Suprabha v. Reema Salim and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 12[TH] DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, 1944** **CRL.L.P. NO. 340 OF 2022** **CC 450/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,** ## **S. PARAVUR** ## **PETITIONER/PETITIONER/COMPLAINANT:** **SUPRABHA AGED 72 YEARS D/O NALINI GULNAR, PARIPPALLY P O,KOLLAM, PIN - 691574** **BY ADVS. PHILIP J.VETTICKATTU SAJITHA GEORGE NEENU BERNATH** ## **RESPONDENTS/ACCUSED:** |**1**|**REEMA SALIM**| |---|---| ||**AGED 47 YEARS**| ||**H/O SALIM S RAJAN,**| ||**UTHRADAM, KOTTAKKERAM CHERI,**| ||**PARIPPALLY VILLAGE,KOLLAM, PIN - 691574**| |**2**|**SALIM S RAJAN**| ||**AGED 52 YEARS**| ||**S/O SOMARAJAN,**| ||**UTHRADAM,KOTTAKKERAM CHERI,**| ||**PARIPPALLY VILLAGE,KOLLAM, PIN - 691574**| |**3**|**SOMARAJAN, AGED 83 YEARS**| ||**S/O NARAYANA PANICKER,**| ||**UTHRADAM, KOTTAKKERAM CHERI,**| ||**PARIPPALLY VILLAGE, KOLLAM, PIN - 691574**| |**4**|**BALAKRISHNAN NAIR**| ||**AGED 81 YEARS**| ||**S/O PARAMESWARAN NAIR,**| **CRL.L.P.NO.340 OF 2022** 2 **DHANYA (T C 2/3616), VIVEKANANDA, PATTOM VILLAGE, PIN - 695004** **5 MURALIDHARAN AGED 70 YEARS S/O GANGADHARAN , KALA MANDIRAM, PULIYANTAZHIKATHU MELATHIL, KULAMADA, KOTTAKKERAM CHERI, PARIPPALLY VILLAGE,PIN - 691574** **6 N SASI THOTTATHIL VEEDU, CHERIAZHIYIKKAL P.O, KARUNAGAPPALLY, PIN - 690518** **7 N SARADA LEKSHMI VIHAR,KOMALAMKUNNU, VADAMAN P O,ANCHAL, KOLLAM, PIN - 691306** **BY ADVS. K.G.BINDU HARIKUMAR J T.S.MAYA (THIYADIL)(K/140/1995)** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.L.P.NO.340 OF 2022** 3 ## **O R D E R** This Criminal Leave Petition has been filed by the _defacto_ complainant seeking leave to prefer appeal against the judgment of acquittal dated 16.05.2022 in C.C.No.450 of 2009 passed by the Judicial First Class Magistrate Court, South Paravur (for short 'the court below') . 2. The respondents are the accused Nos. 1 to 7. The prosecution case in short is as follows:-CW1 and Cw9 are sisters, who cannot read and write Malayalam language. The 1[st] accused is the daughter-in-law of CW1. The accused 2 and 3 respectively are the son and the husband of CW1. The 4th accused is an Advocate and Notary Public in Thiruvananthapuram. The 5th accused is a document writer. The accused 6 and 7 respectively are the Sub Registrar and Joint Sub Registrar of Chathannoor S.R.O. CW9, who is a native of Parippally. Kollam, has been living in Texas in the United States of America since 1970 and has obtained American Citizenship. CW9 has never returned to her native place after the year 1990. While so, the accused 1 to 3, with intent to extort the properties of CW9, had entered into a criminal conspiracy at their house, namely 'Gulnar' situated at Kottakkeram Cheri, Parippally Village. Thereafter, on 09.08.2000, accused 1 to 3 along with the 4th accused, who is an advocate and notary, had **CRL.L.P.NO.340 OF 2022** 4 fabricated a fake power of attorney in favour of CW1 showing CW9 as the executant and forged the signatures of CW1, CW4 and CW9 therein. As per the fake deed of power of attorney, CW1 was authorized by CW9 to manage, supervise, look after and to sell 53.20 Ares of property comprised in old survey No.8965/A3, A4, 8982/D10, D19, D7, D6 (New survey No. 261/9) in block No. 37 of Parippally Village belongs to CW9. On 24.08.2000, accused 2 and 3 conspired with the 5th accused, who is a document writer, and using the forged power of attorney, they fraudulently executed a sale deed in Malayalam language, whereby 53.20 Ares of property was sold to the 1st accused by CW1 for a sum of Rs.2,00,000. The accused 2, 3 and 5 had conspired with the 7[th] accused who was the Sub Registrar of Chathannur at the relevant time, and CW1 was made to sign on the sale deed, which was registered as Sale Deed No.4594/2000 in contravention of Section 33 (3) of Registration Act, causing a loss of Rs.50,00,000/- to CW1 and CW9. CW1, who did not know the recitals of the said deed in Malayalam, was trapped by the accused. Later, accused 1 and 2 had produced the forged power of attorney and sale deed before CW3, who was the Manager of SBT, Parippally, and obtained loan. Thereafter, on 02.09.2000, accused 1 to 3, with the aid of the 4th accused, had fraudulently executed a power of attorney authorizing the 2[nd] accused to manage, supervise and to make **CRL.L.P.NO.340 OF 2022** 5 partition of 53.30 Ares of property comprised in resurvey No.261/6 and 34.6 Ares of property comprised in resurvey No.261/8 in block No. 37 of Parippally Village entitled to CW1 and CW9 and effected partition of the property by committing impersonation. On 22.09.2000, the accused 2 and 3, after conspiring with the 5th accused, executed a partition deed with respect to the above property, over which CW1 and CW9 have joint right, and registered the same as Partition Deed No. 4980/2000 in contravention of Section 33(3) of Registration Act with the help of the 6[th] accused, who was the then Sub Registrar of Chathannur and CW1 was made to sign on the said document by the 6[th] accused. Thus, 43 Ares of property comprised in survey No. 261/6 belonging to CW9 was obtained by the 2[nd] accused causing a loss of more than Rs.50,00,000/-. Thus, the accused are alleged to have committed the offences punishable under Sections 406, 415, 419, 420, 463, 468, 471, 120(B) and 34 of IPC and S.33(3) of Registration Act, 1908. 3. During the trial at the court below, the accused Nos.6 and 7 died. The accused Nos.1 to 5 faced trial. The court below after a fullfledged trial found that the prosecution miserably failed to prove the case against the accused and accordingly, they were found not guilty of the charges levelled against them and acquitted as per the impugned **CRL.L.P.NO.340 OF 2022** 6 judgment. 4. Now this Crl. L.P has been filed by the _defacto_ complainant to grant special leave to prefer appeal against the acquittal of the accused Nos.1 to 5. 5. I have heard Smt.Sajitha George, the learned counsel for the petitioner, Smt.K.G.Bindu, the learned counsel for the accused Nos. 1 to 3 and Sri.Harikumar J., the learned counsel for the accused No.4. 6. The Apex Court in **State of Maharashtra v. Sujay Mangesh Poyarekar** [(2008) 9 SCC 475] has held that, “in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a _prima facie_ case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.” It was further held that, “it cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” **CRL.L.P.NO.340 OF 2022** 7 and, hence, no leave should be granted.” The above decision has been followed by the Apex Court in **State of Maharashtra v. Shankar Ganapati Rahatol & Others** [(2020) 11 SCC 608] 7. As already noted, the prosecution case in short is that the accused Nos.1 to 3 along with the 4[th] accused forged the signature of CW9 and fabricated a fake power of attorney in favour of CW1. However, CW9, who is stated to be an American citizen, did not prefer any complaint before any authority that she did not execute the disputed power of attorney or her signature therein was a forged one. She did not appear before the court below also. Ext.P14 deed of power of attorney is disputed. In fact, the case records would show that CW1, who is the _defacto_ complainant, is a beneficiary to the power of attorney and she has even entered into a partition deed subsequently ratifying the document which was executed by using the power of attorney. CW9, who is the material witness, did not turn up to adduce evidence and challenged her signature in Ext.P14. The prosecution also did not take steps to send the disputed signature in Ext.P14 for scientific examination. That apart, the prosecution could not prove who had forged the signatures of PW1 and PW4 in Ext.P14. Yet another allegation of the prosecution is that the accused 1 to 4 cheated PW1 and CW9 by impersonation. Apart from the allegation that the accused 1 to **CRL.L.P.NO.340 OF 2022** 8 3 in collusion with the 4[th] accused had created fake power of attorney, the prosecution could not bring out any evidence to show who committed impersonation and forged the signatures of PW1, PW4 and CW9. Even though PW1 denied the execution of PW14 deed of power of attorney, it has come out in evidence that the property extending 86.90 Ares were partitioned between PW1 and CW9. The 2[nd] accused was the power of attorney holder of CW9 for executing the Ext.P12 partition deed. Subsequently, the property extending 5 cents was transferred in favour of SNDP Yogam Paripally by PW1 as per Ext.D3 gift deed. It is pertinent to note that Ext.D3 gift deed was executed by PW1 on 09.09.2013, and the prior deed of Ext.D3 is Ext.P12. According to PW1, she came to know that Ext.P12 and Ext.P13 deeds were fraudulently executed by the accused by forging Ext.P14 power of attorney. If Ext.P12 was a forged document as alleged by PW1, she could not have transferred the property of which she has no right at all. The 4[th] accused is none other than an Advocate and Notary public. PWs.1 and 4 admitted that they had visited the office of the 4[th] accused. According to the 4[th] accused, Ext.P14 was not prepared by him. His case is that he only attested the signatures of PWs1 and 4 who visited his home for notary attestation. It is quite impossible for a Notary to know the genuineness of the document produced before him for attestation. **CRL.L.P.NO.340 OF 2022** 9 After evaluating the entire evidence on record, the court below rightly found that the prosecution has failed to prove the case against the accused beyond reasonable doubt. On perusal of the entire records including the judgment under challenge, I am of the view that no arguable points have been raised by the petitioner. The petitioner has failed to make out even a prima facie case. Hence, the leave sought for is declined. This Crl.L.P is dismissed. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** AS