Kerala High Court
Thankamani vs Ushadevi on 31 May, 2017
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 31ST DAY OF AUGUST 2018 / 9TH BHADRA, 1940
Crl.Rev.Pet.No. 1153 of 2017
AGAINST THE ORDER/JUDGMENT IN CC 502/2012 of J.M.F.C.,VAIKOM
DATED 31-05-2017
REVISION PETITIONER/COMPLAINANT:
THANKAMANI,
AGED 61 YEARS,D/O.VASU,AMRUTHASREE HOUSE,
KANNUKETTUSSERI MURI,T.V.PURAM PANCHAYATH,
VAIKOM TALUK,KOTTAYAM DISTRICT.
BY ADV.SRI.K.N.BALACHANDRAN KARTHA
RESPONDENT(S)/ACCUSED:
1. USHADEVI,
KOLLERY HOUSE,KANNUKETTTUSSERY MURI,T.V.PURAM
PANCHAYATH,
VAIKOM TALUK,KOTTAYAM DISTRICT.
2. SUNILKUMAR,
AGED 43 YEARS,S/O.CHELLAPPAN,MADAVANA HOUSE,
AKAKARAPADOM,VADAKKEMURY VILLAGE,VAIKOM TALUK.
3. GOPALAKRISHNAN,
S/O.THAMBI,VARIYAMCHIRA NIKARTH,KANNUKETTUSSERY MURI,
V.T.PURAM PANCHAYATH,VAIKOM TALUK.
4. BENNY XAVIER,
MATTAPPALLIL HOUSE,VADAKKEMURI
VILLAGE,T.V.PURAM,VAIKOM.
5. JOSHY,
DOCUMENT WRITER,NORTH GATE,VAIKOM.
6. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM.
R1-R5 BY ADV. SRI.K.R.VINOD
R1-R5 BY ADV. SMT.M.S.LETHA
R BY PUBLIC PROSECUTOR:SRI RAMESH CHAND
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-08-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
SUNIL THOMAS, J.
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Crl.R.P.No.1153 of 2017
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Dated this the 31st day of August, 2018
ORDER
The complainant in C.C.No.502 of 2012 of Judicial First Class Magistrate Court-I, Vaikom, aggrieved by the discharge of the accused holding the charge against them as groundless under section 245(2)Cr.P.C, has approached this Court in revision.
2. According to the complainant, first accused is a document writer and the fifth accused is his sister. Third and fourth accused are real estate brokers. The second accused is the brother- in-law of the third accused. According to the complainant, she purchased 5.330 cents of land from one Santhosh Kumar as per sale deed No.2189/2010 dated 20.08.2010. First accused was the document writer. Accused Nos.3 and 4 had participated in the transaction as the real estate brokers. According to her, in the course of executing the document, blank signed papers were got obtained from her. Misusing it, accused Nos.1 to 5, purported to create a forged document dated 20.08.2010 produced as Ext.P5, by which, the complainant purported to sell the property to the second accused for a consideration of Rs.3,50,000/-. An advance of Rs.50,000/- was stated to have been received by the complainant as advance. The second accused filed a civil suit as O.S.No.134 of Crl.R.P.1153/17 2 2011 before the Munsiff's Court, Vaikom. It is on the above agreement, they obtained a decree claiming that the suit was initiated to substantiate a false claim and that the accused had thereby committed offences punishable under sections 465, 467, 468 and 474 r/w 34 of the Indian Penal Code.
3. After enquiry, jurisdictional magistrate took cognizance of the case and issued process to the accused. After their appearance, PW1 was examined under section 244 Cr.P.C. Exts.P1 to P9 were marked. Both sides were heard. Court below, by the impugned order, held the charges against the accused to be groundless and acquitted to the accused.
4. Assailing the discharge, revision petitioners contended that, court below heavily relied on the judgment of the Civil Court and without applying its mind, discharged the accused. It was contended that, Court failed to notice that Ext.P1 sale deed was dated 20.08.2010 and by Ext.P5 agreement executed on the same day, the same property was purported to be sold for a consideration of Rs.3,50,000/-. According to the petitioner, court below failed to notice that, both the transactions were on the same day and it was beyond the comprehension of any person to assume that, on the date of execution of the purchase deed, the complainant would Crl.R.P.1153/17 3 venture to assign the property by another sale agreement. It was also contended that the court below failed to note that, Ext.P5 was a sham transaction, got executed on blank papers and got signed from the complainant. It was also contended that the court below, under section 245(1) Cr.P.C ought to have confined itself to the question whether a prima facie case was made out, rather than conducting a detailed examination of evidence.
5. It is true that, PW1 in her evidence has spoken substantially in accordance with her complaint. This evidence of PW1 has to be evaluated against the available materials to ascertain whether the case set up by the petitioner herein is genuine. Of course, it is true that the sale deed in favour of the petitioner herein is dated 20.08.2010 and on the same day, she is purported to have agreed to sell the property to the second accused by Ext.P5 document. Definitely, it casts some suspicion on the case of second accused. However, the contention of the accused is that, petitioner herein was a real estate dealer and she had purchased the property only to be sold to the second accused. She did not deny the signature on Ext.P5. There was no independent evidence except her version that the blank papers were got signed and later manipulated.
Crl.R.P.1153/174
6. It is pertinent to note that, O.S.No.134 of 2011 was filed by the second accused against the complainant. Her property was got attached. She appeared and contested the proceedings. Munsiff court found against the complainant and decreed the suit. She had preferred A.S.No.163 of 2012 before the District Court, Kottayam. The contention of the learned counsel for the accused was that, Civil Court, after an extensive and elaborate appreciation of evidence found Ext.P5 to be a genuine document and it cannot be displaced by the oral testimony by the revision petitioner. It was also contended that, there was huge delay in approaching the criminal court seeking the reliefs.
7. The contention of the learned counsel for the complainant is that, court below went wrong in exclusively relying on the findings of the civil court. To substantiate this, learned counsel relied on the decision of the Supreme Court in Shankarlal Gyarasilal Dixit v. State of Maharashtra (1981 Cri.L.J.325) . It was contended that, mere finding that the case set up by the revision petitioner herein was found to be baseless by the civil court could not have been relied on by the court below to discharge the accused. It was also contended, relying on M.Krishnan v. Vijay Singh and Another (2001 Cri.L.J.4705) that, quashing of Crl.R.P.1153/17 5 complaint merely on ground that nature of dispute was primarily of civil nature was not proper. It was held that the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court.
8. It is pertinent to note that, though a civil court held that Ext.P5 was a genuine document, it seems that, learned magistrate has not exclusively relied on that material alone. Court has evaluated that against the fact that the petitioner failed to prove her case and that, there were other materials to doubt the version spoken by PW1. According to the learned counsel for the accused, above finding of the court below is based on cogent evidence and is unassailable. To buttress that argument, learned counsel for the petitioner relied on the decision in George K.P. v. State of Kerala and Ors. (2013 KHC 2506), wherein the Court held that the finding of the civil court regarding the validity of a document is a material circumstance in judging the sustainability of the complaint later raised before the magistrate or police. In Premshankar v. I.G. Of Police (2002 KHC 792), Honourable Supreme Court had held that under sections 41 and 42 of the Indian Evidence Act, judgment, order or decree passed in a previous civil proceeding is relevant.
Crl.R.P.1153/176
9. It is clear that, in the above facts and circumstances of the case, materials indicate that, Ext.P5 was found to be a genuine document. Even though PW1 had asserted that blank signed papers were got obtained at the time of executing of Ext.P1 document, nothing cogent was let in to substantiate it. The delay in approaching the criminal court was also not substantially explained. It was also brought out in evidence that, petitioner herein had dealings in properties. Having considered this, the contention of the petitioner herein that since Exts.P1 and P5 were on the same date and hence, genuineness of Ext.P5 is doubtful, cannot be accepted.
10. It was also contended by the learned counsel for the petitioner, relying on authorities that, court below exceeded its jurisdiction in an enquiry under section 244 Cr.P.C. In Mani v. Joseph (1999(3) KLT 49), this Court had held that, in a proceeding under section 244 Cr.P.C, attempt of the magistrate has to be limited to find out whether prima facie case is made out to proceed against the accused after framing charge. In Jacob Thomas v. Assistant Collector of Customs (1988(1) KLT 741) it was held that under section 245 Cr.P.C., requirement was not to prove a case but, only to consider whether, no case is made out. If there were grounds to presume that the accused has committed an Crl.R.P.1153/17 7 offence, then, charge has to be framed. In State of Tamil Nadu by Ins. Of Police, Vigilance and Anti Corruption v. N.Suresh Rajan and Ors. (2014 Cri.L.J.1444) it was held that, in a proceeding under Sec.227 Cr.P.C, Court was only confined to ascertain whether there was ground for proceeding against the accused, has been made out. It was also reiterated that the law also does not permit a mini trial at that stage.
11. The legal proposition is settled. Accordingly, in the case at hand, it is seen that, court below while proceeding under section 245 Cr.P.C, has properly evaluated all materials before it. By no stretch of imagination, it can held that a prima facie case is made out for proceeding against the accused. Having considered this, finding of the court below that accused is liable to be discharged seems to be unassailable. I find no reason to interfere with the impugned order.
Crl.R.P. fails and is dismissed confirming the impugned order.
Sd/-
SUNIL THOMAS Judge Sbna/ True Copy / P A to Judge