Full Judgment
Crl.RP.337/2007 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN THURSDAY, THE 08TH DAY OF OCTOBER 2020 / 16TH ASWINA, 1942 Crl.Rev.Pet.No.337 OF 2007 AGAINST THE ORDER/JUDGMENT IN CC 690/2007 OF CHIEF JUDL.MAGISTRATE, ERNAKULAM REVISION PETITIONER/S: 1 FRANKLIN AGED 78 YEARS ANJIPARAMBIL HOUSE, ERNAKULAM. 2 LESLI SO.XAVIER ANJIPARAMBIL HOUSE, ERNAKULAM. 3 ABRAHAM SO.XAVIER ANJIPARAMBIL HOUSE, ERNAKULAM. 4 EDWIN SO.XAVIER ANJIPARAMBIL HOUSE, ERNAKULAM. 5 GILBERT SO. XAVIER ANJIPARAMBIL HOUSE, ERNAKULAM. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT/S: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA(CRIME NO 491/CR/84 CB CID,SPECIAL CELL,ERNAKULAM) R1 BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17.06.2020, THE COURT ON 8.10.2020 PASSED THE FOLLOWING: Crl.RP.337/2007 2
V.G.ARUN, J.
----------------------------------------------- CRL.R.P.No. 337 of 2007 ----------------------------------------------- Dated this the 8th day of October, 2020
ORDER
The petitioners are accused Nos.2, 3, 5, 6 and 7 in C.C.No.690 of
1997 pending before the Chief Judicial Magistrate's Court, Ernakulam. The case originated from Crime No. 491 of 1984 of the CBCID Police Station, Ernakulam, registered for offences under Sections 466, 468, 471A, 420 read with 34 of IPC against the petitioners and two others. The gist of the prosecution allegation is as follows; The petitioners’ along with A1 and A4 were the owners of immovable property admeasuring 2 acres and 28 cents comprised in Sy.Nos.330/3 and
They had voluntarily surrendered the land to the GCDA for its Elamkulam Road Project, by executing surrender kaichits. After receiving Rs.75,000/- as advance compensation towards land value, accused 1 to 7 entered into a conspiracy with A8 and A9, officials in the Office of the Land Acquisition Tahsildar attached to the Greater Cochin Development Authority (GCDA), and altered the surrender kaichits from the Office of the Special Tahsildar, by reducing the extent of land surrendered from 2 acres 28 cents to 1 acre 14 cents. It is alleged that the corrections were made on the basis of a criminal
Crl.RP.337/2007 3 conspiracy entered into between the landowners and officials of the GCDA, resulting in pecuniary loss to the GCDA.
2. The facts, leading up to registration of the crime, are as under; On 5.2.1972, the GCDA published a draft Scheme under Section 9
of the Kerala Town Planning Act ('the Act', for brevity), proposing to acquire 24.055 hectares of land in Elamkulam Village for the purpose of a project named, ‘Elamkulam Road Scheme'. The draft scheme was approved by the Government on 15.5.1975 and notification was published in the Gazette on 17.7.1975, as provided under Section 12(6) of the Act. The petitioner’s property was also included in the proposed scheme, by reason of which the owners were prevented from utilising their land for any purpose. Hence the petitioner along with accused 1 and 4 requested the Government, to either exempt their property from the purview of the scheme or to direct the GCDA to acquire the property by paying reasonable compensation. This resulted in the Government calling upon the GCDA to do the needful. The GCDA, on 16.4.1979, offered Rs.75,000/- as advance payment towards compensation for the land. The offer was accepted by A 1 to A7 and surrender kaichits were executed by them on 25.4.1979. While so, the GCDA granted exemption to certain other lands included in the scheme. Thereupon, A1 to A7 requested the GCDA to grant partial exemption to their land and having failed to evoke any response,
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approached the Government, seeking a direction to the GCDA to consider their request favourably. In the request for exemption, the petitioners set up a case that they had surrendered only 1.14 acres out of the total extent of 2.28 acres. Accepting that version, the Government directed the GCDA to exempt the balance 1.14 acres. At this juncture, the Special Tahsildar (LA), GCDA addressed the District Collector with a letter dated 23.4.1984, pointing out that on perusal of the records pertaining to the properties of A1 to A7, it was revealed that corrections were made to the surrender kaichits, by altering the extent of land from 2.28 acres to 1.14 acres. The District Collector forwarded that letter to the Vigilance and Anti Corruption Bureau, resulting in the crime being registered.
3. The accused unsuccessfully challenged the criminal
proceedings at different stages. Finally, the court framed the charge against them on 23.11.2006, for offences under Sections 120B, 405, 468, 511 of 420 read with 34 of IPC. Crl.R.P is filed seeking to set aside the charge, contending that even accepting the entire evidence, the prosecution failed to make out the offences alleged and therefore, the trial court grossly erred in framing charge for the said offences.
4. Heard Sri.M.V.S.Namboothiri, learned counsel for the petitioners and Sri.B.Jayasurya, learned Senior Public Prosecutor.
5. Apart from contending that the prosecution had miserably Crl.RP.337/2007 5
failed to muster evidence regarding commission of the alleged offences, learned counsel for the petitioners sought to place reliance on Annexures I to V in support of the contention that even the GCDA had admitted surrender of only 1.14 acres of land by the petitioners and that the Government, after careful scrutiny of all relevant documents and on being convinced that only 1.14 acres was surrendered, had directed the balance 1.14 acres to be exempted from acquisition for the Elamkulam Road Scheme.
6. The learned Public Prosecutor refuted the contention and
submitted that, at the stage of framing charge, the court need only look into the documents produced by the prosecution and the revisional court cannot place reliance on the documents produced by the accused, to hold the charge to be unsustainable.
7. The legal position that consideration at the stage of framing
charge should be confined to the documents produced by the prosecution along with the final report being well settled, there cannot be any dispute to the proposition mooted by the learned Public Prosecutor. Therefore the issue boils down to the question whether evidence made available by the prosecution justified framing of charge against the petitioners. In order to answer this question, it is necessary to have a look at the relevant prosecution documents. On a perusal of the surrender kaichits dated 25.4.1979, numbered as Document
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Nos.74, 75 and 76, it is seen that the entry regarding extent of land is made with a different ink. The original entry appears to have been erased or overwritten. In the authorisation letter dated 26.4.1979, submitted by the 1st accused also, the extent of land is corrected as 1 acre 14 cents. Document No.83 is the register of advance payment maintained at the GCDA, which contains details regarding the extent of land and the advance payment made to each land owner. Document No.84 is the reverse of Form D, containing the details of land and its value. In both these documents, advance payment is shown to have been made towards compensation for the entire extent of 2.28 acres. In this regard it is pertinent to note that the surrender kaichits do not contain the seal and signature of the Special Tahsildar (LA). The Kerala Land Acquisition Manual do not provide for acquisition of land merely based on surender kaichits executed by the land owners. As such, the surrender kaichits cannot be termed as official documents, merely for reason of those documents being available in the files of the GCDA.
8. Document No.80 is a copy of O.P.No.9061 of 1988 filed by the
petitioners. Exhibits in the original petition include communications issued by the Government to the GCDA based on the request for exemption submitted by the petitioners. A perusal of those documents reveals that, initially even the GCDA had taken the stand of only 1.14 acres having been surrendered, causing the Government to issue orders directing the GCDA to exempt the balance land. Of course,
Crl.RP.337/2007 7
there was a change in the Government's stand after the Special Tahsildar issued letter dated 23.4.1994 to the District Collector. Undisputedly, there were a series of litigations before the High Court pertaining to the Elamkulam Road Scheme and by judgment in O.P.No.1063 of 1983, the High Court found the scheme to have lapsed due to efflux of time. As such, there was no legally valid Detailed Town Planning Scheme for Elamkulam on 25.4.1979, the date on which the petitioners surrendered their land for the purpose of the Scheme. The acquisition proceedings, initiated by publication dated 17.7.1975 under Section 12(6) of the Town Planning Act, was not completed in the manner provided under Section 33 of the Act. Instead, by notification dated 11.8.1987, fresh acquisition proceedings was initiated. In that proceedings, the entire extent of land, i.e., 2.28 acres belonging to accused 1 to 7, was acquired and the advance payment of Rs.75,000/-
set off against compensation paid for acquisition based on the subsequent notification.
9. Forgery is defined under Section 463 IPC as follows;
“463. Forgery Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.” Crl.RP.337/2007 8
In short, forgery is the false making of any written instrument, for the purpose of fraud or deceit. Thus fraud is an essential ingredient of forgery. Under Secondly of Section 464, a person is said to make a false document or false electronic record if he, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with signature either by himself or by any other person, whether such person is living or dead at the time of such alteration. Therefore, the essential ingredient for making a false document is the intention to cause damage or injury to the public or to any person or for the purpose of any claim or title or for causing any person to part with property or to enter into any express or implied contract, with the intent to commit fraud or that fraud may be committed. The prosecution allegation is that accused 1 to 7, with the help of accused Nos.8 and 9, had altered the entries in the surrender kaichits by reducing the extent of land surrendered. As mentioned earlier, surrender kaichits are not legally valid documents to prove the factum of surrender. Moreover, even if the prosecution allegation is accepted in toto, at best, it can only be held that such alteration was made in order to support the petitioners' demand for return of the unsurrendered portion of land from the possession of the GCDA. In this regard it is to be noted that possession of the entire extent of land being with the GCDA, the claim for return of a portion
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based on the kaichits, cannot be termed as making of a false document to support the petitioners claim or title to their property or an action done with intention of causing the GCDA to part with property. In this context, it is relevant to note that the Government’s direction to exempt portion of the petitioners’ property was not made on the strength of the extent shown in the surrender kaichits. It was based on the report of the GCDA that the petitioners had surrendered only 1.14 acres that the direction was issued.
10. As far as the allegation of commission of offence under
Section 511 of 420 is concerned, the essential element of cheating which require deceiving of any person fraudulently or dishonestly so as to induce that person to deliver any property to any person, or to consent for retaining any property or to do or omit to do anything which he would not have done or omitted if he were not so deceived, is completely absent as far as the alleged action of the petitioners is concerned. By the act of altering the extent, the petitioners had not cannot be said to have induced the GCDA to deliver any property to have induced the GCDA to omit to do something which the GCDA would have done, if not so deceived. There is no dispute to the fact that, no portion of the property taken over by the GCDA was returned to the petitioners. The initial acquisition for the Elamkulam Road Scheme never completed and the entire extent of land got acquired in the subsequent acquisition proceedings. Yet another aspect to be
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taken into consideration is that the prosecution did not produce any document, other than the surrender kaichits, in support of the allegation that the entire extent of 2.28 acres was surrendered. Moreover, as on the date of surrender, the Elamkulam Road Scheme was not in existence and therefore, but for the surrender the GCDA would not have come into possession of the lands. More importantly, the surrender kaichits do not contain the seal and signature of the Tahsildar, in the absence of which the document cannot be termed as an official document evidencing surrender of land by the petitioners.
11. It is true that the scope of interference into the framing of
charge by the trial court, is very limited. But, there is no embargo against exercising the revisional jurisdiction if the prosecution is found to have failed in substantiating the allegations with the support of acceptable evidence. In Satish Mehra v State (NCT of Delhi) [(2012) 13 SCC 614] the Apex Court has dealt with the powers of the High Court to interdict a criminal proceeding at the threshold or at an intermediate stage, though in the context of Section 482 Cr.P.C., in the following manner;
“14. The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence, there can be reason as to why the accused should be made to suffer the agony of a legal Crl.RP.337/2007 11 proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to be interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the core basis on which the power to interfere with a pending criminal proceeding has been recognised to be inherent in every High Court. The power, though available, being extraordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfy the narrow test indicated above, namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually come on record and such materials can be looked into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in their entirety, do not, in any manner, disclose the commission of the offence alleged against the accused.”
12. The prosecution having failed to substantiate its allegations,
with documentary evidence, the trial court committed an illegality in framing charges against the petitioners. In such circumstances, I consider this to be a fit case for invoking the revisional power under Section 401 of Cr.P.C. Crl.RP.337/2007 12 For the aforementioned reasons, the challenge in the Crl.Revision
Petition is upheld. Consequently, the Criminal Revision Petition is allowed, charge framed against the petitioners in C.C.No.690 of 1997 of the Chief Judicial Magistrate Court, Ernakulam is set aside and the petitioners, accused Nos. 2, 3, 5, 6 and 7 in C.C.No.690 of 1997 pending on the files of the Chief Judicial Magistrate's Court, Ernakulam, are discharged.
Sd/- V.G.ARUN, JUDGE vgs