IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 OP(C).No. 287 of 2011(O) ------------------------------ EP 204/2005 IN LAR.393/2006 of PRL.SUB COURT, KOZHIKODE .................... PETITIONER --------------- K.SASEENDRAN,S/O.LATE NANI AMMA,AGED 44 YEARS, RESIDINGAT NADIVATHINA VEETTIL,P.O.CHEVAYUR, KOZHIKODE BY ADVS. SRI.P.V. KUNHIKRISHNAN SRI.HANSON.P.MATHEW RESPONDENT(S): --------------------- 1. K.VISWANATHAN, S/O.LATE NANI AMMA, AGED 46 YEARS, KUTTIYOTH HOUSE, CHEVAYUR AMSOM DESOM, KOZHIKODE-673017. 2. K.GOPINATHAN, S/O.LATE NANI AMMA, AGED 40 YEARS, KUTTIYOTH HOUSE, CHEVAYUR AMSOM DESOM, KOZHIKODE-673017. 3. K.DINACHANDRAN, S/O.LATE NANI AMMA, AGED 38 YEARS, KUTTIYOTH HOUSE, CHEVAYUR AMSOM DESOM, KOZHIKODE-673017. 4. K.SURENDRAN,S/O.LATE NANI AMMA,AGED 36 YEARS, KUTTIYOTH HOUSE, CHEVAYUR AMSOM DESOM, KOZHIKODE-673017. 5. K.PRABHA, D/O.LATE NANI AMMA, AGED 32 YEARS, KUTTIYOTH HOUSE, CHEVAYUR AMSOM DESOM, KOZHIKODE- 673017. 6. THE SPECIAL TAHASILDAR, LAND ACQUISITION, KOZHIKODE-673020. R1, 2 & 5 BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH SMT.RESMI NANDANAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 287/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE EXECUTION PETITION FILED BY THE RESPONDNTS 1 TO 5 WHICH IS NUMBERED AS E.P. NO.204/2005. P2: COPY OF THE VAKALATH FILED IN THE ABOVE CASE. P3: COPY OF THE PETITION FILED BY THE PETITIONER AS E.A. 828/2006 IN E.P. NO.204/2005 IN LAR.393/2006 DATED 16/08/2006 ON THE FILE OF PRINCIPAL SUB COURT, KOZHIKODE. P4: COPY OF THE APPLICATION FILED BY THE PETITIONER TO PROSECUTE THE RESPONDENTS 1 TO 5 WHICH WAS NUMBERED AS E.A.953/06 IN E.P.204/2005 IN L.A.R.393/2000 ON THE FILE OF PRINCIPAL SUB COURT, KOZHIKODE. P5: COPY OF E.A. NO.952/2006 IN E.P. NO.204/2005 IN LAR NO.393/2000 ON THE FILE OF PRINCIPAL SUB COURT, KOZHIKODE. P6: COPY OF THE COUNTER FILED BY THE RESPONDENTS 1 TO 5 IN EXHIBITS P3. P7: COPY OF THE COUNTER FILED BY THE RESPONDENTS 1 TO 5 IN EXHIBITS P4. P8: COPY OF THE COUNTER FILED BY THE RESPONDENTS 1 TO 5 IN EXHIBITS P5. P9: COPY OF THE ORDER IN EXT.P3 E.A.828/06 IN E.P.204/05 IN L.A.R.393/2000 DATED 19/08/2010. P10: COPY OF THE ORDER IN EXHIBIT P5 DATED 19/08/2010 E.A.952/06 E.P.204/05 IN L.A.R.393/2000. P11: COPY OF THE B DIARY DATED 23/06/2009 ON THE FILE OF THE PRINCIPAL SUB COURT, KOZHIKODE. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.287 of 2011 --------------------------------------- Dated this 09th day of November, 2011 JUDGMENT This petition is filed by the third claimant in L.A.R.No.393 of 2000 of the Court of learned Principal Sub Judge, Kozhikode. Grievance of petitioner is that by forging signature of petitioner, respondents 1 to 5 collected the amount deposited in Court. Petitioner filed Exts.P3 to P5, applications before the learned Sub Judge to prosecute the respondents for alleged forgery. Respondents 1 to 5 deposited in the court below the share of amount payable to the petitioner. Learned Sub Judge dismissed Exts.P3 to P5, applications by Ext.P9 to Ext.P11, order. 2. It is contended by learned counsel that dismissal of Exts.P3 to P5, applications is not justifiable and that the mere fact that the amount payable to the petitioner was deposited by respondents 1 to 5 (on 25.08.2006) is no ground to not to take proceeding against respondents 1 to 5 for forgery committed by them. 3. Learned counsel for respondents 1, 2 and 5 submitted that for collecting the amount awarded by the Land Acquisition Officer, all the parties had executed an agreement on 03.03.1997 O.P(C).No.287 of 2011 -: 2 :- in the presence of the Land Acquisition Officer authorising the third respondent to collect the amount and that allegation of forgery is not correct. 4. So far as allegation of forgery is concerned, I must bear in mind that it is not with respect to the document which is produced in Court. Even as per the version of petitioner, respondents (allegedly) forged the documents and produced the same in Court. If that be so, the bar under Sec.195(1)(b) of the Code of Criminal Procedure (for short, "the Code”) does not apply. This view has been taken in Sachinda Nand Singh and Anr. Vs. State of Bihar and Anr. (AIR 1998 SC 1121), Parvathi Amma Vs. Damodaran Nambiar (1999(2) KLT 721) and Rugmini Ammal Vs. Narayana Reddiar & Ors. (2008(1) ILR Kerala 523). Hence it was not necessary for learned Sub Judge to take action on Exts.P3 to P5, applications as regards the alleged forgery, conduct enquiry under Sec.340 of the Code and initiate action. It is well within the power of the police concerned to take action if any, so far as the allegation relates to forgery, etc of the documents and produced in Court. In that view of the matter, there is no reason to interfere with the dismissal of Exts.P3 to P5, applications though, dismissal of the O.P(C).No.287 of 2011 -: 3 :- said applications is not for the above stated reason. 5. Learned counsel for petitioner has submitted that for withdrawal of the amount due to the petitioner and deposited by respondents in the court below, petitioner had filed cheque application No.53 of 2011 and that application is dismissed by Ext.P14, order for the reason that since this original petition is pending, petitioner has to get a clarification from this Court (as to the payment of amount in deposit). 6. Since I am disposing of this original petition as above stated, learned Sub Judge has to consider cheque application No.53 of 2011 on its merit. For that, the order dated 30.03.2011 on the cheque application has to go. Resultantly this original petition is dismissed. Ext.P14, order on cheque application No.53 of 2011 in E.P.No.204 of 2005 in L.A.R.No.393 of 2000 of the Court of learned Principal Sub Judge, Kozhikode is set aside. Learned Principal Sub Judge is directed to consider cheque application No.53 of 2011 on merit and pass appropriate orders after hearing the parties concerned as early as possible. (THOMAS P. JOSEPH, JUDGE) Sbna/-