IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 Crl.MC.No. 1626 of 2006() ------------------------- CC.219/2001 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... PETITIONER(S): ACCUSED ---------------------- 1. M.HAMEED, S/O.ABDUL KADHER, MANGAD, BARE VILLAGE & POST, HOSDURG TALUK. 2. B.ABDULLA KUNHI, S/O.KOPPAYIL MOHAMMED, CHATTANCHAL, THEKKIL VILLAGE & POST, KASARAGOD TALUK. BY ADV. SRI.P.K.MUHAMMED SRI.IYPE JOSEPH RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. A.M.IBRAHIM, S/O.MOHAMMED.C, RESIDING AT CHATTANCHAL, MUTTATHODI VILLAGE, P.O.ALAMPADY, KASARAGOD TALUK. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.B.JAYASURYA SRI.T.B.SHAJIMON FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.M.C. No. 1626 of 2006 ----------------------------------------------- Dated this the 16th day of March, 2010 . ORDER This petition is filed to quash Annexure-A1 complaint filed by first respondent herein against petitioners as accused nos. 1 and 2 before the Magistrate Court alleging offences under Sections 417, 419, 420, 426, 447, 464, 465, 466 and 474 read with Section 34 of Indian Penal Code ('IPC' for short). 2. According to allegations in the complaint, complainant is the owner of an extent of land which lies between another extent of property belonging to him and the National Highway. He applied for an assignment before the authorities concerned in respect of the said property. But, it was understood that accused nos. 1 and 2, who are the petitioners herein, created bogus assignment records by colluding with some revenue officials to show that the said property was assigned in favour of one 'Sanjeeva'. The said Sanjeeva is only a name lender and complainant is not aware of any such assignment. 3. The said Sanjeeva appeared before the Commissioner (Land Revenue) and deposed that the title deeds (patta and [Crl.M.C.No.1626/06] 2 assignment order) were obtained by the accused by falsely getting the property assigned in his name. There is also an allegation that accused colluded with each other and created a general power of attorney purported to be executed by Sanjeeva in favour of accused nos. 2 and on the strength of the same, property involved in this case was assigned in favour of second accused. Sanjeeva specifically stated before the Commissioner that he did not execute any power of attorney in favour of any person. The accused have therefore committed various offences alleged against them. The said Sanjeeva also filed a counter statement in one of the proceedings that he neither received any consideration nor the patta or assignment order and that he did not execute any document in favour of any person. 4. Learned counsel appearing for petitioners submitted that it is not correct to say that Sanjeeva obtained property by virtue of Annexure-A2 and A3 order issued by the authorities and that petitioners purchased the property from him. Learned counsel for petitioners also submitted that two investigations [Crl.M.C.No.1626/06] 3 were conducted in respect of the above allegations and it was found that allegations are wrong. Complainant has not produced any document before the court showing that signature in the power of attorney is forged. 5. It was also pointed out that complainant had applied before the authorities concerned for assignment of the property in his favour, but his application was dismissed as evidenced by Annexure-A3, an order passed by the Commissioner (Land Revenue). Therefore, this complaint is filed for harassing the petitioners and continuance of the proceedings will amount to abuse of process of court and the complaint may be quashed, it is submitted. 6. Learned counsel for first respondent-complainant argued that there is a definite allegation in the complaint that the power of attorney was forged by accused for creating a false document, by which, property is assigned to second accused. The assignor is one Sanjeeva and his signature was also forged in a general power of attorney which was purposed to be issued by the said Sanjeeva. The said Sanjeeva [Crl.M.C.No.1626/06] 4 specifically sated before the Commissioner that he did not execute any power of attorney in favour of any person. Therefore, there is specific allegation regarding the forgery committed and hence the complaint cannot be quashed. 7. It is also submitted that, as per Annexure-A3, an order is passed against complainant and the said order is under challenge in a writ petition before this Court. It is also submitted that Vigilance department has not inquired into the allegations regarding the forgery of power of attorney. The Vigilance Department filed a refer report only because they could not get sufficient evidence. The complainant may be allowed to furnish evidence to establish forgery, it is submitted. The complainant also produced a statement given by “Sanjeeva” before the Commissioner that the power of attorney is not signed by him. Therefore, there is prima facie evidence against accused and hence the complaint may not be quashed, it is submitted. 8. Learned Public Prosecutor pointed out that original complaint filed by the complainant against first respondent [Crl.M.C.No.1626/06] 5 was referred by the police as a “mistake of fact”. Vigilance and Anti-Corruption Bureau had also conducted an enquiry into the same set of allegations and referred the case as a ”mistake of fact”. The complainant filed a revision before the Commissioner (Land Revenue) and while hearing the revision petition, the assignee “Sanjeeva” volunteered to give a statement that he came to know about the assignment, only on receiving the notice from the Revenue Commissioner and that he did not receive either the order of assignment or patta nor was he in possession of the land. 9. While delivering the order in the revision petition, Commissioner (Land Revenue) observed that there is a case of bogus assignment of Government land and requested the Government to refer the case to Vigilance for enquiry. A Vigilance enquiry was conducted and it was disclosed that, prima facie, there was a case of criminal misconduct on the part of certain officers and case was registered and thereafter, a thorough investigation was conducted. Some important documents were sent to the Forensic Science Laboratory for [Crl.M.C.No.1626/06] 6 examining the authenticity of question of signature. But expert opinion was not in favour of prosecution. It was also reported that Sanjeeva who is the main witness gave contradictory statement and that his statements cannot be relied upon. In the light of the above facts, the Additional Legal Adviser, VACB was also opined that there is no scope for successful prosecution. A factual report was given to the Director, VACB and he also recommended for sanction to drop the proceedings. Thereafter, final report was submitted referring the case as a “mistake of fact”. In such circumstances, learned Public Prosecutor argued that there will be absolutely no purpose to continue the prosecution. 10. On hearing both sides and on going through the documents produced, I find that in Annexure-A3 there is a specific allegation that accused nos. 2 and 8 had conspired with the other accused and put false signature of “Sanjeeva” on the order of assignment, patta and notice issued by RDO and also that accused no. 1 and 4 with the help of accused nos. 3, 5 and 6 had cheated Sanjeeva and executed a power of [Crl.M.C.No.1626/06] 7 attorney and subsequently the land was sold to seventh accused. It is also seen from a refer report that a thorough investigation was conducted but evidence collected will not be sufficient for a successful prosecution of the accused. It is also noted therein that there is contribution in respect of the acceptance of patta by Sanjeeva. 11. It also appears from the submission made by learned Public prosecutor that disputed documents were sent for examination by Forensic Science Laboratory, but the result is not favourable to prosecution. As per Annexure-A6, the factual report was submitted by VACB to the Director and after going through the report, he directed to submit a final report for referring the case as “mistake of fact”. It can also be seen from Annexure-A6 that a factual report to the Director was forwarded to the Additional Legal Adviser also and as submitted by learned Public Prosecutor, no purpose will be served by prosecuting the accused. 12. I am satisfied that on the facts and circumstances of the case that continuance of proceedings will result in abuse of [Crl.M.C.No.1626/06] 8 process of court. Not only the local police, but also the Vigilance Department also investigated into the allegations thoroughly and both of them came to the conclusion that it is a “mistake of fact” and the Forensic Science Laboratory report in respect of the forged document is also not in favour of the prosecution. It is also seen from Annexure-A3 that the assignment was ordered in favour of Sanjeeva and land was assigned to the said Sanjeeva and he is found to be eligible for assignment of land in respect of the disputed land. It is also seen from the said order that the assignment in favour of Sanjeeva was upheld. It is also clear that the person whose signature is allegedly forged is changing his stand from time to time and he was giving contradictory statements to the authority concerned. Since expert opinion also could not be procured to establish that the signature is not that of Sanjeeva, no purpose will be served in continuing the prosecution based on the allegations made. Hence, to prevent abuse of process of law, I find that the complaint can be quashed. In the result, Annexure-A1 complaint is quashed. [Crl.M.C.No.1626/06] 9 Proceedings initiated against petitioners on the basis of Annexure-A1 shall be dropped. Petition is allowed. Sd/- K.HEMA, JUDGE. Cms