Dismissed

Giri Nair v. State of Kerala

Kerala HC20 Dec 2021Crl.MC/5748/2017

Case brief

AI extract

What is this about?

In a criminal miscellaneous case seeking to quash proceedings for forgery, the High Court of Kerala held that the inability to seize the original document or the lack of action by the Competition Commission does not justify quashing the case, as sufficiency of allegations is an evidentiary matter for trial.

What did the court decide?

The Criminal Miscellaneous Case was dismissed with no merit found.

Giri Nair Vs State of Kerala — Cheating and Forgery | Kerala HC (2021)

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Crl.M.C.No.5748/2017

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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 ZIYAD RAHMAN A.A.

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MONDAY, THE 20^TH DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943

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CRL.MC NO. 5748 OF 2017

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AGAINST THE ORDER/JUDGMENT IN CC 122/2017 OF CHIEF JUDICIAL

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MAGISTRATE, PALAKKAD

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PETITIONER/ACCUSED:

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GIRI NAIR, AGED 76 YEARS, SON OF LATE K.N.NAIR, 11/442(3), 1ST FLOOR, SAI COMPLEX, PENSION STREET, PALAKKAD. BY ADVS.SRI.JACOB SEBASTIAN SMT.ANU JACOB SRI.K.A.SIYAD SRI.K.V.WINSTON

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RESPONDENT/STATE:

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1 STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT ROAD, ERNAKULAM-682 031.

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2 THOMAS RAJ, THE GENERAL SECRETARY, ALL KERALA CHEMISTS AND DRUGGISTS ASSOCIATION, CHEMISTS BHAVAN, P B NUMBER 2458, CHAVARA CENTRE ROAD, OPPOSITE SOUTH RAILWAY STATION, KOCHI, ERNAKULAM 682 016. R2 BY ADV SRI.SURAJ.S

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R1 SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

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03.12.2021, THE COURT ON 20.12.2021 PASSED THE FOLLOWING:

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Crl.M.C.No.5748/2017

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ZIYAD RAHMAN A.A, J.

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Crl.M.C.No.5748 of 2017

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Dated this the 20^th day of December, 2021

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O R D E R

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The petitioner is the sole accused in C.C.No.122 of 2017 on the file of Chief Judicial Magistrate Court, Palakkad. The aforesaid case arises from Crime No.1650 of 2015 of Palakkad Town South Police Station. The aforesaid FIR was originally registered by the police for the offences punishable under Sections 417, 420, 465, 468 and 471 IPC on the basis of a complaint submitted by the 2^nd respondent. After completing the investigation, final report was submitted by the police for the offences punishable under Sections 465, 468 and 471 IPC.

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The prosecution case against the petitioner is that, the petitioner who was a business man engaged in the business of a whole sale druggist. He is a member of All Kerala Chemists and Druggists Association to which the 2^nd respondent/de facto complainant is the General Secretary. It was alleged that, he used to submit frivolous complaints against the association and

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Crl.M.C.No.5748/2017 3

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in one of such complaints he used forged document purported to have been issued by the All Kerala Chemists and Druggists Association. The aforesaid document was used to support his claims before the Competition Commission of India.

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This Crl.M.C. is filed seeking to quash all further proceedings in the above calendar case, on the ground that the allegations contained in Annexure-A4 final report did not constitute the offence alleged against him. It is also contended that the aforesaid case is an abuse of process of court and hence, liable to be quashed.

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Heard Sri.Jacob Sebastian, learned counsel for the petitioner and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State and Sri.Suraj S., learned counsel for the 2^nd respondent.

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The learned counsel for the petitioner contends that the allegation against the petitioner is that he forged a communication in the letter head of the 2^nd respondent association and submitted the same before the Competition Commission of India, is without any basis. A copy of the

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Crl.M.C.No.5748/2017 4

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document, which is alleged to have forged, is produced before this Court along with Annexure-A4 final report. The specific case of the petitioner is that since the police could not seize the original of the document alleged to have been forged, chances of successful prosecution are bleak. It was also pointed out that even though the same was produced before the Competition Commission of India, it was not acted upon by the Commission and no proceedings were initiated against the Association. In such circumstances, it is pointed out that, the aforesaid document never had any consequence as against the Association. Therefore, it is not necessary to prosecute the matter further, contends the learned counsel.

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The learned Public Prosecutor as well as the learned counsel for the 2^nd respondent opposed the said prayer. It was pointed out by them that the allegations contained in AnnexureA4 is sufficient to constitute a prima facie case against the petitioner. The sufficiency or veracity of the said allegations are a matter of evidence, which cannot be taken in to

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Crl.M.C.No.5748/2017 5

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consideration in a proceedings under Section 482 Cr.P.C. Accordingly, they sought for dismissal of the Crl.M.C.

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The only question that arises is as to whether any case is made out against the petitioner herein and also whether any situation is in existence, warranting interference by this Court invoking powers under Section 482 Cr.P.C. The main contention of the learned counsel for the petitioner is that the original of the document which is alleged to have been forged was not seized by the police and therefore, the chances of a successful prosecution is very bleak. It is discernible that the original of the said document could not be procured by the police. However, that by itself cannot be treated as a reason for quashing the proceedings by invoking powers of this Court under Section 482 Cr.P.C. Of course, the original document is a primary evidence. Section 65 of the Evidence Act provides circumstances under which secondary evidence can be adduced. In the light of the said provision, mere absence of the original document itself cannot be treated as a reason to conclude that it may not be possible for the prosecution to

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Crl.M.C.No.5748/2017 6

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establish the guilt. It could be possible to adduce other evidence to establish the offence and scope of the same cannot be adjudged in a proceeding under Section 482 Cr.P.C.

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With regard to the other contentions of the petitioner

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that the document alleged to have been forged was not acted upon by the Competition Commission of India, is not a relevant aspect to be taken into consideration at this point of time. As mentioned above, veracity of the materials produced by the prosecution in support of the case is a matter of evidence and it cannot be considered in a proceedings of this nature. From the materials now available, it cannot be concluded that a prima facie case is not made out.

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In such circumstances, I do not find that this is a fit case in which inherent jurisdiction of this Court under Section 482 Cr.P.C is to be invoked. Accordingly, I find no merit in this Crl.M.C and the same is dismissed.

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Sd/- ZIYAD RAHMAN A.A. JUDGE

DG/8.12.21

Crl.M.C.No.5748/2017

APPENDIX OF CRL.MC 5748/2017

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PETITIONER ANNEXURES

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ANNEXURE A1 A TRUE COPY OF THE SUMMONS DATED OCTOBER 9, 2015 ISSUED BY THE COMPETITION COMMISSION OF INDIA TO THE PETITIONER. ANNEXURE A2 A TRUE COPY OF THE COMPLAINT DATED NOVEMBER 29, 2015 SUBMITTED BY THE GENERAL SECRETARY OF THE ASSOCIATION TO THE CIRCLE INSPECTOR OF POLICE, TOWN SOUTH POLICE STATION PALAKKAD. ANNEXURE A3 A TRUE COPY OF THE F I R IN CRIME NUMBER 1650/2015 OF THE PALAKKAD TOWN SOUTH POLICE STATION.

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ANNEXURE A4 A TRUE COPY OF THE FINAL REPORT IN CC 122/2017 OF THE COURT OF THE CHIEF JUDICIAL MAGISTRATE OF PALAKKAD.

Giri Nair v. State of Kerala

Case brief

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Giri Nair v. State of Kerala

Case brief

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