Madras High Court
G.Gowrishankar vs / on 19 June, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.No.10512 of 2024
and
Crl.M.P.Nos.7169 &7171 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order Reserved on :13.06.2024
Order Pronounced on :19.06.2024
Coram:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.O.P.No.10512 of 2024
and
Crl.M.P.Nos.7169 & 7171 of 2024
G.Gowrishankar .. Petitioner
/versus/
1.The State rep.by
The Inspector of Police,
District Crime Branch,
Erode.
2.V.S.Prabhu
(2nd respondent impleaded as
per order dated 13.06.2024
in Crl.M.P.No.8331 of 2024 in
Crl.O.P.No.10512 of 2024) .. Respondents
Prayer: Criminal Original Petition has been filed Section 482 of
Cr.P.C., praying to call for the records and to set aside the common order
passed against this petitioner in C.R.P.No.26 of 2020, dated 08.04.2024
on the file of the II Additional District and Sessions Judge, Erode wherein
1/21
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.10512 of 2024
and
Crl.M.P.Nos.7169 &7171 of 2024
confirming the common order passed in C.M.P.No.14159 of 2019, dated
26.12.2019 on the file of the Judicial Magistrate No.II, Erode.
For Petitioner :Mr.V.Karthik, Senior Counsel for
Mr.Adithya Varadarajan
For Respondents :Mr.S.Udayakumar,GA for R1
Mr.M.Guruprasad for R2
-------
ORDER
The respondent police herein registered the case in Crime No:45 of 2013, dated 20/11/2013 against 6 persons and taken up the investigation on the complaint given by one V.S.Prabu, S/o Sakthivel alleging fabrication and forgery of a Will purported to have been executed by one Maruthapushpam. On completion of the investigation, Final Report has been filed on 03/09/2018 for the offences punishable under Sections 120B, 420, 467, 468, 471 and 109 IPC. Same is taken cognizance by the Judicial Magistrate II, Erode in C.C.No.446/2019. 2/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024
2. In the Final Report, the beneficiaries of the Will Mrs.Shanmugavadivu (A-1), her son Sarvesh Kailasam (A-2); the witnesses to the fabricated Will Mr.Palanisamy (A-3) and Mr.C.Duraisamy (A-4); the purchasers of the property covered under the fabricated Will Mr.Joseph (A-5) and Mr.V.Narayanan (A-6) and the scribe of the fabricated Will Mr.G.Gowrisankar (A-7), all are arrayed as accused.
3. In the course of the investigation, the disputed signature of Maruthapushpam found in the Will and her admitted signatures in the bank account opening form were sent for comparison by Experts and they, on comparison, opined that the signatures differ. Materials including the letter of the 7th accused addressed to the Investigating Officer and the response to the questionnaires given to him had provided prima-facie evidence to array the 7th accused (the petitioner herein ) as an accused.
3/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024
4. Earlier, the persons named in First Information Report preferred quash petitions, but could not succeed. Thereafter, on filing the final report, they preferred discharge petitions under Section 239 of Cr.P.C before the trial Court and the same got dismissed by the trial Court vide common order dated 26/12/2019. As against the dismissal of the discharge petitions, they all filed Criminal Revision Petitions before the II Additional District and Sessions Judge, Erode. Those Revision Petitions were dismissed, vide common order dated 08/04/2024.
5. This petition is filed under Section 482 Cr.P.C to set aside the common order passed by the II Additional District and Sessions Judge, Erode, against this petitioner, wherein the dismissal common order of the discharge petitions passed by the trial Court was confirmed.
6. The Learned Senior Counsel for the petitioner at the outset submitted that this petitioner stands on the different footing and cannot be treated on par with the other accused persons. Firstly, this petitioner is not a named accused in the FIR . Therefore, the Court below ought not to 4/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 have been prejudiced by the dismissal of the FIR quash petitions filed by the FIR named accused, who unsuccessfully challenged the FIR upto the Hon'ble Supreme Court. Secondly, the petitioner is an Advocate by profession. As a professional, he drafted the Will on the instruction of the client. He had no knowledge about when and where the Will was signed by the testator and the attesting witnesses. Therefore, he cannot be held liable for any forgery done behind his back and without his knowledge. The opinion of the handwriting expert is not a conclusive proof of evidence and it is only a form of opinion. In the property dispute between the siblings, the petitioner, who is a practising Advocate of repute, has been falsely roped in as an accused without proper investigation.
7. The Learned Senior Counsel also emphasised that none of the witnesses to the prosecution had given statement incriminating this petitioner. The prosecution strongly rely upon a signed letter of the petitioner and the answers given by the petitioner to the questionnaires given to him in connection with the Will. This questionnaire and the response was few years after the drafting of the Will. Due to lapse of 5/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 memory, certain answers given were not correct. Therefore, the content of these documents cannot be taken as incriminating material for prosecuting, particularly, when this document is not admissible in evidence. The content of this documents cannot be relied to infer conspiracy with other accused or aiding the other accused to fabricate the false document.
8. To buttress his argument, the Learned Senior Counsel rely on the following judgments:
1) Thasildar Singh and another –vs- State of UP:
AIR 1959 SC 1012.
2) Mohammed Ibrahim and others –vs- State of Bihar and another: (2009) 8 SCC 751.
3) Sheila Sebastian –vs- R. Jawaharaj and another :(2018) 7 SCC 581.
9. The defacto complainant, through his counsel had filed petition to implead and placed his submissions why the dismissal order of 6/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 the discharge petitions have to be confirmed. According to the learned counsel appering for the defacato complainant, the two documents relied on by the prosecution are voluntary disclosure of fact, which were within the knowledge of the statement maker. The content of these two statements are contrary to the material evidence collected in the course of investigation. The content of these documents prima facie leads to a conclusion that the petitioner has given these two statements voluntarily and intentionally, as if the Will, which he drafted, was duly executed by the testator in accordance with law in his presence. This portion of voluntary admission incriminates him in respect of his participation in the crime. His role of drafting the Will for the purpose of forgery is prima facie made out from the evidence collected. For framing charges and trying these statements, other circumstances are sufficient. Proof of the statements with other corroborating circumstances has to be tested during the trial.
10. In support his argument, the learned counsel for the defacto complainant, rely on the Constitutional Bench Judgment of the Hon’ble 7/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 Supreme Court rendered in State of Bombay –vs- Kathikalu Oghad ( AIR 1961 SC 1808) and submitted that, mere questioning of an accused person by a police officer, resulting in voluntary statement, which may ultimately turn out to be incriminatory, is not a testamentary compulsion to attract the bar under Article 20(3) of the Constitution of the India. He further submits that, in a petition to discharge under Section 239 of Cr.P.C, the Court tests the statements and documents relied by the prosecution to satisfy itself, whether there are prima facie material to frame charges and proceed with the trial. At pre-trial stage, the Courts are not expected to satisfy whether the trail will end in conviction or not.
11. Referring the common order passed by the trial Court, which has dismissed the discharge petitions and the common order passed by the Sessions Court confirming the trial Court order in exercise of its revisional jurisdiction, Mr.Guruprasad, the learned counsel appearing for the Defacto complainant submitted that, both the Courts below had recorded their prima-facie satisfaction regarding the sufficiency of incriminating material to frame charge and try the petitioner and other 8/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 accused persons. The expression ‘groundless’ used in Section 239 of Cr.P.C means, there must be no ground to frame charge. In this case, the Will of Tmt.Maruthapusham purported to have been signed by her at Erode on 16/09/2011 at about 09.30 am. contrarily, the medical records collected by the prosecution proves that she was hosptialised at Coimbatore and been getting treatment as inpatient at Kuppusamy Hosptial Coimbatore and got discharged on 16/09/2011 at about 10:55:58 am. While so, this petitioner during the investigation in his own hand had informed the police that, on the instruction of Tmt.Maruthapushpam, he drafted the Will. The Will was prepared by him at 9.30 a.m. In his presence, Tmt.Maruthapushpam signed the Will. Thereafter, the witnesses affixed their signatures. He has specifically informed the police that the execution of the Will completed at about 10.30 a.m at the residence of Maruthapushpam (opp. to Hotel Oxford) at Erode.
12. Mr.Guruprasad, the learned counsel appearing for the defacto complainant submitted that, the petitioner is not a layman. Being 9/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 a lawyer by profession, he knows the significance of the statement, he had given to the police. His statement in support of a ‘fabricated Will’ exposes his mens rea to aid and abet the crime. In the scheme of conspiracy, the role of the conspirators are matter of inference. The facts, which are within the exclusive knowledge of the accused, if not adverse to him, he can rebut the presumption under Section 106 of the Indian Evidence Act during the trial at the appropriate stage, but cannot dispute the facts and seeks discharge without subjecting himself to trial.
13. The arguments and judgments relied on either side, primarily, pegs on the statements of the petitioner given to the police during the investigation. The learned Senior counsel appearing for the petitioner submits that, those two documents are signed statements of the person given in writing to the police during the course of investigation. Initially, this petitioner was only called for enquiry as a witness. Later, after obtaining his statements, he is arrayed as an accused. Therefore, it being a statement of an accused given to the police, it cannot be relied by the prosecution for any purpose. Further, these statements does not have 10/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 the trappings of previous statement of a witness to the police ,since it is signed by the maker of the statement, which is prohibited under Section 162 of Cr.P.C.
14. The Learned Senior Counsel, rely on the Hon'ble Supreme Court decision in Tahasildar Singh and another –vs- State of UP ( cited supra) which has interpreted Sections 161 and 162 Cr.P.C and Sections 27, Sections 145 and 157 of the Evidence Act. In this judgment, while discussing the object of Section 162 of Cr.P.C., the Apex Court referring the below observation of the Judicial Committee in Pakala Narayana Swami –vs- King Emperor reported in (1939 ) LR 66 IA, “ if one had to guess at the intention of the legislature in framing a section in mind to encourage the free disclosure of information or to protect the person making the statement from a supposed unreliability of police testimony as to alleged statements or both”. Held, the object of Section 162 with its proviso, is to protect the accused both against overzealous police officers and untruthful witnesses.
11/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024
15. The object of the section, in the words of Justice Subba Rao., “16. The object of the main section as the history of its legislation shows and the decided cases indicate is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms says that no statement made by any person to a police officer or any record thereof, or any part of such statement or record, be used for any purpose. The words are clear and unambiguous. The proviso engrafts an exception on the general prohibition and that is, the said statement in writing may be used to contradict a witness in the manner provided by s. 145 of the Evidence Act. We have already noticed from the history of the section that the enacting clause was mainly intended to protect the interests of accused. At the stage of investigation, statements of witnesses are taken in a haphazard manner. The police-officer in the course of his investigation finds himself more often in the midst of an excited crowd and babel of voices raised all round. In such an atmosphere, unlike that in a Court of Law, he is expected to hear the statements of witnesses and record separately the statement of each one of them. Generally he records only a summary of the statements which appear to him to be relevant. These statements are, therefore, only a summary of what a witness says and very often perfunctory. 12/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 Indeed, in view of the aforesaid facts, there is a statutory prohibition against police officers taking the signature of the person making the statement, indicating thereby that the statement is not intended to be binding on the witness or an assurance by him that it is a correct statement.
17. As the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police- officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by s. 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar.”
16. One has to bear in mind that this judgment had decided the 13/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 question regarding the construction of Section 162 Cr.P.C which arose in a criminal appeal against the judgment rendered by the trial Court. In this case, the Hon’ble Supreme court apart from the previous statement of the witnesses, had the advantage of considering the deposition of the witnesses and the observation of the trial Court made during the cross examination. The dictum laid in this case can be applied and tested, where the trial is concluded, but not at the pre-trial stage. The persons who are accused in this case, including the petitioner herein, had consistently stated that the Will was signed by Tmt. Maruthapushpam on 16/09/2011 at 9.30 am in Erode at her residence. Whereas, the prosecution had collected the evidence to the contrary to prove, that Tmt.Maruthapushpam was in the hospital at Coimbatore on the said date and time. The prosecution has also obtained the opinion of the expert that the signature found in the questionable document (i.e) the ‘Will’ is not that of Maruthapushpam.
14/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024
17. The Learned Senior Counsel referring Sheila Sebastian –vs- R.Jawaharaj and others (cited supra) submitted that the petitioner, who scribed the Will cannot be prosecuted for offences under Sections 464 and 465 of IPC, since he is not the maker of the false document in question. However, strong the suspicion, it cannot take the place of proof. In this case, the Investigating Officer has failed to discharge his duty properly. He should have acted diligently while discharging his duties. He submitted that the petition under Section 156(3) of the Code filed before the Judicial Magistrate been taken up for investigation in-spite of the fact that the defacto complainant V.S.Prabu had resorted to partition suit and same pending in O.S.No.173/2014 before the Principal District Court, Erode.
18. The above argument is not sustainable. This Court finds that the Final Report by the Investigating Officer is after collecting materials, which provides sufficient material for prima facie satisfaction to frame charges including offences like, conspiracy and abetment to forge the 15/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 documents. While so, the final report does not suffer any lack of fairness or transparency to apply the dictum laid in Sheila Sebastian case cited supra. The plaint averments in O.S.No.173/2014, refers about the Will purported to have been executed by Tmt.Maruthapushpam and why it shrouded with suspicion and to be ignored, while considering the partition by metes and bounds. A suit to ascertain the civil right cannot be a bar of prosecuting a criminal case involving cognizable offences.
19. The facts in this case from the records discloses that a document is made by this petitioner with a nomenclature “Will“ in the name of Tmt.Maruthupushpam favouring one branch of legal heirs, excluding the other branches. The disputed document is dated 16/09/2011 purported to have been made at Erode on the instruction of Maruthupushpam who was in fact at Coimbatore at the relevant point of date and time. This petitioner (A-7) as scribe of the document affixed his signature. He claims that he drafted the document and he saw Marthupushpam affixing her signature in the document at Erode. This is contrary to the medical records of Mruthupushpam regarding her 16/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 presence at Erode and the expert opinion regarding the signature found in the Will. The Will is made to benefit A-1 and A-2. The other two accused A-3 and A-4 have affixed their signatures as witnesses for Maruthupushpam signing the document. Based on this unregistered Will, A-1 and A-2 knowing well that they are not the owner of the property, had sold the property to A-5 and A-6.
20. In Mohammed Ibrahim –vs- State of Bihar (2009) 8 SCC 751, while analysing the necessary ingredients to attract offences under Sections 464, 420, 467 and 471 of IPC had clarified that disputes of a civil nature may also contain the ingredients of criminal offences and if so, the Will have to be tried as criminal offences, even if they also amount to civil disputes. In this judgment, to strengthen this legal preposition, the following two judgments relied:
i)G.Sagar Suri –vs- State of UP: 2000 SCC (cri) 513.
ii)Indian Oil Corporation Ltd -vs- NEPC India Ltd: (2006) 6 SCC 736. 17/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024
21. Thus, in this case, ‘forgery’ which is the ingredient for making false document is prima facie found. Selling the property knowing well that they are not the owner of the property is prima facie made out. The intention to cheat to gain pecuniary advantage is also made out. The conspiracy to commit these crime has been hatched in secrecy. The petitioner, who is privy to the document, which is prima facie found to be a false and forged document, is bound to face trial. The letter sent by him to the Investigating Officer does not on the face of it indicates it was given under duress or compulsion. In order to bring his statements within the inhibitions of Article 20(3) of the Constitution of India, it must be shown not only that the person making the statement was an accused at the time, he made it and that it had a material bearing on the criminality of the maker of the statement, but also that he was compelled to make this statement. (Para No.15 of the judgment in Kathi Kalu Oghad). Mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not ‘compulsion’. (Para 16(2) of the above judgment). 18/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 To bring the statement in question within the prohibition of Art 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement is made. (Para 17(7) in Kathi kalu Oghad judgment).
22. Thus, from the materials placed by the prosecution, it is clear as crystal that the dismissal of the discharge petitions is in tune with law. Hence, dismissal order as confirmed by the Court of revision stands confirmed.
23. C.C.No.446/2019 is pending for the past 4 years without much progress, due to the fact that some of the accused earlier filed a petition to quash the First Information Report. The matter was taken upto the Hon'ble Supreme Court and only after the dismissal by all the three Courts, Final Report came to be filed. After filing of the final report, all the 7 accused one by one had filed discharge petitions and after its dismissal by the trial Court, the Revision Petitions filed and the same got 19/21 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 dismissed. Against the dismissal, this petitioner (A-7) has resort to invoke the inherent power of this Court. This Court in exercising of its inherent power to secure the ends of justice, beside upholding the common order of the Courts below, directs the trial Court to take up the trial of C.C.No.446/2019 on priority basis and conduct trial as expediously as possible.
24. In the result, this Criminal Original Petition stands dismissed. Consequentially, Criminal Miscellaneous Petitions are dismissed.
19.06.2024 Index:yes Neutral Citation:yes/no ari To:
1.The II Additional District and Sessions Judge, Erode.
2.The Judicial Magistrate No.II, Erode.
3.The Inspector of Police, District Crime Branch, Erode.
4.The Public Prosecutor, High Court, Madras.20/21
https://www.mhc.tn.gov.in/judis Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 &7171 of 2024 DR.G.JAYACHANDRAN,J.
ari delivery Order made in Crl.O.P.No.10512 of 2024 and Crl.M.P.Nos.7169 & 7171of 2024 19.06.2024 21/21 https://www.mhc.tn.gov.in/judis