Kurian, S/o. Joseph Varickamakkal v. Joseph, Thresiamma, V.P. Mathew, K.R. Madhu, Thodupuzha Village & State of Kerala (Criminal Revision Petition)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942** **Crl.Rev.Pet.No.2002 OF 2013** **AGAINST THE ORDER IN CMP 2312/2012 DATED 01-07-2013 OF CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA** ## **REVISION PETITIONER/COMPLAINANT:** **KURIAN, S/O.JOSEPH VARICKAMAKKAL HOUSE, MUTTOM KARA, MUTTOM VILLAGE, NOW RESIDING AT VETTILAPPARA KARA, KOTHAMANGALAM TALUK.** **BY ADVS. SRI.DINNY THOMAS SRI.ALBERT V.JOHN SRI.JAISHANKAR V.NAIR** ## **RESPONDENTS/ACCUSED & STATE:** - 1 **JOSEPH, S/O.JOSEPH, VARICKAMAKKAL HOUSE, MUTTOM KARA, MUTTOM VILLAGE, THODUPUZHA 685587** - 2 **THRESIAMMA, D/O THOMAS, MATTAPPILLY HOUSE, ALANADU KARA, BHARANANGANAM VILLAGE, MEENACHIL TALUK 686578** - 3 **V.P MATHEW, VADAKKEDATHU HOUSE, ELAPPILLY KARA, ELAPPILLY VILLAGE, THODUPUZHA 685584** - **K.R.MADHU, KANNUVEETTIL, OLAMATTOM KARA,** - 4 **THODUPUZHA VILLAGE, 685584** - 5 **STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** Crl.R.P.No.2002/2013 2 **R1 BY ADV. SRI.DOMSON J.VATTAKUZHY R1 BY ADV. SRI.MATHEW JOHN K R1 BY ADV. SRI.THOMAS J.ANAKKALLUNKAL SRI B.JAYASURYA SR PP ,SRI P VIJAYABHANU SR ADV** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.02.2021, THE COURT ON 23.02.2021 PASSED THE FOLLOWING:** Crl.R.P.No.2002/2013 3 **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.2002 of 2013 ------------------------------------------------Dated this the 23[rd] day of February, 2021 ## **O R D E R** The petitioner is the complainant. Respondents 1 to 4 are the persons arrayed as accused in the complaint filed by him in the Court of the Chief Judicial Magistrate, Thodupuzha. 2. Respondents 1 to 4 shall be hereinafter referred to as the accused. The first accused is the brother of the complainant. The second accused is the wife of the first accused. 3. The complainant had executed a power of attorney in favour of the first accused authorising him to deal with his property. The first accused executed a sale deed in favour of the second accused in respect of the property owned by the complainant by using the power of attorney. The crux of the allegations in the complaint is that, in that sale deed, instead of Crl.R.P.No.2002/2013 4 affixing the thumb impression and the photograph of the complainant, the thumb impression and the photograph of another person were affixed and impersonation was committed. The third accused is said to be the person who prepared the sale deed and the fourth accused is the scribe of the document. On the basis of these allegations, the offences punishable under Sections 419 and 420 read with 34 I.P.C and also under Section 82 of the Registration Act, 1908 were alleged against the accused. 4. Learned Magistrate took cognizance of the offences and examined the complainant on oath under Section 200 of the Code of Criminal Procedure, 1973 (for short 'the Code') and also conducted enquiry under Section 202 of the Code. The complainant was examined as CW1 and two other witnesses were examined as CW2 and CW3. Exts.P1 to P5 documents were also marked during the enquiry. 5. As per the order dated 01.07.2013, the learned Magistrate found that there were no sufficient grounds for proceeding against the accused for the offences alleged against Crl.R.P.No.2002/2013 5 them and accordingly, dismissed the complaint under Section 203 of the Code. 6. The complainant has filed this revision petition challenging the legality and propriety of the aforesaid order passed by the learned Magistrate, dismissing the complaint. 7. Heard learned counsel for the petitioner and respondents 1 to 4 and also the learned Public Prosecutor. 8. Learned counsel for the petitioner has contended that the court below failed to consider the evidence adduced by the complainant during the enquiry under Section 202 of the Code in the proper perspective and that the dismissal of the complaint under Section 203 of the Code is illegal and improper. 9. There is merit in the contention of the learned counsel for the petitioner. The reasons for dismissing the complaint are stated in paragraphs 6 to 8 of the impugned order. Thereafter, the learned Magistrate has stated that, on a careful appraisal of the records placed before him, it cannot be found that there were sufficient grounds for proceeding against the accused for the offences alleged against them. However, the statement given by Crl.R.P.No.2002/2013 6 the complainant on oath as CW1 or the statements of the other witnesses given during the enquiry are not even referred to or discussed by the learned Magistrate. 10. It is stated in paragraph 6 of the impugned order that the first accused had every right to deal with the property of the complainant and to execute the sale deed since the complainant had executed a power of attorney in favour of the first accused for that purpose. The question which should have been addressed by the learned Magistrate was not whether the first accused had authority to execute the sale deed. The real question for consideration should have been whether there were sufficient materials or not to presume that the accused had committed the offences alleged against them during the course of execution and registration of the sale deed. 11. It is stated in the impugned order that the complainant did not take any steps to obtain the original of the sale deed and without production of the original sale deed, the court was not in a position to presume that the complainant was impersonated before the Sub Registrar. Learned Magistrate has Crl.R.P.No.2002/2013 7 ignored the fact that the original of the sale deed would be in the possession of the first or the second accused and that the complainant could not have produced it before the court. 12. Section 91(1) of the Code empowers the Court to issue summons to a person requiring him to produce a document in his possession when the Court considers that production of such document is necessary or desirable for the purpose of any enquiry. But, the complainant could not have taken any steps under Section 91(1) of the Code to seek production of the original of the sale deed by the accused before the court. The reason is that a direction under Section 91(1) of the Code cannot be issued to an accused to produce an incriminating document (See **State of Gujarat v. Shyamlal (AIR 1965 SC 1251)** . 13. In **Gopalakrishnan Nayanar v. Sasidharan Nambiar : 1996 (1) KLT 83** , a Division Bench of this Court has held as follows: _“The person, against whom offences have been alleged in a complaint filed before the Magistrate, is an accused person notwithstanding the fact that an enquiry envisaged in Section 202 of the Code_ Crl.R.P.No.2002/2013 8 _was still pending. No order under Section 91 of the Code can be issued against such a person”._ 14. Of course, the Court could have issued a general search warrant under clause (c) of Section 93(1) of the Code to obtain the original of the sale deed (See **Kuttan Pillai v. Ramakrishnan : AIR 1980 SC 185** and **Jayadeva Panicker v. Velayudhan : 1986 KLT 1303** ). But, it is doubtful whether it would have yielded any fruitful result. 15. The complainant had produced before the Court photocopy of the sale deed in respect of which the offences were allegedly committed by the accused. At the stage of Sections 203 and 204 of the Code, the Court was only required to consider whether there were sufficient materials to presume the commission of the offences alleged against the accused. 16. Learned Magistrate has stated in the impugned order that it is doubtful whether the photograph of the complainant, who is the owner of the property, was required to register the sale deed. While expressing such doubt, the learned Magistrate Crl.R.P.No.2002/2013 9 did not refer to the statement given by the Sub Registrar who was examined as CW3. 17. It is the bounden duty of the Magistrate while making an enquiry under Section 202 of the Code to elicit all facts not merely with a view to protect the interest of the accused, who has no right to participate in the enquiry, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for entering a conviction can be determined only at the trial and not at the stage of enquiry. The object of the provisions of Section 202 of the Code is to enable the Magistrate to form an opinion as to whether process should be issued or not and to Crl.R.P.No.2002/2013 10 remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The object of the enquiry under Section 202 of the Code is to ascertain the truth or falsehood of the complaint (See **Chandra Deo Singh v. Prakash Chandra Bose : AIR 1963 SC 1430** ). 18. It is true that in coming to a decision as to whether process should be issued or not the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there is a very thin line of demarcation between a probability of conviction of the accused and establishment of a _prima facie_ case against him (See **Nagawwa v. Veeranna : AIR 1976 SC 1947** ). 19. What the Magistrate has to determine at the stage of issue of process is not the correctness or the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a _prima facie_ case on the assumption that what is stated could be true unless the Crl.R.P.No.2002/2013 11 prosecution allegations are so fantastic that they could not reasonably be held to be true (See **Debendra Nath Battacharya v. State of West Bengal : AIR 1972 SC 1607** ). 20. Section 203 of the Code states that, if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. 21. It is evident from the provision contained in Section 203 of the Code that the opinion which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the enquiry. The Magistrate must apply his judicial mind to the materials on which he has to form his opinion. 22. In the instant case, the learned Magistrate has not considered the statements of the complainant and the witnesses in reaching a conclusion that there were no sufficient materials to Crl.R.P.No.2002/2013 12 proceed against the accused. The impugned order is liable to be set aside for that reason. 23. Section 398 of the Code states that, the High Court may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make further inquiry into any complaint which has been dismissed under Section 203 of the Code. A remand of the matter for further enquiry does not necessarily oblige the Magistrate to record any further evidence in the case. The nature of the further enquiry is in the discretion of the Magistrate which may or may not include recording of further evidence on behalf of the complainant. The Magistrate could without recording any further evidence in the matter reappraise the averments made in the complaint and the material already on record to determine whether a _prima facie_ case is made out against the accused persons (See **Subrata Das v. State of Jharkand : AIR 2011 SC 177** ). 24. Consequently, the revision petition is allowed and the impugned order is set aside. The complaint filed by the petitioner is restored to the file of the court below. Learned Crl.R.P.No.2002/2013 13 Magistrate shall make further enquiry into the complaint and pass appropriate orders in accordance with law. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge