M.J. George v. Principal Munsiff Court, Kochi and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY, THE 27TH DAY OF AUGUST 2013/5TH BHADRA, 1935 Crl.MC.No. 1880 of 2013 () --------------------------- AGAINST THE JUDGMENT IN OS 37/2006 of PRINCIPAL MUNSIFF COURT, KOCHI DATED 28.02.2007 CC 959/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOCHI PETITIONER/ACCUSED: ---------------------------------- M.J.GEORGE AGED 47 YEARS S/O.M.J.JOSEPH, MALIAKKAL HOUSE, NAYARAMBALAM ERNAKULAM DISTRICT BY ADVS.SRI.SHAIJAN C.GEORGE SMT.S.REKHA SRI.M.T.AJITH SMT.SAJITHA GEORGE RESPONDENTS/COMPLAINANT: ----------------------------------------------- 1. PRINCIPAL MUNSIFF COURT, KOCHI ## 2. STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM R BY PUBLIC PROSECUTOR SMT.SHEEBA.M.T THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: AV Crl.MC.No. 1880 of 2013 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- ANNEXURE 1 :- TRUE COPY OF THE PLAINT IN OS NO 37/06 ANNEXURE 2 :- A TRUE COPY OF THE WRITTEN STATEMENT BY THE 2ND DEFENDANT IN OS NO 37/06 BEFORE THE MUNSIFF COURT, KOCHI ANNEXURE 3 :- TRUE COPY OF JUDGMENT IN OS 37/06 DTD 28/2/2007 ANNEXURE 4 :- TRUE COPY OF THE ENQUIRY REPORT IN OS NO 37/06 DATED 28/2/2007 ANNEXURE 5 :- CERITIFIED COPY OF THE COMPLAINT IN CC 959/07 ANNEXURE 6 :- CERTIFIED COPY OF THE CHARGE DATED 11/11/2010 RESPONDENT(S)' EXHIBITS : NIL --------------------------------------- /TRUE COPY/ P.A TO JUDGE AV ## **B. KEMAL PASHA, J** ## **------------------------------------** Crl.M.C.No. 1880 of 2013 **-----------------------------------** Dated this the 27[th] day of August, 2013 ## **O R D E R** Third defendant in O.S.No.37/2006 of the Munsiff's Court, Kochi, who has been proceeded against, as if under Section 340 of the Code of Criminal Procedure, through C.C.No.959/2007 of the Judicial First Class Magistrate's Court-II, Kochi, has come up with a prayer to get the proceedings against him in Annexure-5 complaint in C.C.No.959/2007 of the Judicial First Class Magistrate's Court-II, Kochi and Annexure-6 court charge in the said case, quashed. 2. O.S.No.37/2006 of the Munsiff's Court, Kochi was filed on an alleged chitty transaction, whereby, the plaintiff has claimed a decree against the first defendant, who was the principal debtor, and defendants 2 and 3, who were the alleged sureties. It seems that the first defendant and the present petitioner, who is the third defendant, were ex parte in the suit. The plaintiff had produced Ext.A10 salary certificate of the 2[nd] defendant purported to have been Crl.M.C.No. 1880 of 2013 2 issued by DW2, Assistant Manager of the Bank wherein, the second defendant and the petitioner were working. According to the learned Munsiff, Ext.A10 was proved to be the result of a forgery and thereby, he initiated the proceedings under Section 340 Cr.PC. According to the learned Munsiff, as is evident from Annexure-5 complaint, that “the enquiry found that the accused (the petitioner herein) forged the signature of the second defendant and DW2 in Ext.A10 salary certificate.” In fact, the records do not show, as to how could the learned Munsiff arrive at a conclusion that it was the petitioner, who had forged Ext.A10. It is consequent to Annexure-A5 complaint, that C.C.No.959/2007 was registered on the files of Judicial First Class Magistrate's Court-II, Kochi. The learned Magistrate framed court charge as one contained in Annexure-6, alleging offences under Section 465 and 468 of the Indian Penal Code, as against the petitioner herein. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. According to the learned counsel for the petitioner, the learned Munsiff has violated all the Crl.M.C.No. 1880 of 2013 3 norms of law in preferring Annexure-5 complaint. Further, the learned counsel for the petitioner has pointed out that the learned Munsiff has not conducted any preliminary enquiry, as contemplated under Section 340(1) Cr.PC. 4. The learned counsel for the petitioner has relied on a decision of this Court in Babu P. Benedict v. Principal Motor Accidents Claims Tribunal [2010(1) KLT 445], wherein, it was held that the term “may” appear in the body of Section 340, has to be understood as “shall”. Even without the aid of the said decision, on going through the provisions contained in Section 340(1) Cr.PC, it is evident that the preliminary enquiry as one contemplated therein, is a mandatory one. The term 'may' used in the said provision is only for giving a discretion to the concerned court to proceed further in the matter and the same is not for the conduct of the preliminary enquiry. In cases wherein, the concerned court chooses to proceed further in its discretion, it can only be proceeded after conducting the mandatory preliminary enquiry. In order to conduct the said preliminary enquiry, it is not sufficient to make a mere statement that such a Crl.M.C.No. 1880 of 2013 4 preliminary enquiry was conducted. For conducting the said preliminary enquiry, a notice in Form No.33 of Appendix I of The Criminal Rules of Practice, Kerala, 1982, has to be issued by the said court to the proposed accused, calling upon him to show cause as to why the complaint should not be made against him. In the present case, no such notice was issued. When a specific notice in a specific form has been prescribed as a condition precedent for the conduct of the preliminary enquiry, absence of any such notice speaks volumes against the complaint. In such a case, it has to be considered that there was no such proper preliminary enquiry, as one contemplated under Section 340(1) Cr.PC. 5. As observed in Thomman v. IInd Addl. Sessions Judge [1993(2) KLT 774] : “ Merely because a person gave false evidence, it is inadvisable or inexpedient to take action against him. “It is not any and every statement made by a witness that the court would wish to examine. If the court is to notice every falsehood that is sworn to by parties in courts there would be very little time for courts for any serious work other than directing prosecution for perjury. Again the edge of such weapon would become blunted by indiscriminate use. The gravity of the false statement, Crl.M.C.No. 1880 of 2013 5 the circumstances under which such statement is made, the object of making such statement and its tendency to impede and impair the normal flow of the course of justice are matters for consideration when the court decides on the propriety of instituting a complaint for perjury.” It seems that the learned Munsiff has stated in Annexure-5 complaint that he had conducted an enquiry. Such a so called enquiry without a notice in Form No.33 of Appendix I of The Criminal Rules of Practice, Kerala, 1982 cannot assume the status of a preliminary enquiry contemplated under Section 340(1) Cr.PC. Apart from all these, the first defendant, who was the principal debtor, who had allegedly produced Ext.A10 and the plaintiff, who had willingly accepted Ext.A10 and acted upon it, are not arraigned as accused in the matter. 6. From all the above, it seems that the entire procedure adopted by the learned Munsiff in preferring Annexure 5 complaint, based on which Ext.A6 court charge has been framed against the petitioner by the Judicial First Class Magistrate's Court-II, Kochi, are illegal and therefore, the same are liable to be set quashed. 6 Crl.M.C.No. 1880 of 2013 In the result, this Crl.MC is allowed and Annexure 5 complaint in C.C.No.959/2007 and Annexure 6 court charge in the said case framed by the Judicial First Class Magistrate's Court-II, Kochi, are hereby quashed. Sd/- **B. KEMAL PASHA, JUDGE** AV