Mary v. Rosa, Paulose, Kumaran Divakaran and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932** ## **Crl.Rev.Pet.No. 2224 of 2008(C)** **----------------------------CMP.433/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM** **.................** ## **REVISION PETITIONER / COMPLAINANT :** **--------------------------------------------------------------** **MARY, AGED 55 YEARS, W/O.LATE MR.SYRIAC JOSEPH, PULICKAL HOUSE, RAMALLOOR KARA, KOTHAMANGALAM VILLAGE.** **BY ADVS. SRI.SABU FRANCIS SRI.C.T.APPACHEN** ## **RESPONDENTS / ACCUSED / STATE :** **----------------------------------------------------** **1. ROSA, AGED 58 YEARS, W/O.PAULOSE, AVIRAPPATTU HOUSE, KOOVALLOOR KARA, KUTTAMANGALAM.** **2. PAULOSE, AGED 71 YEARS, S/O.JOSEPH, RESIDING AT AVIRAPPATTU HOUSE, KOOVALLOOR KARA, KUTTAMANGALAM.** **3. KUMARAN DIVAKARAN, KADAYATH,** - **E.S.A. NO.17, DOCUMENT WRITER, KOTHAMANGALAM.** **4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY ADVS. SRI.P.VIJAYA BHANU** **SRI.P.M.RAFIQ** - **R4 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** ## **V.K.MOHANAN,J.** ## **---------------------------------------------------------Crl.R.P.No. 2224 of 2008 --------------------------------------------------------Dated this the 25[th] day of February,2011** ## **O R D E R** The revision petitioner herein is the complainant in C.M.P.No.433 of 2008 on the file of the Judicial First Class Magistrate Court, Kothamangalam, which is a private complaint filed under Sections 190 and 200 of the Code of Criminal Procedure (for short 'Cr.P.C.') with a prayer to forward the petition to the Sub Inspector of Police, Kothamangalam under Section 156(3) of the Cr.P.C. Respondents 1 to 3 herein are the accused in the said private complaint and the offences alleged against them are under Sections 120B,406,419,423,465,466 and 474 of the I.P.C. The grievance of the petitioner is that in spite of the request for sending the complaint for police investigation under Section 156(3) of the Cr.P.C., the Magistrate took cognizance of the above offences and after examination of PWs.1 to 3 and marking of Exts.P1 to P5, finally, the complaint was dismissed under Section 203 of Cr.P.C. ## **Crl.R.PNO.2224 of 2008** ## **:-2-:** 2. I have heard Sri.Sabu Francis, learned counsel appearing for the revision petitioner and Sri.P.Vijayabhanu, learned counsel appearing for respondents 1 to 3 and the learned Public Prosecutor. 3. The case of the revision petitioner/complainant is that second accused is the elder brother of the complainant and the first accused is the wife of the second accused. Third accused is a document writer. As per the records, the further case of the complainant is that the complainant is coming from a family consisting of her parents and their children including the complainant. Out of the eight children, four are male children and other four are female children. When the complainant was at the age of 1½ years, her mother expired and subsequently, while she was at the age of 3 years, her father also died. Thereafter, the four minor female daughters including the complainant were sent to different convents. It is the further case of the complainant that in the year 1958, a partition deed was created setting apart 2 acres and 10½ ## **Crl.R.PNO.2224 of 2008** ## **:-3-:** cents as the share of four minor females which is described in E Schedule in Ext.P1 partition deed. The D Schedule in Ext.P1 deed is set apart for minor males. In Ext.P1, B Schedule property is set apart for A2 who is none other than the brother of the complainant. At the time of execution of Ext.P1 partition deed, out of the eight children, four female children including the complainant and one male child were minors. It is the further case of the complainant that for and on behalf of the five minors, the partition document was signed by A2. Subsequently, in the year 1969, a sale deed was created by the second accused, who is none other than the brother of the complainant, showing that the complainant and her elder sister Sr.Norbert (Thressiamma) were selling the property in favour of the first accused. The specific case of the complainant is that sellers are shown as complainant and her elder sister Sr.Norbert, whose signatures were put by the second accused himself and the second accused is shown as the witness in the document and he had put his signature as a ## **Crl.R.PNO.2224 of 2008** ## **:-4-:** witness. So, according to the complainant, A2 forged Ext.P2 sale deed in favour of first accused, putting the signatures as that of the complainant as well as her sister, Sr.Norbert. Ext.P3 is the photostat copy of the original of Ext.P2 sale deed. According to the complainant, there is no thumb impression of the complainant as well as her sister in Exts.P2 and P3. Ext.P4 is the copy of the thumb impression register of the Kothamangalam Registry. In Ext.P4, there is no thumb impression of the complainant and her sister, Sr.Norbert. According to the complainant, if really the complainant and her elder sister executed Ext.P2 sale deed, certainly their thumb impressions would have been found a place in Ext.P4. In Ext.P3 as well as Ext.P4, it is recorded as 'satisfied' by the concerned officer of the Sub Registry, Kothamangalam. But, there is no thumb impression of the complainant as well as her sister, Sr.Norbert in those documents. According to the complainant, at the time of execution of Ext.P3 sale deed, the complainant was at the age of 17 years and four months and a ## **Crl.R.PNO.2224 of 2008** ## **:-5-:** minor. According to her, Ext.P5 Baptism Certificate shows that she was a minor. Thus, the specific case of the complainant is that the respondents, who are the accused in the complaint, forged the document viz., Ext.P2 sale deed and thereby committed the offences punishable under Sections 406,419,423,465, 466,474 read with Section 120B. 4. According to the complainant, when she preferred the complaint, it was specifically prayed in the complaint that the petition may be forwarded to the concerned Police Station for investigation under Section 156(3). But, the court, without proper application of mind, took cognizance and accordingly, the three witnesses of the complainant were examined and Exts.P1 to P5 were marked and thereafter, on a wrong understanding of the facts and circumstances involved in the case, came to a conclusion that the case is purely civil in nature and the complaint was filed belatedly and therefore, according to the learned Magistrate, there is no prima facie case to issue process to the accused under Section 204 of ## **Crl.R.PNO.2224 of 2008** ## **:-6-:** Cr.P.C. and therefore, her complaint was dismissed under Section 203 Cr.P.C. 5. Mr.Sabu Francis, Learned counsel for the revision petitioner vehemently submitted that considering the seriousness and the complications involved in the case, the learned Magistrate ought to have sent the complaint under Section 156(3) of the Cr.P.C. for police investigation. It is also pointed out by the learned counsel that the learned Magistrate miserably failed to understand the real case of the complainant with respect to the forgery as alleged by her. The learned counsel invited my attention to the observation and findings of the learned Magistrate that contained in paragraph 9 of the impugned order. According to the learned Magistrate, even according to the version of PW1, she was aged 17 years at the time of execution of Ext.P2 and therefore, she could not have been made a party to that document being a minor. So, on the basis of the above observation, the learned Magistrate found that even if the version of the complainant is admitted and ## **Crl.R.PNO.2224 of 2008** **:-7-:** accepted as true, the second accused cannot be booked for an offence of forgery and at the maximum, it could be stated that second accused affixed his signature on the document as a natural guardian, having the parents of the complainant was already dead at that time. Thus, according to the learned Magistrate, the remedy left for the complainant is to challenge the document after attaining the majority within the period of limitation. The learned Magistrate refused to believe the version of the complainant that she came to know about Ext.P2 only in the year 2007 since the same are totally improbable in the ordinary course of nature, particularly for the reasons stated by the learned Magistrate in paragraph 10 of the order. So, according to the learned counsel, the findings of the court below are also not sustainable either on facts or on law involved in the case. In support of his contention, the learned counsel placed reliance upon the decisions reported in 2008(3) KLT 211, **Narinder Pal Sood and another** v. **State (Delhi Admn.) and another** (1991 Crl.L.J.141) and **Amit Khera** v. ## **Crl.R.PNO.2224 of 2008** ## **:-8-:** ## **Govt. of NCT of Delhi & Ors.** (2011(1) Crimes 129). 6. Sri.Vijayabhanu, learned counsel appearing for the respondents 1 to 3 submitted that the present revision petition itself is not maintainable since in view of Section 398 of the Cr.P.C., against the order of dismissal of a private complaint under Section 203, the remedy is to invoke Section 398 of Cr.P.C. 7. It is also the contention of the learned counsel that the learned Magistrate has already taken cognizance based upon the complaint and the statement of the complainant and her witnesses and there is no provision for sending back the complaint for investigation under Section 156(3) of the Cr.P.C. It is also the submission of the learned counsel that the complainant preferred this revision petition at a belated stage, since though the complainant approached the court below by filing the complaint in question, she was aware of the fact that the learned Magistrate refused to send the complaint under Section 156(3) of the Cr.P.C. on 24.3.2008 and at that time, no ## **Crl.R.PNO.2224 of 2008** ## **:-9-:** action was taken by the complainant, but she had co-operated with the proceedings of the court below and therefore, at this belated stage, she cannot turn back and say that the order of the court below is illegal. In support of the above contentions, learned counsel placed reliance upon the followings decisions viz., **Rameshbhai Pandurao Hedau** v. **State of Gujarat** [(2010)4SCC 185], **Subrata Das** v. **State of Jharkhand & another** (2010)10 SCC 798, **Harun Khan** v. **Maheshchand** [1997(2) Crime 301] and **Lalajibaishah and others** v. **Asalchand Hukmischand Porwal and another** (1978 Crl.L.J. NOC 252. 8. I have carefully considered the arguments advanced by both the counsel and I have gone through the order impugned. I have also gone through the authorities cited by both counsel and records of the case. 9. In the light of the facts and circumstances indicated above and the facts disclosed from the records, it can be seen that the case of the complainant is that the second accused ## **Crl.R.PNO.2224 of 2008** ## **:-10-:** fraudulently transferred the valuable properties belonging to the complainant and her sisters in the name of the first accused, who is none other than the wife of the second accused when the complainant as well as her sisters were minors, by impersonation and forging their signatures in Ext.P2 sale deed. If the allegations are true, it is very serious and as a result of which fraud played on his sisters and thereby to unlawful enrichment and the complainant has sustained unlawful loss. The alleged sale deed was executed during the year 1969. Ext.P2 is the certified copy of the sale deed of the year 1969. The materials vi.z, the contemporary document Ext.P4 would disclose that there is no thumb impression of the complainant and her sister in the thumb impression register maintained in the Office of the Kothamangalam Sub Registry and further if Ext.P2 document was really executed, naturally and procedurally, the officers concerned of the Kothamangalam Sub Registry is expected to get the thumb impressions of the sellers in the thumb impression register. ## **Crl.R.PNO.2224 of 2008** ## **:-11-:** But, instead of that what is seen in Ext.P4 is that there is only an endorsement to the effect that 'satisfied'. Learned counsel for the complainant submitted that if the parties are directly appearing before the Officer of the Sub Registry, Kothamangalam for the purpose of executing the document, it is the bounden duty of the officers concerned to get the thumb impression of the parties. Conspicuously, the same is absent in the present case. If that be so, according to me, the learned Magistrate ought to have sent the complaint for police investigation under Section 156(3) of the Cr.P.C. because though the complaint is filed during the year 2008, the materials and evidence have to be collected after a thorough and proper investigation, including the verification of records of the Sub Registry, Kothamangalam, pertaining to the year 1969. In order to verify the correctness of the allegations contained in the complaint, an expert opinion including the opinion of handwriting expert and fingerprint expert are necessary in this case which cannot be procured by the ## **Crl.R.PNO.2224 of 2008** **:-12-:** complainant, who is a lady, during the trial of the case. So considering the complicities involved in the case, according to me, the learned Magistrate ought to have sent the complaint for investigation under Section 156(3) of the Cr.P.C. 11. The Apex Court as well as this Court and several High Courts have held that sending of complaint under Section 156(3) of Cr.P.C. for investigation is not a mechanical process and the duty of the learned Magistrate or the Magistrate Court is not that of the Post Office. So, as and when a complaint is received, the Magistrate has to apply his judicial mind and also come to a conclusion as to whether the nature of the complaint warrants an investigation by a Police or else whether he can straight away take cognizance and proceed with the same in accordance with the procedure contemplated in the Cr.P.C., especially in Chapter XV. In the order sheet of the court below, it is endorsed by the learned Magistrate on 24.3.2008 as follows:- ## **Crl.R.PNO.2224 of 2008** ## **:-13-:** “The case is posted for recording sworn statement of the complainant. Forwarding a petition u/s 156(3) Cr.P.C. is within the discretionary power of the court. Considering the facts involved in this case, this court is of the view that this is not a fit case for being forward u/s 156(3) of the Cr.P.C. For recording statement of the complainant to 31.3.2008.” (emphasis supplied) Even though the learned Magistrate had made such an observation or finding, I am of the view that the learned Magistrate has miserably failed to consider the question whether the facts and circumstances and the allegation contained in the complaint warrant Police investigation. Nonapplication of mind of the learned Magistrate is manifestly clear from the paragraph 9 of the order impugned, which reads as follows: “9. As per Ext.P5, the date of birth of the PW1 is on 16[th] February,1952. Even according to the version of PW1, she was aged 17 years at the time of the alleged execution of Ext.P2. Hence, at any rate, she could not have been made a party to that document being a minor at that time. Hence, even if we accept the version of the PW1 as true, the A2 cannot be booked for an offence of forgery. At the maximum, it could be stated that he affixed his signature on the document as a natural guardian, having the parents of the complainant was already dead at that time. If that be so, her remedy is to challenge the document after attaining ## **Crl.R.PNO.2224 of 2008** ## **:-14-:** majority within the period prescribed under the limitation Act.” So, the learned Magistrate mistakenly came to a conclusion that A2 put the signature in Ext.P2 sale deed himself, for and on behalf of the complainant and her sister representing them who are minors, as their guardian and executed the document in favour of the first accused, his wife. But, actually the case of the complainant is that in Ext.P2, the sellers are shown as the complainant as well as her elder sister and their names are shown and their signatures were put therein as that of the signatures of the sellers and the seller is not shown as A2 and A2 did not put his own signature as the seller, but he is only a witness in that document. The above aspect, which according to me, is the crucial aspect of the case of the complainant, which the learned Magistrate miserably failed to note down, due to non-application of mind. Therefore, according to me, the very reasoning in refusing to send the complaint under Section 156(3) of the Cr.P.C. for police investigation is ## **Crl.R.PNO.2224 of 2008** ## **:-15-:** factually and legally unsustainable and liable to be set aside as the same is perverse. 12. Learned counsel for the contesting respondents strenuously submitted that as the Magistrate has already taken cognizance and proceeded to record the evidence of the complainant as well as her witnesses and on the basis of such evidence, came to a conclusion that there is no prima facie case to proceed against the accused and therefore, this Court will not be justified in interfering with the orders of the learned Magistrate while exercising the revisional jurisdiction of this Court. Thus, according to the learned counsel, the only remedy that the revision petitioner has to invoke is Section 398 of the Cr.P.C. and in that case, the further enquiry has to be conducted by the Chief Judicial Magistrate or any other Magistrate as authorised by him. 13. I am of the view that Section 398 of the Cr.P.C. is not at all relevant and applicable in the present case since the question involved in this case is not with respect to the ## **Crl.R.PNO.2224 of 2008** ## **:-16-:** legality, correctness or propriety of the order passed by the learned Magistrate under Section 203 of Cr.P.C. I am of the view that the learned Magistrate had miserably failed in correctly understanding the grievance of the complainant, the allegation raised against the accused and the manner in which the offence was committed. If there was no such mistake from the part of the learned Magistrate and the judicial mind was properly and legally applied, certainly the Magistrate would have forwarded the complaint under Section 156(3) of the Cr.P.C. for investigation. The failure on the part of the revision petitioner in not taking any action at the time when the learned Magistrate decided to take cognizance instead of sending the complaint under Section 156(3) of the Cr.P.C. is not a ground to decline the jurisdiction of this Court and thereby, deny justice to the aggrieved persons, in this case, who are ladies against whom and her sisters, the accused who is their brother committed fraud when they were minors. So, in order to save the interest of justice, I am of the view that the ## **Crl.R.PNO.2224 of 2008** ## **:-17-:** legal technicalities shall not be allowed to stand in the way and by invoking appropriate jurisdiction of this Court, especially the jurisdiction under Section 482 of Cr.P.C., even if the petitioner invoked the revisional jurisdiction of this Court, justice can be rendered to the revision petitioner. 14. It is relevant to note that the learned Single Judge of this Court in the decision in **George** v. **Jacob Mathews** (1996 (1) KLT 73), held that the Magistrate, who took cognizance upon a private complaint, has no jurisdiction to subsequently forward the complaint under Section 156(3) of the Cr.P.C. In this juncture, it is also relevant to consider the decision of the single Judge of the Delhi High court in **Narinder Pal Sood and another** v. **State (Delhi Admn.) and another** (1991 Crl.L.J.141). In the said decision, the Delhi High Court repelled the contentions similar to that are taken by the respondents herein on the basis of Section 398 of Cr.P.C. and held that the revisional court can substitute its own finding and direct service of notice on the accused. In a recent ## **Crl.R.PNO.2224 of 2008** **:-18-:** decision reported in **Amit Khera** v. **Govt. of NCT of Delhi and Ors.** (2011(1) Crimes 129 (Del.), the Delhi High Court has held that when a complainant approached the Court with an application under Section 156(3) Cr.P.C. with specific allegations that his report was not being registered by the police and the police was not acting, the Magistrate could not have sent back the person, unless the Magistrate had come to the conclusion that from the complaint, no cognizance was made out. It is also the case filed under Section 156(3) and Section 200 of the Cr.P.C. Finally in that case, the Delhi High Court allowed the application of the petitioner under Section 156(3) of the Cr.P.C. The concerned Police was directed to register a crime on the basis of the complaint therein. 15. In the light of the above decisions and the discussions, I am of the view that the contentions raised by the learned counsel for the respondents fail and the decision cited by the learned counsel has no application in view of the facts and circumstances involved in the present case. In the light of ## **Crl.R.PNO.2224 of 2008** ## **:-19-:** the facts and circumstances involved in the case, according to me, even if a direction is issued under Section 398 of Cr.P.C., no purpose will be served. In the result, this Criminal Revision Petition is allowed setting aside the order dated 24.4.2008 in CMP No.433 of 2008 on the file of the Judicial First Class Magistrate Court, Kothamangalam and in exercise of the powers vested in this Court under Section 482 of the Cr.P.C., the order dated 24.3.2008 of the learned Magistrate in CMP No.433 of 2008, refusing to send the complaint for police investigation under Section 156(3) of the Cr.P.C. is set aside and the precognizance stage of the complaint is resumed declaring that all the proceedings after 24.3.2008 as non-est and further the Judicial First Class Magistrate Court, Kothamangalam is directed to forward CMP No.433 of 2008 to the Kothamangalam Police Station under Section 156(3) of the Cr.P.C. for investigation and the Station House Officer of the said Police Station is directed to register F.I.R. on the basis of ## **Crl.R.PNO.2224 of 2008** ## **:-20-:** the above complaint and the Station House Officer, after registering the crime, is directed to conduct an effective and meaningful investigation and arrive at a logical conclusion and file a report in terms of Section 173(2) of Cr.P.C. in the Judicial First Class Magistrate Court, Kothamangalam. Learned counsel for the respondents submitted that in the light of the order passed by this Court, the Police may be directed not to harass the respondents herein who are now aged. Considering the facts and circumstances involved in the case, I have no hesitation to observe that the Police, except for the purpose of proper investigation, will not detain the accused in the Police Station in case of their arrest and they will not be harassed and it is unnecessary to state that the Police can interrogate as part of the investigation. The complainant is free to produce whatever documents she wants to produce before the Police during the time of investigation. ## **V.K.MOHANAN, Judge.** MBS/ ## **Crl.R.PNO.2224 of 2008** **:-21-:**