Thankachan v. Padmavathiamma and others (CRL.L.P. No.1413 of 2008)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** ## **TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933** **Crl.L.P..No. 1413 of 2008()** **---------------------------** ## **CC.1521/2001 of JUDICIAL FIRST CLASS MAGISTRATE COURT -III, PUNALUR** **....................** ## **PETITIONER** - **-------------------** ## **THANKACHAN, S/O.GEEVARGHESE THADATHIVILA PUTHENVEEDU, KOMALAMKUNNU WARD, PUNALUR.** **BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY** ## **RESPONDENTS** **----------------------** ## **1. PADMAVATHIAMMA** **AGED 65 YEARS, D/O.RAGHAVAN PILLAI KOVILAKATHU PADMAVILASOM, KOMALAMKUNNU ,PUNALUR.** ## **2. SREEDHARA KURUP, AGED 64 YEARS** **S/O.NEELAKANDA PILLAI,KUNNATHU PUTHENVEEDU, KIZHAKUM KARA, MEENADU VILLAGE.** **3. RAMACHANDRA KURP, AGED 66 YEARS S/O.RAGHAVAN PILLAI, PUTHETHU JAYAVILASOM CHEMMANTHUR , PUNALUR.** ## **4. SREEDHARAN PILLAI, AGED 66 YEARS** - **S/O. KUNJAN PILLAI, MOHANAVILASOM NEAR MURUKANCOVIL, PUNALUR.** **5. MADHU, S/O.MADHAVAN, AGED 41 YEARS SHANMUKHAVILASAM DO..DO.** **6. A.NIZAMUDEEN, S/O. AHAMMED KUNJU VENDOR, LICENSE NO. QSA 692 QDA 45, PUNALUR.** ## **7. STATE OF KERALA** - **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R7 BY PUBLIC PROSECUTOR SMT. LALIZA T.Y.** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **V.K.MOHANAN, J. ---------------------------------------Crl.L.P.No.1413 of 2008 ----------------------------------------** Dated the 8[th] day of November, 2011 ## **ORDER** The complainant in a private complaint is the petitioner who seeks leave of this Court under section 378(4) Cr.P.C to file an appeal against the judgment dated 7.1.2005 in C.C.No.1521 of 2001 of the court of Judicial First Class Magistrate-III, Punalur since the learned Magistrate as per the above judgment, acquitted all the accused under section 248(1) Cr.P.C, who faced the charge for the offences punishable under sections 465, 468, 471 and 120(b) of the Indian Penal Code. 2. The case of the complainant is that the accused persons falsely made a sale deed No.85/94 in respect of 5 cents of property which belonged to the complainant, by describing the elugas of it in such a manner to include 5 cents of property which is part of 18 cents of property that he purchased from his brother during the year 1994. According to the complainant, 18 cents of property which described in sale deed No.85/94 of Punalur Sub Registry office was in his absolute ownership and possession of his late father for more than 40 years. A1 to A3 CRL.L.P.1413/08 **-:2 :-** did not have any property near to his property whereas A1's property lies in its opposite side, i.e, in the southern side of the municipal road passing thereby. Thus according to the complainant, the accused persons conspired together to grab the said property of the complainant and in pursuance of such a conspiracy, a sale deed was forged to make it appear that a portion of the property of the complainant was sold by A2 and his brother in favour of A1 and got it registered on 9.6.97 as No.2208/97 of Punalur Sub Registrar office. It is also the allegation that among the executants, one person is shown as Chandrakurup, who is the brother of A1 and A2. But the said Chandrakurup was not present at the time of execution of the document but he was impersonated by producing A3 before the Sub Registry Officer. The allegation against A4 and A5 is that knowing fully well about the impersonation, they stood as witnesses in the said sale deed. According to the complainant, A6 the scribe, knowing all these malpractices, facilitated the forging of the sale deed. It is also the case of the complainant that A1 making use of the said forged sale deed, filed a civil suit before the Punalur Munsiff Court which is numbered as CRL.L.P.1413/08 **-:3 :-** O.S.No.297/97 on 14.7.97 against the complainant in support of her false claims over the complainant's property. Thus according to the complainant, the accused has committed the offences punishable under sections 465, 468, 471 and 120(b) IPC. 3. On the basis of the above allegation, cognizance was taken and processes were issued to the accused and after their appearance, the complainant was examined in chief and marked Exts.P1 to P3. Based upon these materials, a formal charge was framed against the accused for the offences punishable under sections 465, 468, 471 and 120(b) of IPC and the same was denied by them when it was read over and explained to them and they pleaded not guilty. Thereafter the complainant and other witnesses were examined and the accused were questioned under section 313 Cr.P.C when the evidence of the complainant is over. When all the accused pleaded innocence, in addition to that, A1 submitted that her mother was having family property contiguous to the property of the complainant, from which ½ cent was surrendered for Municipal road and the rest of 5 cents was in her thandaper CRL.L.P.1413/08 **-:4 :-** and in her possession. According to A1, subsequently she had purchased that property from her brothers. The case of A6 is that he had only written the documents as per the directions of the other accused. Though no witness was examined from the side of the defence, Exts.D1 to D7 were marked. After considering the evidence and materials on record, the learned Magistrate has found that the prosecution evidence is not at all sufficient to bring out the complicity of the accused in respect of the charges beyond reasonable doubt and consequently, the accused were found not guilty and accordingly, they were acquitted under section 248(1) Cr.P.C. It is the above finding and the acquittal sought to be challenged by filing an appeal for which leave of this court is sought for under section 378(4) Cr.P.C. 4. I have heard Sri C. Varghese Kuriakose, the learned counsel appearing for the petitioner. I have also perused the judgment of the court below. 5. The learned counsel vehemently submitted that the findings of the learned Magistrate is absolutely incorrect and illegal. It is submitted that the learned Magistrate has not CRL.L.P.1413/08 **-:5 :-** considered the question whether the so called Chandrakurup was present in person or not and whether the document was created in his presence. According to the learned counsel, the forgery and impersonation done by the accused for creating the false document in different elugas and different description, is a criminal offence but the learned Magistrate miserably failed to note the above vital aspect. According to the learned counsel, the accused were acquitted simply on technical ground without a consideration of the actual issue involved in this case. According to the learned counsel, when the allegation of the complainant that the document itself is forged and impersonated, the identity in the forged document is not at all an important question. Thus according to the learned counsel, the order of the learned Magistrate and acquittal are liable to be set aside. 6. In the light of the contention of the complainant and the defence and the findings of the court below based upon the materials and evidence on record referred to in the judgment, particularly, the question to be considered is whether the petitioner has made out a case so as to grant special leave CRL.L.P.1413/08 **-:6 :-** under section 378(4) Cr.P.C to file an appeal against the judgment of the trial court. 7. At the outset, it has to be noted that, initially, the complainant approached the very same trial court by filing a complaint, which was forwarded to the concerned police station under Section 156(3) Cr.P.C, for investigation, based upon which a crime was registered and the police undertook an elaborate investigation but the police subsequently referred the crime as evidenced by Ext.D3. So, according to the police, the allegation raised in the complaint is not factually and legally sustainable and therefore, they filed a refer report. It is thereafter the present complaint is filed as a protest complaint. 8. Going by the judgment of the trial court, particularly, in paragraph 9, it can be seen that the complainant has produced two documents, Exts.P1 and P2. Ext.P1 is the sale deed No.785/94 and Ext.P2 is the sale deed allegedly forged by the accused which is numbered as 2208/97. The learned Magistrate, after close scrutiny of those two documents, particularly on perusal of the description and elugas of those properties, held that the same are entirely different and without CRL.L.P.1413/08 **-:7 :-** anyway tallying with each other. The trial court has further found that the survey numbers in respect of the properties in both the deeds were also seen entirely different. It is also found that as per Ext.D5 partition deed, the late father of PW1 partitioned his property among his issues and as per Ext.D5, the property allotted to the brother of PW1 was subsequently purchased by him during the year 1994, the same is exactly the property as per its description and survey number as mentioned in Ext.P1 document. The learned Magistrate has further found that the description of the property shown in Ext.P2 together with its survey numbers is entirely different from the description of the property shown in Ext.P2 and Ext.D5 indicating that the properties involved in Ext.P2, the alleged forged deed is entirely a different property unconnected with the property of PW1. Therefore, the learned Magistrate has finally concluded that nothing brought on record and there is no evidence to show that, in spite of the the description and survey numbers found in Ext.P2 deed, the property covered by it is actually the one stated in Ext.P1 and Ext.D5 deed as contended by PW1 in this case. CRL.L.P.1413/08 **-:8 :-** 9. Similarly, the trial court in paragraph 10 of its judgment has found that, though it is found that A1 in this case has no title or possession over the property that she claimed under Ext.P2 document, the learned Magistrate has also categorically found that the claim of PW1 over the property that he claimed under his title deed is also not specific and clear in its identity and it is based on that finding, the prayers sought in O.S.No.297/97 were rejected. Thus the trial court has found that the case of the accused that the property which allegedly got A1 conveyed under Ext.P2 takes in the property of PW1, has no legs to stand. According to the learned Magistrate, because of the uncertainty in the very identity of the property, the question of forgery is impossible as the primary thing to be found is whether the description of the property given in Ext.P2 is true or false. Therefore, the learned Magistrate concluded that, if at all accepting the case of PW1, that the description of the property given in Ext.P2 is in such a manner to include his 5 cents of property, then also the matter will not fall within the mischief of Section 464 IPC, making of false document, and to find the commission of an offence under section 465 IPC. Thus according CRL.L.P.1413/08 **-:9 :-** to the learned Magistrate, the only finding that can be arrived in respect of the description of the property mentioned in Ext.P2 is that, it is a wrong description made to cover the 5 cents of property belongs to PW1. Relying upon the decision of this Court in **Mathew v. George** ( 1989(1) KLT 470), the learned Magistrate has held that, making of false recitals or an untrue statement in a document will not make a document false so as to attract the ingredients of forgery mentioned under section 464 IPC. 10. Further, regarding the allegation with respect to personation, the trial court has found that there is absolutely no positive evidence on record to show that the so called Chandrakurup was not in station during that time. It was also found that when the said Chandrakurup was examined, he categorically deposed that he had executed a document in favour of A1, his sister along with his brother Sreedharakurup conveying 5 cents of property to A1. The trial court has also found that he had denied the question put to him in cross examination whether he executed Ext.P2 to A1 on 9.6.97. The learned Magistrate observed that, the above statement of PW4 CRL.L.P.1413/08 **-:10 :-** cannot be based solely to find a conscious personation, made by the accused persons by producing A3, as if it is Chandrakurup, for executing Ext.P2 document in the absence of the said Chandrakurup, since he in his cross examination has categorically stated that the Sub Registrar office in which Ext.P2 document got registered was Punalur Sub Registrar office which is just half kilo metres away from the court premises. 11. From the above findings of the court below, which are based upon the evidence and materials on record, I am of the view that the petitioner has miserably failed to make out a case so as to grant leave under section 378(4) Cr.P.C. The findings of the court below is purely based upon evidence, particularly, documentary evidence and those findings cannot be said as illegal or irregular. Nothing brought on record to show that the above finding of the court below is tainted or rendered as not legally sustainable due to perversity. The counsel for the petitioner has no case that the learned Magistrate has overlooked any material or evidence which is in favour of the complainant and found against the complainant and in favour of the accused. In this juncture it is also relevant to note that , CRL.L.P.1413/08 **-:11 :-** as I indicated earlier , though police had registered a crime based upon the earlier complaint, during their investigation, they have found that the allegations are false. When the complainant miserably failed to prove that the properties mentioned in those two documents, namely, Exts.P1 and P2 are one and the same, it cannot be said that the accused has forged the document. The facts and circumstances involved in this case would show that there are uncertainties in their identity of the properties and therefore, according to me, the learned Magistrate is fully justified in his finding that the allegation would not come within the mischief of Section 464 of IPC. Therefore, the dispute which remained in the nature of civil attained the character of a criminal case. When the main allegation regarding the forgery is not proved and as such the main plank of the complainant's case is broken, I am of the view that the finding of the learned Magistrate on the allegation of impersonation requires no further consideration, especially, for disbelieving the case of the complainant, for which the learned Magistrate has assigned cogent reasons. Therefore, according to me, there is no merit in the contention of the CRL.L.P.1413/08 **-:12 :-** petitioner in support of his prayer to grant leave as sought for in this petition. In the result, this petition is devoid of any merit and accordingly, the same is dismissed. **V.K.MOHANAN, JUDGE** **kvm/-** CRL.L.P.1413/08 **-:13 :-**