C (Re.Sy.No. In Block 13, 37/22, 37/23) and Re.Sy.No.37/22-2 and 37/22/1. All these are numbers of both parties. It is for the resurvey authorities to verify the proper specification of the new re-survey numbers. No materials are placed before me enabling me to take a decision that the petitioners forged the documents, assigned new survey numbers and transferred the property as alleged. Apex Court in _**Mohammed Ibrahim and others**_ v. _**State of Bihar and another**_ [2009(8) SCC 751] held as follows:(para 16 & 17): “16. There is a fundamental difference between a Crl.M.C.No.1434/13 & con.case 7 person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of “false documents”, it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. 17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code rare attracted.” 8. It is clear that for attracting offence u/s.468 IPC, 'forgery for the purpose of cheating' is the main ingredient. Section refers that whoever commits forgery, intending that forged document shall be used for the purpose of cheating, shall be punished. Crl.M.C.No.1434/13 & con.case 8 9. Now the question is whether the petitioners made any false documents in executing and registering the sale deed with intention to sell the property to another person. From the records, it is found that no such averment is made in the complaint. There are certain mistakes crept in the resurvey numbers and transfer of properties. That itself is not sufficient to attract offence u/s.120B, 420, 468 471 IPC. Therefore this is a fit case to invoke the inherent jurisdiction u/s.482 Cr.P.C. Therefore, I quash Annexure-A11 FIR registered by the Balaramapuram Police by invoking the inherent jurisdiction. Crl.M.C. is allowed. In such a situation, it is not necessary to issue a direction to the investigating officer to complete the investigation in a time bound manner and in view of the above, W.P.(C) No.1434/2013 is dismissed. ## **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.1434/13 & con.case 9 Crl.M.C.No.1434/13 & con.case 10