Dismissed

Mariyumma v. Abdul Salam

Kerala HC19 Sept 2008CRL.A/570/2001

Case brief

AI extract

What is this about?

A criminal appeal against an order of acquittal. The trial court held that the complainant failed to prove that the accused issued or used false certificates with guilty knowledge. The High Court found no material to sustain the charge and dismissed the appeal, upholding the acquittal.

What did the court decide?

The criminal appeal was dismissed upholding the order of acquittal of the accused.

Mariyumma Vs Abdul Salam — Constitutional and Fundamental Rights | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE A.K.BASHEER

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FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930

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CRL.A.No. 570 of 2001

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------------------------------CC.5/1998 of JUDL.MAGISTRATE OF FIRST CLASS - I, PARAVUR

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(CRL.M.C.2511/2001 DATED 10/4/2001)

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APPELLANT/COMPLAINANT:

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MAIRYUMMA, AGED 68, D/OLATE KUNJU MUHAMMED, MULLAPARAMBIL, PULIYAPADATH, ELOOKARA, KADUNGALLUR, PARUR.

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BY ADV. SRI.K.S.MADHUSOODANAN SRI.C.P.PEETHAMBARAN

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RESPONDENTS/ACCUSED & FORMAL PARTY:

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ABDUL SALAM, S/O.KHADAR, MANTHARA, OLIKKATTU, ELOOKARA, KADUNGALLUR.

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2.. KUNJUMUHAMMAND, S/O.PAREEKKUTTY, THOZHUTHINGA PARAMBIL, DO.

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ABDHUL KHADER, S/O.PAREEKKUTTY, DO. DO.

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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PUBLIC PROSECUTOR SRI.C.M.KAMAPPU.

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SRI.S.RAJEEV FOR R1 TO R3

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD

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ON 19/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.K. BASHEER, J.

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Crl.A. No. 570 of 2001

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Dated this the 19^th day of September, 2008 Judgment

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Appellant is the complaint in a private complaint. She had filed the complaint against respondents 1 to 3 herein alleging commission of offence punishable under sections 197 and 198 read with Section 34 of the Indian Penal Code. After considering the oral and documentary evidence adduced by both sides, the trial court acquitted the accused holding that the complainant had failed to prove her case against them. The above order of acquittal is impugned in this appeal.

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The case of the appellant/complainant in brief was that accused No.1 in his capacity as the Secretary of Elookara Co-operative Society had issued Exts.P5 and P6 certificates containing false particulars/information in respect of the property belonging to the complainant, in order to help accused Nos.2 and 3, so that they could claim possession of the said property. The complainant further alleged that all the three accused knew that the contents of Exts.P5 and P6 were false and that accused Nos.2 and 3 did not have any right over the property belonging to the complainant.

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It may be necessary to refer to some more essential facts and materials which came out in evidence, in order to consider the question whether any interference is warranted with the order of acquittal passed by the court below.

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The complainant Smt.Mariyumma is indisputably having title over 1.50 acres of land situated in Sy.No. 202/2 in Kadungalloor village by virtue of Ext.P12 registered assignment deed of the year 1966.

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Crl.A. 570/2001 2

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Smt.Mariyumma had married Sri.Pareekutty who passed away on February 10, 1997. Late Pareekutty had two sons born in his first wife, who are accused Nos.2 and 3. It is not in dispute that Sri.Pareekutty was in possession of 3.25 acres of land in the same survey number, viz. 202/2. It appears that the two properties belonging to Smt.Mariyumma and Sri.Pareekutty lie contiguous to each other.

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The case of the complainant before the court below was that accused Nos.2 and 3 had attempted to trespass into her property which ultimately culminated in a suit for prohibitory injunction filed by the complainant against those two persons as OS.620/1997 on the file of the Munsiff's Court, Paravur. In the said suit accused Nos. 2 and 3, who were the defendants, contended, inter alia, that Smt.Mariyumma was not in possession of the plaint schedule property and that they had been cultivating the said property along with the property which originally belonged to their father. They had a further case that their father, during his life time, had orally gifted respective portions of his property to them. It was in this context that the defendants had produced Exts.P5 and P6 certificates issued by the Secretary of the Society (accused No.1) to show that they had been paying water cess for irrigating the property for the purpose of cultivation. The suit was decreed by the Munsiff's Court on November 27, 1999 repelling the contentions of the defendants and restraining them from trespassing into the plaint schedule property or causing any nuisance to the peaceful possession of the plaintiff (Smt.Mariyumma).

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The complainant had filed the private complaint before the Judicial Magistrate of First Class, Paravur during the pendency of the above civil suit, apparently after the defendants had produced Exts.P5 and P6

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Crl.A. 570/2001 3

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certificates which were marked in the suit as Exts.B10 and B11. The complainant alleged that accused Nos.2 and 3 had procured the certificate from accused No.1 containing false averments, in their attempt to prove their possession over the plaint schedule property. It was further alleged that accused No.1 knew that the contents of the certificates were false.

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The complainant, in support of her case was examined herself as Pw.1. Her witness was examined as Pw.2. Exts.P1 to P19(c) series were also marked on her side. Accused No.1 got himself examined as Dw.1 . Exts.D1 to D2(b) series were marked on the side of the accused. The learned Magistrate, after an elaborate consideration of the oral and documentary evidence on record, came to the conclusion that the complainant had failed to prove that the accused were guilty of the offences alleged against them.

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While assailing the findings entered by the trial court, it is contended by Sri.Madhusoodanan, learned counsel for the appellant, that the court below had proceeded at a palpably erroneous tangent and glossed over the material aspects of the case. He submits that the evidence adduced by the complainant will clinchingly show that accused No.1 had issued Exts.P5 and P6 certificates knowing fully well that the contents thereof were totally false and contradictory to or against the contents of the relevant records maintained in the society. It is also contended that accused Nos.2 and 3, particularly the latter, were very well aware that they had no possession over the property in question at any point of time. But nevertheless they had pressed into service Exts.P5 and P6 certificates before the civil court with the full knowledge that the contents of those certificates were totally false. Thus it is contended by the learned counsel

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Crl.A. 570/2001 4

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that the offences punishable under Sections 197and 198 read with the aid of Section 34 IPC were clearly attracted and therefore the learned Magistrate was not justified in brushing aside the evidence adduced by the plaintiff.

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In this context it is profitable to peruse the provisions contained in Sections 197 and 198 of the Indian Penal Code which are extracted hereunder:

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“ 197. Issuing or signing false

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certificate :--Whoever issues or signs

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any certificate required by law to be given or signed, or relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner as if he gave false evidence.

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198. Using as true a certificate

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known to be false:-- Whoever corruptly uses or attempts to use any such certificate as a true certificate, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence.”

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Going by the provisions contained in Section 197, any person who issues or signs any certificate required by law to be given or signed or

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Crl.A. 570/2001 5

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relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner as if he gave false evidence. (emphasis supplied). Obviously Section 197 would be attracted only against accused No.1 because admittedly Exts.P5 and P6 were issued by accused No.1 in his capacity as the Secretary of the Society.

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It had come out in evidence that the Society had been maintaining Ext.D1 register containing the particulars of those members who were eligible for water cess under the Scheme implemented by the Society for agriculturists in that Society. The relevant pages relating to accused Nos.2 and 3 were marked in the case as Exts.D1(a) and D1(b) and D2(a) and D2 (b). The relevant pages in the register indicated that accused Nos.2 and 3 had remitted water cess in the Society in respect of the properties which they had been cultivating. Accused No.1, while he was examined as Dw.1, had deposed before the Court that he had issued Exts.P5 and P6 certificates on the basis of the entries which were available in Ext.D1 register. Admittedly, accused No.1 had assumed charge as the Secretary only in the year 1996. Exts.P5 and P6 certificates were issued by him on August 1, 1997. It had come out in evidence which had not been controverted also, that the entries in Ext.D1 register were made by some other employees in the Society.

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But learned counsel for the appellant, while inviting my attention to Ext.P19 (a), (b) and (c) would contend that in the year 1996 Pareekutty and his two sons viz., accused Nos.2 and 3 had requested the Society to make appropriate mutation in Ext.D1 register with regard to the actual extent of land in their possession, for which they had been remitting water

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Crl.A. 570/2001 6

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cess. With specific reference to accused No.3 and Ext.P19(c), learned counsel points out that the said accused had inherited only 1.23 acres in Sy.No.202/2 from his father. But in Ext.P6 certificate it was indicated by the Secretary that the said accused No.3 had been cultivating an extent of 2.73 acres in Sy.No.202/2. According to the learned counsel, the said entry clearly showed that accused No.3 had claimed an extent of 1.50 acres which was owned and possessed by the complainant, as otherwise accused No.3 could have claimed, going by Ext.P19(c), only an extent of 1.23 acres in Sy.No.202/2. The entire case of the complainant revolves on the above two aspects.

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First of all I will deal with the case against accused No.1 in the backdrop of the facts adverted to above. As mentioned earlier, accused No.1 had issued Exts.P5 and P6 certificates in his capacity as the Secretary of the Society. The evidence on record clearly indicated that he had only relied on the entries in Ext.D1 register. Of course, the complainant may be justified in contending that while issuing Exts.P5 and P6 certificates accused No.1 ought to have perused Ext.P19 (a) to ( c ) also. Anyhow, no evidence had been adduced by the complainant to show that accused No.1 had wilfully overlooked or ignored Ext.P19 before issuing Exts.P5 and P6 certificates. Moreover, no other material piece of evidence was brought on record to show that accused No.1 knew that the contents of Exts.P5 and P6 were false. Admittedly, the relevant pages of Ext.D1 certificate relating to accused Nos.2 and 3 clearly indicated that they had been paying water cess in respect of the properties mentioned in Exts.P5 and P6 certificates. In that view of the matter, the charge under Section 197 which was sought to be fastened against accused No.1 could not have been sustained at all, as

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Crl.A. 570/2001 7

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rightly held by the trial court.

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Learned counsel for the appellant has advanced yet another argument. He points out that the total extent of land which was in the possession of late Pareekutty was 3.58 acres, whereas Smt.Mariyumma was in possession of 1.50 acres. In Ext.P19 Sri.Pareekutty had requested the Society to effect mutation of 1.23 acres in favour of accused No.3. At the same time, he had also requested the Society to effect mutation in respect of 1.53 acres in the name of accused No.2. But in Exts.P5 and P6 , accused No.1 certified that a total extent of 4.26 acres in Sy.No.202/2 was being cultivated by accused Nos.2 and 3. According to the learned counsel, this entry was totally false because even Pareekutty did not have a case that he owned or possessed 4.26 acres in Sy.No.202/2.

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As mentioned earlier, accused No.1 had issued the certificate only on the basis of the entries in Ext.D1 register. Moreover, Exts.P5 and P6 did not indicate or show that accused Nos.2 and 3 were in ownership or in possession of the lands in question. The certificates only stated that accused Nos.2 and 3 had been paying water cess in respect of the cultivation that was being carried out in the lands in question. Therefore in my view, the court below was fully justified in holding accused No.1 not guilty of the offence under Section 197 IPC.

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The case against accused Nos.2 and 3 is that they had produced Exts.P5 and P6 certificates in the civil suit as true certificates knowing them to be false. It is the case of the complainant that accused Nos.2 and 3 knew all along that they were not in possession of 1.50 acres which belonged to Smt. Mariyumma, the complainant. I am afraid the above contention cannot be accepted for reasons more than one. As mentioned earlier, in the civil

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Crl.A. 570/2001 8

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suit, the specific case of accused Nos.2 and 3 was that Smt.Mariyumma was not in possession of the plaint schedule property which is the subject matter of the two certificates.

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In this context it is pertinent to note that Smt.Mariyumma had candidly admitted while she was examined as Pw.1 and also before the civil court that she had not been paying revenue for the plaint schedule property, at any point of time. But she still maintained in the civil suit that she was in possession of the property. She had a further case that though she had been cultivating the plaint schedule property along with her husband, she had not paid water cess separately. This, according to her, was because she was not a member of the Society. But according to her, water cess was being remitted by her in the name of her husband who was a member of the Society. In fact Smt.Mariyumma had relied on Ext.P2 certificate regarding remittance of water cess in the name of her husband Sri.Pareekutty from 1966 onwards. It may be noticed that Ext.P2 and Ext.D1 are one and the same. I have already referred to the relevant entries in Ext.P2 register. It is evident that there existed dispute with regard to the possession over the property in question. While Sri.Mariyumma insisted that she had all along been in possession of the disputed property, the specific case of accused Nos.2 and 3, both before the civil court and the criminal court, was that they had been in possession of that property and that they had been cultivating the same after remitting water cess, along with the other property situated in the very same survey number and which was admittedly in their possession.

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Anyhow, in the case on hand, it is not necessary at all to consider the above question in detail. The short question as far as culpability of

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Crl.A. 570/2001 9

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accused Nos.2 and 3 is concerned is only whether the offence under Section 198 will be attracted against them on the allegation that they had used or attempted to use Exts.P5 and P6 certificates as true certificates knowing them to be false at any material point of time.

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Sri.Madhusoodanan has vehemently contended that the cumulative effect of the two entries in Exts.P5 and P6 as regards the total extent of the land in Sy.No.202/02, would be that accused Nos.2 and 3 had used those two certificates as true in their attempt to establish that they were in possession of the entire extent shown in those certificates. This, according to the learned counsel, would clearly show that they had committed the offence under Section 198 IPC. I am unable to agree.

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As mentioned earlier, Exts.P5 and P6 certificates will not in any manner show that the entries therein are to the effect that accused Nos.2 and 3 are in ownership or possession of any land indicated therein. Those certificates only contained the statement that accused Nos. 2 and 3 had been paying water cess to the Society in respect of the lands mentioned therein. By no stretch of imagination can it be said that accused Nos. 2 and 3 could have claimed title or possession over the lands indicated therein on the basis of those two certificates.

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Admittedly, Smt.Mariyumma had got title over 1.50 acres of land situated in Sy.No.202/2, as could be seen from Ext.P12. The question of title and possession has to be necessarily decided by a civil court. Of course, it is on record that the Munsiff Court has already held that the complainant had been in possession of the property in question. But it has been brought to my notice that the decree and judgment of the Munsiff Court in OS.620/97 were set aside by the appellate court in AS.60/99 but

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Crl.A. 570/2001 10

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Sri. Madhusoodanan submits that a Second Appeal is pending before this Court against the judgment and decree of the appellate court. Therefore obviously the dispute with regard to possession is still at large.

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Having carefully perused the entire evidence on record , I am satisfied that the court below was justified in acquitting the accused. It has to be remembered that the scope of interference by the appellate court against an order of acquittal is very narrow and limited. I have carefully perused the order passed by the trial court. The learned Magistrate, in my view, had very meticulously and carefully examined the oral and documentary evidence adduced by the parties. All the material aspects of the case were considered by the court below carefully. Learned counsel for the appellant did not have a case that any material issue was omitted to be considered by the learned Magistrate.

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In any view of the matter I find no reason to interfere with the order of acquittal passed by the trial court.

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The Crl.Appeal is dismissed.

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A.K.BASHEER Judge

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an.

Mariyumma v. Abdul Salam

Case brief

What is this about?

What did the court decide?

Mariyumma v. Abdul Salam

Case brief

What is this about?

What did the court decide?

What the court decided

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