The Court declined to quash an FIR registered for offences under Sections 205 and 468 IPC regarding alleged forgery in a sale agreement. It held that while Section 205 IPC was not attracted, the pleadiings were sufficient to potentially attract Section 468 IPC, leaving the matter for investigation.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR
TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932
Crl.MC.No. 2979 of 2008() ------------------------------------CRIME NO.393/2008 OF VAIKOM POLICE STATION. .................
PETITIONERS/A1 AND A2:
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1. MOHANAN, S/O.KARUNAKARAN, VADAKKUMKATTIL, MARAVANTHURUTHU, KULASEKHARAMANGALAM.
2. RAMESH, S/O.BHASKARA PANICKER, PULIPRA, CHANIYIL, KULASEKHARAMANGALAM.
BY SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE, ADV. SRI.M.CHANDRA BOSE, SRI.A.RAJASIMHAN.
RESPONDENTS/COMPLAINANT AND STATE
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1. AMBIKADEVI, W/O.VENUGOPAL, PALACHUVATTIL VEETIL, KIZHAKKUMCHERRY NADUVIL, NADUVILE VILLAGE, VAIKOM, TALUK.
2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA
AT ERNAKULAM.
R1 BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE, ADV. SMT.SMITHA GEORGE. R2 BY PUBLIC PROSECUTOR MR.P.A. SALIM.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
rs.
M.SASIDHARAN NAMBIAR,J.
CRL.M.C.NO.2979 OF 2008
--------------------------------------------- Dated 12th October, 2010
O R D E R
Petitioners, the accused in Crime
No.393/2008 of Vaikom Police Station registered under Sections 205 and 468 read with Section 34 of Indian Penal Code on
Annexure-A2 complaint filed by first respondent before the Judicial First Class Magistrate, Vaikom and sent for investigation under Section 156(3) of Code of Criminal
Procedure, filed this petition to quash Annexure-A1 FIR and the further proceedings, contending that ingredients of the offences are not attracted.
the petitioners and learned Senior Counsel appearing for first respondent and learned
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Public Prosecutor were heard.
dispute. First respondent agreed to sell 57 cents of her property in R.S.No.98/14 of
Maranalloor villge, obtained by her as per registered sale deed No.1275/1992 in favour of second petitioner as per an agreement for sale executed on 22/10/2007. As per the agreement first respondent agreed to sell the property for a consideration of Rs.30 Lakhs to the second petitioner. The second petitioner paid Rs.1,00,000/- as advance and agreed to pay Rs.1,00,000/- on 1/11/2007 and first respondent agreed to execute the sale deed within a period of six months on receipt of balance consideration. Second petitioner paid
Rs.1,00,000/- on 1/11/2007 by a cheque drawn in his account maintained in Union Bank of India.
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According to the petitioners, first respondent along with her husband, agreed to extent the period of agreement by six months on 22/4/2008 and made an endorsement in Annexure-A3 agreement in the presence of the witnesses. According to the first respondent she never agreed for such an extension of time and did not make any endorsement agreeing for extension
of time and it is a forged entry. First respondent lodged Annexure-A2 complaint before the Judicial First Class Magistrate, Vaikom
alleging that Sandeep Venugopal, son of the first respondent had appeared before Dy.S.P, Nedumangadu on a complaint filed by the first petitioner, as first respondent could not go there due to her ill-health as directed by the
Dy.S.P and Dy.S.P had shown the agreement for sale which contained a forged endorsement that
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first respondent agreed for extension of the period of the agreement by six months on 22/4/2008. It is alleged that, the entry is the result of forgery committed by the petitioners. Learned Magistrate sent Annexure-A2 complaint to the Police for investigation under Section 156(3) of Code of Criminal Procedure. Under Annexure-A1 FIR crime No.393/2008 of Vaikom Police Station was registered for the offences under Sections 205 and 468 read with Section 34 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure contending that first respondent has no case that her husband did not make any endorsement in the agreement for sale, where signature of the first respondent is seen and the only allegation is that petitioners committed forgery of the signature of the first
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respondent and in such circumstances, it is clear that the allegation is not correct. Learned counsel appearing for the petitioners
pointed out that it was on the basis of
Annexure-A4 complaint filed by the first petitioner, son of first respondent was summoned by the Dy.S.P and that is with regard to the trespass and damages committed by the son of first respondent in the property which was put in the possession of the second
petitioner under Annexure-A3 agreement for sale
and when first petitioner was advised to approach the Civil Court, O.S.488/2008 was
filed before Additional Munsiff's Court, Neyyattinkara and Annexure-A5 order shows that an order of temporary injunction was granted in favour of the first petitioner on 10/6/2008 and Annexure-A2 complaint was filed thereafter.
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Annexure-A1 FIR shows that the case was registered on 16/6/2008. Learned counsel would argue that Annexure-A2 complaint does not disclose the details of the forgery or from where it was committed and when the property is at Neyyattinkara, learned Magistrate, Vaikom has no jurisdiction to entertain the complaint or to direct registration of the case and in such circumstances, it is clear that continuation of the proceedings is only an abuse of process of the Court. Learned counsel would also argue that though there is an allegation that first petitioner has forged the document evidencing extension of time, there is no allegation as against the second petitioner and therefore, continuation of the proceedings against the second petitioner is illegal. Learned counsel would also argue
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that in any case, an offence under Section 205
will not be attracted on the admitted facts and as there was no cheating as defined under Section 415 of Indian Penal Code, an offence under Section 468 also will not be attracted and therefore, the FIR and further proceedings are to be quashed.
that there is specific allegation in Annexure-A2 complaint that the entry in
Annexure-A3 agreement with regard to extension
of time was forged by the first petitioner in furtherance of the common intention with the
second petitioner and that too after consultation with each and in such
circumstances, contention that there is no allegation against the petitioners is not correct. Learned Senior counsel also pointed
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out that Annexure-A1 shows that agreement for sale was entered into within the jurisdiciton of Judicial First Class Magistrate's Court, Vaikom and first respondent and her husband are
all residing at Vaikom and therefore, endorsement in Annexure-A3 could only be at Vaikom and in such circumstances contention that Judicial First Class Magistrate, Vaikom has no jurisdiction is not sustainable. Learned Senior counsel argued that even though first respondent has not agreed for
extension of time, an entry was forged in Annexur-A3 agreement with the forged signature of the first respondent to the effect that she has agreed for extension of the period and it was clearly for the purpose of cheating and even though first entry made in Annexure-A3 agreement regarding the payment of
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Rs.1,00,000/- on 1/11/2007 was not attested by any witness, signatures of the witnesses are seen in the forged entry dated 22/4/2008 which shows that this is a clear case of forgery. Learned Senior counsel therefore, argued that there is no reason to interfere with the investigation as final report is yet to be filed.
that the case is under investigation and final report is yet to be filed.
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contains the necessary allegations against the second petitioner also.
learned Senior counsel, when first respondent and her husband are residing at Vaikom and Annexure-A3 agreement for sale was executed at Vaikom, endorsement regarding the payment and extension of time, if any could only be at Vaikom, when it is not specifically otherwise shown. In such circumstances, when first respondent has a case that the entry in
Annexure-A3 agreement dated 22/4/2008 is a forged entry and she did not execute the same, it cannot be said that learned Magistrate, Vaikom has no jurisdiction, either to direct
the investigation or if based on the investigation a final report is submitted to take cognizance of the offences.
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for the petitioners vehemently argued that
signature of the first respondent seen on
Annexure-A3 agreement, when she executed the
agreement and the disputed signature in the
entry dated 22/4/2008 are similar and identical, it is not for this Court to compare the signatures and decide the question whether
that signature is that of the first respondent or a forged signature. That is a matter for investigation.
Annexure-A2 complaint, an offence under Section 205 of Indian Penal Code will not be attracted. That does not mean that an offence under
Section 468 of Indian Penal Code is not
attracted on the pleadings. In such circumstances, I do not find that it is for
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this Court to exercise the extra ordinary jurisdiction to quash Annexure-A1 FIR as sought for. It is for the Investigating Officer to consider whether petitioners committed any of the offences alleged or any other offence, based on the investigation. But it is made clear that an offence under Section 205 of Indian Penal Code is not attracted.
Petition is disposed accordingly.
M.SASIDHARAN NAMBIAR, JUDGE.
uj.
3 issues framed by the court
Whether the High Court should exercise its extraordinary jurisdiction to quash the FIR and further proceedings in a cheating case under Sections 205 and 468 IPC.
Whether the allegations of forgery and cheating under the said sections are sufficiently disclosed on the face of the complaint to attract criminal liability.
Whether the learned Magistrate had jurisdiction to direct investigation into the alleged forgery committed at Vaikom.
3 provisions across 2 enactments
Mohanavan
Ramesh
Ambikadevi
State of Kerala
M. Sasidharan Nambiar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court