S K Pandit v. Chandraprakash D Deo and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941 Crl.MC.No. 5542 of 2014** **TO QUASH CC 467/2012 of JUDICIAL MAGISTRATE OF FIRST** **CLASS -I,KOCHI** ## **PETITIONER/2ND ACCUSED:** **S K PANDIT AGED 84 YEARS S/O.KRISHNA PANDIT,PLOT NO 435/2/2A,'ASAI RESIDENCY',RAMANATH PANDIT RESEARCH CENTRE COMPLEX',VISHNUPURI P.O,TELEGAON(DABHADE) 410 507,TAL, MAVAL,DISTRICT PUNE** **BY ADV. SRI.G.KRISHNAKUMAR** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 CHANDRAPRAKASH D DEO AGED ABOUT 68 YEARS S/O.LATE D.V DEO.C.C NO 5/1085,PANDIT ROAD, KOCHI-682 002 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM 682 031** **BY ADVS. SRI.N.RATHEESH FOR R1 SMT.SUMA RATHEESH FOR R1 PP SMT M.K..PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.05.2019, THE COURT ON 07.06.2019 PASSED THE FOLLOWING:** Crl.M.C.No.5542/2014 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.5542 of 2014 ----------------------------------------------------Dated this the 7[th] day of June, 2019 ## **O R D E R** The petitioner is the second accused in the case C.C.No.467/2012 on the file of the Court of the Judicial First Class Magistrate, Kochi. He seeks to quash the proceedings against him in the case by invoking the power of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). 2. The case against the petitioner is one instituted upon the complaint (Annexure-II) filed by the first respondent (hereinafter referred to as 'the complainant'). The history of the Sree Krishna Swamy Devaswom/Temple (hereinafter referred to as 'the temple') and the administration and management of the properties of the temple is narrated in the complaint. However, the material averments/allegations in the complaint, with regard to commission of the offences alleged against the accused, are the following: The complainant is the Managing Trustee of the temple. The temple exclusively Crl.M.C.No.5542/2014 3 belongs to Maharashtra Brahmins who are generally known as 'Pandithars'. The first accused is a Maharashtra Brahmin settled down in Mattancherry. The second accused is also a Maharashtra Brahmin. He is a person who has settled down in Pune District in Maharashtra. The first accused is a rival to the family business of the complainant and he is on inimical terms with the present managing committee of the temple headed by the complainant. He has been trying to oust the present officebearers of the committee. One V.A.Pandit was managing the temple during the period 1947-1977. The second accused, may be at the persuasion of the first accused, claimed himself as a hereditary trustee of the temple in his capacity as the brother and successor-in-interest of V.A.Pandit, filed complaints in the year 2008 before the Cochin Devaswom Board against the Board of Trustees of the temple. In those complaints, the second accused stated that a 'chattapathram' (scheme) framed in the year 1075 M.E existed in respect of the temple and as per the said scheme, the temple belonged to his family. The Cochin Devaswom Board, as per the order dated 30.04.2008, gave direction to include three hereditary trustees in the Board of Trustees of the temple. The Board of Trustees then filed Crl.M.C.No.5542/2014 4 W.P.(C) No.4205/2009 in the High Court challenging the order of the Cochin Devaswom Board. In that writ petition, the High Court directed the Ombudsman for the Travancore and Cochin Devaswom Boards to make a report. At that time, the Law Officer of the Cochin Devaswom Board stated that the Board had in their possession a handwritten copy of the chattapathram framed in the year 1075 M.E which was attested by V.A.Pandit on 15.04.1970. This stand made by the Cochin Devaswom Board was against their earlier stand that there was no such document in existence. In the enquiry conducted by the Cochin Devaswom Board, the second accused produced a copy of the chattapathram framed in the year 1075 M.E. The handwritten copy of the chattapathram newly found available in the office of the Cochin Devaswom Board would have been fabricated and forged by the second accused with the connivance of the first accused. The complainant believes that the attested handwritten copy of the chattapathram produced by the accused before the Devaswom Board is a document forged by them. The attempt of the accused by submitting such forged handwritten copy of the chattapathram might be to persuade the Devaswom Board to believe that the temple Crl.M.C.No.5542/2014 5 belonged only to the family of the accused. The second accused is in no way connected with the affairs of the temple. But, for the illegal and illicit design of the first accused, he would have come to Kochi and become instrumental for fabricating the handwritten copy of the chattapathram and somehow stealthily placed it before the Cochin Devaswom Board. The accused furnished the handwritten copy of the aforesaid document before the enquiry officer of the Devaswom Board knowing fully well that it is a forged and fabricated document. They have persuaded the Cochin Devaswom Board to believe that it is a genuine document to get an order in their favour. The accused have committed the offences under Sections 415, 460, 465, 468 and 474 read with 34 of the Indian Penal Code (for short 'I.P.C'). 3. After conducting enquiry under Section 202 of the Code, the learned Magistrate found that there is a prima facie case against the accused and took the complaint on file for the offences under Sections 415, 465, 468 and 474 read with 34 I.P.C and ordered to issue summons to the accused. 4. Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the Crl.M.C.No.5542/2014 6 first respondent. 5. The learned counsel for the petitioner has contended that the averments/allegations in the complaint do not attract the offences alleged against the petitioner. Learned counsel has submitted that the averments in the complaint would indicate that even the complainant is not certain that the petitioner has committed any offence of forgery or cheating. On the other hand, learned counsel for the first respondent would contend that the averments in the complaint would spell out the offences alleged against the petitioner and that this Court would not be justified in quashing the proceedings against the petitioner at the inception. 6. At this juncture, it is pertinent to note that the complainant had earlier filed a complaint against the very same accused before the Magistrate's Court and the Magistrate had forwarded it to the police under Section 156(3) of the Code for investigation. However, after registration of a case and conducting investigation, the police filed refer report stating that there was no evidence to find that the accused had committed the offences alleged against them. 7. According to the complainant, the chattapathram of Crl.M.C.No.5542/2014 7 1075 M.E produced before the enquiry officer of the Cochin Devaswom Board is a forged document. Whether it is a forged or genuine document is not a matter to be decided at this stage in this petition. 8. The offences alleged against the petitioner are under Sections 415, 465, 468 and 474 read with 34 I.P.C. 9. Section 415 of the Indian Penal Code reads as follows: _"415. Cheating. - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"._ 10. The ingredients to constitute an offence of cheating are as follows: (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or (b) the person so induced should be intentionally Crl.M.C.No.5542/2014 8 induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b) above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property. A fraudulent or dishonest inducement is an essential ingredient of the offence of cheating. 11. The averment in the complaint with regard to the offence of cheating committed by the petitioner is that he furnished the handwritten copy of the chattapathram before the enquiry officer of the Cochin Devaswom Board knowing fully well that it is a forged and fabricated document and persuaded the Board to believe that it is a genuine document to get an order in his favour. But, there is no averment in the complaint with regard to any dishonest inducement made by the petitioner to any officer of the Cochin Devaswom Board or any other person. Even if the averment in the complaint that the petitioner persuaded the Cochin Devaswom Board to pass an order in his favour is treated as averment regarding dishonest inducement made by him, there is no averment in the complaint as to the damage or harm caused to the Cochin Crl.M.C.No.5542/2014 9 Devaswom Board on acting upon such inducement made by the petitioner. It is to be noted that, as per the definition of cheating given under Section 415 I.P.C, the damage or harm has to be sustained or suffered by the person who is induced by the accused. On a perusal of the averments in the complaint, I am of the considered view that the ingredients of the offence of cheating, as defined under Section 415 I.P.C, are not made out against the petitioner. 12. The other offence alleged against the petitioner is forgery of document. 13. Section 463 I.P.C defines forgery and Section 464 I.P.C deals with making a false document. Section 463 provides that 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. In order to constitute forgery, the first essential condition is that the accused should have made a false document. The false document must be made with an Crl.M.C.No.5542/2014 10 intent to cause damage or injury to the public or to any class of public or to any community. The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. In a case of forgery, the questions are: (i) is the document false (ii) is it made by the accused and (iii) is it made with an intent to defraud. Every forgery postulates a false document either in whole or in part, however, small. 14. An analysis of Section 464 I.P.C 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 Crl.M.C.No.5542/2014 11 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 document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses (See **Mohammed Ibrahim v. State of Bihar: (2009) 8 SCC 751** ). After the amendment of the Indian Penal Code by Act 10 of 2009, the act of a person affixing any electronic signature on any electronic record also amounts to making a false document. 15. Making any false document is sine qua non to attract the offence of forgery. In **Sheila Sebastian v. Jawaharaj : AIR 2018 SC 2434** , the Apex Court has held that the definition of "false document" is a part of the definition of "forgery" and both must be read together. A person is said to make a false document or record if he satisfies one of the four conditions as noticed hereinbefore and provided for under Section 464 I.P.C. Crl.M.C.No.5542/2014 12 16. In the instant case, the allegation in the complaint is that the handwritten copy of the chattapathram produced by the petitioner before the enquiry officer of the Cochin Devaswom Board is a forged document. The allegations/averments against the petitioner in the complaint with regard to the commission of the offence of forgery are extracted in the succeeding paragraphs. 17. In paragraph 9 of the complaint, it is stated as follows: _“Therefore it can be easily concluded that the handwritten copy of the so called Chattapathram newly found available in the office of Cochin Devaswom Board would have been fabricated and forged at the end of the Accused No.2 with the connivance of Accused No.1 and it might be clandestinely and stealthily placed lately in the office of the Cochin Devaswom Board without the notice of its officials by the Accused with malafide intention to snatch the properties and administration of the SreeKrishnaswamy Devaswom/Temple.”_ (emphasis supplied). ## 18. In paragraph 12 of the complaint, it is stated as follows: _“_ The complainant therefore believes _that the_ Crl.M.C.No.5542/2014 13 _said attested handwritten copy of Chattapathram was clandestinely produced by the Accused before Devaswom Board and it is a forged and faked one only at their end. The attempt of the accused by submitting such forged handwritten copy of an illusory chattapathram might be to persuade the Devaswom Board authorities to believe that the temple belonged only to a family of Pandit and Accused No.2 is one of a successor of the said family on the basis of his surname as Pandit.”_ (emphasis supplied). ## 19. In paragraph 13 of the complaint it is stated as follows: “ _In the instant case Accused No.2 is a total stranger to the SreeKrishnaswami Devaswom/ temple for long time. He is hailing from Pune. He is not in any way connected with the affairs of the said Devaswom/temple at all. But for the illegal and illicit design of Accused No.1 he would have come to Kochi and become instrumental for fabricating a false document, viz., the handwritten copy of Chattapathram with attestation as alleged, and somehow stealthily placed it before the Cochin Devaswom Board.”_ ## 20. Again in paragraph 13 of the complaint it is stated as follows: Crl.M.C.No.5542/2014 14 _“The complainant presumed that the Accused had fabricated so many other copies from the said faked handwritten copy of chattapathram with false attestation of Mr.V.A.Pandit, for materializing their ill object.”_ (emphasis supplied) _._ ## 21. In paragraph 15 of the complaint, it is stated as ## follows: _“The Accused have furnished the handwritten copy and produced the copy thereof before the enquiry officer of the Devaswom Board viz., Mr.M.S.Sajai knowing fully well that it is a forged and fabricated document at their end. They have persuaded the Board to believe it to be a genuine document to get an order in their favour by surreptitiously and secretly placed in their office lately. They have committed the offence of forgery with common intention for the purpose of cheating knowing the same to be forged and with that intention they used it fraudulently and dishonestly as genuine.”_ ## 22. The aforesaid averments/allegations in the complaint would show that even the complainant is not certain or sure whether the petitioner has committed an act of forgery. All the aforesaid allegations raised against the petitioner are based on surmises and conjectures and on the belief of the complainant. Crl.M.C.No.5542/2014 15 ## 23. In **Sheila Sebastian** (supra), the Apex Court has ## held as follows: _“Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery”._ (emphasis supplied). 24. In the instant case, there is no definite and specific allegation in the complaint that the petitioner is the person who has made the handwritten copy of the chattapathram of the year 1075 M.E. The ingredients of the offence of forgery are not made out against the petitioner from the allegations/averments in the complaint. It follows that the offences punishable under Sections 465, 468 and 474 are not made out against the petitioner. 25. Learned counsel for the petitioner has stated that the Crl.M.C.No.5542/2014 16 petitioner has already instituted a suit in the civil court for framing a scheme for the administration and management of the temple. This fact is not disputed by the learned counsel for the first respondent/complainant. Necessarily, the genuineness or otherwise of the chattapathram of the year 1075 M.E would be an issue for consideration in the aforesaid suit. 26. In the aforesaid circumstances, I am satisfied that continuation of the proceedings against the petitioner would be an abuse of the process of the court. The proceedings against him are liable to be quashed. 27. Consequently, the petition is allowed. All proceedings against the petitioner alone in the case C.C.No.467/2012 on the file of the Court of the Judicial First Class Magistrate, Kochi, which are based on Annexure-II complaint, are hereby quashed. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/06/06/2019 Crl.M.C.No.5542/2014 17 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **ANNEXURE P1 ANNEXURE 1 CERTIFIED COPY OF THE FINAL REPORT FILED IN CRIME NO 229/2009 BEFORE THE JFCM I,KOCHI** - **ANNEXURE P2 ANNEXURE II CERTIFIED COPY OF THE COMPLAINT FILED U/S. 200 CIVIL PROCEDURE COPDE IN C.C 467/2012 ON THE FILE OF THE JFCM COPURT,KOCHI** - **ANNEXURE P3 ANNEXURE III CRTIFIED COPY OF CHATTAPATHRAM 1075 ME EXECUTED BY BABU PANDITHAN GOVINDA PANDITHAN IS PRODUCED IN ANNEXURE II COMPLAINT** - **ANNEXURE P4 ANNEXURE IV CERTIFIED COPY OF THE ORDER NO E 3909/76 DATED 10-04-1978 OF COCHIN DEVASWOM BOARD** - **ANNEXURE P5 ANNEXURE V CERTIFIED COPY OF THE ENQUIRY REPORT DATED 14-10-2008 OF THE ENQUIRY OFFICE OF COCHIN DEVASWOM BOARD** - **ANNEXURE P6 ANNEXURE VI TRUE COPY OF THE REPORT OF THE OMBUDSMAN IN WPC NO 4205/2009** - **ANNEXURE P7 ANNEXURE VII COPY OF REPORT DATED 0312-1977 OF ASSISTANT COMMISSIONER OF THE COCHIN DVASWOM BOARD OBTAINED UNDER THE RTI ACT** - **ANNEXURE P8 ANNEXURE VIII COPY OF THE FILE NOTE APPROVED ON 31-03-1978 OF THE COCHIN DEVASWOM BOARD,OBTAINED UNDER THE RTI ACT** - **ANNEXURE P9 ANNEXURE IX ORDER DATED 18-02-1986 OF THE COCHIN DEVASWOM BOARD ON E 3909/76 OBTAINED UNDER THE RTI ACT** ## **RESPONDENTS' EXHIBITS:** **NIL** **TRUE COPY** **PS TO JUDGE**