Praveen Xavier v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 25[TH] DAY OF JANUARY 2022 / 5TH MAGHA, 1943 ``` ``` CRL.MC NO. 1560 OF 2014 ``` ``` CRIME NO.150/2007 OF Santhampara Police Station, Idukki ``` ``` PETITIONER/ACCUSED NO.1: ``` ``` PRAVEEN XAVIER AGED 39 YEARS, S/O.XAVIER, EDAYKKATTUKUDY HOUSE, PUTHUPPADI KARA, KOTHAMANGALAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. ``` ``` BY ADVS. SRI.P.B.KRISHNAN SRI.SABU GEORGE ``` ## **`RESPONDENTS/COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 035`** ``` 2THE SUB INSPECTOR OF POLICE SANTHAMAPARA POLICE STATION, SANTHAMPARA, IDUKKI DISTRICT-685 619. ``` ## **`ADDL.R3 DISTRICT COLLECTOR COLLECTORATE, IDUKKI 685 603.`** ## **`ADDL.R4 TAHSILDAR, UDUMBANCHOLA,IDUKKI 685 554`** ``` (ADDITIONAL R3 AND R4 ARE IMLEADED AS PER ORDER DATED 12.03.2014 IN CRL.M.A.NO.2429/2014) ``` ``` BY ADV. ``` ``` SRI.SUDHEER GOPALAKRISHNAN – PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.11.2021, ALONG WITH Crl.Rev.Pet.1774/2014, 8163/2018, THE COURT ON 25.01.2022 PASSED THE FOLLOWING: ``` ``` The name of the house and Taluk “Edaykkattukudy House and Muvattupuzha Taluk” in the address of the Petitioner in the cause title of the final order dated 25-01-2022 in Crl.M.C. 1560/2014 is corrected and substituted as “Edackattukudy House and Kothamangalam Taluk with pincode 686673” as per order dated 04-03-2022 in Crl M.A. 1/2022 in Crl M.C. 1560/2014. ``` ``` Sd/- ``` ``` Assistant Registrar ``` ``` 2 ``` ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 25[TH] DAY OF JANUARY 2022 / 5TH MAGHA, 1943 CRL.REV.PET NO. 1774 OF 2014 ``` ``` ARISING OUT OF THE ORDER DATED 23.12.2013 IN CC 890/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,NEDUMKANDAM IN CRIME NO.150/2007 OF SANTHAMPARA POLICE STATION ``` ``` PETITIONERS/ACCUSED NOS.2 TO 4: ``` - **`1 M.C.JOSEPH S/O.CHACKO,AGED 54, MUNDACKAL HOUSE, RAMALLOOR KARA, ALUVA VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683 101.`** - **`2 BIJU HORMIS AGED 37 YEARS`** - **`S/O.HORMIS, THEKKENETH HOUSE, CHENDAL KARA, VADAKKUMBHAGAM VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT.`** - **`3 PREETHI ZACHARIAH AGED 39 YEARS, W/O ZACHARIAHS, CHANDRAKKUNNEL HOUSE, LALAM KARA, LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.`** ``` BY ADVS. ``` ## **`SRI.P.B.KRISHNAN SRI.SABU GEORGE`** ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 3 ``` ## **`RESPONDENTS/COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 035.`** - **`2 DETECTIVE INSPECTOR CBCID, (OCW-III), SUB UNIT, THRISSUR, PALAKKAD UNIT, THRISSUR - 680 001.`** ## **`BY ADV.`** ## **`SRI.SUDHEER GOPALAKRISHNAN – PUBLIC PROSECUTOR`** ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10.11.2021, ALONG WITH Crl.MC.1560/2014 AND CONNECTED CASES, THE COURT ON 25.01.2022 PASSED THE FOLLOWING: ``` ``` The words “Aluva village, Aluva Taluk, Pincode – 683101” in the address of First Petitioner is corrected and substituted as “Kothamangalam village, Kothamangalam Taluk, Pin– 686691” and the words “Thekkeneth House, Chendal Kara” in the address of the Second petitioner is corrected and substituted as “Thekkanath House, Chengal Kara, Pin–683574” and the words “Preethi Zachariah, W/o Zachariahs, Chandrakkunnel House, Lalam Kara” in the address of the Third petitioner is corrected and substituted as “Preethi Zacharias, W/o Zacharias Mathew, Chandrankunnel House, Kizhathadiyoor Kara, Pin-686574”, occuring in the second page cause title of the final order dated 25.01.2022 in Crl RP 1774/2014, as per the order dated 04.03.2022 in Crl.MA No.1/2022 in Crl RP 1774/2014. ``` ``` Sd/- ``` ``` Assistant Registrar. ``` ``` 4 ``` ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 25[TH] DAY OF JANUARY 2022 / 5TH MAGHA, 1943 CRL.MC NO. 8163 OF 2018 ``` ``` ARISING OUT OF THE ORDER DATED 09.11.2018 IN CRL.RP 13/2017 OF ADDITIONAL SESSIONS COURT-IV, THODUPUZHA WHICH CONFIRMED THE ORDER DATED 08.09.2017 IN CMP NO.4636 OF 2017 IN C.C.NO.890 OF 2013 ``` ``` CC 890/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ``` ## **`NEDUMKANDAM`** ## **`PETITIONER/PETITIONER/PETITIONER/ACCUSED NO.1:`** ``` PRAVEEN XAVIER AGED 39 YEARS S/O.XAVIER, EDAYKKATTUKUDY HOUSE, PUTHUPPADI KARA, KOTHAMANGALAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. ``` ``` BY ADVS. P.B.KRISHNAN SRI.SABU GEORGE ``` ## **`RESPONDENTS/RESPONDENTS/RESPONDENTS/COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 035.`** - **`2 DETECTIVE INSPECTOR SPECIAL INVESTIGATION TEAM, CBCID, KOTTAYAM – 686001.`** ``` 5 ``` ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ## **`BY ADV`** ``` ADDL.DIRECTOR GENERAL OF PROSECUTION- SRI.T.A.SHAJI ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON ``` ``` 10.11.2021, ALONG WITH Crl.MC.1560/2014 AND CONNECTED CASES, THE ``` ``` COURT ON 25.01.2022 PASSED THE FOLLOWING: ``` ``` The name of the house and Taluk “Edaykkattukudy House and Muvattupuzha Taluk” in the address of the Petitioner in the cause title of the final order dated 25-01-2022 in Crl.M.C. 8163/2018 is corrected and substituted as “Edackattukudy House and Kothamangalam Taluk with pincode 686673” as per order dated 04-03-2022 in Crl M.A. 1/2022 in Crl M.C. 8163/2018. ``` ``` Sd/- ``` ``` Assistant Registrar ``` ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 6 ``` ## **`ORDER`** ## **`[Crl.MC Nos.1560/2014, 8163/2018 & Crl.R.P.No.1774/2014]`** All these petitions are submitted by the accused Nos.1 to 4 in Crime No.150 of 2007 of Santhampara Police Station. On the basis of the the final report submitted in the said crime, the Judicial First Class Magistrate Court, Nedumkandam has taken cognizance thereon for the offences punishable under Sections 447, 468, 465, 471, 420, 120(B) read with Section 34 of Indian Penal Code as C.C. No.890/2013. 2. Crl.R.P. No.1774/2014 is filed by accused Nos.2 to 4 challenging the order dated 23.12.2013 passed by the learned Magistrate issuing summons to the accused persons. Crl.M.C. No.1560/2014 is submitted by the 1[st] accused therein challenging the final report submitted in Crime No.150 of 2007 of Santhampara Police Station and to quash all further proceedings pursuant to the same by invoking powers of this Court under Section 482 Cr.P.C. While Crl.M.C. No.1560/2014 was pending consideration, the petitioner therein, after availing permission from this Court, moved the trial court for discharge from the proceedings, which resulted in order ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 7 ``` dated 08.09.2017 in C.M.P. No.4636 of 2017. As per the said order the prayer sought for by the petitioner was dismissed by the learned Magistrate. Challenging the same 1[st] accused filed Crl.R.P. No.13/2017 before the Additional Sessions Court IV, Thodupuzha and the same was dismissed as per order dated 09.11.2018. The aforesaid orders are challenged by the 1[st] accused in Crl.M.C. No.8163/2018 and in the said Crl.M.C. the aforesaid impugned orders are produced as Annexures F and G respectively. The final report submitted in the aforesaid crime is produced in the Crl.M.C. as Annexure A. The main challenge raised by the petitioners is against the sustainability of prosecution against them in C.C. No.890 of 2013 pending before the Judicial First Class Magistrate Court, Nedumkandam. For the sake of convenience, the documents are described in the manner as produced in Crl.M.C. No.8163/2018. 3. The basic facts which resulted in registration of the aforesaid crime and consequential prosecution are as follows: The petitioners herein are the accused Nos.1 to 4 in C.C. No.890 of 2013. The aforesaid case arises from Crime No.150 of 2007 of Santhampara Police Station, which was registered against 16 accused persons including the petitioners herein, for the offences mentioned ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 8 ``` above. 4. The petitioners/accused Nos.1 to 4 are the owners in possession of property having an extent of 34.32 Ares comprised in Sy.No.130/1 and 130/2 of Chinnakkanal Village of Udumbanchola Taluk. In addition to the same, they are also in ownership and possession of 66.32 Ares of land comprised in Sy.No.87/1 in Chinnakkanal Village of Udumbanchola Taluk. As far as the properties comprised in Sy.Nos.130/1 and 130/2 are concerned, the aforesaid properties form part of the properties originally assigned by the Government to one L.S.Subarayar who later assigned the same to one Varaguna Senga Cherva and others as per the document No.135/1110 M.E. A portion of the said property having an extent of 34.32 Ares came to be vested with the petitioner after a series of transactions. The aforesaid properties are cardamom lands, where assignment was made by the Government for cultivation of cardomom. 5. The right over the properties comprised in Sy.No.87/1 came to be vested with the petitioners from two sources. An extent of ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 9 ``` 80 cents of the said property, which forms part of a total extent 2.7 acres of land, was originally assigned by the Government under the Kerala Land Assignment Rules 1964 to one Philomina (5[th] accused) as per patta bearing L.A.No.41/1977. Similarly, an extent of 87.5 cents of land forms part of the properties having an extent of 2.40 acres of land which was assigned by the Government under the Kerala Land Assignment Rules, 1964 to one Kusumam Abraham (A6) as per patta bearing L.A. No.15/1977. Thus, in Sy.No.87/1 the petitioners are having ownership over 167.5 cents of land which is corresponding to 66.36 Ares. 6. After the purchase of the aforesaid properties, mutation was affected in favour of the petitioners and they have obtained permission from local authorities for construction of 18 tourist cottages and started operation of a tourist resort named ‘Cloud 9’. Later as per Annexure B order passed by the District Collector, the aforesaid properties were sought to be resumed by the Government, on the allegation that the petitioners have encroached upon the aforesaid properties and have constructed tourist resort against the ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 10 ``` terms of assignment. Even though several proceedings were initiated by the petitioners challenging the same, the aforesaid properties were taken in possession by the Government forcibly and all the constructions made therein were razed to ground completely. Crime No.150/2007 was registered by Santhampara Police Station as a continuation of the aforesaid proceedings. 7. For completing the sequence of events, it is also relevant to note that, the challenge against the proceedings of resumption of land raised by the petitioners were ultimately resulted in Annexure D judgment passed by a Division Bench of this Court in W.P.(C) No.31268 of 2007 dated 25.07.2014, wherein the grounds of resumption were rejected and it was held that the petitioners are entitled to continue the possession thereof. The contention of the Government regarding the violation of terms of assignment of land was also rejected. Accordingly, the possession of the aforesaid properties was directed to be restored to the petitioners, along with a provisional compensation of Rs.10 lakhs to be paid by the Government. The right of the partnership firm, to which the ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 11 ``` petitioners are partners, to seek for more compensation from the Government through Civil Courts was also reserved. Annexure D judgment is under challenge at the instance of the Government before the hon’ble Supreme Court and the same is now pending in S.L.P. No.7879/2016. 8. Annexure A is the final report which is under challenge in these proceedings. The basic allegation against the petitioners and the other accused persons is that, they, with the intention to cheat the Government and to make unlawful gains, have created forged pattas in respect of properties and using the said forged documents, they have constructed a tourist resort in the aforesaid properties. It contains a specific allegation that the pattas numbered as L.A. No.41/77 and 15/77 which were issued under the provisions of Kerala Land Assignment Rules, 1964, were fake documents as the corresponding files could not be traced out from the official records. It is also alleged that, certain false entries were also caused to be made by the petitioners in the official records for creating 'thandaper' in their name, in respect of the said properties. With respect to cardamom land, it ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 12 ``` was alleged that the accused persons have created documents changing the category of land from cardamom land to other land . The 5[th] and 6[th] accused therein were the previous owners of the properties comprised in Sy.No.87/1 in whose favour pattas bearing Nos.L.A. No.41/77 and L.A. No.15/77 were claimed to be issued. Accused Nos. 7 and 8 are the revenue officers who have accepted land tax from the other accused persons in respect of properties, after affecting mutation. Accused Nos.9 to 13 were the original owners of the cardamom land and who had executed assignment deeds in favour of accused Nos.1 to 4. 14[th] accused was the power of attorney holder of the 5[th] accused, who had executed assignment deed in respect of the properties comprised in Sy.87/1 in favour of the accused Nos.1 to 4. Accused Nos.15 and 16 are the persons who have prepared documents showing the change of classification of the properties as garden lands instead of cardamom lands. 9. The basic challenge is against the final report which is marked as Annexure A in Crl.M.C. No.8163/2018. According to the petitioners none of the offences mentioned in Annexure A are ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 13 ``` ## attracted against the petitioners herein. 10. Heard Sri.P.B.Krishnan, learned counsel appearing for the petitioners and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor appearing for the State. 11. The basic contention that has been raised by the petitioners is that the allegations contained in Annexure A final report, even if are accepted for its face value in its entirety, no case is made out as against the petitioners herein (accused Nos.1 to 4). When we consider the contents of Annexure A, it can be seen that there are several allegations. Some of the major offences alleged against the accused are under Sections 465, 468, 471 of Indian Penal Code. The basic allegations on which the aforesaid offences were registered are that the accused persons have created false pattas; namely, L.A. No.41/77 and L.A.No.15/77. The aforesaid allegation is raised on the premise that the revenue authorities could not find out the corresponding records of issuance of the said pattas in their official records. However, the crucial aspect to be noticed in this regard is that, going by the allegations contained in Annexure A and the ``` 14 ``` ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` materials produced in support of the said allegations, it can be seen that the allegation of creation of false documents is made specifically against the 5[th] and 6[th] respondents and not against the petitioners herein. It is to be noted that even going by the averments in Annexure A, the aforesaid properties were encroached upon by accused Nos.5 and 6 respectively and they have subsequently assigned the said properties in favour of the petitioners herein by virtue of document No.154/2006 and 196/2006 respectively. It is evident from the records that, the pattas mentioned above are claimed to have been issued in the year 1977 and consequently the mutation is seen effected in the name of 5[th] and 6[th] respondent on the basis of the same. From the list of witnesses attached with Annexure A charge sheet, it is evident that, CW9 is sought to be examined to prove that, mutation has been affected in the name of 5[th] and 6[th] accused (previous owners) and tax was also collected from them. As far as the petitioners herein are concerned, they have purchased the aforesaid properties, only in the year 2006 from 5[th] and 6[th] respondents **.** A careful scrutiny of the allegations contained in Annexure A would reveal that, it does not ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 15 ``` contain any specific allegation as against the petitioners herein to the effect that they were parties to the creation of the aforesaid false documents. On the other hand, even as per the prosecution case, the aforesaid properties were already in possession of the 5[th] and 6[th] respondents on the basis of the alleged false pattas as mentioned above. In such circumstances, the petitioners herein who are the subsequent purchasers of the aforesaid properties, cannot be roped in, in respect of the aforesaid allegations. This is particularly because of the fact that, even going by the materials in Annexure A, it is evident that, the aforesaid properties stood mutated in favour of the 5[th] and 6[th] accused, even before the purchase of the properties by the petitioners herein. It is true that, the petitioners have got mutation effected in their name. However, that is not sufficient to attract the offences relating to forgery or creation of false documents. As mentioned above, even going by the allegations, pattas were created by the 5[th] and 6[th] respondents. Based on the said pattas, mutations were also affected in the name of the said accused. It is evident that, based on the said pattas, registered deeds were issued in favour of the ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 16 ``` petitioners herein and the mutation was affected in favour of the petitioners, based on the same. By the time the title deeds of the petitioners were executed , the pattas allegedly created, were already acted upon by the Revenue Authorities, by affecting mutation in favour of the 5[th] and 6[th] accused. Therefore, merely because of the reason that the petitioners have purchased the said properties, they cannot be arraigned as accused, unless there are any materials to show the knowledge and intention on the part of the petitioners herein. Despite scanning through the material, nothing could be found out to establish such knowledge or intention on the part of the petitioners herein. 12. Another allegation against the petitioners are in respect of cardamom lands. The aforesaid properties were purchased by the petitioners, from accused Nos.9 to 13. As mentioned above, the title of the aforesaid properties can be traced back to the year 1935 (1110 M.E.) in the name of one Varaguna Senga Cherva. The allegation of false documents in respect of aforesaid properties is that the petitioners have got assignment of the aforesaid properties in their ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 17 ``` favour by showing the nature of land in their title deeds different from that of cardamom land, which is the actual nature of the property. The main contention put forward by the learned counsel for the petitioner in this regard is that, the entries contained in the title documents of the petitioners with regard to the nature of the land would reflect only the physical nature of the land as on the date of such conveyance. The aforesaid entry in such a registered document would not attract an offence of forgery, as the question of creation of false document does not arise in this case. I find some force in the aforesaid contention of the learned counsel for the petitioners. The offence of forgery is defined under Section 463 which reads as follows: ## _**“463. Forgery**_ _Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.”_ As one of the basic ingredients for constituting the offence of forgery is “making of false documents”, the definition of the said expression as contained in Section 464 of Indian Penal Code is also relevant. ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 18 ``` ## _**“464.Making a false document**_ _A person is said to make a false document or false electronic record -_ _First - Who dishonestly or fradulently -_ - _(a) makes, signs, seals or executes a document or part of a document;_ - _(b) makes or transmits any electronic record or part of any electronic record;_ - _(c) affixes any electronic signature on any electronic record;_ - _(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature,_ _with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or_ _Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or_ _Thirdly - Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration._ On going through the aforesaid provisions, it can be seen that, in order to attract the offence of forgery, there must be creation of a false document or false electronic records. In Section 464, three instances ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 19 ``` of making a false document are specifically mentioned. A careful examination of the allegations in this case, it can be seen that the entries made by the parties at the time of execution of deeds executed between the parties for conveyance of properties would not come under any of the definitions as contained in Section 464 and therefore, it would not amount to “making a false document”. In order to attract the first instance in Section 464, the document must have been made by the accused, with the intention of causing it to be believed that, such documents are part of documents that was made, signed, sealed, executed, transmitted by the authority of a person by whom or by whose authority, he knows that it was not made. This would mean that the execution of such documents should have been done with an intention to create an impression that the said document was executed by some other person with an authority, than the person who actually executed it. Therefore, an allegation of execution of the document by way of impersonation should be in existence in order to attract the first instance as contemplated under Section 464. In this case under no circumstances, the aforesaid provision can be made applicable, ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 20 ``` because of the fact that, the document executed by the parties are executed in their own capacity as the owner in possession of the properties concerned. It is true that the authority of 5[th] and 6[th] accused to execute such documents is disputed by the prosecution, as their case is that, the pattas claimed to be the title documents of the said accused, are fake. However, there is no material to show that, the petitioners herein have purchased the said properties, with the knowledge of the alleged falsity/fake nature of the said pattas. On the contrary, the case of the prosecution is that, acting upon the said pattas, 5[th] and 6[th] accused got the said properties mutated in their favour and later the said properties were sold to the petitioner herein. Therefore section 464 of IPC is not attracted on the basis of such allegations, as against the petitioners herein. 13. Second instance contemplated under Section 464 is regarding the cancellation or alteration of a document, after it was made. In this case, there is no allegation of making any alteration or cancellation of any entries in the document, after the said documents ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 21 ``` were executed. The allegation is that, the said documents contained certain recitals, which were not correct as to the category of the land, as it is not in tune with the revenue records. In this case, as rightly pointed out by the learned counsel for the petitioners, atleast at the time of execution of the said documents, there was no necessity to describe the category of the property in the deed of conveyance, in the same manner as mentioned in revenue records. The above aspect is clear from the Annexure A final report itself. CW15, is sought to be examined to show that, at the time of registration of the said documents, there was no necessity to examine prior title deeds, pattas or other records, to verify the category of the land. This would fortify the contention of the petitioners that, the entry regarding nature of land could be made, on the basis of the actual status of the property, as on the date of transfer. Further, even if it is assumed that the same was an incorrect entry, that would not amount to alteration of the document or cancellation thereof, so as to attract the offence of forgery as against the petitioners herein. 14. The third instance contemplated under Section 464 is ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 22 ``` dishonestly or fraudulently causing any person sign or seal or execute any document by making use of unsoundness of mind of any person or intoxication of a person by practicing deception upon such person. This allegation is also not in existence as far as the execution of registered documents in this case is concerned. 15. In **Mohammed Ibrahim and others v. State of Bihar and another [(2009) 8 SCC 751]** , the Honourable Supreme Court was pleased to observe as follows: _“14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:_ _1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed._ _2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person._ _3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration._ _In short, a person is said to have made a “false document”, if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a_ ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 23 ``` _document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.”_ Thus it is evident that, as regard to the execution of documents conveying the rights over an immovable property, even if such documents contain a false entry regarding the nature of land, the same would not attract the offence of forgery and therefore, the offences alleged against the petitioners under Sections 465, 468, 471 are not attracted. 16. Another allegation which according to the prosecution, constitutes the offence of forgery is regarding the false entries caused to have been made in the revenue records. On going through the averments in the final report, it can be seen that the aforesaid allegations are made against the accused persons other than the petitioners herein. Even going by Annexure A final report the aforesaid entries were made at the instance of previous owners of the said property and making use of such entries, the aforesaid properties were conveyed in favour of the petitioners. The role of the petitioners herein in making such an entries is not specified. It is discernible from ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 24 ``` the records that, the entries regarding the same, were made even prior to the purchase of the properties by the petitioners. In such circumstances, on the basis of the aforesaid allegations the petitioners cannot be roped in for the offences of forgery. 17. Another allegation in Annexure A is under Section 447 of Indian Penal Code. According to the prosecution, the petitioners have committed criminal trespass over the property which is a Government land. The offence of criminal trespass is defined under Section 441 which reads as follows: ## _“_ _**441. Criminal trespass**_ _Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,_ _or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence,_ _is said to commit “criminal trespass”.”_ In order to attract the aforesaid offence, the accused person must have entered into or upon the property in the possession of another. In this case even though the prosecution has a case that the properties were ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 25 ``` Government lands which were encroached upon by the accused persons, the materials placed on record would show otherwise. Annexure B and Annexure C are the proceedings which were issued against the petitioners for resumption of the land occupied by the petitioners. The challenge against those proceedings was ultimately adjudicated upon by a Division Bench of this Court in Annexure D judgment. In the said judgment a categorical finding has been entered into by this Court as to the right of the petitioners herein to hold the aforesaid property and all the proceedings initiated against them pursuant to Annexures B and C were set aside. Even though the properties were taken into possession by the Government during the interregnum, in Annexure D judgment it was ordered that the possession of the petitioners are to be restored and a provisional compensation to the tune of Rs.10 lakhs was also ordered to be paid. Thus it is discernible from the findings of this Court that, it was the petitioners who were in possession of the aforesaid properties and the possession was also lawful. In such circumstances, the offence of criminal trespass as defined under Section 441 is not attracted and hence the incorporation of offence under Section 447 is unsustainable, as against the petitioners herein. ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 26 ``` 18. The remaining offence is under Section 420 of Indian Penal Code. In order to attract the offence under Section 420 there must be deception by the petitioners herein by fraudulently or dishonestly inducing any person to deliver any property to any person. In this case going by the averments contained in Annexure A no allegation of inducement and delivery of property can be found. As far as the petitioners here are concerned, they have purchased the entire property for valuable consideration from the persons who claimed to be lawful owners in possession of the respective properties. The official entries in respect of the title of the aforesaid properties stood in the name of previous owners. After purchasing the aforesaid properties, the petitioners have approached various authorities including local authorities and obtained permissions for construction of the buildings for conducting a tourist resort, which were granted. After completing the construction thereon, they have paid necessary taxes payable to all the authorities concerned in respect of the said construction and obtained licences from all the authorities concerned for running a tourist resort. In such circumstances, no dishonest ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 27 ``` intention to induce any person and consequential delivery of any property in favour of the petitioners, so as to attract the offence of Section 420 can also be found. 19. Thus when we examine the entire aspects of the case, it can be seen that none of the offences alleged against the petitioners are legally sustainable. It is true that among the offences alleged Sections 120(B) and 34 of Indian Penal Code are also incorporated. However, I have already found that going by the allegations contained in Annexure A final report, it can be seen that the actions which constituted the offences mentioned above have occurred even before the petitioners purchased the subject properties. There is nothing to indicate the concert of mind of the petitioners with the other accused, before the commission of such alleged offences. In such circumstances, I am of the view that the petitioners herein cannot be implicated in the aforesaid case even with the aid of Section 120(B) or under Section 34 of Indian Penal Code. 20. In such circumstances, I am of the view that, this is a fit case in which the powers of this Court under Section 482 of Cr.P.C. ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 28 ``` has to be invoked, as the entire proceedings against the petitioners herein are mere abuse of process of law. Even though the 1[st] petitioner has raised these contentions before the trial court and sought for discharge, the same were not considered on the reason that the same can only be considered at the time of trial. The learned Public Prosecutor seriously attempted to defend the aforesaid orders, by pointing out that as the petitioners have already resorted to the alternate remedy and obtained an adverse order, Section 482 need not be invoked. However, I am of the view that, the fact that the petitioners have invoked the remedy of discharge before the trial court would not prevent this Court in exercising the powers under Section 482 of Cr.P.C. if it is found that the proceedings are clear abuse of process of law. In such circumstances, all the above petitions are disposed of, quashing Annexure A final report, Annexure F order passed by the Judicial First Class Magistrate in C.C. No.890/2013, Annexure G order passed in Crl.R.P. No.13/2017 by the Additional Sessions Court IV, Thodupuzha and quashing all further proceedings in C.C. ``` 29 ``` ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` No.890/2013 on the files of the Judicial First Class Magistrate Court, Nedumkandam, which arises from Crime No.150/2007 of Santhampara Police Station, as against the petitioners herein who are accused Nos.1 to 4 in the aforesaid crime. ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` SCS ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ``` 30 ``` ## **`APPENDIX OF CRL.MC 8163/2018`** ## `PETITIONER ANNEXURES` ``` ANNEXURE ATRUE COPY OF THE FINAL REPORT FILED IN CRIME NO.150 OF 2007 OF SANTHAMPARA POLICE STATION ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUMKANDAM. ``` ``` ANNEXURE BTRUE COPY OF THE ORDER DATED 29/5/2007. ANNEXURE CTRUE COPY OF THE ORDER DATED 19/9/2007. ANNEXURE DTRUE COPY OF THE JUDGMENT DATED 25/7/2014 IN WRIT PETITION (C) NO.31268 OF 2007 BEFORE THIS HON'BLE COURT. ANNEXURE ETRUE COPY OF THE ORDER DATED 4/6/2014 IN C.C.NO.501 OF 2011 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ADIMALY. ``` ``` ANNEXURE FTRUE COPY OF THE ORDER DATED 8/9/2017 IN CMP NO.4636 OF 2017 IN C.C.NO.890 OF 2013 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUMKANDAM. ANNEXURE GCERTIFIED COPY OF THE ORDER DATED 9/11/2018 IN CRL.R.P.NO.13 OF 2017 ON THE FILE OF THE ADDL.SESSIONS COURT-IV, THODUPUZHA. ``` ``` 31 ``` ``` CRL.MC NO. 1560 OF 2014, CRL.REV.PET NO. 1774 OF 2014 & CRL.MC NO. 8163 OF 2018 ``` ## **`APPENDIX OF CRL.MC 1560/2014`** ``` PETITIONER ANNEXURES ANNEXURE-A.TRUE COPY OF THE FINAL REPORT FILED IN CRIME NO.150/2007 POF SANTHAMPARA POLICE STATION, ON THE FILE OF THE JFCM, NEDUMKANDAM. ANNEXURE-B.TRUE COPY OF THE ORDER DATED 29/5/2007. ANNEXURE-C.TRUE COPY OF THE ORDER DATED 19/9/2007. ```