Kerala High Court
Adv. M.P.Chothy vs State Of Kerala on 18 July, 2013
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
THURSDAY, THE 26TH DAY OF SEPTEMBER 2013/4TH ASWINA, 1935
Crl.Rev.Pet.No. 1553 of 2013 ()
---------------------------------------------
AGAINST THE ORDER IN CMP 2242/2012 of JUDICIAL FIRST CLASS
MAGISTRATE'S COURT-1, PERUMBAVOOR DATED 18-07-2013
REVISION PETITIONER :
---------------------------------
ADV. M.P.CHOTHY, AGED 63 YEARS, S/O.PAINKAN,
MACHERIKKUDY HOUSE, PATTAL-PANKULAM ROAD,
PERUMBAVOOR VILLAGE, IRINGOLE P.O., PIN-683 545.
BY ADV. SRI. M.P.CHOTHY (PARTY IN PERSON)
RESPONDENT :
---------------------
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 26-09-2013, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.Rev.Pet.No. 1553 of 2013 ()
APPENDIX
REVISION PETITIONER'S ANNEXURES :
ANX-1 COPY OF THE ORDER DT. 06.12.2012 ON CIVIL R.P.NO.538 OF
2012 ISSUED BY THIS HON'BLE COURT.
ANX-2 COPY OF THE C.M.P.NO.2242 OF 2012.
ANX-3 COPY OF ORDER DT. 18.07.2013 ON C.M.P.NO.2242 OF 2012
ISSUED BY THE HON'BLE J.F.C.M-1, PERUMBAVOOR.
ANX-4 COPY OF THE JUDGMENT OF HON'BLE HIGH COURT REPORTED
IN 2011(1) K.L.T. 63.
RESPONDENT'S ANNEXURES : NIL
// True Copy //
P.A. To Judge
DSV/06/11
K. HARILAL, J.
------------------------------------------------------
Crl.R.P. No. 1553 of 2013
------------------------------------------------------
Dated this the 26th day of September, 2013
ORDER
The revision petitioner is the complainant in C.M.P.No.2242 of 2012 on the files of the Judicial First Class Magistrate's Court-I, Perumbavoor. The above complaint was filed under Section 190 (a) read with 200 of the Code of Criminal Procedure (for short `the Cr.P.C.) alleging offences punishable under Section 193 and 465 of the Indian Penal Code (for short `the IPC'). After recording the sworn statement, the case was posted for enquiry under Section 202 of the Cr.P.C. During 202 enquiry stage, the complainant has produced certain documents. After considering the sworn statement of the Revision Petitioner and the documents produced under Section 202 enquiry, the Learned Magistrate dismissed complaint under Section 203 of the Cr.P.C. on a finding that there are no sufficient Crl.R.P. No. 1553 of 2013 2 grounds to proceed against the accused. This order is under challenge in this Revision.
2. The complainants allegation is as follows:
The complainant filed a suit before the Munsiff's court as O.S.No.248 of 2009 praying for a decree of prohibitory injunction restraining the first accused to enter into the pathway and not to obstruct ingress and egress of the complainant. The first accused has no right or ownership over the pathway. On 24.10.2009, the first accused produced the deed of assignment bearing No.721 of 2009 of Perumbavoor Sub Registrar Office claiming that she has right over the way. The said deed of assignment was executed by A3 in favour of A1. Originally A2 was only a user of the way and he was not the owner of the pathway. A2 sold the easement right in favour of A3 as per document No.15 of 2009 of the Sub Registrar Office, Perumbavoor. Finally, A1 purchased the very same right from A3 as per Crl.R.P. No. 1553 of 2013 3 deed No.721/2009. Since A2 has no right or authority to sell the right of easement to A3, in view of Section 6(c) of the Transfer of Property Act, both documents are bogus documents and their claim of right on the basis of those documents is illegal and false. Since A2 has no right or ownership over the pathway, he has no right to transfer the easement right to A3. Consequently, A1 cannot purchase that easement right from A3 also. Thus according to the complainant, both transfers are void. In other words there was no transfer of right in respect of the pathway as per aforesaid documents. In short, no right can be conferred by virtue of that sale deed in view of the prohibition under Section 6 (c) of the Transfer of the Property Act. Hence according to the complainant, the accused have committed forgery in respect of those documents and they have produced that false documents before the court of law. Thus, they have committed the offences punishable under Crl.R.P. No. 1553 of 2013 4 Sections 193 and 465 of the IPC.
3. After considering the averments in the complaint, the learned Magistrate found that even if the allegations in the complaint are admitted at its entirety, those allegations do not constitute the offence alleged against the accused. Similarly, an offence punishable under Section 193 of the IPC cannot be prosecuted on the basis of a private complaint filed under Section 190 (a) read with Section 200 of the Cr.P.C in view of the prohibition under Section 195 (1) (b) (i) of the Cr.P.C. Thus the complaint had been dismissed on these two grounds.
4. The learned counsel for the revision petitioner submits that the findings under which the complaint had been dismissed are illegal and unsustainable. The allegations in the complaint itself constitute the offences punishable under Sections 195 and 465 of the IPC. The counsel further submits that the court below failed to Crl.R.P. No. 1553 of 2013 5 consider the fact that he has already exhausted the legal remedies under 195 (1) of the Cr.P.C. The Sections 463 and 464 IPC are independent, though penal provision is common.
5. In view of the above arguments advanced at the Bar, the only question to be considered is whether there is any illegality or impropriety in the findings under which the complaint had been dismissed by the learned Magistrate. Putting it differently, the questions are whether there are sufficient grounds for proceeding against the accused for the offence punishable under Section 464 IPC and whether the complaint by a competent court is required for prosecuting the offence under Section 193 of the IPC.
6. Going by the impugned order, it is seen that the allegations in the complaint is that the first accused purchased the right of easement from the third accused as per document No.721 of 2009. According to the complainant, the right of easement cannot be transfered Crl.R.P. No. 1553 of 2013 6 apart from the dominion heritage in view of the prohibition under Section 6(c) of the Transfer of Property Act. Therefore, A1 to A3 have committed forgery under Section 463 of the IPC and thereby they have committed the offence punishable under Section 465 of the IPC. The question is whether the fact that the person who does not have the right over the property, has assigned the right over the property to another person, does make the document a false document. Did he commit forgery under Section 463. Going by Section 463 of the IPC as rightly pointed out by the court below, I am also of the opinion that a document can be a false document only when the person executing the document claiming to be somebody or by authorised by somebody else. If the document is executed by a person without claiming to be someone else or authorised by somebody else, it will not be a false document. Here the complainant has no such case. Crl.R.P. No. 1553 of 2013 7 Here, the case is that a document has been executed with respect to a right which he does not have and also in violation of the prohibition under Section 6(c) of the Transfer of Property Act. Similarly, I am not inclined to accept the argument that Sections 463 and 464 of the IPC are mutually exclusive and independent. I am also of the opinion that to make a document false document coming under Section 463, the document should have been made by employing any of the methods described under Sub Sections (a) to (d) of Section 464 of the IPC. If the allegations regarding creation of the document do not come under any of the methods specified under Sub Sections (a) to (d) of Section 464 of the IPC, a forgery cannot be constituted under Section 463 of the IPC, and the accused cannot be punished under Section 465. This is fortified by the decision of this court in Hydru Hagi v. State of Kerala reported in [2011 (1) KLT 63]: Wherein it is held as follows:
Crl.R.P. No. 1553 of 2013 8
"Thus, first is attracted when a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. Therefore, to be a false document , the document should be made or executed claiming to be some one else or authorised by somebody else. If the document is executed by a person without claiming to be some one else or authorised by somebody else, it will not be a false document. If so, it will not be a forgery also."
In view of the above decision, I have no hesitation to concur with the findings of the learned Magistrate that even if the allegations in the complaint are taken at its face value and admitted as such no offence under Section 464 of the IPC can be made out against the accused.
7. The 2nd question to be considered is whether an offence under Section 193 of the IPC can be prosecuted only Crl.R.P. No. 1553 of 2013 9 on a complaint in writing filed by the court or by such officer of the Court as the court may authorised. Put it differently, whether the private complaint alleging offence under Section 193 IPC is maintainable?
8. Going by Section 195 (1) (b) (i) of the Cr.P.C, it could be seen that no court shall take cognizance of any offence punishable under any of the following Sections of the Indian Penal Code namely, Sections 193 to 196 (both inclusive), 199, 200 and 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceedings in any Court, or except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf. On an analysis of the above Section, I am inclined to concur with the findings of the learned Magistrate that prosecution alleging an offence under Section 193 of the IPC is not maintainable except on the complaint in writing of the court. Crl.R.P. No. 1553 of 2013 10 But here the complaint is filed by a private party under Section 190 (a) read with 200 of the Cr.P.C. Thus there is no illegality or impropriety in the impugned judgment under challenge.
Consequently this revision petition is devoid of merits and dismissed accordingly.
Sd/-
(K. HARILAL, JUDGE) // True Copy // P.A. To Judge DSV/-
Crl.R.P. No. 1553 of 2013 11