Sujatha S., Sudeevi S., Sathee Bai C., Sumam C. v. State of Kerala and Ayyappan Chettiar, Somarajan, Omana

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 26TH DAY OF NOVEMBER 2013/5TH AGRAHAYANA, 1935** **Crl.Rev.Pet.No. 1057 of 2013 () --------------------------------** **AGAINST THE ORDER IN CMP 2482/2008 of MUN-MAGI COURT, S. PARAVOOR DATED 09-10-2012** **REVISION PETITIONER(S)/REVISION PETITIONER/COMPLAINANT: -------------------------------------------------------** **1. SUJATHA.S, DAUGHTER OF CHANDRIKA DEVI, PANDARATHOTTATHU, NEDUNGOLAM, PARAVOOR, KOLLAM.** **2. SUDEVI.S., DAUGHTER OF CHANDRIKA DEVI, TC 7/13336, ARCHANA NAGAR, PONGUMMOODU, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.** **3. SATHEE BAI.C., DAUGHTER OF CHANDRIKA DEVI, THENGUVILA VEEDU, PARIPALLY P.O., KOLLAM.** **4. SUMAM.C., DAUGHTER OF CHANDRIKA DEVI, VASUVIHAR, PUTHENKULAM P.O., KOLLAM.** **BY ADVS.SRI.SURESH SIVAPURAM SRI.P.K.NIJOY** **RESPONDENTS/STATE & ACCUSED.: -----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **.....2** **-2-** **2. AYYAPPAN CHETTIAR, AGED 66 YEARS, SON OF CHELLAPPAN CHETTIAR, REJINA SADANAM, KUNNUMPURATHU, NEDUNGOLAM, PARAVOOR VILLAGE, KOLLAM TALUK.** **3. SOMARAJAN, AGED 78 YEARS, SON OF KRISHNAN, PUTHENVILA VEEDU, NEDUNGOLAM, PARAVOOR VILLAGE, KOLLAM TALUK.** **4. OMANA,, AGED 73 YEARS, WIFE OF SOMARANAN, PUTHENVILA VEEDU, NEDUNGOLAM, PARAVOOR VILLAGE, KOLLAM TALUK.** **R2 BY ADV. SRI.B.SURESH KUMAR R1 BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26-11-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------Crl.R.P. No. 1057 of 2013 -----------------------------------------------------Dated this the 26[th] day of November, 2013** ## **ORDER** The revision petitioners are the legal heirs of the original complainant in C.M.P.No.2482/08 on the files of the Judicial First Class Magistrate's Court (Munsiff Magistrate), S. Paravur, Kollam. The above complaint was filed under Secs.190(a) and 200 of the Code of Criminal Procedure alleging the offences punishable under Secs.463, 464, 468 and 469 read with Sec.34 of the Indian Penal Code against the respondents 2 to 4. 2. The prosecution case, in brief, is that the de facto complainant, along with her husband, was in possession and enjoyment of 0.5 cents of land in the year 1959 onwards. The 2[nd] respondent filed O.S.No.121/04 before the Munsiff's **Crl.R.P. No. 1057 of 2013** -: 2 :- Court, Paravoor, claiming rights over the southern side of the said 0.5 cents of land belonging to the de facto complainant on the strength of a registered deed. On receiving notice in the said suit, the de facto complainant enquired about the same and found that the said property was seen transferred in the name of the respondents 2 to 4 using the forged signatures of the de facto complainant and her husband. Thus, the respondents 2 to 4 have committed the offence alleged against them. 3. The above complaint was referred to the police for investigation under Sec.156(3) of the Cr.P.C. During the course of investigation, the Investigating Officer filed a petition seeking direction of the court to send the disputed signatures found in the sale deed for expert's opinion. That petition was allowed and the disputed signatures along with the specimen signatures were sent to the Forensic Science Laboratory for an expert's report from the handwriting expert. After examining the signatures, the expert sent a report stating that the finger impressions in the disputed documents and in the specimen documents are made by the **Crl.R.P. No. 1057 of 2013** -: 3 :- same finger of the same person of Chandrika Devi concerned in this case. Thus, the report was in favour of the accused. On receipt of the report, the learned Magistrate passed the order under challenge dismissing the complaint under Sec.203 of the Cr.P.C. on finding that the complainant was absent and the expert's report is in favour of the accused, which significantly rule out the allegation of forgery raised against the accused. This order is under challenge in this revision petition. 4. The learned counsel for the revision petitioners submits that the impugned order is per se illegal as the expert's opinion is not a conclusive proof of a disputed signature. The learned counsel further submits that there are other methods also available under Secs.73 and 47 of the Indian Evidence Act. Now the revision petitioners are deprived of their rights to proceed with the complaint on the sole reason that the expert's opinion is in favour of the accused. 5. Per contra, the learned counsel for the respondents 2 to 4 advanced arguments to justify the impugned order **Crl.R.P. No. 1057 of 2013** -: 4 :- under challenge. But he fairly conceded to the extent that there are other methods also available in the Evidence Act for the same. The learned counsel for the respondents 2 to 4 further submits that the original complainant is no more. The respondents 2 to 4 are being prosecuted frivolously without bona fide. The disputed document was executed 34 years back and the allegations in the complaint are unsustainable under law. 6. The short point that arises for consideration in this revision petition is whether there is any illegality or impropriety in the impugned order under challenge. Going by the impugned order, prima facie, I find that the impugned order is cryptic as well as laconic. The reasoned analysis which is the soul of a judicial order is conspicuously absent. Sec.203 of the Cr.P.C. mandates that the Magistrate shall dismiss the complaint if there is no ground for proceeding and in every such case he shall briefly record his reason for so doing. But, in the impugned order, the sole reason for dismissal is that expert's opinion is in favour of the accused. There arises the point whether the expert's opinion can be **Crl.R.P. No. 1057 of 2013** -: 5 :- the sole ground for dismissing a complaint under Sec.203 of the Cr.P.C.? This point was considered by this Court in Najuma v. Sudheer (2013 (3) KLT 410) which reads as follows: “But here, merely on the basis of the report of the expert, without examining any other witnesses, the court arrived at a conclusion that the complainant failed to prove the allegation in the complaint. Therefore, I am of the opinion that the decision cited by the 1[st] respondent will not give any assistance or improvement to the case of the 1[st] respondent. Going by the Indian Evidence Act, there are certain other methods to examine the disputed signature. The court itself is competent to compare the signature and arrive at an opinion under S.73 of the Indian Evidence Act. Similarly, S.47 of the said Act provides another method of examination. But the learned Magistrate has not given opportunity to the petitioner to resort to such remedies available under the Indian Evidence Act. The expert opinion is neither a conclusive proof nor a last resort to prove a disputed **Crl.R.P. No. 1057 of 2013** -: 6 :- signature. In short, expert opinion is not an end of the road to prove the handwriting. The learned Magistrate ought to have granted sufficient opportunities to the revision petitioner to prove the disputed signature by resorting to other remedies and also examining the witnesses acquainted with facts and circumstances of the case.” 7. In view of the above judgment, I find that the order under challenge is unsustainable under Sec.203 of the Cr.P.C. I am inclined to set aside the order under challenge and I do so. The learned Magistrate is directed to restore the complaint on the files and proceed in accordance with law. This revision petition is accordingly allowed. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge