IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 CRL.A.No. 1047 of 2010() ------------------------ CMP.1391/2010 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... APPELLANT(S): PETITIONER: -------------------------------------------- N.BALAKRISHNAN NAIR, AGED 61 YEARS, KANNATH HOUSE, NOW RESIDING AT ANAGA SADAN, ARUKIZHAYA, MANCHERI P.O., MALAPPURAM DISTRICT. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. K.SATHYABHAMA, PUTHEN VEEDU, NEAR TO OLD PANCHAYAT OFFICE, THIRUVALI P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT. 2. SREENARAYANAN, S/O. THEYYUNNI PANICKER, NEAR TO OLD PANCHAYAT OFFICE, THIRUVALI P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT. 3. PADMANABHAN, S/O. KUTTY NADAR, NEAR EDAVANNA POLICE STATION, EDAVANNA, MALAPPURAM DISTRICT. 4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R4 BY PUBLIC PROSECUTOR SRI. VENUGOPAL.M.R. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17/08/2010 ALONG WITH CRA NO. 1479 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. APPEAL Nos.1047 & 1479 of 2010 ------------------------------- Dated this the 17th day of August, 2010. J U D G M E N T As, in these two appeals, the parties are the same and the facts and the question of law involved are intrinsically interconnected and the challenge in both appeals are against the same order from same court, these appeals are heard together and being disposed of by this common judgment. Crl.A.No.1047/10 This appeal is preferred by the complainant in C.M.P.No.1391/10, challenging the order of CJM Court-Manjeri, dismissing the said complaint, wherein it is observed that no offence is disclosed u/s.340 of Cr.P.C. The appellant herein preferred the above complaint, connected with a proceedings upon a private complaint, preferred by the 1st respondent in this appeal, which was pending before the same court. That was a complaint filed alleging the offence against the appellant u/s.494 of IPC. After an elaborate trial, the learned Magistrate came into Crl. APPEAL Nos.1047 & 1479 of 2010 2 a conclusion that, absolutely there is no evidence to show that the accused, who is the complainant and appellant herein, has married one Nirmala during the subsistence of marriage between the appellant/complainant and the respondent. Thus accordingly found that the appellant herein/the accused in that proceedings, ie., in C.C.No.38/04, found not guilty and thus he is acquitted. On the basis of that acquittal recorded by the learned Magistrate, the appellant herein preferred C.M.P.No.1391/10 for taking proceedings, alleging offence u/s.340 of Cr.P.C., against the respondent, who is the complainant in C.C.No.38/04. It is against the above order dismissing C.M.P.No.1391/10, the complainant therein preferred the present appeal as Crl.A.No.1047/10. Crl.A.No.1479/10 This appeal is preferred by the complainant in C.C.No.38/04, in which the appellant in the earlier appeal, ie., Crl.A.No.1047/10, is the accused. C.C.No.38/04 is instituted upon the private complaint preferred by the appellant herein, alleging offence u/s.494 of IPC against the 1st respondent, the appellant in the other appeal. Here the allegation is that, the appellant/ Crl. APPEAL Nos.1047 & 1479 of 2010 3 complainant Smt.K.Sathyabhama, married the respondent on 31.1.1983 according to Hindu customs and in their wedlock, two children namely Vidya and Divya, were born to them and thereafter they lived together initially at the work place of A1 at Madhya Pradesh and A1 constructed a house at Thadathiparamba and they lived together in that house. A1 is a drunkard and he is addicted to drugs and she was subjected to physical and mental torture. According to the appellant/ complainant, as she could not tolerate the torture, she was forced to leave the matrimonial home on 4.6.2003 and thereafter she lived in her parental house, along with her mother and brothers at Thiruvali. On 11.6.2003, when she went to her matrimonial home, for taking her belongings along with her brother and at that time, he saw A1 with a woman and when she questioned about her, the respondent abused her and attempted to attack her. So she made complaint before Manjeri police. It is her further case that, while she was residing in her house, on 8.12.2003 the respondent herein married A2, one Nirmala, at Sri.Brahmaeswaram Siva temple as per the Hindu custom. Thus A1 and Nirmala, were Crl. APPEAL Nos.1047 & 1479 of 2010 4 living as husband and wife in the house of A1. It is also her case that, she had filed O.P.No.343/03 before the Family Court, Manjeri, against A1 for restitution of conjugal rights (preferred on 26.8.2003) and she had filed M.C.No.97/03 u/s.125 of Cr.P.C. on 18.11.2003, against A1 for getting maintenance to her youngest child. According to the complainant/appellant, while the above petitions are pending before the Family Court and the marriage between herself and A1 was subsisting, the accused married the said Nirmala. Thus according to the complainant, the accused had committed the offence u/s.494 of IPC. 2. Heard the counsels appearing for the appellants in the above two appeals. 3. The learned counsels for the appellants in Crl.A.No.1479/10 vehemently argued that, the appellant had established the offence of the 2nd marriage of the respondent and the court below over looked those evidence and came into a wrong conclusion that the appellant failed to establish the guilt of the accused. In order to substantiate the above submission, the learned counsel took me through the evidence of PWs.2 to 3 and Crl. APPEAL Nos.1047 & 1479 of 2010 5 other witnesses. Emphasizing on the evidence of PW2, the learned counsel submitted that, when PW2 was examined on 21.12.2008, he had deposed in favour of the complainant but subsequently he was won over by the accused/respondent but the trial court failed in appreciating the evidence of PW2, who is an independent witness. 4. Going by the judgment of the trial court, especially in para 12 of the judgment, it can be seen that the trial court has elaborately considered the evidence of all the witnesses, including PWs.2, 3 and 4. After considering all the above evidence, the trial court has specifically found that, absolutely there is no evidence to show that the accused married the said Nirmala during the subsistence of marriage between the accused as well as the complainant. As pointed out by the learned counsel for the appellant, the evidence of PW2, especially when he was examined on 21.12.2008, he had deposed in favour of the complainant, but when he was again examined on 15.5.2009, he had gave another version regarding the allegations and the alleged marriage between the appellant and the respondent. The Crl. APPEAL Nos.1047 & 1479 of 2010 6 learned counsel for the appellant took me through the deposition of PW2. According to PW2, there was a temple namely, Sri.Brahmaeswaram Siva temple and stated that A1 married to Nirmala on 8.12.2003 at the said temple, according to the Hindu custom. He had also stated that, he performed only the `thali pooja’ and witnessed the marriage. During the cross examination, PW2 stated that he knows Sreenarayanan, the brother of PW1. When he was recalled and re-examined, he had deposed before the court that, the accused who was standing in the dock, was not the person who married Nirmala on 8.12.2003. It is also discernible from his evidence that, though he claimed that he is the person who conducted the `thali pooja', the alleged marriage was solemnised or conducted, not by him but by another person. So the evidence of PW2 is not sufficient to hold that the respondent married Nirmala on the alleged date of marriage. 5. As rightly pointed out by the trial court, though PW1 was examined, she has no claim that she had witnessed the marriage. The evidence of PW3 also not sufficient to hold that the respondent married the said Nirmala, as he is also having only a Crl. APPEAL Nos.1047 & 1479 of 2010 7 hearsay information. The trial court on the basis of the evidence of PW3, came into a conclusion that Ext.P2 marriage certificate was issued by PW3, as from the details furnished by Sreenarayanan, the brother of PW1, the complainant. The brother of the complainant has also no direct evidence but according to him, they came to know about the marriage, only from one Babu @ Narayanan, who allegedly witnessed the marriage. Though this case was pending for the last several years, the complainant could not produced the sole witness Mr.Babu, cited in the complaint, who is allegedly witnessed the marriage and the said Babu, was not examined to prove the case of the complainant. It is also observed by the learned Magistrate that, though PW4 was examined on behalf of the complainant, his name was not mentioned in the complaint. Thus after considering the evidence and materials on record, and appreciating the same, the trial court came into a conclusion that the complainant has failed to establish the guilt of the accused/the respondent herein. Therefore, even if this court is in a position to take a different view, the settled position of law does not permit the appellate Crl. APPEAL Nos.1047 & 1479 of 2010 8 court to interfere with the order of acquittal and to impose the view of the appellate court and thereby disturb the order of acquittal and convert the same into a conviction. 6. The apex court in the decision has held that, by an order of acquittal there is a double presumption in favour of the accused and such a presumption can not be disturbed, unless there is a substantial and compelling reason to interfere with such an order of acquittal. On going through the evidence, as read over by the learned counsel for the appellant and the materials referred by the trial court in its judgment, it appears to me that the trial court has carefully considered the evidence and materials on record and concluded in favour of the accused and against the complainant/appellant. Therefore, I find no compelling and substantial reason to interfere with the order of acquittal and accordingly the appeal is deserved to be dismissed. 7. In Crl.A.No.1047/10, the impugned order is passed by the same Judicial mind, the court of CJM-Manjeri. In the said order, the learned Magistrate found that the petitioner examined on oath and no sufficient materials made to constitute an action u/s.340 of Crl. APPEAL Nos.1047 & 1479 of 2010 9 Cr.P.C., hence the petition is dismissed. The jurisdiction u/s.340 of Cr.P.C., the provision contained in Chapter XXVI of Cr.P.C., prescribe the procedure in cases mentioned in section 195.-(1), which deals with the, `provisions as to offences affecting the administration of justice', states that, “When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary” ; the court can invoke the section. 8. The subject matter of the present complaint is connected with the proceedings initiated at the instance of the respondent herein, who is the complainant in C.C.No.38/04. The respondent in this appeal preferred a complaint against the appellant, stating that while the marriage between herself and the appellant was Crl. APPEAL Nos.1047 & 1479 of 2010 10 existing, the appellant herein contracted another marriage and the said marriage was solemnised and therefore he had committed the offence u/s.494 of IPC. On the basis of the complaint and the sworn statement of the respondent herein, the court took cognizance and instituted C.C.No.38/04 and thereafter a full fledged trial was conducted and finally found, after the appreciation of the evidence and materials on record that, the complainant therein failed to establish the guilt of the accused, who is the appellant herein. The court which undertook the trial is not of the opinion that, the complainant therein has adduced any false evidence or document so as to justify action u/s.340 of Cr.P.C. Going by S.340 of Cr.P.C., it can be seen that, even though any private party or a litigant can seek an action u/s.340 of Cr.P.C., primarily it is for the court or the Presiding Officer to ensure that, whether it is expedient or necessary to take action u/s.340 of Cr.P.C. After the trial, conducted by the Court of Chief Judicial Magistrate and after applying his mind with respect to the allegations and evidence and materials on record, the learned Magistrate had disposed this private complaint according to its Crl. APPEAL Nos.1047 & 1479 of 2010 11 merits and during the disposal of the matter on merit, the learned Magistrate never thought of, that it was a case to be considered u/s.340 of Cr.P.C., as alleged by the complainant. In this juncture it is relevant to note that, though the appellants in these two appeals were married each other and though they were resided together for a very long time and though two children were born out in their wedlock, their relationship became worse and several litigations were pending in various courts and also in the concerned police station. Thus it can be seen that, the parties to the proceedings were fighting each other by invoking several legal provisions and forums. Under the above factual and legal background, I find no reason to interfere with the order impugned in these appeals also. In the result, both the appeals are devoid of any merit and the same are dismissed. V.K.MOHANAN, Judge. ami/