Subhash Varma v. Sub Inspector of Police, Kuthiyathode & Major Raghunath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 Crl.MC.No. 1757 of 2007() ------------------------CRIME NO.42 OF 2007 OF KUTHIYATHODE POLICE STATION .................... PETITIONER: ACCUSED ------------------- SUBHASH VARMA, 5C PROVIDENCE GROVE, ERNAKULAM. BY ADV. SMT.P.M.SWAYAM PRABHA SMT.R.ASALATHA VARMA ## RESPONDENTS: COMPLAINANTS ------------------------- 1. SUB INSPECTOR OF POLICE, KUTHIYATHODE. 2. MAJOR RAGHUNATH, FLAT NO.403, PRASANNA VIHAR, MARINE DRIVE, KOCHI. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR SRI.K.GOPALAKRISHNA KURUP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/04/2008, ALONG WITH WPC NO. 23651 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## R.BASANT, J ## -----------------------------------Crl.M.C.No.1757 of 2007 and W.P(C).No.23651 of 2007 ## ------------------------------------Dated this the 4[th] day of April, 2008 ## ORDER/JUDGMENT Petitioner in this case is the sole accused in Crime No.42 of 2007 and the defacto complainant in Crime 85 of 2007, both registered at the Kuthiyathodu Police Station. In Crime 42 of 2007, in which the petitioner is the sole accused, the crime was registered alleging offences, punishable, inter alia, under Sections 420 and 406 I.P.C. The crux of the allegations in that crime is that the petitioner had induced the defacto complainant in that case, ie. the 2[nd] respondent in Crl.M.C.No.1757 of 2007, to part with a huge amount of about Rs.14 lakhs on the basis of fraudulent misrepresentation. Amounts were allegedly received in instalments by the petitioner/accused promising to make available to the 2[nd] respondent/the defacto complainant business opportunities which were presented to be very lucrative. It is alleged that payments were made in instalments and finally an agreement dated 02.01.07 was entered into between the petitioner and the 2[nd] respondent. Crl.M.C.No.1757 of 2007 and W.P(C).No.23651 of 2007 2 2. Investigation into that crime has been conducted. The petitioner came to this Court after registration of the F.I.R with a prayer that the F.I.R may be quashed as it amounts to misuse and abuse of the process of court. Notice was ordered and it was reported to the Court that the final report had by then been filed. Thereupon the petitioner filed an application for amendment of the Crl.M.C and made a renewed prayer that final report may itself be quashed on the ground that it amounts to abuse of process of the Court. 3. Thus the prayer in Crl.M.C 1757/07 is that the final report in Crime 42 of 2007 may be quashed. 4. According to the petitioner, he had not executed the alleged agreement dated 2.1.07. According to him, it is a case of naked forgery. The signature is not his. He has not subscribed to any part of the document. On coming to know that such an allegation is raised against him in Crime 42 of 2007, the petitioner filed a complaint before the Judicial Magistrate of the First Class, Cherthala, alleging that the 2[nd] respondent herein as also some other accused, whose name and signature appear in that document as attestors, had committed the offence of forgery. Crl.M.C.No.1757 of 2007 and W.P(C).No.23651 of 2007 3 That complaint was forwarded by the learned Magistrate to the police under Section 156(3) Cr.P.C and then Crime 119 of 2007 was registered at the Cherthala Police Station. The said police started the investigation. But they came to realise the connection between Crime 42 of 2007 and the said crime registered at the Cherthala Police Station. Therefore the Cherthala police forwarded the case diary file to the Kuthiyathodu where it was renumbered as Crime 87 of 2005. Investigation into that crime is in progress. The petitioner has come to this Court with Writ Petition No.23651 of 2007 with a grievance that the said crime is not being investigated properly by the Kuthiyathodu police. In that Writ Petition the Investigating Officer has informed the Court that the investigation is practically complete and the police is gravitating to the conclusion that the said complaint is not valid, correct or true. The police is about to refer the said complaint as false, it is reported. 5. The arguments have been heard in detail. In fact, the arguments in these petitions commenced even before the decision in **Sakiri Vasu v. State of U.P** [2008 AIR SCW 309] was rendered and reported. By then, arguments had progressed Crl.M.C.No.1757 of 2007 and W.P(C).No.23651 of 2007 4 and therefore this Court felt that the arguments can be continued notwithstanding the dictum in **Sakiri Vasu** . 6. The common petitioner before me raises one crucial and cardinal grievance. According to him the agreement dt.2.1.07 is the most crucial document available in the case. In the crime which is investigated against him as well as the crime registered at his instance, it is very important to ascertain whether the said document is true and genuine. Significantly and surprisingly the Investigating Officer is not taking advantage of the benefit of science and technology to ascertain whether the said document is true and genuine. The Investigating Officer is biased and is not conducting a proper investigation, it is alleged. If he were having an open mind, it is unlikely, nay impossible, that he would have sent the agreement dated 2.1.07 to the expert to ascertain whether it bears the signature of the petitioner. In these circumstances, it is prayed that appropriate directions may be issued now to conduct a further investigation under Section 173(8) Cr.P.C in Crime 42 of 2007 and to get the said document, ie. alleged agreement dated 2.1.07, examined by the expert. The learned counsel for the petitioner now limits the relief in Crl.M.C.No.1757 of 2007 and W.P(C).No.23651 of 2007 5 Crl.M.C.No.1757 of 2007 to a direction under Section 173(8) Cr.P.C to conduct a further investigation on that specific aspect in Crime 42/07. 7. So far as crime 85/2007 from which the W.P(C) arises, the learned counsel for the petitioner only repeats the same request that the said document, which is alleged to be forged in Crime 85 of 2007, may also be sent to the expert for his opinion. The Investigating Officer may be directed not to squander the advantage of the possibility of such scientific and technological evidence before coming appropriate conclusions in these matters. 8. To put it in a nut shell, the present grievance in both the Crl.M.C and W.P(C) is only that directions may be issued to the Investigating Officer to get the said agreement dated 2.1.07 examined by the expert. 9. For the 2[nd] respondent in the Crl.M.C who has not been formally arrayed as a party in the writ petition, arguments have been advanced by Counsel Mr.Gopalakrishna Kurup. The counsel contends that it is not correct to say that the genuineness of the said agreement dt.2.1.07 is the `be all and end all' in the case. Even without that demand it is possible for the prosecution to Crl.M.C.No.1757 of 2007 and W.P(C).No.23651 of 2007 6 support its case. For a proper investigation in Crime 85 of 2007, it is not invariable that the said document must be sent to the expert. Even if the report of the expert is received, the Investigating Officer or the Court shall not be and should not be a prisoner of any such an opinion expressed by the Expert. It will still have to be considered whether the weight of evidence available otherwise would offset the opinion of the expert even assuming that such opinion is going to be in favour of the petitioner herein. In these circumstances, the learned counsel for the petitioner submits that it is not essential, invariable or unavoidable that the said document must be sent to the expert. 10. In the course of discussions at the Bar, this Court certainly observed that for a proper investigation it may be necessary to send the document to the expert and get the report of the expert whatever be its probative value in the final analysis. I do not intend to state that the opinion of the expert regarding the genuineness of the agreement dt.2.107 by itself will help the Investigating Officer to decide the case either way. But it was certainly opined in the course of discussion at the Bar that any alert Investigating Officer should not squander the advantage of 7 ## Crl.M.C.No.1757 of 2007 and W.P(C).No.23651 of 2007 such scientific and technological evidence which is possible to be secured. 11. All that is well, that ends well. The learned Public Prosecutor, at the end of submissions before this Court, finally takes the stand that no directions of this Court are necessary and the Investigating Officer shall himself take necessary steps under Section 173(8) Cr.P.C in Crime 42 of 2007 and in the course of investigation before filing the final report in Crime 85 of 2007 to get the said document examined by the expert. I am satisfied that, in these circumstances, no further directions are necessary now in the matter by this Court. The investigator through the learned Public Prosecutor having undertaken to get the document expert for the purpose of both cases, I am satisfied that no further directions are necessary in the matter. I must incidentally note that the disputed agreement bears not only the signature of the petitioner but also a seal. Opinion of the expert on the genuineness of both can and must be sought to resolve the controversy and to know the truth. 12. Necessary steps in that direction shall be taken by the Investigating Officer within a period of 30 days from this date. A Crl.M.C.No.1757 of 2007 and W.P(C).No.23651 of 2007 8 copy of the order shall be furnished to the learned Public Prosecutor forthwith. 13. These Crl.M.C and W.P(C) are, in these circumstances, dismissed, as it is unnecessary now to issue any further directions in view of the stand taken by the learned Public Prosecutor and the undertaking made by him that the Investigating Officer shall get the document examined by the expert. 14. These petitions are accordingly dismissed with the above observations. **(R.BASANT, JUDGE)** rtr/-