Dismissed

Ranganathan v. State of Kerala

Kerala HC8 Mar 2019Crl.MC/3610/2018

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a criminal miscellaneous appeal challenging an order allowing thumb impression comparison from a notarized photocopy of a sale deed. The Court held the lower court decision stands, permitting expert examination while reserving rights to question document fabrication later.

What did the court decide?

The criminal miscellaneous petition was dismissed upholding the impugned order directing fingerprint comparison on a notarized copy.

Ranganathan Vs State of Kerala — Cheating and Forgery | Kerala HC (2019)

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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 T.V.ANILKUMAR

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FRIDAY,THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940

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Crl.MC.No. 3610 of 2018

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AGAINST THE ORDER IN CRL.M.P.NO.6483/2017 IN C.C.839/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT - CHITTUR DATED 19-03-2018

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PETITIONER:

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RANGANATHAN

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AGED 45 YEARS, S/O. PERUMAL, DOCUMENT WRITER,KODUVAYOOR P.O., PALAKKAD DISTRICT.

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BY ADV. SRI.LATHEESH SEBASTIAN

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RESPONDENTS:

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1 STATE OF KERALA

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REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031.

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2 M.SUNDARARAJAN, S/O. R.MUTHUSWAMY, AGED 74 YEARS,PROPRIETOR, M/S.BHARATH ENGINEERING INDUSTRIAL COMPANY, MINI INDUSTRIAL ESTATE, KODUVAYOOR P.O., PALAKKAD – 678 501.

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BY ADVS.

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SRI.P.K.MOHANAN(PALAKKAD)

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SRI.E.C.BINEESH, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 3610 of 2018

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O R D E R

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Petitioner, who has invoked the inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, is the 4^th accused in C.C.839/2009 before the court of the Judicial First Class Magistrate - Chittur. He is aggrieved by the impugned order passed by the court below on C.M.P.No.6483/2017 dated 19.03.2018, where by the request of the 2^nd

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respondent/complainant to cause his thumb impression to be compared with the thumb impression contained in Sale Deed No.569/2008 dated 11.03.2008 (Annexure - A2) was allowed.

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The 2^nd respondent was the owner in possession of 33.5 cents of land obtained by him as per a registered Sale Deed dated 20.02.1990. The 2^nd accused in C.C.839/2009 is the power of attorney holder of the 2^nd respondent. The 2^nd accused executed Annexure – A2 sale deed in favour of the 1^st accused acting as the power of attorney holder. The case of the 2^nd respondent is that the execution of sale deed aforesaid was without his knowledge or consent, especially after he has cancelled the power of attorney executed in favour of the 2^nd accused. His further case is that when he came to know of

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Crl.MC.No. 3610 of 2018

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execution of Annexure – A2 and scrutinized the papers, he could gather that his photograph and purported thumb impression were affixed in the original sale deed without his knowledge but playing fraud upon him. According to him, he was neither present on 11.03.2008 before the Sub Registrar nor did he affix his thumb impression. The petitioner is the scribe who prepared Annexure – A2. In order to substantiate his case that the Annexure - A2 was fraudulently created by the accused by impersonation, he requested the court below to cause original of Annexure – A2 sale deed to be produced from the custody of subsequent alienee by name Sivaprakash to whom the property was assigned by the 1^st accused. The 1^st accused seems to have parted with the property in favour of Sivaprakash by virtue of a sale deed No.1713/2009.

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Despite repeated efforts having been taken to secure production of original of Annexure – A2 from Sivaprakash, the document could not be secured before the court. The complainant, therefore, requested the court below to forward the notarized copy of the Annexure - A2 to a finger print expert and cause the purported finger print in the said sale deed to be compared with his own finger print. The application was heavily opposed by all the accused and the court below after hearing

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Crl.MC.No. 3610 of 2018

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both sides passed the impugned order on 19.03.2018 allowing application.

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One of the objections raised before the court below by the petitioner was that thumb impression contained in a photocopy is not capable of being a subject matter of comparison as it will not yield any useful scientific result. It was also contended that the notarized copy produced before the court below by all means is a fabricated document and without deciding the question as to whether it is fabricated or not, the document ought not tobe forwarded to the finger print expert for comparison. The court below turned down the objections raised by the accused and it held that in the interest of justice, the 2^nd respondent should necessarily get an opportunity to prove the case advanced by him in the interest of justice.

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I heard the learned counsel appearing on both sides. The objections taken before the court below were raised before me as well. Having heard the learned counsel for the petitioner, I am of the opinion that the consideration of the question as to whether the notarized copy is fabricated or not does not arise at this point of time. Notarized copy in normal course under law carries with it a rebuttable presumption that it was duly certified

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Crl.MC.No. 3610 of 2018

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after comparison with the original. Of course, this presumption is not irrebuttable. In my view, no prejudice would be caused to the petitioner if the notarized copy of sale deed is forwarded to the finger print expert for comparison of the finger print contained therein with that of the 2^nd respondent. Even after the finger print filing the report also, the petitioner would be entitled to challenge the report as fallible raising all contentions available to him under law. He can certainly urge before the court below that the notarized copy was either fabricated or manipulated and further the photocopy would not help a scientific comparison nor would it bring about a true result.

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After having anxious consideration of entire materials before me, I am of the opinion that the impugned order does not require any interference. If the request of the 2^nd respondent is turned down and he is denied the opportunity to prove his case of fraud and impersonation; interest of justice will certainly suffer. But at the same time, any probable prejudice to the petitioner could be averted by allowing him to raise all defence contentions when the report of expert is considered by the court. Whether photocopy of finger print would yield accurate scientific result is to be left for the concern of the expert.

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Crl.MC.No. 3610 of 2018

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Therefore, with a view to render justice to both sides, I am persuaded to uphold the impugned order. In the circumstances, this Crl.M.C.No.3610/2018 is dismissed. I make it clear that all contentions available to the petitioner under law can be urged before the court below after the report of the finger print is submitted and put to scrutiny at the stage of evidence. He will be at liberty to raise his objection that the notarized copy was allegedly fabricated or fraudulently created. The court below will consider the expert opinion sought by the 2^nd respondent in accordance with law and observations made by this court above.

Sd/-

T.V.ANILKUMAR

JUDGE

Crl.MC.No. 3610 of 2018

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APPENDIX

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PETITIONER'S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF THE COMPLAINT IN C.C.NO.839/2009 OF JFCM, CHITTUR. ANNEXURE A2 TRUE COPY OF THE SALE DEED BEARING NO.569/2008 OF KODUVAYOOR SRO. ANNEXURE A3 TRUE COPY OF C.M.P.NO.6483/2017. ANNEXURE A4 TRUE COPY OF THE OBJECTION TO ANNEXURE A3. ANNEXURE A5 CERTIFIED COPY OF THE ORDER OF THE JFCM, CHITTUR IN CRL.M.P.NO.6483/2017 DATED 19.03.2018.

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RESPONDENTS'S EXHIBITS: NIL

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//TRUE COPY//

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PA TO JUDGE

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Ranganathan v. State of Kerala

Case brief

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Ranganathan v. State of Kerala

Case brief

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