K.P.George v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **WEDNESDAY, THE 14TH DAY OF NOVEMBER 2012/23RD KARTHIKA 1934 Crl.MC.No. 4926 of 2008 (A) --------------------------CC.472/2008 of JUDICIAL FIRST CLASS MAGISTRATE,PERUMBAVOOR PETITIONER/ACCUSED: ------------------K.P.GEORGE, AGED 50, S/O. POULOSE, KAKKATTUKUDI HOUSE, THURUTHY VILLAGE, VENGOOR WEST. BY ADV. SRI.K.S.RAJEEV** **RESPONDENTS/STATE/COMPLAINANT: -----------------------------1. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.R.SAJEEV, AGED 41, S/O. RAMAKRISHNAN NAIR, KAKKATTY VEEDU, REYAMANGALAM, ERNAKULAM DISTRICT. 3. VINAYA KUMAR, AGED 46, S/O. RAMACHANDRAN NAIR, KALLELI VEEDU, THURUTHY P.O. ERNAKULAM DIST. R2 BY ADV. SRI.K.SUNILKUMAR BY ADV.SRI.R.RANJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **AS** ## **Crl.MC.No. 4926 of 2008 (A)** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** |**ANN.A:**|**COPY OF COMPLAINANT DATED 25/10/2007.**| |---|---| |**ANN.B:**|**COPY OF FIR NO.808/07 OF KURUPPAMPADY POLICE DATED**| ||**31/12/2007.**| |**ANN.C:**|**COPY OF FINAL REPORT DATED 10/1/2008.**| |**ANN.D:**|**COPY OF PLAINT IN O.S.NO.165/04 ON THE FILE OF MUNSIFF**| ||**COURT, PERUMBAVOOR DATED 29/4/2004.**| |**ANN.E:**|**COPY OF WRITTEN STATEMENT FILED BY THE SECOND RESPONDENT IN**| ||**O.S.NO.165/04, DATED 24/11/2004.**| |**ANN.F:**|**COPY OF JUDGMENT IN OS 165/04, DATED 4/9/2007.**| |**ANN.G:**|**COPY OF DECREE IN O.S.NO.165/04 DATED 4/9/2007.**| ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** **P.A.TO JUDGE** **AS** ## **S.S.SATHEESACHANDRAN, J.** **-----------------------------------------------Crl.M.C.No.4926 of 2008** **------------------------------------------------Dated this the 14[th] day of November, 2012** ## **O R D E R** Petitioner is one among the accused in C.C.No.472 of 2008 on the file of the Judicial Magistrate of the First Class, Perumbavoor. He stands indicted with some other accused for the offences under Section 468, 406, 420 read with Section 34 of the Indian Penal Code, on a report filed by the Sub Inspector of Police, Kuruppampady Police Station, Ernakulam. The gist of the accusation is that while the de facto complainant pledged gold ornaments with the first accused, a financial concern, a blank stamp paper was got signed from him and later filling up entries in that paper and also attesting it by two others including the present petitioner, that fabricated document was ## **Crl.M.C.No.4926 of 2008** **:: 2 ::** made use of, to file a suit against the de facto complainant before the civil court. Complaint filed imputing allegation as aforesaid before the magistrate being forwarded to the Station House Officer, crime was registered incorporating various penal offences, and, later, after investigation final report under Section 173(2) of the Code of Criminal Procedure {for short “the Code”}, indicting the accused persons for the aforesaid offences was laid before the court. Learned counsel appearing for the petitioner, adverting to Annexure F judgment rendered by the civil court, contended that after adjudicating the disputes canvassed by the de facto complainant, who was the defendant in that suit a decree had been passed in favour of the plaintiff, who is also proceeded as one among the accused in the present case. Where the civil court has conclusively determined the authenticity and reliability of the document, a promissory note, ## **Crl.M.C.No.4926 of 2008** **:: 3 ::** which is alleged to have been forged, and that forms the basis of the prosecution in the case, the proceedings are nothing but an abuse of the process of the court, is the submission of the counsel. With the above circumstances, learned counsel also submitted that the document which is alleged to have been forged, promissory note tendered in the civil court, is still retained by that court, and the investigating agency at no point of time either collected or sent it for any scientific examination. When such be the case, it is contended that the proceedings initiated against the petitioner in the abovesaid criminal case are liable to be quashed invoking the inherent powers of this court under Section 482 of the Code. 2. Though a judgment rendered by a civil court as such is not binding or conclusive, a proceeding having some nexus with the disputes adjudicated in such judgment is projected before the ## **Crl.M.C.No.4926 of 2008** **:: 4 ::** criminal court, having regard to totality of the facts and circumstances involved in the case it can be looked into. Irrespective of the question whether the judgment of the civil court has any relevancy or not, where exercise of inherent powers of this court is called for to impeach a criminal proceeding as an abuse of the process of the court, it can definitely be taken note of. In Premshanker v. IG of Police {2002(3) KLT 389 (SC)}, three Judges Bench of the Apex Court has considered to what extent and under what circumstance judgment rendered by a civil court can be looked into where criminal case and civil proceedings arise from the same cause. It has got a limited value when such a judgment falls only within the ambit of Section 43 of the Evidence Act. But, relevancy of judgment under the aforesaid Section and limited scope thereof, would not interdict this court where the judgment rendered itself is shown to be founded over a document, which is challenged **Crl.M.C.No.4926 of 2008** **:: 5 ::** as forged to set the criminal law in motion. Before filing of the complaint by the de facto complainant, it is seen, the civil court has rendered a judgment, after hearing the complainant/defendant, holding him liable for the amount covered by the suit document. When such be the case, the dispute with reference to the validity of such suit document already determined by the civil court cannot be the subject matter of a criminal action. If there are circumstances surrounding the creation of that document constituting one or other offence covered by the IPC, no doubt, criminal law can also be set into motion by the aggrieved party against the affected party. Adjudication made over the validity of such document by the civil court, is a material circumstance in judging the sustainability of the complaint later raised before the magistrate or police. I also find some force in the submission made by the counsel that where the offences are ## **Crl.M.C.No.4926 of 2008** **:: 6 ::** imputed in respect of a promissory note, which is alleged to have been forged, investigating agency should have taken steps to seize the document, for its production before court. Where the allegation is filling up a blank signed paper, which was got signed from the complainant, and the genuineness of that document was adjudicated before civil court earlier, if at all any ground existed for prosecution on a premise that it was a forged document, its seizure and production is vital. Non-seizure of that document during the investigation of the crime in the backdrop that there was already an adjudication over the validity of that document by the civil court cannot be appreciated as an innocuous circumstance. Within ten days after the filing of the complaint and registration of the crime, and citing three witnesses, who included de facto complainant the final report has been laid imputing various penal offences against the accused persons. ## **Crl.M.C.No.4926 of 2008** **:: 7 ::** Evidently, the indictment levelled against the accused persons is based on oral statements recorded from the de facto complainant and two other witnesses. Where the Civil Court has already granted a decree in favour of one of the accused, upholding the validity of document in question the complaint and all further proceedings taken nothing but an abuse of the process of the court. Annexure C final report and further proceedings thereof in C.C.No.472 of 2008 on the file of the Judicial Magistrate of the First Class, Perumbavoor are quashed under Section 482 of the Code. Crl.M.C is disposed of as above. Sd/- **(S.S.SATHEESACHANDRAN) JUDGE** sk/- ## **//true copy//**