Joseph, S/o Chacko v. Abdul Gafoor and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 16TH DAY OF AUGUST 2012/25TH SRAVANA 1934 ## CRL.A.No. 1107 of 2009 -------------------------- AGAINST THE ORDER/JUDGMENT IN CRLP.1353/2008 DATED 04-06-2009 CC.738/2001 of J.M.F.C.,PAYYANNUR APPELLANT/COMPLAINANT: ------------------------ JOSEPH, S/O CHACKO, AGED 62, NAKKAMALA, KUTTOOR, TALIPARAMBA. BY ADVS.SRI.MATHEW KURIAKOSE SRI.G.GIREESH RESPONDENTS/ACCUSED & STATE: ------------------------------ 1. ABDUL GAFOOR, S/O KARIPPA ABOOBACKER, AGED 37, MATTOOL KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE - PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR – SMT.LALIZA.T.Y. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 1 ## **V.K.MOHANAN,J. --------------------------------------------Crl.Appeal No.1107 of 2009 ---------------------------------------------Dated this the 16[th] day of August, 2012** ## **JUDGMENT** The appellant is the complainant in C.C.No.738 of 2001 on the file of the court of the Judicial Magistrate of the First Class, Payyannur, since he is aggrieved by the judgment dated 11/09/2007 of the trial court by which the learned Magistrate acquitted the accused under Section 248 (1) of Cr.P.C., who faced prosecution for the offence punishable under Section 468 of I.P.C. at the instance of the appellant/complainant. 2. The case of the complainant is that himself and his wife were possessing 2.68 acres of property in R.S.No.119/A1, 1C at Kuttur amsom desom and the said property was sold to the accused for a total consideration of Rs.7,63,800/-, out of which he had paid Rs.2,00,000/- as advance and agreed to pay the balance amount after three Crl.A.No.1107/2009 2 months and thus the complainant and his wife agreed to execute the sale deed at the time of payment of the balance amount. Thus an agreement was also executed to that effect. According to the complainant the original of the said agreement was kept with the accused and the complainant was given a photo copy of the same. According to the complainant there was a verbal agreement with the accused that he could tap the rubber trees in the property. It was further agreed that the accused had to pay Rs.1,00,000/within 30 days of the agreement. Thus according to the complainant, thereafter the accused was possessing the property and tapping the rubber trees thereon. According to the complainant the accused did not pay the amount even after lapse of one month. Therefore the complainant did not allow the accused to tap the rubber trees. According to the complainant the trees were damaged due to the careless tapping. It is also the case that the complainant had paid advance for purchasing another property and the accused thereafter failed to comply with the terms of the agreement. Crl.A.No.1107/2009 3 3. It is also the case of the complainant that even though the accused failed to perform his part, the accused filed a complaint against the complainant and his wife on the basis of which Crime No.156 of 1997 was registered with the Peringome Police Station and the allegation therein was that there were 450 rubber trees in the agreement was entered into by showing some other properties. He had also produced photo copy of the agreement in which it can be seen that a portion for tapping 452 rubber trees were also entered in the said agreement. According to the complainant on his enquiry with the scribe, he could understand that the said portion was entered as requested by the accused, after the agreement. Thus it is contended that the forgery was committed by the accused with an intention to cheat the complainant and by using the said documents the accused had given a case against the complainant. Thus according to the complainant the accused had committed the offence punishable under Section 468 of the I.P.C. Crl.A.No.1107/2009 4 4 On receiving summons issued from the court, the accused entered appearance and thereafter an enquiry was conducted under Section 244 of Cr.P.C. during which PW.1 was examined and thereafter the accused was heard and a formal charge was framed against him for the said offence and when the said charge read over to him, he denied the same and pleaded not guilty. During the further evidence, PW.1 was cross-examined and PWs.2 to 5 were also examined and Exts.P1 to P4 were marked from the side of the complainant. 5. During the trial when PW.1 was examined he had deposed in terms of his allegation. According to him the accused has filed a criminal case against him and he was cheated. According to the complainant the said case was filed by forging the agreement by adding more number of trees for tapping. According to the complainant on enquiry with the scribe he could understand that the said portion was inserted as demanded and directed by the accused. According to the complainant as the accused had spoiled Crl.A.No.1107/2009 5 the trees by improper tapping, the complainant was forced to sell the property for a lesser price. According to the complainant as the accused had filed the criminal case, he sustained mental agony and physical loss. When PW.2 the scribe was examined he had deposed that the agreement between the complainant and accused was prepared by him as directed by the senior of the accused, namely, one Damodharan and the draft was prepared by the said Damodharan. Ex.P1 is the draft of that agreement. Photo copy of the agreement written by PW.2 is marked as Ext.P2. According to PW.2, after one month the accused and two others approached him and requested to add a portion with regard to the permission for tapping rubber trees. The copy of the said agreement (certified photo copy of a photo copy) was marked as Ext.P3. PW.2 has deposed that the number of trees seen in Ext.P3 was written by some other person. PW.3 is an eye witness to the agreement and he had deposed more or less in support of the complaint. He had deposed that accused had forged the agreement and he had Crl.A.No.1107/2009 6 taken the witness to the office of the scribe for making correction. But PW.3 has deposed that he has not gone to the office, though the accused had gone in his autorickshaw, anticipating that the same would become a problem in the future days. The agreement which he got from the accused is marked through PW.3 as Ext.P4. PW.4 is one Damodharan, who had written Ext.P1 draft, had admitted about the preparation of Ext.P1 draft and he had also stated that the original agreement was written by PW.2 who was working with him. PW.5 is the S.H.O. of Peringome Police Station. 6. Trial court after considering the evidence and materials on record has found that the complainant had orally allowed the accused for tapping rubber trees at the time of the transaction. But his contention is that the number of trees were not mentioned in the agreement and the same was not written by the scribe at the time of execution of the original agreement, but the same was inserted by the accused thereafter. The learned Magistrate Crl.A.No.1107/2009 7 has found that the original agreement is not produced before the court. The complainant has also not produced any records of the criminal case allegedly filed by the accused against the complainant. Thus the learned Magistrate has also found that absolutely there is no satisfactory evidence as to how the alleged portion was made use of the accused. The learned Magistrate has also found that, though the complainant alleged that a portion was inserted in the agreement, there is no satisfactory evidence as to who exactly committed the same. Ext.P3 is claimed to be the copy of the forged agreement, in which also there is a condition for tapping 452 rubber trees and the same is not seen in Ext.P2, which is a copy of an original agreement. The learned Magistrate has entered into an elaborate discussion in paragraph 13 of the impugned judgment, particularly with respect to the alleged forgery or insertion about the number of rubber trees in the agreement. The learned Magistrate after considering the entire evidence and materials and particular evidence of Crl.A.No.1107/2009 8 PW.3 came into a conclusion that PW.3 is not at all reliable. According to the learned Magistrate on a perusal of Ext.P4 would show that the same was an agreement, alleged to have been executed by the accused stating that the witness, namely, Prabhakaran and Raveendran PW.3 have no connection with the duplicate agreement made. The learned Magistrate refused to give any weightage to Ext.P4, as the same is against normal human conduct. Thus according to the learned Magistrate there is nothing on record to find that the alleged forgery, even if assumed to have been done, was with an intention to use that document for the purpose of cheating and therefore the ingredients of Section 468 of I.P.C. is not attracted. Consequently it is held that the complainant has not succeeded in satisfactorily proving the allegation against the accused. 7. In the light of the above discussions on the basis of the evidence and materials referred to in the impugned judgment, it can be seen that there is no satisfactory evidence to show how the alleged insertion for added Crl.A.No.1107/2009 9 portion was made use of by the accused and who made the same. The original agreement has also not produced before the court. Thus on examination and close scrutiny of the impugned judgment it can be seen that the learned Magistrate refused to accept the case of the complainant by assigning cogent and acceptable reason and thus acquitted the accused. 8. The reasoning given by the learned Magistrate in support of his finding and recording the acquitting in favour of the accused appears to be correct and the same are supported by the evidence and materials on record. The appellant has no case that the court below has failed to consider any materials or evidence which are in favour of the complainant, or have overlooked the same. If that be so, even if this appeal is entertained any further, there is not even a remote scope for interfering with the above finding of the court below and also acquittal recorded in favour of the accused. Thus according to me the appellant has miserably failed to make out a prima facie case in Crl.A.No.1107/2009 10 support of his challenge against the judgment impugned and failed to show that the said judgment of the trial court is perverse or illegal. 9. In a recent decision of the Apex Court reported in **State of Rajasthan** v. **Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the Hon'ble Apex Court has held that, “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.” Thus, on examination of the facts and circumstances involved in the present case, in the light of the above dictum laid down by the Apex Court in the decision cited supra, I find that no interference is warranted, even in case an appeal is entertained against the above finding and the order of acquittal and there is no substantial ground to reverse the order of acquittal. Crl.A.No.1107/2009 11 In the light of the above facts and circumstances and for the discussion there is no meaning in retaining this appeal on the file of this Court and thus the appeal fails. In the result, the above appeal is dismissed accordingly. ## **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge