K. P. Vijayan v. E. Azees and others and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940 ## Crl.MC.No. 4361 of 2013 AGAINST THE ORDER/JUDGMENT IN CMP 4539/2013 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHERTHALA DATED 16-08-2013 ## PETITIONER/COMPLAINANT: K.P.VIJAYAN, AGED 59 YEARS, S/O.PARAMESWARAN,KALAPPURAKKAL HOUSE, ERAMALLOOR P O, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.K.RAMANADHAN ## RESPONDENT/ACCUSED & STATE: - 1 E.AZEES, AGED 55 YEARS, S/O.B IBRAHIM, PUTHIYAVEETTIL , HOUSE NO 14/3A,CHULLIKKAL, THOPPUMPADI VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT, KOCHI-5 - 2 SUNNY STANLEY, AGED 47 YEARS, S/O.STALEY MORIS, MARAM VEEDU, EZHUPUNNA SOUTH P O, (PARTNER KARUMANCHERRY FINANCIERS H.O EZHUPUNNA SOUTH P.O.,) ALAPPUZHA DISTRICT, PIN-688580 3 GEORGE MORIS, AGED 52 YEARS, PARTNER KARUMANCHERRY FINANCIERS, H.O.EZHUPUNNA SOUTH P O, ALAPPUZHA DIST-688 580. 4 BENET MORIS, AGED 62 YEARS, PARTNER KARUMANCHERRY FINANCIERS, H.O.EZHUPUNNA SOUTH P O, ALAPPUZHA DIST-688 580. 5 PAUL MORIS @ PAULACHAN, AGED 57 YEARS, PARTNER KARUMANCHERRY FINANCIERS, H.O.EZHUPUNNA SOUTH P O, ALAPPUZHA DIST-688 580. - 6 STATE OF KERALA, REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADV. SRI.K.R.VINOD SRI. D.CHANDRASENAN, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C. No. 4361 OF 2013 -2- ## **ORDER** The petitioner, who is the accused in C.C. No. 54 of 2008 on the file of the Judicial First Class Magistrate Court-II, Cherthala for offences punishable under Sections 465, 467, 468, 470 and 471 IPC, seeks to quash Annexure A7 order dated 16.08.2013. 2. The case of the prosecution is as follows: Respondents 2 to 4 are the brothers of the father of the 2[nd] respondent. The allegation is that respondents 1 to 5 colluded and fabricated a promissory note as if issued by the petitioner and used it to file a suit. On 12.04.2006, at about 5.15 p.m., respondents 2 to 5 and some others forcefully compelled the petitioner and made him to sign in certain blank papers, stamp papers and on the revenue stamps affixed in blank papers. The petitioner has filed CMP No. 1869 of 2006 before the court below on 20.04.2006 which was forwarded to Aroor Police Station for investigation under Section 156(3) Cr.P.C. Thereafter, with an intention to obtain an undue profit, respondents 1 to 5 forged and fabricated one of the aforesaid blank papers, in which the signature of the petitioner was forcefully obtained over a revenue stamp, as if a promissory note issued by the petitioner for Rs. 3,00,000/-. The first respondent filed C.M.P No. 92 of 2006 on 26.04.2006 before the District Court (Vacation Court), Alappuzha. Thereupon, the petitioner filed a another complaint before the Judicial First Class Magistrate Court- Crl.M.C. No. 4361 OF 2013 -3- II, Cherthala against respondents 1 to 5 alleging forgery and the same was taken on file as C.C. No. 54 of 2008. Thereafter, the petitioner has filed Annexure A2 application to call for the original promissory note from the Sub Court, Cherthala and the same was dismissed vide Annexure A3 order holding that the petitioner had not taken any steps to produce a certified copy of the promissory note. The petitioner was examined and the certified copy of the promissory note filed by him and some other documents were omitted to be marked during such examination. The petitioner had cited the Sub Inspector of Police, Aroor Police Station as a witness in the preliminary witness schedule filed along with the complaint and had filed the Witness Bata Remitting Memo. He has also filed an additional witness schedule and an application to summon the witnesses. But, the court below closed the evidence and the case is posted for recording 313 statement of the accused. Thereafter, the petitioner filed Annexure A6 application under Section 311 Cr.P.C for re-examining himself for marking the promissory note and other documents and also for examining the other witness. The Judicial First Class Magistrate-II, Cherthala, as per Annexure A7 order dated 16.08.2013, dismissed the same. Aggrieved by the same, the petitioner has filed this Crl.M.C. 3. The learned counsel for the petitioner contended that the observations of the court below that the petitioner had filed a similar Crl.M.C. No. 4361 OF 2013 -4- petition on earlier occasion also and the same was dismissed vide order dated 05.06.2013, that the petitioner had not put forward any satisfactory explanation for coming up with a similar application and that there is no explanation for the petitioner in not challenging the earlier order in the earlier CMP, have no relevance at all. The learned counsel for the petitioner contended that Annexure A2 application was only to call for the promissory note in O.S. No. 35 of 2006 from the Sub Court, Cherthala and that the very same court below had dismissed the said application on a finding that the petitioner could not produce the certified copy of the said promissory note. As per Annexure A6 application, what the petitioner has sought for was to mark certain documents, including the certified copy of the very same promissory note. The trial court, as per Annexure A7 order, has refused to accept the certified copy of the said promissory note. 4. According to the petitioner, the witnesses as shown in the witness schedule are highly necessary for proving the case. In fact, the petitioner has filed a complaint in the year 2008 and after enquiry it was numbered as C.C. No. 54 of 2008 and for the last 10 years, the case was pending before the Judicial First Class Magistrate-II, Cherthala due to the latches and negligence on the part of the petitioner. In fact, the petitioner herein has filed an earlier application with the same reason, which was dismissed vide Annexure A3 order dated 05.06.2013 in CMP Crl.M.C. No. 4361 OF 2013 -5- No. 3345 of 2013 in C.C. No. 54 of 2008 on a finding that there is no bar for the petitioner to get copy of the promissory note from the Munsiff's Court. It was revealed that the Sub Court, Cherthala has disposed of the suit as withdrawn. The civil suit was filed in the year 2008 and so far the petitioner has not applied to get the promissory note from the court. That application was dismissed on 05.06.2013 against which the petitioner has filed CMP No. 4539 of 2013 under Section 311 Cr.P.C. In that application, he has sought for examination of himself in order to get an attested copy of a pro-note marked and also for examination of two other witnesses. The court below has dismissed the same on a finding that the similar application filed by the petitioner has been dismissed vide order dated 05.06.2013, that no satisfactory explanation has been given by the petitioner for the filing of the similar application and that he has not challenged the earlier order in the CMP. 5. In fact, the allegation is that the respondents/accused has fabricated a promissory note and filed a suit against them. Immediately after the filing of the civil suit, the petitioner has filed a complaint before the Magistrate Court, Cherthala. That matter has not come to an end so far. I find that the attempt of the petitioner is to drag the matter. The learned counsel for the petitioner has placed reliance on Vijayadas K.V. v. State of Kerala [2017 (4) KHC 91, wherein it is held that the recalling and re-examination of a witness cannot be done to fill up lacuna or to Crl.M.C. No. 4361 OF 2013 -6- cover up the defect or to rectify the mistake crept in evidence. It can never be to modify or rectify the mistake which occurred in the prosecution case and the court has to be very cautious while exercising power under Section 311 at a belated stage. 6. The court below has considered all the aspects and ultimately dismissed the application. I do not find any ground to interfere with the order of the court below. Over and above, the petition has been filed at the time when the case was posted for recording 313 statement of the accused. So, the attempt of the petitioner is to drag the entire proceedings and to cause much difficulties to the respondents/accused. Therefore, I am not inclined to allow this application. Accordingly, this Crl.M.C is dismissed. However, the court below is directed to dispose of the case within one month from the date of receipt of a copy of this order. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl.M.C. No. 4361 OF 2013 -7- ## **APPENDIX** PETITIONER'S/S EXHIBITS: EXHIBIT A1 THE TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE JUDICIAL IST CLASS MAGISTRATE COURT II, CHERTHALA WHICH WAS TAKEN INTO COGNIZANCE AS CC 54/2008 - EXHIBIT A2 TRUE COPY OF CMP 3345/2013 IN CC NO. 54/2008 BEFORE THE JUDICIAL IST CLASS MAGISTRATE COURT II, CHERTHALA DTD 30/4/2013 - EXHIBIT A3 TRUE COPY OF THE ORDER IN CMP 3345/2013 IN CC 54/2008 BY THE JFCM COURT, II,CHERTHALA DTD. 5/6/2013 - EXHIBIT A4 THE TRUE COPY OF THE WITNESS BATA REMITTING MEMO FILED BY THE PETITIONER BEFORE THE JFMC II, CHERTHALA, DTD 7/5/2013 FOR SUMMONING THE INVESTIGATING OFFICER - EXHIBIT A5 THE TRUE COPY OF THE ADDITIONAL WITNESS SCHEDULE FILED BY THE PETITIONER DTD 7/5/2013 - EXHIBIT A6 THE TRUE COPY OF THE APPLICATION CMP NO 4539/2013 IN CC 54/2008 FILED BY THE PETITIONER U/S.311 OF CRPC DTD 27/6/2013 - EXHIBIT A7 THE CERTIFIED COPY OF THE ORDER IN CMP 4539/2013 DTD 16/8/2013 IN CC 54/2008 ## **RESPONDENTS' EXHIBITS: NIL** /True Copy/ PS to Judge. Crl.M.C. No. 4361 OF 2013 -8-