Yamuna Sreekumar v. State of Kerala & Anil Kumar P

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939** ## **Crl.MC.No. 8464 of 2016** **-----------------------** ## **CC 67/2016 OF CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM** **---------PETITIONER(S)/ACCUSED NO 1,3 & 4:** **--------------------------------** ## **1. YAMUNA SREEKUMAR,** **NEELA SUPER BAZAR, BTS ROAD, KIZHAKKUPURAM, ATTINGAL, PIN 695 101.** ## **2. GANGA VINOD,** **H2 SANTHI, JAWAHAR NAGAR, KOWDIAR P.O, THIRUVANANTHAPURAM, PIN 695 003.** ## **3. SINDHU SURESH,** **THACHETHUPELIL HOUSE, ELOOR SOUTH, UDYOGAMANGAL P.O, ERNAKULAM, PIN 683 501.** **BY ADV. SRI.K.M.VARGHESE** **RESPONDENT(S)/STATE & COMPLAINANT: ----------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031** ## **2. ANIL KUMAR P,** **ANIL VIHAR, ELOOR SOUTH, UDYAGAMANDAL P.O, ERNAKULAM PIN 683 501.** **R1 BY PUBLIC PROSECUTOR SRI CHANDRASENAN.D R2 BY ADV. SMT.P.V.KOCHUTHRESIA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-06-2017, THE COURT ON 30.06.2017 PASSED THE FOLLOWING:** **K.V.** ## **Crl.MC.No. 8464 of 2016 () ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **----------------------ANNEXURE 1 CERTIFIED COPY OF THE COMPLAINT IN C.C NO 67 OF 2016 PENDING ON THE FILES OF CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM DATED 18-02-2016 ANNEXURE II PHOTOCOPY OF THE STATEMENT DATED 11-03-20016 OF THE COMPLAINANT ANNEXURE II(A) PHOTOCOPY OF THE STATEMENT OF WITNESS NO 2 DATED 11-03-2016 ANNEXURE III PHOTOCOPY OF THE ORDER DATED 08-06-2016 IN CRL M.P NO 499/2016 PASSED BY CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. ANNEXURE IV PHOTOCOPY OF THE SUMMONS IN CC NO 67 OF 2016 WITH DATED OF POSTING ON 08-12-2016 ISSUED TO PETITIONER NO 1. ANNEXURE IV(A) PHOTOCOPY OF THE SUMMONS IN C.C NO 67 0F 2016 WITH DATE OF POSTING ON 08-12-2016 ISSUED TO PETITIONER NO 2 ANNEXURE IV(B) PHOTOCOPY OF THE SUMMONS IN C.C NO 67 OF 2016 WITH DATED OF POSTING ON 03-10-2016 ISSUED TO PETITIONER NO 3. ANNEXURE V PHOTOCOPY OF THE PLAINT DATED 04-12-2015 PENDING ON THE FILES OF SUB COURT, ERNAKULAM. ANNEXURE V1 TRUE COPY OF THE STATEMENT OF COMPLAINANT DATED 11/3/2016. ANNEXURE VI(A) TRUE COPY OF THE STATEMENT DATED 11/3/2016 OF WITNESS NO1. ANNEXURE VII TRUE COPY OF THE WRITTEN STATEMENT DATED 11/4/2016 FILED IN O.S.NO 269 OF 2015 BEFORE SUB COURT, ERNAKULAM. ANNEXURE V111 TRUE COPY OF THE PARTITION DEED NO 2087/1965 REFERRED IN ANNEXURE-1 COMPLAINT. RESPONDENT(S)' ANNEXURES NIL -----------------------** **/TRUE COPY/** **P.S.TO JUDGE** **K.V.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - **Crl.M.C.No.8464 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of June, 2017 ## **O R D E R** The accused Nos.1,3 and 4 in CC No.67/2016 of the Chief Judicial Magistrate Court, Ernakulam,has approached this Court to quash the above proceedings. 2. The essential facts for the purpose of determination of the proceeding are as follows; One Velayudhan Pillai was a business man. He had three children, viz.Ammini Amma, Sivan Pillai and Nalini Amma. Complainant is the son of the said Ammini Amma. The accused are the children of Sivan Pillai. Nalini Amma was issueless and it is stated that, she had executed a Will by which all the properties were bequeathed to Ammini Amma. According to the complainant, all the children of Velayudhan Pillai had equal right over the business run by him, along with Meenakshi Amma, the grand mother of the complainant. Ammini Amma and Meenakshi Amma became partners of the business in 1975. Sivan Pillai, during his life time and after his death, accused 1 to 4, allegedly assured the complainant and Ammini Amma to divide the assets of tharavad properties and to give due share in the business and the property. It was alleged that, accused 1 to 4 in 2 Crl.M.C.No.8464/2016 the meanwhile, attempted to change the thandaper in relation to the properties. On getting the information, O.S.No.269/2015 was filed by the complainant, against the accused 1 to 4. It was alleged that, on 2/12/2015, the complainant came to know that accused had colluded and conspired with late Sivan Pillai and fabricated a document dated 1-4-1993 purported to have been executed by Ammini Amma, asserting that she had retired from the partnership with effect from 31/3/1993. It is alleged that, Ammini Amma and Meenakshi Amma had not affixed their signatures and it was put by accused 1 to 4 and Sivan Pillai or somebody entrusted by them. The original agreement was produced before the Taluk Surveyor for mutation. Hence, the present complaint was laid alleging commission of various offences. 3. After examining the complainant and his witnesses as CW1 and CW2, the court below took cognizance of the case and issued summons to the accused. Contending that the case is absolutely baseless, highly belated and that they have not committed any offence, the petitioners have sought to quash the proceedings. 4. Heard both sides and examined the records. 5. The crux of the contention of the complainant is regarding the genuineness of the agreement allegedly executed by Ammini Amma on 1-4-1993. It is stated to be a deed asserting that Ammini Amma had retired from the partnership. The specific allegation is that, it is a forged document and that Ammini Amma and Crl.M.C.No.8464/2016 3 Meenakshi Amma had not affixed their signatures. There is a further allegation that, the accused and Sivan Pillai had forged it and the witnesses referred to therein are the employees of the document writer and that of Sivan Pillai. 6. The criminal proceeding is assailed by the petitioners herein on the ground that, there is considerable delay in lodging the FIS. It was stated that, the disputed document is dated 1-41993. Even according to the complainant, he got information regarding the document only on 2/12/2015. Thereafter, private complaint was filed on 18/2/2016. 7. The delay is sought to be explained by the complainant by stating that, he was not aware of the above document. It was also stated that, it was never made public. There is a further allegation that Sivan Pillai, during his life time and thereafter his children, had been promising and reiterating to give due share in the property. In the oral statement of CW1 and CW2, both had asserted that they have discussed with Sivan Pillai and he assured to settle it. After the death of Sivan Pillai, they met the children who also assured to settle it. It is an admitted fact that, claiming the same relief, a suit for partition was filed as O.S.No.269/2015 and is pending before the Sub Court. It is true that, there is a substantial delay. It is pertinent to note that, in the Crl.M.C. there is no specific assertion that the document was voluntarily executed by Ammini Amma and Nalini Amma. Several circumstances casting Crl.M.C.No.8464/2016 4 doubt on the execution of the document are alleged by the complainant. Definitely, it is for him to establish and prove it. However, at present, there is nothing to show that the above document was ever placed before any public authority, except when it was allegedly produced for effecting mutation of the property. Even along with Crl.M.C.,copy of the above document is not produced. The specific allegations casting doubt on the genuineness of the document are not answered in the Crl.M.C. 8. Learned counsel for the petitioners vehemently contended that, the delay is liable to be explained. It is true that the complainant has projected a reason that he was kept in darkness about the document and that, he was assured about the due share. It is a matter of evidence. When that reason is suggested by the complainant,, it is for him to establish convincingly which should also stand the test of cross examination. 9. Yet another contention of the learned counsel for the petitioners was that, the dispute was in the nature of a civil dispute. It was hence contended that, the criminal proceeding on the same set of allegation is not maintainable. It is true that the civil suit for partition is pending. It is laid on a premise that Ammini Amma and Nalini Amma continued to have their shares over the property. However, it is pertinent to note that specific allegation in the criminal proceeding is one of forgery. The mere fact that on the same set of allegation, civil rights are sought to be Crl.M.C.No.8464/2016 5 established will not deprive the right of a person who alleged criminal offence also, if ingredients are made out. Learned counsel for the petitioners relied on the decision reported in **Paramjeet** **Batra v. State of Uttarakhand & Ors (2013 (2) KLJ 217)** to contend that when the dispute essentially of a civil nature is given the cloak of a criminal offence and if a civil remedy is available, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of court. In **Mohd.Khalid Khan v. State of Uttar Pradesh & another (AIR 2015 Supreme Court 3656)** , the Apex Court reiterated that in a matter of civil nature, criminal proceeding is not sustainable. In **Rabindra Lele & others v. George Bhaktan (2015 Crl.L.J.4734),** the Orissa High Court had held that , in that case there was no material on record regarding the place of alleged forgery, actual person who committed forgery and the manner in which it was committed. There was no prima facie case as against the accused person. Hence, the court held that, criminal proceeding was not maintainable. 10. The above decisions are not applicable to the facts of the present case. In all the above mentioned cases, the dispute was of predominantly civil nature with allegation overlapping with that of the criminal proceedings. In the case at hand, the civil suit pending is one for partition, though it was ignoring the alleged retirement deed. However, in the criminal proceeding, the specific Crl.M.C.No.8464/2016 6 allegation of the complainant was that the executent had not executed the alleged document. It was alleged that the deed was forged. Hence, I do not feel that the contentions of Law canvased by the learned counsel for the accused is legally applicable in this case. 11. The learned counsel for the petitioners further contended that ,the allegation raised in the complaint are totally absurd and inherently improbable. To substantiate it, learned counsel relied on the decision in Rabindra Lele(cited supra). Evidently, that case was on a totally different premise. In that case,an allegation of cheating was raised by the defacto complainant. However, he could not disclose the meticulous details regarding the alleged cheating. The court arrived at a conclusion that, in such a situation prosecution was not sustainable. The facts in the case at hand is totally different from the above case. 12. The learned counsel for the petitioners further submitted that, the allegation was that Sivan Pillai had manipulated the documents. Hence, it was contended that,the concept of vicarious liability cannot be imposed on the legal heirs of Sivan Pillai . It was contended that, on an allegation that late Sivan Pillai had committed forgery, criminal liability cannot be fastened on his children. I feel that the learned counsel for the petitioners was not correct in his contention. It was specifically alleged in the complaint that, Sivan Pillai and his children, either by themselves Crl.M.C.No.8464/2016 7 or through somebody engaged by the,m had committed the criminal act. It was also reiterated that, the second accused who was the son of Sivan Pillai was introduced into the partnership firm. There are specific allegations in para 3 of the complaint that accused colluded with Sivan Pillai to fabricate the document. CW1 and CW2 had asserted in their statement that all the accused had participated in the fraudulent act and that the witnesses were false. Both the witnesses also reiterated that during the life time, Sivan Pillai had asserted that the share would be given to the complainant. Thereafter, the children of the Sivan Pillai had also allegedly assured the complainant that would be given his due share. Definitely clear allegations are raised against the petitioners herein. It is for the complainant to establish those allegations at the time of evidence, which should survive the test of cross examination. The above discussion of facts lead to a clear conclusion that it cannot be said that the prosecution is launched without any basis. Hence, I feel that there is no merit in Crl.M.C.and it is accordingly dismissed. Sd/- **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.M.C.No.8464/2016 8