T. J. Varghese v. Fr. James Vamattam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934** **Crl.L.P..No. 527 of 2012 ()** **---------------------------** **AGAINST THE JUDGMENT IN CC.642/2003 of J.M.F.C.,TIRUR, DTD.11.6.2012** **ACCUSED(S)/COMPLAINANT:** **----------------------** **T.J.VARGHESE, S/O. JOHN JOSEPH, PO B.P.ANGADI ROCK GARDENTHALAKKAD AMSOM DESOM.** ## **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** ## **COMPLAINANT(S)/ACCUSED:** **-----------------------** **1. FR.JAMES VAMATTAM** **NOW WORKING AS PRIEST AT ST.SEBASTIANS CHURCH KOODARANJI KOZHIKODE-673 604.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR** **HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY ADV.SMT.LALIZA T.Y., PUBLIC PROSECUTOR** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 18-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **------------------------------Crl.L.P.No.527 of 2012** ## **------------------------------Dated this the 18[th] day of September, 2012.** ## **O R D E R** The complainant in a prosecution for the offence punishable under section 463, 469, 471 and 500 of IPC is the petitioner herein who seeks leave of this Court to file an appeal against the judgment dated 11.6.2012 in C.C.No.642 of 2003 of the court of Judicial First Class Magistrate-I, Tirur, by which the learned Magistrate acquitted the accused under section 248(1) of Cr.P.C. 2. I have heard Sri.George Cherian learned counsel for the petitioner and I have perused the judgment of the trial court. 3. The case of the complainant is that, he is a member of St.Mary's church Parish at Tirur and the accused is the vicar of the said church. St.Mary's church was reconstructed recently. A civil case was pending before 2 ## **Crl.L.P.No.527 of 2012** the Sub court-Tirur, preferred by the complainant and others, with respect to the amount due to the church relating to the construction of the church. The further case of the complainant is that, the accused decided to convene a meeting of the members of the Parish on 30.3.2003 as directed by Bishop to solve the problems in the Parish and the said fact was announced by the accused at the time of Mass on 23.3.2003 and on 30.3.2003. According to the complainant, when the meeting has started on 30.3.2003, the accused without disclosing the above agenda announced through mike loudly that the meeting was convened to discuss expulsion of the complainant from Parish and that there was a complaint received by the accused demanding to expel the complainant and the said complaint was signed by 194 persons. It is the case of the complainant that the majority of the Parish members had not signed in such a complaint and they had not seen the complaint. Thus according to the complainant, the accused has fabricated a complaint by copying the names from the book containing 3 ## **Crl.L.P.No.527 of 2012** the names of the Parish members and forging their signatures or by obtaining signatures by misleading them and suppressing the correct facts. Thus according to the complainant, the intention of the accused was to damage the reputation of the complainant. According to the complainant, the accused was engaged in fabricating cases, publishing notices in the Parish and creating disharmony among the people and is a person filing cases against the Bishop and the church. Thus according to the complainant, the accused namely Fr.James Vamattam has committed the offences punishable under section 463, 469, 471 and 500 of IPC. 4. Though the accused has appeared in the court, he was exempted from personal appearance under section 205 of Cr.P.C. Pws.1 to 6 were examined and Exts.P1 to P8 were marked from the side of the complainant and after a preliminary hearing, a formal charge was framed against the accused which read over and explained, and the counsel for the accused pleaded not guilty. Thereafter, Pws.1, 2, 4 4 ## **Crl.L.P.No.527 of 2012** and 5 were recalled and further examined. On the basis of the submission made by the counsel for the accused, Pws.3 and 6 are not further cross examined. Pws.7 and 8 were also examined and Ext.P9 is marked. From the side of the defence, Exts.D1 and D2 were marked. On the basis of the evidence and materials on record and in the light of the arguments advanced before the court below, the learned Magistrate formulated 6 points for his consideration. 5. Finally, the trial court has found that Exts.P7 and P8 are not genuine documents and these are not sufficient to establish that the accused has involved in the making of Ext.P1 complaint and the evidence only shows that some of the signatures in Ext.P1 complaint are either forged or obtained by misleading the signatories. Thus according to the learned Magistrate, the evidence is insufficient to establish that the complaint was forged by the accused or that he used the same knowing that it was a forged document and the complainant has also not proved that the accused defamed him as alleged by him. Accordingly, the 5 ## **Crl.L.P.No.527 of 2012** accused is found not guilty of the offences charged, consequently, the accused is acquitted under section 248(1) of Cr.P.C. It is the above findings and order of acquittal sought to be challenged by filing an appeal for which the petitioner seeks leave of this Court under section 378(4) of Cr.P.C. 6. Learned counsel for the petitioner fairly submitted that connected with the administration of the church, various litigations both civil and criminal were pending in various courts and except the present complaint, all other cases were settled on the basis of mediation. In the present case also, according to the learned counsel, as evidenced by Ext.D1, a petition was filed to withdraw the complaint and Ext.D1 was also filed in pursuance to the settlement arrived on mediation. It is the further case of the learned counsel that against the settlement and understanding, the accused herein has filed Ext.D2 counter affidavit to Ext.D1application, resisting withdrawal of the complaint. The learned counsel strenuously submitted on the strength of 6 ## **Crl.L.P.No.527 of 2012** the decision of the Honourable Apex Court reported in **Krishnan V. State of Kerala [2004(2) KLT page no.35 S.N. case no.40]** that, to attract section 471, it is not necessary that the person, against whom the accusation of forgery alleged, himself had committed the same. It is emphatically submitted by the learned counsel that even in Ext.P1 complaint it is proved that many of the signatories therein are not fit persons and they are not aware of the allegations in the complaint. Therefore, according to the learned counsel, the findings of the court below is incorrect and illegal and if an appeal is entertained, there is every scope for interference with the findings of the court below and against the order of acquittal. 7. I have carefully considered the arguments of the counsel for the petitioner and I have perused the judgment of the trial court, which is sought to be impugned. 8. In the light of the arguments advanced by the counsel for the petitioner and the findings of the court below on the basis of the evidence and materials referred to 7 ## **Crl.L.P.No.527 of 2012** in the judgment sought to be impugned, the question to be considered is whether the petitioner is entitled to get the leave as prayed for or whether the petitioner is succeeded in making out a prima facie case in support of his challenge against the findings of the court below and the order of acquittal recorded in favour of the accused. At the outset it is to be noted which is beyond dispute that, series of disputes both civil and criminal were pending in various courts with respect to the administration of St.Mary's Church at Tirur. The petitioner has also not disputed the fact that all the cases, including the present complaint, had been settled through mediation and that is why Ext.D1 withdrawal petition was filed by the petitioner, who is the complainant, in the trial court. 9. Going by the judgment of the trial court it can be seen that the learned Magistrate has undertook a thorough scrutiny of the evidence and materials on record and had came into a specific finding that there is no reason to disbelieve the evidence of Pws.2, 4 and 5 that they have not 8 ## **Crl.L.P.No.527 of 2012** signed in Ext.P1 complaint seeking the expulsion of the complainant from the Parish function. It is also found that the evidence given by PW2 that Ext.P1 does not contain his signature and that of Pws.4 and 5 that, their signatures were obtained in separate sheets and attached to Ext.P1 complaint can be accepted. But the learned Magistrate is firm in his opinion that the complainant has not adduced acceptable evidence to prove that Ext.P1 complaint was fabricated and the signatures on the same were forged by the accused. In support of the above findings, the learned Magistrate has observed that PW1 has not denied the suggestion put in cross examination that there is a practice of Parish members approaching the priest of the Church with representations. Therefore, on the basis of the evidence of PW1, the learned Magistrate has also found that merely because the accused received a complaint from somebody else and forwarded the same to the Bishop of the diocese for further consideration it cannot be said that he is a party to the alleged forgery, unless it is proved that he 9 ## **Crl.L.P.No.527 of 2012** had knowingly aided such forgery. Thus on examination of the judgment in question, I am convinced that, the findings of the learned Magistrate are fully supported by the evidence and materials referred to therein. The petitioner has no case that the learned Magistrate has overlooked any materials or evidence on record which is in favour of the complainant and came into an erroneous conclusion in favour of the accused. Thus from the impugned judgment it is discernible that in support of the findings of the court below the learned Magistrate has assigned acceptable and sound reasoning, that too on the basis of the available evidence and materials. 10. In the decision in **State of Rajasthan v. Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the Apex Court has held that, “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence.” 10 ## **Crl.L.P.No.527 of 2012** On examination of the facts and circumstances involved in the case and the findings of the court below I am of the view that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. The petitioner has also failed to make out any compelling and substantial reasons so as to interfere with the order of acquittal recorded in favour of the accused, and by the judgment sought to be impugned, the presumption in favour of the accused is bolstered. If that be so, there is not even a remote scope to interfere with the order of acquittal and the findings of the court below even if an appeal is entertained. Therefore, there is no merit in this petition and accordingly the same is dismissed, declining the leave sought for in the petition. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge