IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 CRL.A.No. 1188 of 2001() ------------------------ CC.451/1994 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... APPELLANT(S): -------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERLA. BY PUBLIC PROSECUTOR SMT. K.L.LAKSHMI RANI. RESPONDENT(S): --------------- THOMAS, S/O. JOSEPH, MANNULLIL VEETTIL, CHILAVANNUR DESOM, ELAMKULAM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRLA. No.1188 of 2001 ---------------------------------------------- Dated, 10th February, 2009. JUDGMENT This is an appeal at the instance of the State challenging the judgment dated 14.9.2001 of the court of the Chief Judicial Magistrate, Ernakulam by which the accused is acquitted under section 248(1) Cr.P.C. with respect to the offences punishable under sections 415, 468 and 471 of IPC. 2. The prosecution case is that the accused in furtherance of their common intention to cheat the de facto complainant Jacob, dishonestly created false documents and executed it on 5.2.92 bearing No.506/92 transferring a portion of land that belongs to the aforesaid de facto complainant comprising in survey No.605/2 of Elamkulam village and thereafter the 2nd accused who is the wife of the Ist accused executed document No.1358/92 on 25.3.92 in favour of one Finny Jacob and assigned 1.880 cents of land to him for a sale consideration of Rs.10,000/- acting as guardian for the minor children of both the accused and thereby they committed CRL.A.1188/01 -:2:- offences punishable under sections 420, 423, 468 and 471 read with Sec.34 of IPC.. 3. After investigation, charge was laid on the basis of original C.C.No.723/93 was instituted. The accused were summoned and they had appeared. On appearance of both the accused and after hearing them and also the Deputy Director of Prosecution, the court below discharged the 2nd accused and the case against the Ist accused was refiled as C.C.No.451/94. Thereafter, a formal charge was framed against the sole accused under sections 415, 468 and 471 IPC which read over and explained to him and he pleaded not guilty. Thereafter PWs 1 to 8 were examined and Exts.P1 to 16 were marked from the side of the prosecution. When the accused was examined under section 313 Cr.P.C., he denied all the incriminating circumstances in the evidence. The accused did not adduce any evidence either oral or documentary. 4. The court below on the basis of the rival contentions, framed three issues for its consideration and finally, it is found that no criminal offence whatsoever is proved against the accused to find him guilty of the offences alleged against him and found that CRL.A.1188/01 -:3:- the prosecution has miserably failed to bring home the guilt of the accused and accordingly the accused is acquitted under section 248(1) Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 5. I have heard the learned Public Prosecutor. 6. PW1 is the de facto complainant. According to him, his father M.C.Kurian was the owner of 42 cents of land comprised in Survey No.605/2 of Elamkulam village which was settled in his favour by his mother in the year 1974. According to him, after the death of his father, the property devolved upon him and his mother. It is deposed that during the month of February,1992, when he went to the said property, he found a person named Finny Jacob filling a portion of the property with earth from the south western side. When he enquired about this, PW1 was told that the said Finny Jacob has purchased a portion of that property from the accused and his wife executed sale deed in his favour also representing the minor children of the accused. According to PW1 he immediately rushed to the police station and lodged a complaint. The Sub Inspector of Police directed him to file a complaint before the court. Thus, CRL.A.1188/01 -:4:- accordingly he filed a private complaint against the present accused and his wife Philomina and the said Finny Jacob. The accused Thomas is PW1’s father’s elder brother’s son. The said complaint is marked as Ext.P1. Thus according to him, on an enquiry, it was revealed that the accused conspired and executed fraudulent document between the period 1977 to 1992 and committed cheating by forgery and creation of false documents. Through PW1, Exts.P2 and P3 were proved. According to PW1, the accused has no right over the property comprised in Survey No.605/2 and it exclusively belongs to PW1 and with mala fide intention to defeat the right of PW1 over the property, the accused has executed document in favour of his minor children. PW2 is the person who has allegedly purchased 1.880 cents of land comprised in Sy.No.605/2 from the children of the accused represented by his wife. According to PW2, he paid Rs.10,000/- as consideration per cent for the said property. PW3 is a document writer and he has prepared Ext.P4 sale deed in favour of PW2. PW4 was working as Junior Superintendent in the Sub Registrar’s office, Ernakulam during 1993. Exts.P5 and P6 are marked through PW4. PW5 is the mother of PW1. She had CRL.A.1188/01 -:5:- deposed that her husband died in 1990 and that 42 cents of land comprised in Sy.No.605/2 was settled in favour of her husband by his mother in 1974 and thereafter they were in actual possession and enjoyment of that property. PW5 has also stated that the accused executed a document with respect to the portion of 42 cents of land in favour of his children. PW7, the S.I. of Police, Central Police station, deposed that this case was registered by the then A.S.I. following the complaint which was forwarded from the court under section 156(3) Cr.P.C. Ext.P10 is the FIR in that case. He had deposed that he acquired attested copies of the two documents. Ext.P11 is the mahazar, He had stated that he did not come across the will alleged to have been executed in favour of the accused. PW6 is the retired District Registrar. According to him, he had produced certified copy of document No.2306/53 marked as Ext.P7 before the investigating officer. Ext.P8 is the copy of the sale deed No.1664/54. Ext.P9 is the mahazar for the seizure of the said document. PW8 was working as the Village Officer during 1993 and he testified regarding the issuance of Ext.P3 revenue receipt pertaining to 42 cents of land in Sy.No.605/2. CRL.A.1188/01 -:6:- 7. According to the learned Public Prosecutor, the accused who had no right over the property fraudulently executed document No.506/92. Ext.P16 is the judgment in a civil suit. By the above judgment, it is found that the property in Sy.No.605/2 as well as some other properties originally belonged to one George who was a bachelor and died as such, during his life time sold the property in favour of his mother Mariamma as per sale deed No.1664/54 which is Ext.P8. Seven cents of land from out of that was sold by Mariamma in favour of her son Kurian, the father of PW1. It is also claimed by PW1 and others that Mariamma had executed a settlement deed regarding properties comprised in Sy.No.605/2 in favour of Kurian. The Civil Court, overruling the objections raised by the accused, found that the existence of such will is not proved. The trial court found that the civil court has not set aside the document No.506/92 in toto and that the said gift deed No.506/92 in as much as it refers to property comprised in Sy. No.605/2, is invalid. On the basis of the above finding of the civil court, the trial court found that under the above circumstances, the claim of the accused over the property comprised in Sy.No.605/2 CRL.A.1188/01 -:7:- was not proved and therefore he had no right to gift to his children. The trial court after analysing the evidence of record found that though the accused has raised a claim for property which is unsustainable and untenable, he has not committed an offence punishable under section 417 IPC. What he had done is only gifted some properties claiming to his own, to his children. He did not have absolute right over a portion of that property. Thus on the basis of the evidence on materials, the trial court found that it was not shown that the accused had induced somebody dishonestly to deliver any properly or article. As the will is not produced before the court and the police has not made any attempt to produce the will, the court was of the opinion that it is not possible to conclude that it is a document forged by the accused purporting to be a will executed by Mariamma. From the above, it follows that the fact regarding the accused using that will which is allegedly to be a forged document as a genuine document to execute a sale deed, also is not proved. So on the basis of the above evidence and materials, the trial court found that no criminal offence whatsoever is proved against the accused and the mere reference of a CRL.A.1188/01 -:8:- document which was not proved to be in existence does not amount to be a forgery or cheating. It is also held that there is no inducement by anyone to deliver any article and therefore I find that the prosecution has miserably failed to bring home the guilt of the accused. 8. On going through the materials on evidence, and the judgment of the trial court, I am of the view that the finding arrived on by the court below is purely on the basis of the evidence and materials. It has to be noted that the will in question on the basis of which the allegations are raised has not been produced before the court below. Therefore, the trial court is absolutely correct in holding that by mere reference to a will is not sufficient to hold that the accused is guilty of the charges levelled against him. As the finding and order of acquittal are purely based upon materials and evidence on record, I have to affirm the order of acquittal and I do so. 9. In this juncture, it is relevant to note that the dispute is purely civil in nature and the court below on the basis of the evidence and by drawing cogent reasons found that the accused is not guilty. If that be so, in an appeal, unless compelling and CRL.A.1188/01 -:9:- substantial reasons are made out, the appellate court shall not interfere with the order of acquittal and disturb such finding. In the light of the decision reported in Ghurey Lal v. State of U.P.(2008(4) KLT SN 17 (C.No.17((SC), I find no reason to interfere with the order of acquittal. In the result, there is no merit in the appeal and the same is accordingly dismissed. V.K.MOHANAN, JUDGE kvm/- CRL.A.1188/01 -:10:- V.K.MOHANAN, J. CRL.A. No.1188/2001 Judgment Dated:10.2.2009