IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 Crl.MC.No. 2979 of 2008() ------------------------------------- CRIME NO.393/2008 OF VAIKOM POLICE STATION. ................. PETITIONERS/A1 AND A2: -------------------------------------- 1. MOHANAN, S/O.KARUNAKARAN, VADAKKUMKATTIL, MARAVANTHURUTHU, KULASEKHARAMANGALAM. 2. RAMESH, S/O.BHASKARA PANICKER, PULIPRA, CHANIYIL, KULASEKHARAMANGALAM. BY SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE, ADV. SRI.M.CHANDRA BOSE, SRI.A.RAJASIMHAN. RESPONDENTS/COMPLAINANT AND STATE ----------------------------------------------------------------- 1. AMBIKADEVI, W/O.VENUGOPAL, PALACHUVATTIL VEETIL, KIZHAKKUMCHERRY NADUVIL, NADUVILE VILLAGE, VAIKOM, TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. R1 BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE, ADV. SMT.SMITHA GEORGE. R2 BY PUBLIC PROSECUTOR MR.P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.2979 OF 2008 --------------------------------------------- Dated 12th October, 2010 O R D E R Petitioners, the accused in Crime No.393/2008 of Vaikom Police Station registered under Sections 205 and 468 read with Section 34 of Indian Penal Code on Annexure-A2 complaint filed by first respondent before the Judicial First Class Magistrate, Vaikom and sent for investigation under Section 156(3) of Code of Criminal Procedure, filed this petition to quash Annexure-A1 FIR and the further proceedings, contending that ingredients of the offences are not attracted. 2. Learned counsel appearing for the petitioners and learned Senior Counsel appearing for first respondent and learned Crmc 2979/08 2 Public Prosecutor were heard. 3. On certain facts there is no dispute. First respondent agreed to sell 57 cents of her property in R.S.No.98/14 of Maranalloor villge, obtained by her as per registered sale deed No.1275/1992 in favour of second petitioner as per an agreement for sale executed on 22/10/2007. As per the agreement first respondent agreed to sell the property for a consideration of Rs.30 Lakhs to the second petitioner. The second petitioner paid Rs.1,00,000/- as advance and agreed to pay Rs.1,00,000/- on 1/11/2007 and first respondent agreed to execute the sale deed within a period of six months on receipt of balance consideration. Second petitioner paid Rs.1,00,000/- on 1/11/2007 by a cheque drawn in his account maintained in Union Bank of India. Crmc 2979/08 3 According to the petitioners, first respondent along with her husband, agreed to extent the period of agreement by six months on 22/4/2008 and made an endorsement in Annexure-A3 agreement in the presence of the witnesses. According to the first respondent she never agreed for such an extension of time and did not make any endorsement agreeing for extension of time and it is a forged entry. First respondent lodged Annexure-A2 complaint before the Judicial First Class Magistrate, Vaikom alleging that Sandeep Venugopal, son of the first respondent had appeared before Dy.S.P, Nedumangadu on a complaint filed by the first petitioner, as first respondent could not go there due to her ill-health as directed by the Dy.S.P and Dy.S.P had shown the agreement for sale which contained a forged endorsement that Crmc 2979/08 4 first respondent agreed for extension of the period of the agreement by six months on 22/4/2008. It is alleged that, the entry is the result of forgery committed by the petitioners. Learned Magistrate sent Annexure-A2 complaint to the Police for investigation under Section 156(3) of Code of Criminal Procedure. Under Annexure-A1 FIR crime No.393/2008 of Vaikom Police Station was registered for the offences under Sections 205 and 468 read with Section 34 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure contending that first respondent has no case that her husband did not make any endorsement in the agreement for sale, where signature of the first respondent is seen and the only allegation is that petitioners committed forgery of the signature of the first Crmc 2979/08 5 respondent and in such circumstances, it is clear that the allegation is not correct. Learned counsel appearing for the petitioners pointed out that it was on the basis of Annexure-A4 complaint filed by the first petitioner, son of first respondent was summoned by the Dy.S.P and that is with regard to the trespass and damages committed by the son of first respondent in the property which was put in the possession of the second petitioner under Annexure-A3 agreement for sale and when first petitioner was advised to approach the Civil Court, O.S.488/2008 was filed before Additional Munsiff's Court, Neyyattinkara and Annexure-A5 order shows that an order of temporary injunction was granted in favour of the first petitioner on 10/6/2008 and Annexure-A2 complaint was filed thereafter. Crmc 2979/08 6 Annexure-A1 FIR shows that the case was registered on 16/6/2008. Learned counsel would argue that Annexure-A2 complaint does not disclose the details of the forgery or from where it was committed and when the property is at Neyyattinkara, learned Magistrate, Vaikom has no jurisdiction to entertain the complaint or to direct registration of the case and in such circumstances, it is clear that continuation of the proceedings is only an abuse of process of the Court. Learned counsel would also argue that though there is an allegation that first petitioner has forged the document evidencing extension of time, there is no allegation as against the second petitioner and therefore, continuation of the proceedings against the second petitioner is illegal. Learned counsel would also argue Crmc 2979/08 7 that in any case, an offence under Section 205 will not be attracted on the admitted facts and as there was no cheating as defined under Section 415 of Indian Penal Code, an offence under Section 468 also will not be attracted and therefore, the FIR and further proceedings are to be quashed. 4. Learned Senior counsel pointed out that there is specific allegation in Annexure-A2 complaint that the entry in Annexure-A3 agreement with regard to extension of time was forged by the first petitioner in furtherance of the common intention with the second petitioner and that too after consultation with each and in such circumstances, contention that there is no allegation against the petitioners is not correct. Learned Senior counsel also pointed Crmc 2979/08 8 out that Annexure-A1 shows that agreement for sale was entered into within the jurisdiciton of Judicial First Class Magistrate's Court, Vaikom and first respondent and her husband are all residing at Vaikom and therefore, endorsement in Annexure-A3 could only be at Vaikom and in such circumstances contention that Judicial First Class Magistrate, Vaikom has no jurisdiction is not sustainable. Learned Senior counsel argued that even though first respondent has not agreed for extension of time, an entry was forged in Annexur-A3 agreement with the forged signature of the first respondent to the effect that she has agreed for extension of the period and it was clearly for the purpose of cheating and even though first entry made in Annexure-A3 agreement regarding the payment of Crmc 2979/08 9 Rs.1,00,000/- on 1/11/2007 was not attested by any witness, signatures of the witnesses are seen in the forged entry dated 22/4/2008 which shows that this is a clear case of forgery. Learned Senior counsel therefore, argued that there is no reason to interfere with the investigation as final report is yet to be filed. 5. Learned Public Prosecutor submitted that the case is under investigation and final report is yet to be filed. 6. Though learned counsel appearing for the petitioners vehemently argued that there is no specific allegation against the second petitioner to attract any offence against him, as rightly pointed out by the learned Senior counsel appearing for first respondent, paragraph 13 of the complaint Crmc 2979/08 10 contains the necessary allegations against the second petitioner also. 7. As rightly pointed out by the learned Senior counsel, when first respondent and her husband are residing at Vaikom and Annexure-A3 agreement for sale was executed at Vaikom, endorsement regarding the payment and extension of time, if any could only be at Vaikom, when it is not specifically otherwise shown. In such circumstances, when first respondent has a case that the entry in Annexure-A3 agreement dated 22/4/2008 is a forged entry and she did not execute the same, it cannot be said that learned Magistrate, Vaikom has no jurisdiction, either to direct the investigation or if based on the investigation a final report is submitted to take cognizance of the offences. Crmc 2979/08 11 8. Though learned counsel appearing for the petitioners vehemently argued that signature of the first respondent seen on Annexure-A3 agreement, when she executed the agreement and the disputed signature in the entry dated 22/4/2008 are similar and identical, it is not for this Court to compare the signatures and decide the question whether that signature is that of the first respondent or a forged signature. That is a matter for investigation. 9. True, on the allegations in Annexure-A2 complaint, an offence under Section 205 of Indian Penal Code will not be attracted. That does not mean that an offence under Section 468 of Indian Penal Code is not attracted on the pleadings. In such circumstances, I do not find that it is for Crmc 2979/08 12 this Court to exercise the extra ordinary jurisdiction to quash Annexure-A1 FIR as sought for. It is for the Investigating Officer to consider whether petitioners committed any of the offences alleged or any other offence, based on the investigation. But it is made clear that an offence under Section 205 of Indian Penal Code is not attracted. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE. uj.