K.C. Thomas and others v. Annamma Mathew and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933** **Crl.MC.No. 2369 of 2011()** **O.S.NO.35/2010 OF SUB COURT, THODUPUZHA** **-----------------------------------** ## **PETITIONERS/ COMPLAINANTS :** ## **----------------------------------------------** **1. K.C.THOMAS,S/O.KALARIKKAL CHACKO, KARUTHEDATH PUTHEN PURAYIL,KARIMKUNNAM KARA, THODUPUZHA TALUK.** **2. JEESHO,S/O.THOMAS, DO -DO-** **3. MARIYAMMA, W/O.THOMAS, DO-DO-** **4. ROSAMMA @ CICI, W/O.LATE JOSE, DO-DO-** **5. SEENA, D/O.LATE JOSE, -DO-DO-** **6. SANAL, S/O.LATE JOSE, -DO-DO-** **7. SIMI, D/O.LATE JOSE, -DO-DO-** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS/ACCUSED AND STATE:** ## **---------------------------------------------------------** **1. ANNAMMA MATHEW, W/O.MATHEW, D/O.KALARICKAL CHACKO,KARUTHEDATH PUTHENPURAYIL KARIMKUNNAM KARA, THODUPUZHA TALUK 685 584.** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY ADV. SMT.P.V.KOCHUTHRESIA R2 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **AV** ## **CRMC.NO.2369/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **A - I : COPY OF THE PLAINT FILED BY THE RESPONDENT DATED 29.03.2010.** **A - II : COPY OF THE WRITTEN STATEMENT DT.19.05.2010.** **A – III : COPY OF THE WILL 04.07.1969.** **A – IV : COPY OF THE DOCUMENT DT.25.10.1986** **A – V : COPY OF THE SALE DEED DT.14.10.1986 - DOCUMENT NO.2612/86** **A – VI : COPY OF THE SALE DEED DATED 27.10.1986.** **A – VII : COPY OF THE DOCUMENT DATED 20.12.1960.** **A – VIII : COPY OF THE DOCUMENT NO.1930/1969.** **A – IX : COPY OF THE COMPLAINT DATED 22.04.2010 BY THE RESPONDENT.** **A – IX(a) : TRANSLATION.** **A – X : COPY OF THE PARTITION DEED.** ## **RESPONDENT'S ANNEXURES : NIL** **/TRUE COPY/** **P.A TO JUDGE** **AV** ## **N.K.BALAKRISHNAN, J. ---------------------------------------------------Crl.M.C.No.2369 of 2011 ---------------------------------------------------Dated this the 27th day of October, 2011** ## **Order** The petitioners are the accused in C.C.No.833/2010 of JFCM Court-I, Thodupuzha. The complaint was filed alleging commission of offences under Sections 120B, 465, 467, 471, 474 etc. of IPC. It was alleged that the property belonged to one Ulahannan Chacko who died intestate on 6.7.1969. Chacko left behind his wife, six female children and two sons, of whom one son Jose died on 5.11.2009 leaving behind his wife and three children. The first accused is the younger brother of the complainant and accused 2 to 4 are stated to be his wife and children. Other accused are stated to be the allies of other accused. The properties mentioned in para 4 of the complaint belonged to late Chacko. It is alleged that the accused entered into a criminal conspiracy and with the help of the 9[th] accused, they collected some old stamp papers and by forging the signature of the father, a Will was fabricated in the name of the first accused. It is also alleged that two dead persons were shown Crl.M.C.2369/11 2 as witnesses to that Will. According to the complainant, she and other legal heirs of deceased Chacko came to know of the forgery and fabrication of the documents only on 30.3.2010 when the complainant applied for a survey sketch. Alleging forgery and fabrication as mentioned above, the complaint was filed. The learned counsel for the complainant would submit that after conducting enquiry under Section 202 Cr.P.C. the case was taken on file under Sections 465, 467, 471 etc. of IPC. 2. The petitioners have filed this petition to quash the aforesaid case contending that the dispute is purely civil in nature. According to them, the question whether the Will relied upon by the accused is a true and genuine one and whether the subsequent documents registered based on the said Will are valid are matters to be decided in the suit. A civil suit is stated to be pending. Hence, according to the petitioners, since the very same question is involved in the suit, this criminal complaint is to be quashed. This argument is vehemently resisted by the learned counsel for the complainant. It is pointed out that the question whether a Will was forged by making use of an old stamp paper and getting the signatures of two dead persons affixed on the 3 Crl.M.C.2369/11 said Will can be gone into only the the criminal complaint. Though the question of validity of the Will may be the issue involved in the suit, that does not preclude the criminal court trying the case if the offence of forgery is disclosed. It is further argued that the learned Magistrate after considering the averments in the complaint and the sworn statement of the complainant and the witnesses and applying his mind, took the case on file. According the learned counsel, there is no reason to invoke the jurisdiction under Section 482 Cr.P.C. 3. Though it was vehemently argued on behalf of the accused/petitioners, the question regarding the genuineness of the Will is only to be considered in the suit, I find it unable to accept that contention in the particular factual matrix of this case. The learned counsel for the complainant would submit that the Will was forged by making use of a very old stamp paper of 8 annas. Had the Will been executed on the date when it was alleged to have been executed and come into force on the death of the testator (the person who was stated to have executed the Will), petition would have filed for getting the Will probated as the law stood in force in 1969. But admittedly no probate Crl.M.C.2369/11 4 proceedings was initiated. A deed of relinquishment was also executed and registered in 1986 which also according to the complainant will demolish the case of the accused. The question whether the Will was forged by making use of a very old stamp paper and by getting two dead persons as witnesses is certainly a matter which can be gone into in the criminal complaint as well. It is submitted by the learned counsel for the complainant that all the legal heirs of the deceased Chacko are very aged persons and the sole idea of the accused is to see that the witnesses who are to speak in support of the complainant die as most of them are aged more than 70 years. The learned counsel for the complaint submits that the criminal proceedings should not be quashed merely because of the pendency of the civil proceedings between the same parties. The inherent power under Section 482 Cr.P.C. should be exercised sparingly. The decision of this court in **Nandakumar v. Income Tax Officer** (2009(2) KLT 948) and the decision of the apex court in **B.S.Joshi and others v. State of Haryana and another** (AIR 2003 SC 1386) have no application to the facts of this case. There are prima facie materials to proceed against the accused and so this court will Crl.M.C.2369/11 5 not be justified in invoking the inherent power to quash the proceedings. The decisions of the Supreme Court in **Kamaladevi Agarwal v. State of W.B** . [ (2002) 1 SCC 555] and **Syed Askari Hadi Ali Augustine Imam v. State (Delhi Administration)** [ (2009) 5 SCC 528] have been relied upon in this connection. In the result, this Crl.M.C. is dismissed. **N.K.BALAKRISHNAN, JUDGE.** srd Crl.M.C.2369/11 6