IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 Crl.MC.No. 3915 of 2008(B) ------------------------- CRMP.2901/2008 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... PETITIONER/PETITIONER: ------------------------------------- DR.RAMANLAL P PATEL HAHNEMANN HOUSE, HAHNEMANN HOMEOPATHIC PHARMACY KOTTAYAM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT/RESPONDENTS/ACCUSED: ---------------------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. R.S.SURESH KUMAR, USHAMALARI HOUSE NATTASSERY, S.H.MOUNT PO., KOTTAYAM. R1 BY PUBLIC PROSECUTOR SRI.AMJAD ALI. R2 BY SRI.H.B.SHENOY SRI.B.ASHOK SHENOY THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No.3915 of 2008 ================== Dated this the 11th day of August, 2009. O R D E R Petitioner is the defacto complainant in C.C.392/2005 on the file of Judicial First Class Magistrate-III, Kottayam. Annexure A2 complaint was filed by the petitioner before Judicial First Class Magistrate-III, Kottayam which was send for investigation under section 156(3) of Code of Criminal Procedure based on which Annexure A3 FIR was registered for offences under section 465, 469 and 471 of Indian Penal Code. After investigation Annexure A5 final report was filed which was taken cognizance for the offences under sections 465,468,469,471 and 420 of Indian Penal Code. After getting summons for examination of the witnesses and finding that there was no proper investigation of the case, petitioner filed CMP.2901/2008 for further investigation under section 173(8) of Code of Criminal Procedure. Under Annexure A7 order it was dismissed. This petition is filed under section 482 of Code Crl.M.C. No.3915 of 2008 2 of Criminal Procedure to quash Annexure A7 order. 2. Learned counsel appearing for the petitioner and the 2nd respondent and Public Prosecutor heard. Learned counsel appearing for the petitioner pointed out that inspite of the fact that Annexure A5 final report was filed placing the second respondent before the magistrate for offences under sections 465,468,469,471 and 420 of IPC, Annexure A5 report shows that the Annexure A1 forged certificate was not send for examination by an expert to find out whether the signature therein is that of the petitioner or not and even the person who is seen to have attested the copy of the certificate was not questioned by the police as his statement is not seen recorded under section 161 of Code of Criminal Procedure and in such circumstances a proper investigation of the case is must and learned magistrate should not have dismissed the prayer. 3. Learned counsel appearing for the 2nd respondent argued that Annexure A1 certificate was produced when the labour case was pending between the parties before the Crl.M.C. No.3915 of 2008 3 Industrial Tribunal and as against the award passed by the Industrial Tribunal was challenged before this court and when that proceedings was pending. Annexure A2 complaint was filed without any bonafides and the Industrial Tribunal as well as this court has already accepted Annexure A1 and in such circumstances learned magistrate was justified dismissing the petition filed under section 173(8) of Code of Criminal Procedure. 4. When 2nd respondent is being tried for the offences under section 465,468,469,471 and 420 of Indian Penal Code and allegation is that forgery of Annexure A1 certificate was committed investigating agency should have examined the disputed certificate by an expert to find out whether the signature therein is that of the petitioner or not. There is force in the submission of the learned counsel appearing for the petitioner that without even questioning the person who attested Annexure A1 copy of the certificate final report should not have been filed. It proves that there was no proper investigation. Considering the facts that to Crl.M.C. No.3915 of 2008 4 sustain the prosecution the disputed document should have been examined by an expert and it was not done, learned magistrate should have allowed the petition and directed further investigation of the case under section 173 (8)of Code of Criminal Procedure. Annexure A1 certificate issued by the petitioner is a forged document or not cannot be decided without the report of an expert. In such circumstances I find no reason to deny the prayer for further investigation. 5. Annexure A7 order is quashed. Crl.M.P.2901/2008 stands allowed and further investigation under section 173(8) of Code of Criminal Procedure is ordered. The investigating officer is directed to conduct further investigation and submit a report before the concerned magistrate as prescribed under section 173(8) of the Code of Criminal Procedure. M.SASIDHARAN NAMBIAR JUDGE app/-