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2009 DIGILAW 592 (KER)

Rocky v. Vakkachan

2009-07-02

THOMAS P.JOSEPH

body2009
Thomas P.Joseph, J. 1. These revisions are in challenge of separate orders passed by learned Judicial First Class Magistrate, Chalakkudy in CC No. 150 of 2000. Petitioner who is the complainant in the Court below requested that Court to reopen the case to adduce further oral and documentary evidence. He also requested that the original of a partnership deed which is alleged to be forged by respondent Nos. 6 be summoned from one P. V. George. Learned Magistrate dismissed the petitions. 2. Facts necessary for consideration of these revisions are: Petitioner, along with respondent Nos. 1 to 5 had formed a partnership by name 'Johnson Enterprises' which was engaged in money lending business. In the year 1982at a time when according to the petitioner he was abroad, respondent Nos. 1 to 5 with the connivance of respondent No.6createdapartnership deed forging signature of petitioner and formed a new partnership by name 'M/s. Chalakudy Auto Finance'. In the year 1984 one of partners of M/s.Chalakudy Auto Finance, one P. V. George filed OS No. 518 of 1994 in the Court of learned Munsiff Irinjalakuda for dissolution of that partnership. Petitioner was impleaded as defendant No. 12 in that suit. According to the petitioner, he learned about the forgery and formation of partnership by name 'M/s. Chalakudy Auto Finance' only when he received summons in that case. He applied for a certified copy of the partnership deed in that Court. Petitioner states that by that time, the original partnership deed was taken back by the plaintiff in that suit. That suit was disposed of as per judgment dated 2,1 /08/96, (Annexure-A7 is the .copy of judgment). It is stated in para 8 of that judgment about contention of petitioner that he had not signed the disputed partnership deed that the contention was not seriously challenged by the plaintiff in that case and that learned Munsiff was satisfied about the truth of the contention in the light of documents produced by petitioner in that casfe. Learning about the forgery of the partnership deed petitioner preferred a private complaint in the Court below,. "That complaint was forwarded to the police for investigation. After one year and 11 months, police submitted final report referring the case as mistake of fact according to the petitioner, at the influence of the then DYSP, Irinjalakuda. Learning about the forgery of the partnership deed petitioner preferred a private complaint in the Court below,. "That complaint was forwarded to the police for investigation. After one year and 11 months, police submitted final report referring the case as mistake of fact according to the petitioner, at the influence of the then DYSP, Irinjalakuda. Petitioner was not satisfied with that report and filed a protest complaint alleging offences punishable under Sections 467,468 and 471 r/w Section 34 of the Penal Code (for short, "the Code"). After complying with the mandatory formalities case was taken on file as CC No. 150 of 2000. There was a petition to transfer the case from the Court of learned Judicial First Class Magistrate, Chalakkudy. That petition was dismissed. Respondent Nos. 1 to 4 filed criminal MC No. 6455 of 2000 in this Court to quash the cognizance taken against them. That petition was dismissed in the year 2004. Respondent No. 6 then filed Criminal MC No. 1454 of 2004 to quash the cognizance taken against him. That petition was dismissed in the year 2007. In 2008, recording of evidence on the side of petitioner started. Petitioner filed an application to summon the relevant documents including the original partnership deed from the Registrar of firms. The Registrar produced certain documents but that did not include the original partnership deed. The documents produced by the Registrar ware subjected to expert examination and according to the petitioner, the report indicated that he has not signed those documents. In the meantime M/s Chalakudy Auto Finance filed a suit against a 3rd party for realisation of money. Petitioner states that the original partnership deed was produced in that case. Learning that, he filed Annexure-A4 petition in the Civil Court on 30/06/1999 requesting that the documents be detained. Learned Munsiff ordered that the documents will be detained. Later that suit was withdrawn and all the documents including the original partnership deed ordered to be detained were taken back by the plaintiff. Evidence of petitioner in CC No. 150 of 2000 was recorded. Respondent Nos. 1 to 6 were questioned under Section 313 of the Code of Criminal Procedure (for short, "the CrPC"). During that stage petitioner filed the present CMPs in the Court below, one under Section 91 of the CrPC to direct Sri. Evidence of petitioner in CC No. 150 of 2000 was recorded. Respondent Nos. 1 to 6 were questioned under Section 313 of the Code of Criminal Procedure (for short, "the CrPC"). During that stage petitioner filed the present CMPs in the Court below, one under Section 91 of the CrPC to direct Sri. P. V. George to produce the original partnership deed and the other, under Section 311 of the CrPC to recall petitioner for further evidence and to examine certain other witnesses also. All the petitions were dismissed. CrI RP No. 598 of 2009 arises from dismissal of petition under Section 311 of the CrPC. CrI RP No. 601 of 2009 arises from dismissal of the petition under Section 91 of the CrPC. Learned counsel contented that to prove the case of the petitioner, it is necessary to summon the original partnership deed, that document is in the possession of Sri. P. V. George and that further examination of petitioner is necessary to prove the case. It is also contended that petitioner had taken every step to get the original partnership deed though those attempts were not fruitful. 3. Learned counsel for respondent Nos. 1 to 6 contend that revision petitions are not maintainable in view of bar under Section 397(2) of the CrPC the impugned orders are interlocutory in character and did not effect any right of the parties. Learned counsel placed reliance on the decision of Supreme Court in Sethuraman v. Rajamanickan, 2009 (2) Supreme 526 . It is also submitted by learned counsel that the dismissal of the petitions is justified and that attempt of the petitioner as to prolong the proceedings. 4. In the decision referred above, the Apex Court held that revision is not maintainable from orders passed by Section 91 or Section 313 of the CrPC. No doubt the orders under challenge are interlocutory in character and hence revision is not maintainable but then the question is whether the revision petitions are to be dismissed for that reason or this Court should exercise its power under Section 482 of the CrPC. 5. These revisions were filed on 13/02/09. Notice was served on respondentNos.1to6and the revisions were admitted on 17/02/2009. No objection regarding maintainability of the revisions was raised at that time. No doubt that would not make the revisions maintainable. 5. These revisions were filed on 13/02/09. Notice was served on respondentNos.1to6and the revisions were admitted on 17/02/2009. No objection regarding maintainability of the revisions was raised at that time. No doubt that would not make the revisions maintainable. Assuming that power of revision cannot be exercised in view of the bar under Section397 (2)of the CrPC, Section 482 of that Code empowers this Court to pass appropriate orders if interference is warranted on the facts of the case. Therefore I am not inclined to dismiss the petitions for the reason stated by the learned counsel and instead proceed to consider the contentions raised by learned counsel in exercise of the powers conferred under Section 482 of the CrPC. 6. It is contended by learned counsel that the petitions contain a prayer to direct respondent Nos. 1 to 6 who are accused in the case to produce certain documents and that respondent Nos. 1 to 6 cannot be so directed as it amounted to directing them to adduce evidence against them. This contention has no legs to stand as production of document does not amount to testimonial compulsion and Section 91 of the CrPC does not exclude an accused from its application as held in Jayadeva Panicker v. Velayudha and Others, 1986 KLT1303 and Kuriland (P) Ltd. v. Thomas, 2008 (4) KLT 585 . 7. It is the case of petitioner that the original partnership deed in respect of M/s. Chalakudy Auto Finance has been fabricated forging his signature at a time when he was abroad. I am not required to go into the merit of that allegation. Question whether the impugned document is forged is a matter which the Court below has to decide on the evidence before it. The original document alleged to be forged is not before Court. Petitioner says that it is in the custody of Sri. P. V. Geroge. Petitioner could produce only a copy of the said partnership deed. Going byAnneure-A7, judgment it would appear that what was marked in evidence in the civil case was only a photostat copy of the disputed partnership deed. I find from Annexure-A4, petition dated 30/06/99 that petitioner had made a request in the Civil Court to detain the original partnership deed and that request was upheld by the learned Munsiff as per order dated 17/11/2000. Learned counsel for respondent Nos. I find from Annexure-A4, petition dated 30/06/99 that petitioner had made a request in the Civil Court to detain the original partnership deed and that request was upheld by the learned Munsiff as per order dated 17/11/2000. Learned counsel for respondent Nos. 1 to 6 pointed out that in the affidavit in support of Annexue-A4, petition what is referred to is only the minute book of the partnership firm and there is no reference to the disputed partnership deed. But I find from the petition (Annexure-A4) that there is specific reference to the original partnership deed itself. It is true that this attempt was made by petitioner in the year 2000 and the present petitions are filed in the year 2009. But it is not as if petitioner had not made any effort to get at the original partnership deed which according to the petitioner was produced in the Civil Court. It is also not as if petitioner had not taken any steps to get that document brought into the criminal Court. I must bear in mind that on account of Criminal MCs filed on behalf of respondent Nos. 1 to 6 trial of the case was stalled till the end of 2007. It is only in 2008 that recording of evidence started. I am not inclined to think that there was willful delay on the part of petitioner in filing the petitions earlier. On the facts of the case I am satisfied that it is necessary in the ends of justice to have the original partnership deed produced before the Criminal Court and the witnesses examined on the basis of that as prayed for. Viewed that in that line dismissal of the petitions are not legal and proper and require interference invoking Section 428 of the CrPC. Accordingly these revisions are allowed. The orders impugned are set aside. The petitions which are the subject matter of these revisions will stand allowed. Appropriate further action in the matter shall be taken by the Court below.