IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 Crl.MC.No. 556 of 2004 ----------------------------- (CC.1001/2003 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR) .................... PETITIONER/ACCUSED: ----------------------------- DR.JOY K.CHERIAN, KOCHERIL HOUSE, IRINGOLE P.O., KURUPPUMPADY, ERNAKULAM DISTRICT. BY ADV. SRI.PAULSON C.VARGHESE SRI.C.ARUN PRASANTH RESPONDENTS/COMPLAINANT: -------------------------------------- 1. T.V.SUKUMARAN, THOMPARAKUDY, KONBANAD PO PERUMBAVOOR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI.JAI GEORGE. SRI.K.VIDYASAGAR FOR R1 SRI.KISHOR B. FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.M.C.No. 556 of 2004 --------------------------------------------- Dated this the 12th day of June, 2008 O R D E R The sole accused in C.C.No.1001 of 2003 on the file of the Judicial First Class Magistrate Court, Perumbavoor is the petitioner in this Crl.M.C. in which he prays that this Court may be pleased to quash Annexure V complaint in C.C.No.1001 of 2003 and all proceedings thereon pending before the court below. 2. The averments in the above Crl.M.C. can be summarised as follows:- The petitioner herein is a qualified Doctor obtained the Bachelor degree in Medicine and Surgery in the year 1980 from Karnatak University. To substantiate the above contention, he produced a certificate as Annexure-I and he had started his profession in various hospital in and around Perumbavoor. During the year 1987, he started his own Nursing Home in the name and style, 'Annamma Memorial Nursing Home' at Kombanad. The first respondent herein who is the complainant visited the petitioner's hospital on 14.8.1990 complaining that he Crl.M.C. NO. 556 of 2004 :-2-: was suffering from headache, fever and dry cough. Accordingly, he was examined by the petitioner and admitted for close observation and investigation. It is stated that the first respondent/complainant was administered antibiotics and other supportive measures with a provisional diagnosis of respiratory infection. Thereafter, routine blood and urine examination were conducted and its result shows that the same were within normal limits and the treatment was continued. On the third day, the body temperature of the first respondent came down and on the fifth day, temperature came down quite and therefore, he was about to discharge on the next day. But, later, in the evening of 20.8.1990 at about 5 p.m., the first respondent made a complaint that he is having difficulty in passing urine. On further examination, it was found that his lower abdomen was distended due to urinary retention. The petitioner could not elicit any other positive findings in his examination and the complainant was advised to have a detailed evaluation by a hospital where better Crl.M.C. NO. 556 of 2004 :-3-: facilities are available and thereafter, the respondent was catheterized before passing urine with sufficient septic precautions and accordingly, the petitioner advised the first respondent to go for a detailed evaluation and for that purpose, he was discharged with a reference letter to Taluk Hospital, Perumbavoor. 3. Thereafter, the first respondent had undergone treatment at various hospitals and finally, the first respondent herein had filed a complaint against the petitioner with the allegation that due to defective initial treatment given by the petitioner, the complainant had got paralized and also stated in the complaint that the petitioner is not a qualified Doctor as he is not having valid degree from recognized university. 4. It is the case of the petitioner that before filing any complaint before any court, he had preferred a petition vide, O.P.No.46 of 1993 before the State Consumer Disputes Redressal Commission, Thiruvananthapuram. By order dated 9.1.1997, the said petition was dismissed by the State Consumer Disputes Crl.M.C. NO. 556 of 2004 :-4-: Redressal Commission holding that the petitioner is a qualified Doctor and he is having the Bachelor Degree in Allopathic Medicine and also had undergone House Surgency. It is also the case of the petitioner that the State Commission had also found that there is no medical negligence on the part of the petitioner as he had taken reasonable care and caution during the treatment of the first respondent. Annexure -II is the copy of the order passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram. It is also stated that the first respondent/complainant approached the Police Authorities by filing a complaint before the Vigilance Director, Thiruvananthapuram and after enquiry, the same was referred as it is a bogus and false complaint. It is thereafter Annexure-III complaint filed before the Judicial First Class Magistrate Court, Perumbavoor alleging the offence under Sections 417, 474,471 and 307 of I.P.C. and 357(3) of Cr.P.C. The said complaint was forwarded to the Circle Inspector of Police, Kuruppampady under Section 156(3) of the Code Crl.M.C. NO. 556 of 2004 :-5-: of Criminal Procedure who in turn conducted a proper and effective investigation which resulted in Annexure IV report by which it was found that the allegation against the petitioner is a mistake of fact and referred the matter by refer report dated 7.6.2003. It is stated that before referring the case, the Police has conducted a deep-rooted investigation and questioned the witnesses from Karnataka State and the Karnataka University and verified the records. To substantiate the contention of the petitioner, along with Crl.M.C., he has produced Annexures IV(a), IV(b) and IV(c) documents. When the Police filed Annexure IV refer report, the complainant again preferred a protest complaint dated 16.9.2003 before the court below and the copy of the same is produced here as Annexure-V. On the basis of Annexure-V protest complaint, though the request was for prosecution against the petitioner for the offences under Sections 417,474,471 and 307 I.P.C and 357(3) of Cr.P.C. , the court below took cognizance only for the offences under Sections 417, 474 and 471 I.P.C. and Crl.M.C. NO. 556 of 2004 :-6-: instituted C.C.No.1001 of 2003. It is the above case being challenged in these proceedings. 5. I have heard the learned counsel for the petitioner as well as learned counsel for the first respondent and the learned Public Prosecutor. 6. The learned counsel for the petitioner submits that though the alleged incident occurred during the year 1990, Annexure-III complaint was filed after 13 years and that too when the first respondent/complainant failed in his attempt for compensation by filing O.P.No.46 of 1993 before the State Consumer Disputes Redressal Commission. The petitioner has filed Crl.M.Appl.No.3153 of 2008, a petition to accept additional documents. He has produced copies of the order dated 13.12.2005 passed by the National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.192 of 1997 which is an appeal preferred against the order dated 9.1.1997 in O.P.No.46 of 1993 of the State Commission, Kerala. Another document sought to be produced is the Crl.M.C. NO. 556 of 2004 :-7-: judgment in O.S.No.89 of 2007 of the Sub Court, Perumbavoor dated 23.8.2007 by which the suit for damages filed by the complainant was dismissed with costs. On the strength of the above two judgments, the learned counsel for the petitioner submits that the State Consumer Disputes Redressal Commission, National Consumer Disputes Redressal Commission as well as the Sub Court, Perumbavoor found that the allegations regarding the defective treatment and negligence and also the forgery regarding the documents are found in favour of the petitioner and against the complainant. Therefore, it is submitted that the learned Magistrate committed wrong in taking cognizance upon Annexure V protest complaint. It is also pointed out by counsel for the petitioner that the Police had already conducted a thorough investigation and found that the allegations contained in the complaint were false and they have referred the case. It is also pointed out that in the refer report, the Police has specifically stated that they have conducted the investigation in the Karnataka State and Crl.M.C. NO. 556 of 2004 :-8-: they have questioned witnesses concerned of Karnataka Jawaharlal Nehru Medical College and also Karnataka University and also verified the records from those institutions. Therefore, according to counsel for the petitioner, the learned Magistrate ought not to have taken cognizance based upon Annexure V protest complaint. 5. Learned counsel for the first respondent submits that the court below is perfectly justified in taking cognizance since as per the protest complaint and the documents produced thereon are clearly attracting the penal provisions alleged against the petitioner. It is the specific case of the counsel for the first respondent that the documents which are alleged to have produced by the petitioner before the State Consumer Disputes Redressal Commission are forged and therefore, even though the State Commission dismissed the petition and also the Police has referred the report, it is still open to the court below to find out whether a prima facie case is disclosed as per the complaint and the documents Crl.M.C. NO. 556 of 2004 :-9-: produced along with the same. Thus, he prayed that the the above Crl.M.C. is to be dismissed and the petitioner may be directed to face the trial. 6. I have considered the arguments advanced by counsel for the petitioner as well as counsel for the first respondent and perused the documents available on record. 7. Since the court below took cognizance only for the offence punishable under Sections 417, 474 and 471 I.P.C., what is to be considered is whether such offences are disclosed as per the averments contained in the protest complaint when the same is examined in the light of the documents produced along with the protest complaint. The learned counsel for the petitioner very much argued that the Police had initially referred the crime after thorough investigation and the allegation is false and baseless. It is also the case of counsel for the petitioner that the State Consumer Disputes Redressal Commission by its detailed order dated 9.1.1997 in O.P.No.46 of 1993 had held that there is no negligence Crl.M.C. NO. 556 of 2004 :-10-: on the part of the petitioner and also found that the petitioner has qualification in Allopathic Medicine and he had passed M.B.B.S.course and had undergone House Surgency and had sufficient qualification to treat a patient. Para 10 of Annexure II order of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in O.P.No.46 of 1993 reads as follows:- “10. In the course of argument, the complainant raised a point that the opposite party did not have sufficient qualification to treat him. But the evidence of RW1 shows that he had qualification in Allopathy. He has passed M.B.B.S.Course and also had undergone House Surgency and he had sufficient qualification to treat the patient. He has taken reasonable care and caution in the treatment of complainant and there is no merit in the complaint.” 8. Counsel further submits that the said finding of the State Consumer Disputes Redressal Commission is confirmed by the National Consumer Disputes Redressal Commission as per its order dated 13.12.2005 in F.A.No.192 of 1997. It is also pointed out that the Crl.M.C. NO. 556 of 2004 :-11-: first respondent/complainant has already preferred a suit for damages against the petitioner in O.S.No.89 of 2007 and the same resulted in the judgment dated 23.8.2007 by which the suit had been dismissed with costs in favour of the petitioner. So, according to the learned counsel, all the authorised competent forums have already found that the petitioner has got valid documents and certificates showing the qualification in Allopathy Medicine for treating the patients. At this juncture, it is relevant to note that the documents produced as additional documents namely, the order of the National Commission and the judgment of the Sub Court, Perumbavoor are not part of the records on the file of the court below. So, no finding can be arrived on the basis of the said documents, but in the complaint, the complainant had referred Annexure II order of the State Consumer Disputes Redressal Commission. According to the complainant, the documents produced by the petitioner before the State Consumer Disputes Redressal Commission are forged and therefore, the Crl.M.C. NO. 556 of 2004 :-12-: findings arrived by the above Commission, based on such forged documents, cannot be taken into account for considering the complaint in question. If that be so, this Court has to look into the complaint and the documents produced thereon and to find out whether the learned Magistrate is right or wrong in taking cognizance of the offence on the basis of the allegations in the protest complaint and the exhibits produced. As the Magistrate has not taken cognizance of the offences under Sections 307 of I.P.C., this Court need not look into the allegations with respect to negligence and those offences. Therefore, a close scrutiny regarding the averments in Annexure-V complaint with respect to the offences punishable under Section 417, 474 and 471 is worthwhile. I have perused Annexure-V complaint especially paragraph 4. According to paragraph 4 of the complaint, what stated is that the petitioner has no qualification or experience of a Doctor who got necessary educational qualification and experience and he was claiming that he had studied in the Jawaharlal Crl.M.C. NO. 556 of 2004 :-13-: Nehru Medical College, Belgam in Karnataka State. It is further averred that the petitioner had obtained registration from the Travancore Cochin Council of Modern Medicine on the basis of the forged certificate from 'Karnatak' University. It is further stated that in the M.B.B.S. Certificate of the University produced by the petitioner/accused before the Kerala State Consumer Disputes Redressal Commission in O.P.No.46 of 1993, there is no seal of the University. It is also averred that there is no University such as 'Karnatak' University, but there is a University in the name 'Karnataka'. It is also stated that the year of study, the Registration Number and the year of passing etc. are not seen in the M.B.B.S.Certificate. So according to the complainant, the certificate is a forged one. Probably, it is on the basis of the above averments, the court below has taken cognizance. 9. In this connection, it is relevant to refer to Annexure IV Police Report. From the report, it is clear Crl.M.C. NO. 556 of 2004 :-14-: that they have questioned one Registrar (Evaluation), Karnataka University Examination Section, Dharwad, Karnataka and examined the certificate and also conducted investigation. According to the Police report, their investigation reveals that the petitioner herein had passed M.B.B.S.Degree Examination from Karnataka Jawaharlal Nehru Medical College during the year 1980 with registration No.261 under the Karnataka University and thereafter, the petitioner has got registration in the Travancore Cochin Medical Council with Registration No.11318 on 26.5.1981. It is also stated that during the year 1982, Degree certificate was issued in favour of the petitioner from the Karnataka University and thereafter, he had started a hospital at Kombanad in the name 'Annamma Memorial Nursing Home'. So even from the above records, it is revealed that even before filing Annexure-V protest complaint, the State Consumer Disputes Redressal Commission, on enquiry, as well as the Police, on investigation, came into a conclusion that the certificate possessed by the petitioner is genuine Crl.M.C. NO. 556 of 2004 :-15-: certificate issued from the competent university and he had necessary qualification and experience in practising Allopathy. 10. What stated in paragraph 4 of the Annexure-V complaint is mainly with respect to the name of the University. According to the complainant, there is a University in Karnataka in the name 'Karnataka' University, but there is no such University namely, 'Karnatak' University as mentioned in the M.B.B.S.Certificate produced by the petitioner. Thus, it can be seen that his case centred on the pronunciation of the word 'Karnatak'. In Malayalam, we use 'Karnatak' as 'Karnataka'. In the certificate, it is printed in English language as 'Karnatak'. There is no averment in the complaint that the 'Karnatak' and 'Karnataka' are entirely different. It can also be seen that there is only the University styled as 'Karnataka' University in the State of Karnataka. This Court shall not fail in taking note of the Crl.M.C. NO. 556 of 2004 :-16-: fact that initially, the complainant had preferred a complaint before the State Consumer Disputes Redressal Commission and thereafter, on his failure in that forum, he had chosen to prefer Annexure-III complaint before the court below. It is also a fact that he had filed a suit for damages as O.S.No.89 of 2007 which resulted in its dismissal. As pointed out by the learned counsel for the petitioner, the complainant was admitted in the hospital of the petitioner on 14.8.1990 and he had discharged from there on 20.8.1990. The petitioner before the State Consumer Disputes Redressal Commission was preferred only during the year 1993. On the dismissal of the said petition by the State Consumer Disputes Redressal Commission, by order dated 9.1.1997, the petitioner had chosen to prefer a complaint on 28.5.2003. By that time, about 13 years have lapsed after the discharge of the complainant from the hospital of the petitioner. So considering the entire facts and circumstances involved in the case, I am of the opinion that Annexure-III complaint as well as Crl.M.C. NO. 556 of 2004 :-17-: Annexure-V protest complaint are vexatious proceedings and the continuation of the proceedings as per Annexure-V complaint will amount to abuse of process of the court below. In the result, Annexure-V complaint and C.C.No.1001 of 2003 instituted thereon and all proceedings thereto pending before the Judicial First Class Magistrate Court, Perumbavoor are quashed. The Crl.M.C. is allowed. There will be no order as to costs. V.K.Mohanan, Judge MBS/ Crl.M.C. NO. 556 of 2004 :-18-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 -------------------------------------------- J U D G M E N T Crl.M.C. NO. 556 of 2004 :-19-: DATED: -2-2008