Partly allowed

Suresh v. State of Kerala

Kerala HC7 Dec 2017Crl.Rev.Pet/1718/2003

Case brief

AI extract

What is this about?

In a criminal revision, the High Court examined appeals against conviction for forgery and impersonation. The court acquitted the second accused due to lack of evidence connecting him to the crime but upheld the conviction of the third accused based on expert fingerprint comparison matching the impersonated signatory. The jail term for the third accused was reduced from one year to three months un

What did the court decide?

Conviction against the second accused set aside; conviction against the third accused confirmed but jail sentence reduced to three months rigorous imprisonment.

Suresh Vs State of Kerala — Cheating and Forgery | Kerala HC (2017)

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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 P.UBAID

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THURSDAY, THE 7TH DAY OF DECEMBER 2017/16TH AGRAHAYANA, 1939

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Crl.Rev.Pet.No. 1718 of 2003 ( )

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AGAINST THE JUDGMENT IN CRA 466/2001 of SESSIONS COURT, THRISSUR AGAINST THE JUDGMENT IN CC 537/1998 of J.M.F.C.,KUNNAMKULAM

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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SURESH, S/O.KRISHNAN KUTTY, ARIYATH VEETTIL, KADIKKAT VILLAGE, EDAKKARA DESOM.

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BY ADV. SRI.BASANT BALAJI

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RESPONDENT(S):

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

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BY PUBLIC PROSECUTOR SMT.SREEJA.V.

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-12-2017, ALONG WITH CRRP. 1962/2003, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.UBAID, J.

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~~~~~~~~~~

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Crl.R.P Nos.1718 &1962 of 2003 ~~~~~~~~~~~

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Dated this the 7^th December, 2017

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O R D E R

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The revision petitioner in Crl.R.P.No.1718 of 2003 is the second accused in C.C.No. 537 of 1998 of the Judicial First Class Magistrate Court, Kunnamkulam and the revision petitioner in Crl.R.P.No. 1962 of 2003 is the third accused therein. They faced prosecution before the court below on the allegation that they and the first accused created a false assignment deed in the name of one Sulaiman who is the husband of the first accused, and thus illegally sold some extent of property belonging to the said Sulaiman. The further allegation is that in the sale transaction including registration of the document at the Registrar's Office, the third accused impersonated the said Sulaiman as the assignor. The police registered the crime on the basis of the complaint made by the said Sulaiman before the court,and forwarded for investigation to the Police. The said complaint was initially fled against the complainant's wife and two other persons including the assignor shown in the alleged assignment deed. After investigation the Police

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Crl.R.P Nos.1718 &1962 of 2003

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submitted final report against three persons. The first accused is the wife of the complainant Sulaiman who actually created the false document according to the prosecution with the help of the third accused, the second accused is the scribe who prepared the said assignment deed, and the third accused is the person who impersonated the assignor (the complainant). Thus the said document is said to be a product of the criminal design made by the accused Nos. 1 to 3. The first accused absconded during the trial process, and the case against her was split up and refiled. The accused Nos. 2 and 3 faced trial before the learned Magistrate. They pleaded not guilty to the charge framed against them under Section 465, 468 and 471 read with Section 34 IPC.

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The prosecution examined 12 witnesses in the trial court and proved Exts.P1 to P11 documents. When examined under Section 313 Cr.P.C., the accused Nos. 2 and 3 denied the incriminating circumstances and pleaded ignorance about the alleged forgery. Their case is that they had no role or involvement in the making of the assignment deed. They did not adduce any evidence in defence.

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On an appreciation of the evidence, the trial court

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Crl.R.P Nos.1718 &1962 of 2003

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found the accused Nos. 2 and 3 guilty under Sections 468 and 471 IPC. On conviction, they were sentenced to undergo rigorous imprisonment for one year each under Section 468 IPC and to undergo rigorous imprisonment for three months each under Section 471 IPC by judgment dated 15.09.2001. Aggrieved by the judgment of conviction, they approached the Court of Session Thrissur, with separate appeals. The second accused brought Crl.A.No.466 of 2001 and the third accused brought Crl.A.No. 476 of 2001. In appeal, the learned First Additional Sessions Judge, Thrissur, confirmed the conviction and sentence under Section 468 I.P.C and accordingly dismissed both the appeals by judgment dated 19.06.2003. However, they were found not guilty of the offence under Section 471 I.P.C. Accordingly the conviction and sentence under Section 471 I.P.C was set aside. Now the accused Nos. 2 and 3 are before this Court in revision challenging the legality and propriety of the conviction and sentence. Their case is that there is no legal evidence to prove the alleged forgery or to prove the impersonation alleged against the 3^rd accused. The case of the second accrued is that he only prepared the document as a scribe that he had no involvement in the

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Crl.R.P Nos.1718 &1962 of 2003

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criminal design made by the accused Nos. 1 and 3 and that there is no legal evidence to convict him with the alleged forgery.

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On hearing both sides, and on a perusal of the materials, I find that there are materials against the 3^rd accused, who allegedly impersonated the complainant in the making of the alleged forged document. But as against the 2^nd accused, I find no definite material or legal evidence. The conviction as against him can be sustained, only if there is some legal evidence to connect him with the alleged forgery or the alleged impersonation made by the 3^rd accused. Evidence satisfies the court that just because he prepared the sale deed in the name of the complainant, as instructed by his wife and presented it for registration, he was arraigned as accused. There is no evidence to show that he had any vicious or suspicious involvement in the making of the alleged forged document. There is reason to believe that he prepared the document only as instructed by the wife of the complainant, and all the prior title deeds were entrusted to him by the 1^st accused. The prior documents proved as Exts.P3 and P4 were seized by the Police from the possession of the 2^nd accused. Just because

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Crl.R.P Nos.1718 &1962 of 2003

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he prepared the document or just because the prior title deeds were seized from his possession, he cannot be prosecuted as co-accused having role or complicity in the making of the false document or in the alleged forgery. I find that there is no other material than the two circumstances discussed above, against the 2^nd accused. In the absence of any legal evidence, the 2^nd accused is entitled for acquittal.

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Now let me see what is the evidence against the 3^rd accused. Of course, it is true that the original of the Ext.P5 document could not be seized by the Police during investigation. Evidence shows that the original was received from the Registrar's office by the 1^st accused. The 1^st accused has absconded from legal process. It is not known what really happened to the assignment deed. Ext.P5 is the copy of the assignment deed created in the name of the complainant. Of course, it is true that it is a copy, but there is the evidence of PW4, the Sub Registrar, that such an assignment deed was registered at the Registrar's office. Though the copy may not be admissible as such, there is evidence of the Sub Registrar regarding the registration of such document at the Registrar's office.

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Crl.R.P Nos.1718 &1962 of 2003

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It was submitted by the learned counsel for the 3^rd accused that in the absence of the original of the forged document, there cannot be a conviction on the allegation of forgery. It is well settled that when the original document is not available; either because it is destroyed or irrecoverably lost or missing, the alleged forgery can be proved by other evidence and circumstances. In this case, there are other evidence and circumstances to prove the alleged forgery.

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The very short question is whether any false assignment deed was created by the accused Nos.1 and 3 in the name of PW1. The complainant examined as PW1 has given evidence that he had not assigned his property to anybody, and he had also not given instructions to anybody including his wife for the preparation of such a document. Thus, he disowns the Ext.P5 assignment deed. PW8 is said to be the assignee mentioned in the Ext.P5 assignment deed. His evidence is that he had not purchased the property from the complainant and he had also no transaction with the 1^st accused, who is the wife of the complainant. That the Ext.P5 document was created and got registered at the Registrar's office is proved by the evidence of PW4, the Sub Registrar. Thus, it is a fact

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Crl.R.P Nos.1718 &1962 of 2003

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proved by evidence that an assignment deed was created and got registered at the Registrar's office, in the name of PW1. Now the question is who created such a document and who got it registered at the Registrar's office. The main role alleged is against the 1^st accused, but she has absconded. The other person who had involvement and complicity is the 3^rd accused .

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There is clear evidence of comparison of the thump impression of the 3^rd accused in this case. PW10 is the expert, who compared the thump impression. The thump impression register and also the signature register kept at the Registrar's office were seized by the Police during investigation. Ext.P5 is the document No.1319 of 1996 registered on 25.5.1996. The thump impression appearing in the column relating to the document No.1319/96 was specifically examined and compared by the expert. On comparison, it did not tally with the thump impression of the complainant, who is the owner of the property sold as per Ext.P5 document. But the thump impression clearly tallied with that of the 3^rd accused. Thus, on scientific examination that the thump impression obtained from the register maintained at the Registrar's

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Crl.R.P Nos.1718 &1962 of 2003

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office and relating to document No.1319/1996 was clearly identified as that of the 3^rd accused. This is a very material evidence and circumstance against the 3^rd accused to prove the factual aspect that the assignor was in fact impersonated by him at the Registrar's office at the time of registration, and also at the time of execution of the document. The 3^rd accused has no explanation whatever as to how his thump impression and signature came at the column relating to the document No.1319/1996 of the Registrar's office, if not by act of impersonation.

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This is not a case where there is only the evidence of the expert to prove the alleged forgery. The evidence of the Sub Registrar shows that the Ext.P5 document was registered at his Office. The executant is described as one Sulaiman, but Sulaiman's evidence is that he had not executed such a document. The thump impression obtained by the expert from the impression register seized from the Registrar's office contains the thump impression of the 3^rd accused. On comparison, the thump impression was clearly identified as that of the 3^rd accused. The 3^rd accused has no explanation for this, as to how his thump impression happened to be there at the

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Crl.R.P Nos.1718 &1962 of 2003

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register relating to the document No.1319/1996, which is said to be the document created in the name of the complainant. Thus, I find that there are strong materials and circumstances against the 3^rd accused in this case, and he has no explanation for these incriminating circumstances proving impersonation of the complainant by him at the time of execution, and also registration of the Ext.P5 document. Thus, I find that the case on facts stands well proved against the 3^rd accused. Nothing can be said about the involvement or role of the 1^st accused. I find that the prosecution has well proved the case beyond reasonable doubt against the 3^rd accused. I find no illegality or impropriety or infirmity for interference in the conviction against him.

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Now the question of sentence. It is submitted that the 3^rd accused is now aged more than 85 years. Of course, the act of offence proved against him cannot in any circumstance be condoned or lightly viewed. The complainant filed a civil suit before the Munsiff's Court, Vadakkancherry and has obtained a decree in his favour. The alleged assignee has disowned the document and purchase. Thus, the complainant has not actually lost the property. It is now in his possession. However, the 3^rd

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Crl.R.P Nos.1718 &1962 of 2003

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accused must be given some sentence for what he did. On a consideration of all the relevant aspects including his present stage, I feel that the minimum sentence in view of Section 354(4) Cr.P.C will be the adequate sentence.

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In the result, Crl.R.P.1718/2003 is allowed. The revision petitioner therein is found not guilty of the offence under Sections 468 I.P.C. The conviction and sentence against him will stand set aside. But the conviction against the revision petitioner in Crl.R.P 1962/2003 under Section 468 I.P.C in C.C 537/1998 of the court below will stand confirmed and the revision petition is disposed of accordingly. However, the jail sentence imposed by the court below as against the 3^rd accused under Section 468 I.P.C will stand reduced to rigorous imprisonment for three months.

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Sd/- P.UBAID JUDGE

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/True copy/ P.S to Judge

Suresh v. State of Kerala

Case brief

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Suresh v. State of Kerala

Case brief

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