Dismissed

Sivan v. State of Kerala

Kerala HC18 Feb 2020Crl.MC/702/2020

Case brief

AI extract

What is this about?

The High Court dismissed a petition challenging the dismissal of an application for further investigation and expert opinion. The Court held the Magistrate was justified in declining the request for carbon dating as the petitioner failed to avail of Section 45 of the Evidence Act earlier, despite knowing since 2007 that the FSL lacked facility.

What did the court decide?

The petition challenging the impugned order of the Chief Judicial Magistrate was dismissed.

Sivan Vs State of Kerala — Cheating and Forgery | Kerala HC (2020)

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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 ASHOK MENON

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TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941

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Crl.MC.No.702 OF 2020(G)

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AGAINST THE ORDER IN C.M.P.NO.242/2020 IN C.C.NO.228/2013 OF CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR

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PETITIONER/DEFACTO COMPLAINANT:

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SIVAN, AGED 50 YEARS, S/O.RAJAN, KATHANAMPARAMBIL HOUSE, ETTUMANA P.O., THRISUSR, PIN-680 711.

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BY ADV. SRI.RAJESH CHAKYAT

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RESPONDENT/STATE/ACCUSED:

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1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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2 THE SUB INSPECTOR OF POLICE, THRISSUR TOWN WEST POLICE STATION, THRISSUR DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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3 RAVEENDRADAS, AGED 57 YEARS, S/O.KUNJU, EZHUTHACHAN, ATTUPURATH HOUSE, PERUMBILLISSERY, CHEVOOR VILLAGE, THRISSUR DISTRICT, PIN-680 561.

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4 HARIDASAN, AGED 61 YEARS, S/O.VIJAYAN, PADOOR HOUSE, AYYANTHOLE CHUNGAM DESOM, ARANATTUKARA,

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Crl.MC.No.702 OF 2020(G)

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THRISSUR DISTRICT, PIN- 680 618.

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R3 BY ADV. SRI.C.A.CHACKO

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OTHER PRESENT:

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SRI.RAMESH CHAND – PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.702 OF 2020(G)

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ORDER

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Dated this the 18th day of February, 2020

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The petitioner was the defacto complainant in
C.C.No.228/2013 on the files of the Chief Judicial Magistrate
Court, Thrissur, is aggrieved by the order of the learned Chief
Judicial Magistrate dated 14.01.2020 at Annexure-3 in C.M.P
No.242/2020 filed in the aforesaid case under Section 173(8) of
the Cr.P.C. The petitioner is CW1 in the case.

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2.The facts in brief is that, the petitioner as first
informant and aggrieved person entrusted certain signed blank
papers to his advocate, who is the 4th respondent herein and it
is alleged that in furtherance of common intention with the 1st
accused, he forged a receipt showing that the entire amount
due to the petitioner has been received. In consequence to
which, the petitioner moved the private complaint before the
Chief Judicial Magistrate Court as early as in 2007 which was
forwarded to the Police for investigation under Section 156(3)
of the Cr.P.C and in consequent to that, a final report was filed
in 2009 for certain reasons the Magistrate ordered further
investigation and a further final report was filed in 2013 which

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Crl.MC.No.702 OF 2020(G)

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was taken cognizance of and the present case is pending since
2013. The petitioner wants to ascertain the age of the
signature on the allegedly forged documents and the other
entires made therein, which according to him will clearly prove
that the signature in the stamp paper is put earlier than the
other entries made therein. The Investigating Officer had
during the course of the investigation send the documents to
the Forensic Science Laboratory to ascertain the age of the
writings and the signature and it was returned stating that not
such facility is available in the FSL. The petitioner would
contend that carbon dating test is available in the Central
Forensic Laboratory at Hyderabad, and therefore it has to be
sent to the said laboratory for conducting the said test.

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3.The learned Magistrate relying on decisions of the
Honourable Supreme Court in Amrutbhai Shambhubai Patel
V. Sumanbhai kantibhai Patel AIR 2017 SC 774 and also in
Vinubhai Haribhai Malaviya and Others V. State of
Gujarat and 2019 (5) KHC 352 : 2019 (14) SCALE 1, held
that Magistrate possesses power to order further investigation
only till the charge is framed and once the trial has begun after
framing of charge, the Magistrate cannot order further

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Crl.MC.No.702 OF 2020(G)

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investigation exercising jurisdiction under Section 173(8)
Cr.P.C. The learned counsel appearing for the party
respondents again relies on the decision of the Vinubhai's
Case (supra), wherein it is categorically held that the
Magistrate possess powers to order further investigation on
charge sheet being filed and cognizance is taken and the said
power would be available to the magistrate at all stages of the
progress of the criminal cases before the trial actually
commences and it is also explained therein, that the trial
commences with the framing of the charge and in this case, the
charge has been framed and subsequent to that, as early as on
01.08.2019 and the petition comes only on 10.01.2020 and

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therefore, the learned Magistrate considering these aspects
also held that CW1, the petitioner herein, is protracting the
litigation for the reason that he did not even appear in spite of
service of notice summons on him to appear and give evidence.

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4.It is also pointed out by the learned Magistrate that
presently a warrant is pending to coerce the appearance of the
petitioner for adducing evidence. The learned Magistrate has
indicated that the intention of the petitioner is only to protract
the litigation and see that the accused who are facing trial since

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Crl.MC.No.702 OF 2020(G)

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2013 continued to remain facing the trial endlessly and
therefore, the petition was dismissed.

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5.The learned counsel for the petitioner submits that it
was a mistake on his part to have filed an application under
Section 173(8) Cr.P.C and that at any stage the documents
relied upon by the prosecution or the defence can be subjected
to expert opinion under the provisions of Section 45 of the
Evidence Act and therefore, further investigation is not
necessary but the documents produced by the prosecution can
be ordered without even ordering a further investigation is the
argument advanced by the learned counsel appearing for the
petitioner.

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6.After having heard both sides, I find that the learned
Magistrate was perfectly justified in not ordering further
investigation. Neither did the Magistrate think it appropriate
to sent the document for examination by the Central Forensic
Laboratory at Hyderabad, for carbon dating of the documents.
The petitioner had sufficient time since 2007, when his private
complaint was filed to exercise his right under Section 45 of
Evidence Act to get the document examined by the Central
Forensic Laboratory for carbon dating. It is also available on

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Crl.MC.No.702 OF 2020(G)

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record that the FSL could not ascertain the date of the writings
or the signature on the document because there was no such
facility available in the FSL. Even at that time, the petitioner
could have invoked provisions because it was his private
complaint which was pending before the court and therefore, I
find that the learned Magistrate rightly did not exercise his
jurisdiction at the eleventh hour when this application has come
to subject a document for examination by the Central Forensic
Laboratory, Hyderabad, I find no reason to interfere with that
findings of the learned Magistrate.

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