Crl.M.C.No.684 of 2014

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 1ST DAY OF OCTOBER 2014/9TH ASWINA, 1936 Crl.MC.No. 684 of 2014 () -------------------------AGAINST THE JUDGMENT IN OS 298/2012 of PRINCIPAL SUB COURT, PALAKKAD DATED 19.7.2013 CRIME NO. 961/2013 OF PALAKKAD TOWN SOUTH POLICE STATION , PALAKKAD PETITIONERS/ACCUSED 1 TO 6: ----------------------------------- 1. R.THANKAPPAN, AGED 61 YEARS S/O.RAMASWAMI, ATHANIKKAL HOUSE - 30/361 KOTTAPPURAM ROAD, P.O.PUNKUNNAM, THRISSUR. 2. T.MURUGAN, AGED 41 YEARS - S/O.THANKAPPAN, AYYANTHOLE, THRISSUR-3. 3. SURESH BABU @ V.M.SURESH, AGED 43 YEARS S/O.MANI, VANIAM LINE, POONKUNNAM, THRISSUR. 4. C.RAJESH, AGED 27 YEARS S/O.CHANDAN, ATHANIKKAL HOUSE, 30/360 KOTTAPPURAM ROAD, PUNKUNNAM, THRISSUR. 5. SELVAN, AGED 41 YEARS S/O.THANKAPPAN, 30/361, KOTTAPPURAM ROAD PUNKUNNAM, THRISSUR. 6. P.M.RAJU @ RAJAMANI AGED 59 YEARS S/O.MANIKKAN CHETTIYAR, 30/335 NALUKETTIL HOUSE POONKUNNAM, THRISSUR. BY ADV. SRI.C.D.DILEEP ## RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------- 1. CIRCLE INSPECTOR OF POLICE PALAKKAD SOUTH POLICE STATION, PALAKKAD PIN - 678 001. 2. R.VIJAYAN, S/O.RAJAPPAN CHETTIYAR, VANIAN HOUSE, THRIKKUMARAMKUDAN, AYYANTHOLE.P.O., THRISSUR-680 003. 3. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA - 682 031. R2 BY ADV. SRI.SAJEEVAN KURUKKUTTIYULLATHIL R1 & R3 BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## Crl.MC.No. 684 of 2014 () -------------------------- ## APPENDIX ## PETITIONERS' EXHIBITS --------------------------- - ANNEXURE A- A TRUE COPY OF THE GIFT DEED NO.7197/2011 DATED 03.10.2011 EXECUTED BY THE PETITIONERS. - ANNEXURE B- A TRUE COPY OF THE PLAINT IN OS 298/2012 OF THE SUB COURT, PALAKKAD. - ANNEXURE C- A TRUE COPY OF THE COMPROMISE REPORT SUBMITTED BY THE MEDIATOR IN MEDIATION FILE NO.20/2013 DATED 27.03.2013. - ANNEXURE D- A TRUE COPY OF THE AGREEMENT OF SETTLEMENT DATED 28.02.2013 SIGNED BY THE PARTIES ENCLOSED WITH THE ANXC. - ANNEXURE E- A TRUE COPY OF THE JUDGMENT OF SUB COURT IN O.S.NO.298/2012 DATED 19.07.2013. - ANNEXURE F- A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN WP[C] 24263 OF 2013. - ANNEXURE G- A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP [C] 24263 OF 2013. - ANNEXURE H- A TRUE COPY OF THE CERTIFIED COPY OF THE PRIVATE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE CJM COURT PALAKKAD AND FORWARDED TO 1ST RESPONDENT. - ANNEXURE I- A TRUE COPY OF THE FIR DATED 02.05.2013 OF THE PALAKKAD SOUTH POLICE. RESPONDENTS' EXHIBITS : NIL ----------------------------- //TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** -----------------------------Crl.M.C.No.684 of 2014 ------------------------------Dated 1[st] October, 2014 ## **ORDER** The petitioners are accused Nos.1 to 6 in Crime No.961 of 2013 of Palakkad South Police Station. There are altogether 11 accused in the said crime. The allegation against the petitioners and their coaccused is one of commission of offences punishable under Sections 405, 409, 464, 467, 471, 201 and 120B read with Section 34 of the Indian Penal Code. The second respondent herein is the defacto complainant. He filed Annexure-H complaint before the Chief Judicial Magistrate Court, Palakkad and the same was forwarded for investigation under Section 156(3) Cr.P.C. and thereupon the aforementioned crime was registered. The petitioners filed this petition seeking quashment of Annexure-H private complaint and Annexure-I F.I.R. and all further proceedings against them in Crime No.961 of 2013 of Palakkad South Police Station. The case of the petitioners relevant for the proper disposal of this case are as follows:- `Sri Manjallur Mariyamman Kshethra Vikasana Samithi' (for short `the Samithi') was formed by the members of Vanika Vysya Community and got it registered with No.261/2009 under the Societies Crl.M.C.No.684/2014 2 Registration Act, 1860. An extent of 26 cents of land comprised in R.S.No.38/6 of Thenkurussi-2 village was purchased in the name of the Samithi utilising its fund as per document No.2068/2009 of Kuzhalmannam Sub Registry. The Samithi was constituted as a trust for the developmental purpose of the temple. Subsequently, change in persons in various offices in the said committee occurred pursuant to an election. The newly elected Temple Development Committee executed Annexure-A gift deed No.7197/2011 dated 3.10.2011. Subsequent to the registration of the said gift deed some members of the Samithi instituted a suit for declaration and permanent injunction viz., O.S.No.298 of 2012. Evidently, it is a suit filed in a representative capacity under Section 92 of the Civil Procedure Code. Later, pursuant to a settlement arrived at between the parties to the suit Annexure-E compromise decree was passed in the said suit. Consequently, Annexure-A gift deed bearing No.7197/2011 of Palakkad Sub Registrar Office was declared as void. Admittedly, the second respondent who is also a member of the Samithi was not a party to the said suit. Before passing the decree in O.S.No.298 of 2012 the second respondent herein filed Annexure-H complaint and the same was forwarded for investigation under Section 156(3) Cr.P.C. and thereupon the aforesaid crime came to be registered. The contention of the petitioners is that in the light of the compromise decree viz., Annexure-E, Annexure-H complaint filed by the Crl.M.C.No.684/2014 3 second respondent and consequent registration of Crime No.961/2013 of Palakkad South Police Station are liable to be quashed and no further proceedings could be continued based on the said complaint and the F.I.R. 2. I have heard the learned counsel for the petitioners, the learned counsel for the second respondent and also the learned Public Prosecutor. 3. I have already adverted to the circumstances that constrained the second respondent to file Annexure-H complaint and that ultimately led to the registration of the aforesaid crime. The core contention of the petitioners is that a bare perusal of Annexure-E compromise decree and Annexure-H complaint would reveal that the bone of contentions in both the civil suit and the Crl.M.C. is one and the same viz., registration of Annexure-A gift deed. In Annexure-H complaint the second respondent alleged that the property in question covered by Document No.2068/2009 of Kuzhalmannam Sub Registrar Office viz., 26 cents mentioned hereinbefore was purchased in the name of the Samithi. Merely because the petitioners herein along with some others were elected as office bearers of the said Samithi they could not have executed Annexure-A gift deed especially in favour of a non- Crl.M.C.No.684/2014 4 existent Samithi. It is further alleged that a scanning of the terms of Annexure-A gift deed would undoubtedly reveal that the property covered by the same was in fact, transferred in the individual names of the vendees and not in favour of the Samithi as claimed by the petitioners herein. It is also specifically stated therein that no resolution was passed by the general body of the Samithi empowering the petitioners and others to execute such a gift deed and to transfer the aforementioned property in favour of the said persons. It is in the said circumstances that the second respondent filed Annexure-H complaint raising commission of the aforementioned offences against the petitioners and co-accused. In the captioned Crl.M.C. the petitioners are taking up the contention that since the suit instituted by some other members of the Samithi in which the second respondent is also a member entered in Annexure-E compromise decree the second respondent was not justified in fling Annexure-H complaint and causing registration of a crime against the petitioners. It is the further contention of the petitioners that in the light of the compromise decree passed in relation to Annexure-A gift deed the criminal proceedings now launched against the petitioners cannot be proceeded with. To buttress the said contention the learned counsel relied on the decision of this Court in **K.P.George** v. **State of Kerala & Ors. (2013 (1) KLJ 113)** . The learned counsel also relied on a decision of the Hon'ble Apex Court in Crl.M.C.No.684/2014 5 **Krishan Singh** v. **Gurpal Singh ((2010) 8 SCC 775)** to lend support to the aforesaid contention. Resisting the said contention the learned counsel for the second respondent submitted that the compromise arrived at between the plaintiffs and the defendants in the above mentioned suit cannot be a reason for non-prosecution of the petitioners. In short, the contention is that the judgment and decree passed in the civil suit cannot be said to be conclusive and binding on a person who filed a complaint at a later point of time especially when he was not at all a party to the said suit. That apart, it is contended that Annexure-B would reveal that the suit in question was filed in a representative capacity under Section 92 C.P.C.. It is contended by the learned counsel that in terms of Order XXIII Rule 3B before granting leave to compromise the suit in terms of Rule 3B(2) notice as contemplated thereunder should have been published so as to enable those persons who are interested in the suit to appear and to raise objection, if any. It is submitted that in the absence of any such notice it cannot be said that the second respondent is having no _locus standi_ to file the aforesaid complaint against the petitioners in the light of the compromise decree. 4. From the rival contentions it is evident that the question to be considered is whether even in a case where the subject matter of civil case as also the criminal action are based on a same set of facts the Crl.M.C.No.684/2014 6 finding of facts recorded by the civil court would create any bar for the registration of a criminal case or for its continuance ? A scanning of Annexures B and E would reveal that the plaintiffs therein who are also members of the Samithi instituted the aforementioned suit seeking a declaration that Annexure-A gift deed is void. A permanent injunction was also sought for. Annexure-E would further go to show that Annexure-A gift deed was declared as void pursuant to a compromise. It is not disputed before me that the second respondent was not a party in the suit and therefore, he had no occasion to contest the suit. There is nothing on record to show that prior to the grant of leave to compromise the suit a notice as contemplated under Order XXIII Rule 3B(2) was taken out. In other words, there is nothing on record to show that the second respondent is also bound by Annexure-E compromise decree. At the same time, it is evident that the criminal action was initiated by the second respondent in respect of registration of Annexure-A gift deed and the same Annexure-A was subsequently declared as void by a competent civil court based on a compromise decree as per Annexure-E. When the petitioners canvassed the position that by virtue of Annexure-E compromise decree criminal proceedings could not be allowed to be proceeded with, the second respondent contended that the said decree could not take away his right to initiate criminal action against the petitioners and the other co-accused. At any rate, it is contended that Crl.M.C.No.684/2014 7 since the learned Magistrate found it fit to forward Annexure-H complaint for investigation under Section 156(3) Cr.P.C. and pursuant to which the aforementioned crime was registered there is absolutely no justification in interfering with the criminal proceedings and terminating the investigation at the incipient stage itself. In other words, according to the second respondent, no case has been brought out by the petitioners for quashing Annexure-H complaint as also Annexue-I F.I.R. 5. As noticed hereinbefore, to drive home the point that in the light of Annexure-E compromise decree proceedings based on Annexure-H complaint and Annexure-I F.I.R could not be proceeded with the learned counsel appearing for the petitioners relied on the decision of this Court in **K.P.George's** case (supra) as also the decision of the Hon'ble Apex Court in **Kishan's** case (supra). After carefully scanning the decisions referred supra I am of the considered view that the said decisions did not lay down any inviolable position that at all circumstances where a civil case is instituted and criminal prosecution is lauded on the same subject matter the factum compromise of the civil dispute by itself should be taken as a reason to terminate the criminal action. In fact, the said position is very much evident from the very decision relied on by the petitioners in **Kishan's** case (supra) wherein the Hon'ble Apex Court held that the findings of fact recorded by the civil Crl.M.C.No.684/2014 8 court do not have any bearing so far as the criminal case is concerned and vice versa. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or in criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be decided on the basis of the evidence adduced therein. Even while holding so the Hon'ble Apex Court carved out an exception taking note of the provisions of Sections 41 to 43 of the Evidence Act, 1872. It was held further therein thus:- “However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration.” In **K.P.George's** case (supra) the criminal action was initiated alleging that a particular document was a fabricated one. In respect of the very same document a civil suit was instituted and the civil court as per Annexure-F judgment, referred as such in that decision, adjudicated the disputes canvassed by the defacto complainant who was the defendant in that suit and decreed the suit in favour of the plaintiff, an accused therein. The petitioner therein took up the contention that when the civil court has conclusively determined the authenticity and reliability of the document viz., promissory note, which is alleged to have been forged, it Crl.M.C.No.684/2014 9 could not have been the basis of a prosecution and therefore, contended that the said action is nothing but an abuse of the process of the court. Paragraph 2 in that decision opens with the observation that a judgment rendered by a civil court as such is not binding or conclusive in a criminal proceedings having some nexus with the disputes adjudicated in the civil proceedings. Evidently, in the said judgment a decision of the Hon'ble Apex Court in **Premshanker** v. **IG of Police** reported in **2002 (3) KLT 389 (SC)** was referred to. That was a case wherein the Hon'ble Apex Court considered as to under what circumstances a judgment rendered by a civil court could be looked into where civil proceedings and criminal case arise from the same cause. It has got a limited value when such a judgment rendered in the civil case falls only within the ambit of Section 43 of the Evidence Act. It is further held therein that adjudication made over the validity of such a document by the civil court which is also a subject matter in the criminal proceedings is a material circumstance in judging the sustainability of the complaint later raised before the Magistrate or police. In this case, obviously, Section 43 of the Evidence Act is not applicable and what is applicable is Section 42 of the Evidence Act. Section 42 of the Evidence Act reads thus:- “ **42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41.** - Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate Crl.M.C.No.684/2014 10 to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.' Going by the provisions under Section 42 of the Evidence Act a judgment or order or decree other than those mentioned in Section 41 though relevant are not the conclusive proof of that which they stated. In short, in the light of the decisions referred above, it can only be said that the criminal proceedings have to be adjudicated upon based on the evidence let in, in that case. True that a decree passed by a competent civil court if it is one falling under Section 42 of the Evidence Act that is a material to be looked into but, at the same time, it cannot be taken as one which is conclusive and binding on the parties. That exactly is the dictum laid down by the Hon'ble Supreme Court in the decision in **Kishan's** case (supra). In this case, certain serious allegations were raised in Annexure-H complaint with respect to the registration of Annexure-A gift deed. Even while admitting the fact that the petitioners are the office bearers of the Samithi the second respondent alleged in Annexure-H complaint that as per Annexure-A gift deed the first petitioner transferred the property in favour of a non-existent Samithi and in the said circumstances virtually, he transferred the property belonging to the Samithi in favour of petitioners 2 to 6. I have already taken note of the fact that the allegation of the second respondent is that Crl.M.C.No.684/2014 11 no standing committee meeting was convened and no resolution was passed by the general body of the Samithi authorising the first petitioner to transfer the property mentioned hereinbefore in favour of petitioners 2 to 6. That apart, it is stated that one of the accused in the aforementioned crime who in fact, registered Annexure-A was functioning as the Sub Registrar of Palakkad wherein Annexure-A gift deed was registered. It is the further contention of the second respondent that the property lies within the limits of SRO Kuzhalmannam and in the said circumstances going by the provisions under Section 28 of the Registration Act any document relating the immovable property involved in this case could not have been registered in any other place other than Sub Registrar Office, Kuzhalmannam. The learned counsel for the petitioners submitted that in the light of Section 30 of the Registration Act any Registrar may in his discretion, receive and register any document which might be registered by any sub-registrar subordinate to him. The contention of the second respondent to resist the said contention is that a bare perusal of the document in question itself would reveal that the same was registered at Sub Registrar Office, Palakkad and it is not registered by the District Registrar invoking the power under Section 30 of the Registration Act. I have adverted to such contentions only to show that serious allegations were raised and such allegations which are raised in Annexure-A complaint cannot be held as Crl.M.C.No.684/2014 12 insufficient to satisfy the ingredients of the offences alleged against the petitioners. I may hasten to add that I shall not be understood to have made any observation touching the merits of rival contentions. The question is whether in such circumstances this Court would be justified in stalling the investigation and bringing an abrupt termination of the proceedings at the incipient stage itself. I had an occasion to consider such a question in **Bhaskaran** v. **State of Kerala (2013 (2) KHC 666)** . It was held therein that when a complaint carries allegations of commission of cognizable offence and when those allegations are sufficient to attract the offence alleged it is a matter for investigation and such matters could not be stultified at the incipient stage. It is also held therein that in such circumstances on receipt of complaint of a cognizable case, the concerned Magistrate got the power to order investigation under Section 156(3) Cr.P.C. In this case, evidently, the learned Magistrate on receipt of Annexure-H complaint forwarded the same for investigation under Section 156(3) Cr.P.C. and it was pursuant to the receipt of the same that Crime No.961 of 2013 of Palakkad South Police Station was registered. In view of the discussions as above, I have no hesitation to hold that the factum of passing of Annexure-E compromise decree cannot be a reason for this Court to stall the investigation and to cause an abrupt termination of all further proceedings pursuant to the registration of Crime No.961 of 2013 of Palakkad South Police Station Crl.M.C.No.684/2014 13 and whether the petitioners, at a later point of time, could rely on Annexure-E in the light of the Evidence Act is a matter to be decided at the appropriate stage if pursuant to the investigation in Crime No.961 of 2013 a final report is laid alleging commission of offences under any of the offences mentioned hereinbefore by the police in terms of the provisions under Section 173(2) Cr.P.C. and if the court thinks it fit to proceed based on that report. Certainly, the observations herein shall not influence the investigating officer in Crime No.961 of 2013 of Palakkad South Police Station and he shall have to continue with the investigation in accordance with law. In short, leaving liberty to raise all the contentions based on Annexure-E in case of necessity and in accordance with law, this Crl.M.C. is dismissed. Sd/C.T.RAVIKUMAR Judge TKS