IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 WP(C).No. 22785 of 2011(W) -------------------------- PETITIONER(S): --------------- 1. K.SASIDHARAN NAIR, AGED 63 YEARS, S/O.LATE SRI.SREEDHARAN NAIR, SANTHA BHAVANATHU HOUSE, THALAYOLAPARAMBU.P.O., KOTTAYAM-686 605. 2. S.UNNIKRISHNAN, AGED 58 YEARS, S/O.SREEDHARAN NAIR, SANTHA BHAVANATHU HOUSE, THALAYOLAPARAMBU.P.O., KOTTAYAM-686 605. BY ADV. SRI.T.M.ABDUL LATIFF RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, THIRUVANANTHAPURAM-695 001. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-695 001. 3. SUB INSPECTOR OF POLICE, JANAMAITHRY POLICE STATION, KADAVANTHARA, COCHIN-682 020. 4. SAJUMON.K.S., AGED 48 YEARS, S/O.LATE SRI.SREEDHARAN NAIR, SANTHA BHAVANATHU HOUSE, THALAYOLAPARAMBU.P.O., KOTTAYAM-682 605. 5. SANTHA MOHAN, AGED 65 YEARS, D/O.LATE SREEDHARAN NAIR, FLAT NO.105, CASABLANCA, [ABAD], VAZHAKKALA, KAKKANAD, COCHIN-682 030. 6. SANTHOSH MOHAN, AGED 33 YEARS, S/O.LATE MOHAN KUMAR, FLAT NO.105, CASABLANCA, [ABAD], VAZHAKKALA, KAKKANAD, COCHIN-682 030. WP(C).No. 22785 of 2011(W) -2- 7. SAJEETH MOHAN, AGED 38 YEARS, S/O.LATE MOHAN KUMAR, FLAT NO.105, CASABLANCA, [ABAD], VAZHAKKALA, KAKKANAD, COCHIN-682 030. 8. P.V.SURESH, AGED 44 YEARS, PULLORKUDIYIL HOUSE, EAST MARADY.P.O., MUVATTUPUZHA. 686 673. 9. GOPAN.K.B., AGED 41 YEARS, S/O.BHASKARAN NAIR, CHERUMANAPADICKAL HOUSE, P.O.THALAYOLAPARAMBU, VAIKOM-686 605. R1 TO R3 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN R4 TO R7 BY ADV.SRI.K.P. SATHEESAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22785 of 2011(W) APPENDIX PETITIONERS EXHIBITS: P1: COPY OF THE PARTNERSHIP DEED DATED 5.5.1990 P2: COPY OF THE JUDGMENT DATED 29.11.2010 PASSED BY THIS HONOURABLE COURT IN ITA.NO:800 OF 2009 P3: COPY OF THE RELEVANT PAGES OF THE COUNTER AFFIDAVIT DATED 30.5.2011 FILED BEFORE THIS HONOURABLE COURT IN WPC NO: 13584 OF 2011 P4: COPY OF THE DEED OF RECONSTITUTION OF PARTNERSHIP DATED 20.3.2003 CERTIFIED BY THE STATE BANK OF TRAVANCORE, THALAYOLAPARAMBU. P5: COPY OF THE COMPLAINT NO:M.P.1925 OF 2011 DATED 7.6.2011 FILED BY THE PETITIONERS BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM P6: COPY OF THE PETITION TO ISSUE SEARCH WARRANT FILED BY THE PETITIONERS IN M.P. 1925 OF 2011 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. P7: COPY OF THE ORDER PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM DATED 9.6.2011 IN M.P. NOS:1925/11 AND 1926/2011 P8: COPY OF THE FIRST INFORMATION REPORT NO:975/11 DATED 23.6.2011 OF THE KADAVANTHRA POLICE STATION P9: COPY OF THE PETITION FOR DIRECTION DATED 13.6.2011 FILED BY THE 5TH RESPONDENT RESPONDENTS EXHIBITS: R6(A): COPY OF THE PARTNERSHIP DEED DATED 20.3.2003 R6(B): COPY OF THE JUDGMENT DATED 16.6.2011 IN WPC 13584/2011 //TRUE COPY// P.A.TO JUDGE JJJ N.K. BALAKRISHNAN, J. ------------------------------------------ W.P. (C) No: 22785 OF 2011 (W) ------------------------------------------ Dated this the 14th day of November, 2011 J U D G M E N T The reliefs sought for in this writ petition filed under Article 226 of the Constitution are: (i) To call for the records Exts.P-1 to P-8 and to issue any appropriate writ, order or direction directing 2nd Respondent to order conduct of investigation in Crime No:1925/11 by any Special Cell of the Kerala Police or the Crime Branch (C.B.C.I.D.) or any other Unit and to submit final report before the Chief Judicial Magistrate Court, Ernakulam, after conducting proper investigation; (ii) To issue a writ of mandamus commanding the 3rd Respondent to conduct immediate search and to recover the original of the document referred to as Partnership Deed dated 23.3.2003 marked as Ext.R-6(C) in the Counter Affidavit, which is admitted to be in the possession of the Respondents 4 to 7; (iii) To issue any writ, order or direction directing the Respondents 1 to 3 to take such W.P. (C) No: 22785 OF 2011 (W) -2- measures for preventing the destruction of the document stated as original of the Partnership Deed dated 20.3.2003, which is a forged document and also to arrest the Respondents 4 to 9 and to bring them under law; (iv) Any other appropriate writ, order or direction also may be granted to meet out justice under the circumstances of the above case. Sri. K.P. Satheeshan, learned counsel appearing for respondents 4 to 7 also would submit that the respondents also have no objection in the Crime Branch Officials conducting investigation. According to the learned counsel that will set at rest the controversy with regard to the genuineness of the document. The petitioners contend that the partnership deed was entered into by petitioners 1 and 2, R4, R5 and one Geetha Raveendranath. A copy of that partnership deed is W.P. (C) No: 22785 OF 2011 (W) -3- produced before this Court as Ext.P1. The learned counsel submits that as per Clause 15 of that partnership deed, the license in respect of the 'Bar' shall be the property of the firm and it shall not be cancelled, transferred or surrendered without prior consent of all the partners in writing. Subsequently, another partnership deed was entered into. According to the petitioners, a Clause was falsely introduced into that agreement and as such the respondents 4 to 7 have committed offence of Forgery. The main prayer in the petition is to call for the records, Exts. P1 to P8, and to issue direction to the second respondent to conduct investigation in Crime No:1925/2011. That crime was stated to have been registered pertaining to the forgery of the partnership deed mentioned in this case. The second prayer is to direct the third respondent to conduct immediate search, so as to recover the original partnership deed. W.P. (C) No: 22785 OF 2011 (W) -4- The learned counsel for the contesting respondents submits that the original partnership deed is with them. In fact, it was produced before this Court, by the learned counsel for the respondents, on 8.11.2011 in a sealed cover. That sealed cover was opened in Court. Original partnership deed dated 20.3.2003 was perused by me. Clause 8 of that partnership deed reads as follows: “The firm shall utilise, for the purpose of its business, the FL-3 license granted to any of the partners by the State Excise Authorities. But nothing contained in this deed shall ever be construed as sale, sublet or otherwise transfer of the said license or otherwise creating any other interest in the said license, in favour of the other partners or the firm which is not at all the intention of the parties but on the contrary, merely an arrangement to enjoy the benefits of partnership business by running the business using the license granted to such partner. Such license shall ever remain as W.P. (C) No: 22785 OF 2011 (W) -5- the exclusive property of such partner to whom the license is granted by the state excise authorities and the other partners or the firm shall not have any claim on such license either on retirement of any partner or dissolution of the firm.” On the same day the original was returned to the learned counsel. He was directed to make available original and also the attested copy before the Court. Learned counsel was ready to produce the same. But, it will not be a proper procedure to hand over the original partnership deed by this Court, to the Investigating Officer for the conduct of the investigation and as such original has not been received in this Court today. Since it is contended that there is slackness in the conduct of the investigation, it is agreed upon by all parties that investigation may be handed over to the Crime Branch (C.B.C.I.D.) and that the investigation be supervised by the Dy.S.P., Crime Branch. W.P. (C) No: 22785 OF 2011 (W) -6- Since the original partnership deed was shown by the learned counsel appearing for R2 to R7, the question of causing destruction of that document would not arise at all. The Officer conducting investigation into the aforesaid crime can request the learned jurisdictional Magistrate, for the same, so that the contesting respondents in possession of that deed can produce that original partnership deed before the learned Magistrate so as to enable the Investigating Officer to forward that document for expert opinion with regard to the fabrication or forgery alleged in the complaint. Such a course has been adopted by me since, if the document is directly handed over to the Investigating Officer,the possibility of misplacing, misusing or mis- handling cannot be ruled out. At any rate, such a complaint would be there. It is in order to avoid such a complaint the direction is made in this case that it should be obtained through Court.Needless to say,whether there was forgery or W.P. (C) No: 22785 OF 2011 (W) -7- fabrication of the original partnership deed, can be decided only after the Expert files a report with regard to the same. The learned Magistrate can also direct the learned counsel for the party producing the original partnership deed to furnish attested photocopy of that original partnership deed, which shall be retained in Court, if the original is to be sent for expert opinion. R3 will hand over the case file, in the aforesaid crime, to the Dy.S.P., C.B.C.I.D., having jurisdiction over the area within 15 days from today and the investigation shall be caused to be conducted and be supervised by the Dy.S.P. (C.B.C.I.D). This petition is disposed of in the light of the directions issued as above. N.K. BALAKRISHNAN, JUDGE jjj