Yusuf and Mushtafa v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **MONDAY, THE 25TH DAY OF SEPTEMBER 2017/3RD ASWINA, 1939** ## **Crl.MC.No. 3146 of 2013 () ---------------------------** **IN CC 1155/2015 of J.M.F.C.- I, OTTAPPALAM** **IN OS 499/2001 of MUNSIFF COURT, OTTAPPALAM** **PETITIONER(S)/ACCUSED:** **---------------------** **1. YUSUF** - **S/O.THOPPAYIL KUNHALU, PANNIYAMKURUSSI DESOM, CHERPULASSERY AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **2. MUSHTHAFA,** **S/O.THOPPAYIL KUNHALU, PANNIYAMKURUSSI DESOM, CHERPULASSERY AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.P.JAYARAM** **RESPONDENT(S)/RESPONDENT.:** **--------------------------** **STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR MS.K.K. SHEEBA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 3146 of 2013 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **ANNEXURE A1: TRUE COPY OF ORDER DATED 17/12/2001 IN I.A 2188/2001 IN O.S NO.499/2001, MUNSIFF COURT, OTTAPALAM.** **ANNEXURE A2: TRUE COPY OF DISPUTED RECEIPT DATED 05/06/2001 PRODUCED BY ACCUSED IN I.A NO.2188/2001, O.S NO.499/2001, MUNSIFF COURT, OTTAPALAM.** **ANNEXURE A2(a): TRUE COPY OF DISPUTED RECEIPT DATED 30/06/2001 PRODUCED BY ACCUSED IN I.A NO.2188/2001, O.S. NO.499/2001, MUNSIFF COURT, OTTAPALAM .** **ANNEXURE A2(b): TRUE COPY OF DISPUTED RECEIPT DATED 30/09/2001 PRODUCED BY ACCUSED IN I.A NO.2188/2001, O.S. NO.499/2001, MUNSIFF COURT, OTTAPALAM .** **ANNEXURE A3: TRUE COPY OF REPORT DATED 09/05/2005 ISSUED BY SCIENTIFIC ASSISTANT (DOCUMENTS), FORENSIC SCIENCE LABORATORY, THIRUVANANTHAPURAM.** **ANNEXURE A4: TRUE COPY OF COMMON JUDGMENT DATED 15/10/2005 IN O.S NO.499/2001 AND OS. NO.193/2002, MUNSIFF COURT, OTTAPALAM.** **ANNEXURE A5: TRUE COPY OF ORDER DATED 15/10/2005 IN I.A NO.289/2002 IN O.S NO.499/2001, MUNSIFF COURT, OTTAPALAM.** **ANNEXURE A6: CERTIFIED COPY OF THE COMPLAINT DATED 11/11/2005 IN C.C. NO.1155/2005, JUDICIAL FIRST CLASS MAGISTRATE, OTTAPALAM.** **ANNEXURE A7: COPY OF THE PLAINT IN O.S.NO.499/2001, MUNSIFF COURT, OTTAPALAM.** **RESPONDENT(S)' EXHIBITS : NIL** **-----------------------** **//TRUE COPY//** **P.A.TO JUDGE** **sm** ## **A. HARIPRASAD, J. ------------------------------Crl.M.C.No.3146 of 2013** ## **---------------------------------------------Dated this the 25[th] day of September, 2017** ## **ORDER** Challenging Annexure-A6 complaint preferred by the Munsiff, Ottappalam against the petitioners for allegedly committing offences punishable under Sections 193 and 471 read with Section 34 IPC. The accused have come before this Court under Section 482 Cr.P.C. 2. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 3. Case in the complaint in short is that the petitioners, who are the defendants in O.S.No.499 of 2001 before the Court of Munsiff, Ottappalam, produced 4 documents when an interlocutory application was being considered by the trial court. The plaintiff contended that three documents out of four produced were fabricated by the petitioners. The disputed documents were sent to the Forensic Science Laboratory for an expert opinion. The court received an expert opinion that the **Crl.M.C.No.3146 /2013** **2** three documents were products of forgery. On the basis of that matter, the court below disposed of the interlocutory application and entered a finding that the accused/petitioners have committed the aforementioned offences. 4. Accordingly, the complaint was preferred before the Magistrate by invoking Section 340 Cr.P.C. The provision reads thus: ## **“340. Procedure in cases mentioned in section** ## **195.-** - (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,- - (a) record a finding to that effect; - (b) make a complaint thereof in writing; - (c) send it to a Magistrate of the first class having jurisdiction; **Crl.M.C.No.3146 /2013** **3** - (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and - (e) bind over any person to appear and give evidence before such Magistrate.” - (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195. - (3) A complaint made under this section shall be signed,- - (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; - (b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf. - (4) in this section, “Court” has the same meaning as in section 195. 5. The complaint was received by the Magistrate and he took **Crl.M.C.No.3146 /2013** **4** cognizance of the offences against the petitioners and C.C.No.1155 of 2005 was taken to file. 6. Learned counsel for the petitioners submitted that the court below failed to note the proposition that a complaint under Section 340 Cr.P.C. cannot be maintained with the set of allegations now made against the petitioners. The Supreme Court in **Sachida Nand Singh v. State of Bihar [1998 (2) SCC 493]** held as follows: Section 195(I)(b)(ii) CrPC reveals two main postulates for operation of the bar mentioned there. First is, there must be allegation that an offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471, 475, 476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. It is undisputed that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made by that court. Again, if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. A question arises whether **Crl.M.C.No.3146 /2013** **5** in the latter situation production of such document in Court will make any difference. Now, even if the clause is capable of two interpretations the narrower interpretation has to be chosen. Provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise. 7. Noticing incongruity in the view expressed in some decisions, the question was placed before a Constitution Bench of the Supreme Court in **Kamalanantha v. State of Tamil Nadu [AIR 2005 (5) 2119].** The Constitution Bench, agreeing with the view expressed in **Sachida Nand Singh's case** , held as follows: 25. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(I)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis. 8. Therefore, going by the allegations in Annexure-A6 **Crl.M.C.No.3146 /2013** **6** complaint, I find no material justifying invocation of the court's power under Section 340 Cr.P.C. in respect of the offence of forgery alleged therein. The remedy of the aggrieved party was to file a complaint against the alleged offence. Considering the facts and circumstances, I find that the prosecution of the petitioners pursuant to Annexure-A6 complaint is an unwanted exercise. In the result, the petition is allowed. All proceedings pursuant to Annexure-A6 complaint against the petitioners are hereby quashed. JV Sd/- **A. HARIPRASAD JUDGE**