Madras High Court
Gopalan vs The State Rep. By Its on 17 June, 2014
Author: P.N.Prakash
Bench: P.N.Prakash
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17.06.2014 Coram THE HONOURABLE MR.JUSTICE P.N.PRAKASH Criminal Revision Case (MD) No.212 of 2009 Gopalan : Petitioner/Appellant/Accused Vs. The State rep. by its Inspector of Police, District Crime Branch, Nagercoil. : Respondent/Respondent/Complainant PRAYER Criminal Revision Petition filed under Section 397 r/w. 401 of Criminal Procedure Code, praying to call for the records of the learned Sessions Judge, Kanyakumari Division at Nagercoil in C.A.No.104 of 2004 and set aside the order dated 05.06.2009 in C.C.No.146 of 2003 on the file of the learned Judicial Magistrate Court No.II, Kuzhithurai, dated 29.04.2004. !For Petitioner : Mr.I.Pinaygash for M/s.T.Lajapathy Roy ^For Respondent : Mr.S.Prabha Government Advocate (Crl. side) For petitioner : Mr.C.Muthusaravanan in M.P.(MD)No.3 of 2009 :ORDER
This Criminal Revision Case has been filed challenging the concurrent findings of the Courts below convicting and sentencing the revision petitioner/A1 to undergo: rigorous imprisonment for one year and to pay a fine of Rs.1000/- in default to undergo simple imprisonment for six months for the offence under Section 465 I.P.C.; 3 years rigorous imprisonment and to pay a fine of Rs.3,000/- in default to undergo simple imprisonment for six months for the offence under Section 467 I.P.C; 3 years rigorous imprisonment and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for six months for the offence under Section 468 I.P.C.; one year rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for six months for the offence under Section 423 I.P.C.; three years rigorous imprisonment and to pay fine of Rs.2,000/- in default to undergo simple imprisonment for six months under Section 420 I.P.C.; and one year imprisonment for the offences under Section 120(B) I.P.C.
2.The factual matrix in this case is as follows:
Gopalan (A1) is the elder brother of Baskara Nadar(P.W.1). Baskara Nadar (P.W.1) owns five cents of land in Survey No.265/5 situate in Ezhuthesam Village in Kanyakumari District in Tamil Nadu. A1 with the objective of usurping the said property of his brother, conspired with 9 others and in pursuance of the said conspiracy, prepared a sale deed (Ex.P7) as if Baskara Nadar (P.W.1) has sold the said land to A1 for valuable consideration and had the sale deed registered as Doc. No.470 of 1994 on 04.04.1994 in the office of the Sub Registrar, Ottasekaramangalam in the adjoining Kerala State. One Kunju Perumal (who was shown as A6 but he had died during trial) impersonated as Baskara Nadar before the Sub Registrar for registration of the document. Thereafter, on 16.12.1994 it is alleged by the complainant (P.W.1), that Gopalan (A1), his son Suresh Kumar (A9), Kesavan (A2), Seriyan (A3) Lakshmanan (A4), Thangappan (A5), Kunju Perumal (deceased) entered into the said land and started laying the foundation. When the complainant knew about it, he went to the land and when he asked them to stop the work, the accused intimidated the complainant and chased him away. The complainant went to the local police station and lodged a complaint.
Initially, no F.I.R. was registered by the police, and only an enquiry was conducted. During the course of police enquiry, A1 came to the police station and produced a photo copy of the sale deed dated 04.04.1994 purported to have been executed by the complainant in his favour and claimed that the land belongs to him. Only then, the complainant knew about this fact. Ultimately on 09.01.1995 Baskara Nadar (P.W.1) gave a written complainant to the Superintendent of Police, Kanyakumari District narrating the incident. On the directions of the Superintendent of Police, the District Crime Branch, Nagercoil, registered a case on 01.04.1995 in Crime No.9 of 1995 under Section 423, 467, 468 I.P.C. against Gopalan Nadar (A1) and six others. The police took up investigation and examined the Sub Registrar of Ottasekaramangalam Sub Registrar's Office and collected copies of the sale deed. The police was not able to recover the original sale deed dated 04.04.1994 which was naturally in the custody of A1 as he is the beneficiary. The police had only a photo copy of the said sale deed which was produced by A1 during the course of enquiry about which I have referred to above. The police obtained the finger prints of all the accused, specimen signatures and handwriting of the accused, finger prints of the complainant Baskara Nadar (P.W.1) and his signature also. The police sent the signature obtained from the accused and P.W.1 along with the signature found in the photo copy of the sale deed to the handwriting expert for comparison and report. The police obtained the finger print register from the office of the Sub Registrar, Ottasekaramangalam and sent the same, along with the finger prints of the accused and Baskaran (P.W.1) to the finger print expert (P.W.14) for comparison and report. The report of the handwriting expert disclosed that the signature in the copy of the sale deed is not that of P.W.1 but is that of Kunju Perumal. Similarly, the finger print Expert (P.W.14) has stated in his evidence as well in his report that the finger print found in the finger print register maintained in the office of the Sub Registrar, Ottasekaramangalam, relating to the registration of Document No.470 of 1994 does not tally with the finger print of Baskara Nadar (P.W.1) but tallies with the finger print of Kunju Perumal. The police examined other witnesses. The police completed the investigation and filed a final report against ten accused for the offences of registering a bogus sale deed on 04.04.1994 and for the incident that took place on 16.12.1994. Kunju Perumal was also arrayed as one of the accused in the police report but during the trial he had died. The accused involved in the fabrication of the sale deed were charged for offences under Section 465, 467, 468, 423, 420 and 471 I.P.C. and the accused who were involved in the incident on 16.12.1994 were charged by the police for offence under Sections 447, 352, 506(ii) r/w. 148 I.P.C. The trial Court framed charges for all the offences against the ten accused. The prosecution examined 16 witnesses and marked 59 exhibits. The accused when questioned under Section 313 Cr.P.C., denied the incriminating circumstances. On behalf of the accused, five witnesses were examined and 8 documents were marked. The trial Court by judgment dated 29.04.2004 acquitted all the accused for offence under Sections 147, 447, 506(i), 352 r/w. 149 I.P.C. This is with regard to the incident that took place on 16.12.1994. Coming to the registration of bogus sale deed on 04.04.1994, the trial Court convicted Gopalan (A1), Thangappan (A7) and Muthunayagam (A8) for those offences alone. The first Appellate Court confirmed the conviction and sentence, aggrieved by which Gopalan (A1) is now before this Court in this Criminal Revision Petition.
3.Heard the learned counsel for the revision petitioner, the Government Advocate (Crl. side) and the learned counsel for the de-facto complainant.
4.Mr.Pinaygash, learned counsel for the revision petitioner vehemently contended that the offence in this case took place in Ottasekaramangalam which is in Kerala State and therefore, the Judicial Magistrate, Kuzhithurai in Tamil Nadu before whom the trial was conducted does not have the territorial jurisdiction to try the case. Therefore, he contended that the entire conviction and sentence is vitiated. In order to appreciate his contention, it may be relevant to examine the provisions to Chapter XIII of the Code of Criminal Procedure. Section 179 of the Code reads as under:
"179.Offence triable where act is done or consequence ensues.-When an act is on offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued."
5.The objective of A1 was to usurp the property of his brother Baskara Nadar which is located within the territorial jurisdiction of the Judicial Magistrate No.II, Kuzhithurai in Tamil Nadu. In order to achieve this objective, P.W.1 has gone along with the other accused including Kunju Perumal to the neighbouring State of Kerala and they have registered the impugned sale deed dated 02.04.1994 on 04.04.1994 as if Baskara Nadar is selling the property to A1. The registration of such a false sale deed is an offence per se and therefore, the Court in Kerala State under which the Sub Registrar Office falls will also have jurisdiction. The consequences of this registration is to usurp the property in Kanyakumari District. Therefore, under Section 179 Cr.P.C. the Magistrate in Kanyakumari District will also have the territorial jurisdiction to try the offence since consequence of the crime ensued there. Hence, this Court is of the opinion that the Judicial Magistrate No.II, Kuzhithurai has the territorial jurisdiction to try the offender in the light of Section 179 Cr.P.C.
6.The learned counsel for the revision petitioner submitted that the corpus delicti in this case, namely, original sale deed was not filed by the prosecution. In this regard, the learned counsel relied upon the judgment of the Hon'ble Supreme Court in Tilak Chand Kureel v. Bhim Raj [1969 (3) SCC 367] and J.Yashoda v. K.Shobha Rani [(2007) 5 SCC 730]. I have no quarrel with the propositions laid in the above said judgments. In this case, the original sale deed is in the custody of the accused. It was the accused who came to the police station and produced the photo copy of it when the complaint against him was lodged for the incident that took place on 16.12.1994. This conduct of the accused is relevant under Section 8 of the Evidence Act. The First Information Report in this case was not registered on 16.12.1994 and it was registered only subsequently on 01.04.1995. Just because the police were not able to recover the original document which is in the custody of the first accused it cannot be said that they cannot proceed with the secondary evidence. Section 65 of the Evidence Act clearly states that the secondary evidence may be given of the existence, when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved. Even a notice under Section 66 of the Evidence Act in a criminal case cannot be issued to the accused because he is protected from testimonial compulsion to produce any incriminating materials in his custody. Under Section 66 proviso to sub-section (2), a notice is not required when, from the nature of the case, the adverse party must know that he will be required to produce it. Therefore, the police cannot be faulted for not being able to the search and seize the original document from the custody of A1 and hence, on this ground the accused cannot let scotfree. The accused did not chose to produce the original document before the trial Court in terms of Clause (2) of the proviso to Section 66 of the Evidence Act to show his innocence and he cannot complain that the police had failed to produce the original and so he should be acquitted. In fact, the accused has given a false explanation that the original sale deed was lost due to termite infestation. The sale deed was registered on 04.04.1994 and police enquriy commenced when P.W.1 lodged a complaint with regard to 16.12.1994 incident. In that enquiry, A1 has submitted a photocopy to the police. Thereafter, if A1 is to plead that the sale deed got lost due to termite infestation, it sounds like covering a whole pumpkin in a morsel of food.
7.The learned counsel contended that since Kunju Perumal had died, the entire allegations against A1 abates. This argument needs to be stated only to be rejected. The beneficiary in the sale transaction is A1. It was he who first entertained the criminal intention to usurp the property of his brother Baskara Nadar. In pursuance of that criminal intention, he enlisted the services of Kunju Perumal who impersonated as Baskara Nadar before the Sub Registrar, Ottasekaramanagalam Sub Registrar's Office. Thus, A1 and the deceased Kunju Perumal had entered into a criminal conspiracy and the death of Kunju Perumal can by no stretch of imagination put an end of the prosecution against A1.
8.The learned counsel for the revision petitioner submitted that the prosecution had failed to prove the presence of A1 before the Sub Registrar, Ottasekaramangalam, on 01.04.1995. It is clear from the evidence of Mrs.Rajammal (P.W.2) the Sub-Registrar, Ottasekaramangalam, who registered the impugned sale deed on 04.04.1994 that the document was presented for registration by Gopalan (A1). Even assuming for a moment that A1 had not gone to the Registrar Office, the fact that he had entered into a criminal conspiracy to do the offence would itself be sufficient to hold him guilty for forging the signature of his brother in pursuance of the criminal conspiracy and it is not necessary that he should be physically present before the Sub Registrar Office at the time of registration.
9.The learned counsel contended that from the defence witness they have established that there are civil cases going on between A1 and his brother and therefore, his brother (P.W.1) did not have title to the property. In a criminal prosecution the title to the property is not very relevant because the criminal Court does not decide civil rights but is called upon to decide whether on 04.04.1994 did the accused impersonate the complainant and register the impugned sale deed. When once those facts are true, title to the property pales to insignificance.
10.If P.W.1 did not have title to the property then why should A1 take pains to buy the property for valuable consideration from P.W.1 is a question for which there is no plausible answer from the defence.
11.Learned counsel for the revision petitioner contended that Mrs.Rajammal (P.W.2), the Registrar from Ottasekaramangalam has stated that there was no illegality in the registration and therefore, the accused have not committed any offence. It is true that Rajammal stated that there is no illegality in the registration otherwise she also would not have registered the document. The question is not about the illegality or procedure of the registration but whether there was impersonation. The fact that Rajammal herself was unable to detect impersonation by Kunju Perumal shows that the accused have laid a well designed plan to cheat not only the registration department but also the de-facto complainant.
12.The learned counsel contended that if there had been any impersonation as alleged by the police, then a complaint should have been lodged with the Sub Registrar. The power of the Registrar to conduct enquiry or investigation is only with regard to the violation of the provisions of the Registration Act. Here, the prosecution is in respect of I.P.C. offences over which the Registrar has no power to conduct investigation and prosecute the offender in a criminal Court. This is an exclusive jurisdiction of the police under Chapter XII of the Code of Criminal Procedure. Hence, not lodging a complaint with the Registrar will have no bearing in the prosecution of the offender in this case. Learned counsel submitted that P.W.11 has stated that there is no identification marks of the persons from whom the finger print was taken. Failure of P.W.11 to record the identification marks of the person from whom the finger print was taken cannot ipso facto vitiate the same without anything more. The finger prints have gone through the Court for examination by the finger print expert. Both the courts below have appreciated the evidence of P.W.11 in the background of evidence of Expert (P.W.13) and have held that the finger prints were properly taken from the concerned accused and from the complainant and were sent for comparison with the finger print available in the finger print book of the Sub Registrar's Office. Hence, I have no reasons to disagree with the findings of the two Courts below.
13.In the result, there are no merits in this Criminal Revision Petition. The learned counsel contended that the accused is about 70 years and prayed for leniency in sentence. Considering the age of the revision petitioner, the substantive sentence of three years imposed on the accused for the offence under Section 467, 468 and 420 I.P.C. is reduced to 18 months rigorous imprisonment. Except the modification in the substantive sentence of imprisonment stated above, rest of the conviction and sentenced imposed by the trial Court as confirmed by the appellate Court is confirmed. The accused shall undergo the sentences concurrently. The bail bonds are cancelled. The trial Court is directed to issue warrant of commitment to the accused.
To
1.The Sessions Judge, Kanyakumari Division at Nagercoil.
2.The Judicial Magistrate Court No.II, Kuzhithurai.
3.The Inspector of Police, District Crime Branch, Nagercoil.