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2025 DIGILAW 2078 (KER)

M. L. Lenish S/o Lambodaran v. State of Kerala

2025-07-29

A.BADHARUDEEN

body2025
ORDER : 1. Criminal Revision Petition No.221/2024 has been filed by accused Nos.1 and 9 in C.C.No.93/2016 on the files of the Special Judge under the Prevention of Corruption Act, 1988, (hereinafter referred to as ‘the PC Act’ for short), Muvattupuzha, challenging order in CMP No.766/2019 dated 16.11.2023 whereby the plea of discharge at their instance was negatived by the Special Court. 2. The 3 rd accused in the above case, who had also filed CMP No.1145/2022 seeking discharge, filed Crl.R.P.No.235/2024, wherein his plea of discharge also was dismissed by the Special Court. By the same common order, the learned Special Judge allowed CMP No.835/2022 filed by the 6 th accused and discharged the 6 th accused. The prosecution has filed Crl.R.P.No.1113/2024, challenging the said discharge as illegal. 3. Heard the respective learned counsel for accused Nos.1, 3 and 9 as well as the learned Special Public Prosecutor appearing for the Vigilance and Anti-Corruption Bureau, and the learned counsel for the 6 th accused, who is the respondent in Crl.R.P.No.1113/2024 in detail. Perused the relevant documents. 4. The prosecution allegation as stated in paragraph No.16 of the final report is as under: “That M.L.Lenish (A1), Age 30/12, S/o.Lambodharan Mundakal House, Pottankadu, Baison Valley (private person), N.N.Radhakrishnan Nair (A2), age 61/12, Naduviladathu House, (Lakshmi Nivas), Chalamkodukara, Muthalakkodam, Idukki Dist. (Former village Asst.Chinnakkanal village), P Gopinatha Pillai (A3) Age 60/12, S/o.Parameswaran Pillai, Aswathi Bhavanam, Pampumukku, Thookupalam, Nedukandam, Idukki Dist. (Formerly Thahsildar Devikulam), M.G.Sabu (A4) Age 46/12, S/o.Gopinathapillai, Mookallayil House, (Chaithram House), Chirakadavu Kottayam, (Formerly Village officer, Chinnakkannal Village, T.R.Prasad (A5), Age 47/12, S/o.Ramakrishnan Nair, Thaiparambil House, Poopara Estate, Idukki Dist (Formerly village Asst.Chinnakanal Village), Jaimon (A6), Age 33/12, S/o.Rajappan, Narivelil House, Baison Valley, Idukki Dist. (Document writer License No.140 and ISA 388), Biju N.B. (A7), Age 41/12, S/o.Balakrishnan, Nirapel House, Baisonvalley, Konnathady, Idukki Dist. (Asst.Document Writer), Biju V.V. (A8), Age 37/12, S/o.Velayudhan, Venooparampil House, Muttukadu, Idukki Dist. (Asst.Document writer, License No.SAP 561) and M.M.Lambodharan (A9), Age 68/12, S/o.Madhavan Mundakkal House, 20 Acre, Pottankadu, Baisonvalley, Idukki Dist. (Document writer License No.140 and ISA 388), Biju N.B. (A7), Age 41/12, S/o.Balakrishnan, Nirapel House, Baisonvalley, Konnathady, Idukki Dist. (Asst.Document Writer), Biju V.V. (A8), Age 37/12, S/o.Velayudhan, Venooparampil House, Muttukadu, Idukki Dist. (Asst.Document writer, License No.SAP 561) and M.M.Lambodharan (A9), Age 68/12, S/o.Madhavan Mundakkal House, 20 Acre, Pottankadu, Baisonvalley, Idukki Dist. (Private person and father of A1) and among the above accused, A1 and A9 were encroached 3.77 Acre Govt.land in survey No.148/1 of Venadu thavalam in Chinnakanal Village and forged a bogus patta vide L.A.24/68 in the name of Kurian Mathew (W11), as if, it was issued from LA office Adimali and entered into criminal conspiracy with A2, A6 to A8 and in furtherance of it, A6 falsely prepared the document No.291/06 dtd.08.02.2006 as if the land is in Chinnakkanal Thavalam in Sy.No.20/1, A7 and A8 falsely identified somebody as K.M.Kurian Mathew (W11) and registered it at Sub Registrar Office, Rajakumari in favor of A1 and subsequently A2 effected the pokkuvaravu vide PV 93/05-06 on 14.02.06 by forging the PV register of Chinnakanal Village and assigned false TP No.3921 in favour of A1 by falsely showing that the land was transferred fron TP 870, which was not in existence. Then A1 sold a portion of the said land to W3 and W22 by using forged records as genuine. Thereafter A1 and A9 entered in to criminal conspiracy with A3, A4 and A5 in furtherance of this conspiracy, A3 furnished false report to Dist.Collector, Idukki as the land is patta land of W11 instead of Govt.land and issued possession and non attachment certificate to A1. A5 prepared the false sketches and certificates to the Govt.land as if the land is patta land and A4 signed and issued it to W3 and W22 on 06.02.2007 and 07.04.2007 respectively and thereby the accused A2 to A5 abused their official position as public servants and committed criminal misconduct and obtained pecuniary advantage along with other accused and thereby committed offence punishable U/sec.13(1)(c) and (d) r/w 13(2) of the PC Act 1988 and Sec.468, 471 and 120(B) of IPC.” 5. While challenging the prosecution as against the 9th accused, the learned senior counsel appearing for the 9th accused would submit that the only allegation against the 9th accused, who is the father of the 1 st accused, is that he encroached upon 3.77 acres of government land in Sy.No.148/1 in Venadu Thavalam in Chinnakanal Village. Apart from the said allegation, no materials collected during investigation by the Investigating Officer to fasten criminal culpability upon him. Therefore, the dismissal of discharge plea at the instance of the 9 th accused by the trial court could not be justified. Coming to the 1 st accused also, the learned senior counsel argued that the entire case rests on the allegation that as part of conspiracy hatched between accused Nos.1 to 9, patta bearing No.L.A.24/1968 of Adimali village was forged and in consequence thereof, the 6th accused falsely prepared title document No.291/2006 on 08.02.2006 by impersonating witness No.11, Sri.K.M.Kurian Mathew, and thereby transferred the said land in favour of the 1st accused. As per the prosecution case, even though there is allegation that accused Nos.1 and 9 encroached upon the government land in Sy.No.148/1, the original of the alleged forged patta was not obtained and produced before the court, instead a photocopy of the same was produced before the court. It is submitted that the property mentioned in the alleged forged patta (No.291/2006) is in Sy.No.20/1 of Chinnakanal Thavalam in Udumbanchola Taluk. The property alleged to be transferred by way of impersonation in the name of the 1 st accused also pertains to Sy.No.20/1 and the subsequent documents executed by the 1 st accused in favour of witness Nos.3 and 22 also of Sy.No.20/1. It is pointed out further that, as of now, on finding that the property in Sy.No.148/1 was government land, the same was repossessed by the government. According to the learned senior counsel, going by the statement recorded as that of witness No.11, who was alleged to be impersonated for the purpose of execution of the initial document, (document No.291/06), he applied for a patta as per proceedings L.A.24/1968 before Udumbanchola Taluk and he obtained the patta. He entrusted the patta to the lawyer and thereafter, the same was lost. He entrusted the patta to the lawyer and thereafter, the same was lost. Thereafter, the said property was sold by Jimmy Zacharia and his wife, Tessy by creating forged Power of Attorney and now, the property is in the hands of the 3 rd parties. On the above factual grounds, the learned senior counsel appearing for accused Nos.1 and 9 seeks interference in the order impugned. 6. Coming to the case of the 3 rd accused, it is pointed out by the learned counsel appearing for the 3 rd accused that he worked as Tahsildar, Udumbanchola Taluk for a short period from 24.09.2006 to 30.04.2007 and as per the prosecution allegation itself, after executing the forged document on 08.02.2006, pokkuvaravu was done on 14.02.2006 even before joining for duty by the 3 rd accused. Even though he had issued a report stating that the land in Sy.No.20/1 of Chinnakanal Village is the patta land of witness No.11 and not government land and thereby he issued possession and non-attachment certificate to the 1 st accused, the 3 rd accused filed report only based on the records available and the forgery and creation of documents occurred much later, he could not be penalised and thereby his discharge petition is liable to be allowed after setting aside the impugned order. 7. The learned senior counsel for the revision petitioners placed decision of this court in Mohammed Ali K. v. Chinnamma K.M. , 2024 KHC 7122, wherein this Court discussed the ingredients to constitute an offence of forgery in paragraph No.18 and the same reads as under: “18. Coming to the essentials to constitute forgery, the same are as under: (a) Essential Ingredients. - The elements of forgery are: (i) The making of a false documents or part of it; (ii) Such making should be with intent a. To cause damage or injury to (i) public, or (ii) any person; or b. To support any claim or title; or c. To cause any person to part with property;or d. To cause any person to enter into express or implied contract; or e. To commit fraud or that fraud may be committed.” 19. Further it is the settled law that every false or fabricated document is not a forged document. Further it is the settled law that every false or fabricated document is not a forged document. There must be acts that constitute the document as a false or fabricated one, that is to say, the case must fall within the definition of making false document under Section 464 of the IPC and such false document must also possess the character of tendency described under Section 463 of IPC. It is not necessary that the document should be published or made in the name of a really existing person (vide explanation 2). But it must either appear on its face to be, in fact, on which, if true, would possess some legal validity. Or in other words, must be legally capable of effecting the fraudulent intent. Until a false document is made either in whole or in part, there cannot be any forgery. Mere preparation for the commission of a possible crime of forgery without a false document in part or in whole cannot itself be either forgery or abetment of forgery. To put it otherwise, it is not correct to say that an offence of forgery in terms of Section 464 of IPC comes into being when a person makes a false document and not when a person causes to be made a false document. No word in an enactment is surplusage. The law-making authority, in its wisdom, has used the word “makes” in addition to the other words, such as “signs, seals and executes”. The said word has, therefore, to be interpreted independently of the other words referred above. Making a document is different from causing it to be made. As per explanation 2 to Section 464 of IPC, it is clarified that for constituting offence under Section 464 of IPC, it is imperative that a false document is made and the accused person is the maker of the same.” 8. Dispelling this contention, the learned Public Prosecutor reiterated the prosecution allegations as per the final report. According to the learned Public Prosecutor, even though the original of Patta No.L.A.24/1968 could not be traced, a photocopy of the same was obtained and produced by the prosecution before the trial court along with the final report and the same would show at the outset that the same is a forged one because it was shown as one issued by the Tahsildar, Adimali showing Sy.No.20/1. It is pointed out further that on the basis of a forged patta by impersonating CW11 before the Sub Registrar, another forged sale deed No.291/06 was executed in the name of the 1 st accused and on the said basis, accused Nos.1 and 9 trespassed upon the property in survey No.148/1 and occupied the possession of the same. It is also pointed out that subsequently, 50 cents of property out of the total extent was transferred in the name of CW3 and 1.1 acres of land was transferred in the name of CW22 by the 1 st accused and in turn, they lost the property and the money paid for the same. According to the learned Public Prosecutor, the prosecution has a case that not only the patta is forged but document No. 291/06 also is forged as the outcome of conspiracy hatched in between the accused herein and subsequently, by executing Document Nos.354/2007 and 241/2007 the 1 st accused sold 1.51 acres property in favour of CW3 and CW22. Regarding the role of the 3 rd accused, the learned Public Prosecutor placed the report as such, submitted by the 3 rd accused as on 23.02.2007, in response to two letters sent by the District Collector on 10.01.2007 and 03.01.2007 regarding encroachment of government land in Chinnakanal Village. According to the learned Public Prosecutor, the said report is false and the same was done by the 3 rd accused to help accused Nos.1 and 9 to encroach the government land as part of conspiracy. 9. The learned Public Prosecutor placed decision of the Apex Court in Rajiv Kumar v. State of U.P. and Another , 2017 KHC 6522 , with reference to paragraph No.44 to contend that ‘the essential ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself.’ 10. It is submitted further that the order of the Special Judge discharging the 6 th accused is erroneous and illegal as he had executed sale deed No.291/2006 and subsequent documents in favour of CW3 and CW22, knowing fully well that CW11 was not present before him. Hence, the said order is liable to be set aside. 11. Justifying discharge of the 6th accused from this proceedings, the learned counsel appearing for the 6 th accused would submit that, in fact, no materials available to connect the 6th accused in this crime and relying on the statement of witness No.27 (stated as Witness No.7 in the order) the trial court discharged him since witness No.27 stated nothing as to the role of the 6 th accused in creating the document. According to the learned counsel for the 6 th accused, he, being a document writer, when produced with the documents, could not exactly verify the identity of the persons and he believed the identity of CW11 as ‘Kurian Mathew’bonafidely believing CW11 as ‘K.M. Kurian Mathew’ and accused Nos.1 and 9 are the persons being the executant and purchaser of the property, he prepared and submitted document No.291/2006 for registration. Therefore, the entire prosecution against him is unwarranted and the Special Court rightly found so, and in such view of the matter, no interference in the order is necessary. 12. Coming to the prosecution allegations, the allegation against accused Nos.1 and 9 is that, they have encroached upon 3.77 acres of government land in Sy.No.148/01 of Vennad Thavalam in Chinnakanal Village and forged a bogus patta vide patta No.L.A.24/1968 in the name of Sri.K.M.Kurian Mathew, who is CW11, as part of criminal conspiracy hatched with accused Nos.2, 6 and 8 and in turn by impersonating CW11, sale deed No.291/06 was executed by way of forgery. Then A1 sold 1.51 acres of land in favour of CW3 and CW22, for which he had claimed title on the strength of a forged document. The allegation against the 3 rd accused is that he furnished false report to the District Collector, Idukki, stating that the land was patta land of witness No.11 instead of government land and issued possession and non-attachment certificate to the 1 st accused. The allegation against the 6 th accused is that he, being a party to the conspiracy, prepared and presented document No.291/2006 for registration, knowing fully well that the person who appeared for execution of the document, Sri.K.M.Kurian Mathew (CW11), was not the real person. Again, he prepared and presented two more documents based on document No.291/2006 in favour of CW3 and CW22. In the instant case, as per the prosecution allegations, the land in Sy.No.148/1 of Venad Thavalam in Chinnakanal Village is government property and the same was encroached upon by accused Nos.1 and 9 on the strength of forged sale deed No.291/2006 created in the name of the 1 st accused based on forged patta No.L.A.24/1968 obtained in the name of Sri.K.M.Kurian Mathew (CW11). When recording the statement of CW11, he stated that he had applied for patta in relation to the property shown in Ext.E and Ext.E is the application he filed before the Tahsildar, Udumbanchola. He admitted his signature in Ext.E. According to him, the Revenue Officer visited the property and recorded his statement and in page No.27, the statement is that of him. He also obtained assessment orders as stated in page Nos.23 and 24. Thereafter, he paid the land value before the Special Tahsildar, Udumbanchola and he obtained patta for the same but he could not say whether the patta is original or not. Anyhow as per the statement CW11, the said patta was entrusted to a lawyer and the subsequent details were not available to CW11. It is interesting to note that in the further statement of CW11 recorded on 21.08.2010, he stated that Ext.T1 patta No. 24/68 was issued on 12.08.1977. Thereafter, he shifted his place of residence and taking advantage of his absence, one Jimmy Zacharia, Chinnakanal and his wife Tessy forged Power of Attorney in his name and sold the property to the 3 rd party and at present, he did not have any documents to show his title to the property. Thereafter, he shifted his place of residence and taking advantage of his absence, one Jimmy Zacharia, Chinnakanal and his wife Tessy forged Power of Attorney in his name and sold the property to the 3 rd party and at present, he did not have any documents to show his title to the property. It is true that as per the report filed by the tester inspector, Single Digit Finger Print Bureau, Idukki dated 05.02.2010 when the signature of CW11 in document No.291/2006 was compared it was found that the same is not identical as that of CW11. Similarly, as per report dated 15.12.2014, the Director, Forensic Science Laboratory, Thiruvananthapuram, also submitted that after comparing the red enclosed questioned signatures stamped and marked as Q4 to Q6 in comparison with the blue enclosed standard signatures, admittedly stamped and marked as A1 to A3, S7 and S8 that the designs of all the questioned and standard signatures were different and they do not provide a suitable basis for a thorough comparison. Therefore, no opinion could be made as to the authorship of the questioned signatures stamped and marked Q4 to Q6 in comparison with the blue enclosed standard signatures similarly stamped and marked A1 to A3, S7 and S8. Thus, the prosecution materials would show that as far as execution of document No.291/06 is concerned, CW11 never executed such a document and it was executed by another person by impersonating him. 13. The crucial question to be considered is which is the property covered by the forged patta vide patta No.L.A.24/1968 and the property admittedly as per the version of CW11 for which patta was issued. Similarly, how the prosecution case would be successful as regards to allegation of encroachment in property in Sy.No.148/1 the documents are pertaining to property in Sy.No.20/1 and the same are two different properties. 14. In the plan and report prepared by K.S.Thankappan, Head Surveyor, Udumbanchola Taluk, as on 29.07.2010, it could be gathered that the property encroached upon by accused Nos.1 and 9 is comprised of 3.77 acres of land abutting NH 49 moonnar – Pooppara road near gap area in Venad Thavalam of Chinnakanal village in Sy.No.148/1. The report and plan, further indicate the encroached property in Sy.20/1, referred in document No.291/06 and the forged patta L.A.24/1968, is situated 1 ½ km away from the property in Sy.No.148/1. The report and plan, further indicate the encroached property in Sy.20/1, referred in document No.291/06 and the forged patta L.A.24/1968, is situated 1 ½ km away from the property in Sy.No.148/1. In the plan, both properties were identified specifically. According to the learned Public Prosecutor, as per the statement of CW11, he originally owned property in Sy.No.20/1 for which he had obtained patta and later, at the instance of Jimmy Zacharia and his wife, Tessy, the property was sold to 3 rd parties by creating forged Power of Attorney in the name of CW11. It is also submitted by the learned Public Prosecutor that even accused Nos.1 and 9 created forged death certificate of CW11 while they are attempting to establish title and possession over 3.77 acres of land in Sy.No.148/1. 15. In the instant case, the prosecution alleges commission of offences punishable under Sections 468, 471 and 120B of IPC. As per the allegations, the entire overt acts at the instance of the accused are the outcome of conspiracy hatched among them. The learned Public Prosecutor placed proceedings evidencing the dispossession of accused Nos.1 and 9 from 3.77 acres of government land in Sy.No.148/1 of Venad Thavalam in Chinnakanal Village by proceeding against them and the same would show that the property encroached upon by accused Nos.1 and 9 is 3.77 acres of property in Sy.No.148/1. It is interesting to note that while describing the property in title deed No. 291/06 and in the subsequent documents also, Sy.No.20/1 is shown, for which, according to CW11, he obtained patta and later sold to 3 rd parties by creating his forged Power of Attorney. Thus the prosecution records would show that by describing a property for which patta was obtained by CW11 in Sy.No.20/1, sale deed No.291/06 was forged by impersonating CW11, K.M.Kurian Mathew and the forensic reports would prima facie show that the said document was not executed by K.M.Kurian Mathew as the signatures as well as the thumb impressions therein are not that of him. Thus, prima facie, forgery of document No.291/2006 allegation of forged title deed is well established. Later, 1.51 acres of land thereafter sold to CW3 and CW22. 16. In such a case the ratio laid down in the decision in Mohammed Ali K’ s case (supra) has no application. Thus, prima facie, forgery of document No.291/2006 allegation of forged title deed is well established. Later, 1.51 acres of land thereafter sold to CW3 and CW22. 16. In such a case the ratio laid down in the decision in Mohammed Ali K’ s case (supra) has no application. That apart, accused Nos.1 and 9 used the forged document and took possession of property in Sy.No.148/1 and they were dispossessed subsequently. It is true that the allegation against the 3 rd accused is that he furnished false reports to the District Collector, Idukki, stating that the said land was patta land of CW11 and thereafter issued possession and non-attachment certificate to the 1 st accused. In fact, the property in possession of accused Nos.1 and 9 was not the property in Sy.No.20/1 and accused Nos.1 and 9 also have no claim that they came into possession of the property in Sy.No.20/1 situated 1 ½ km away from the property in Sy.No.148/1. Thus the issuance of possession certificate and non-attachment certificate to the 1 st accused by the 3 rd accused in relation to a property in Sy.No.148/1 treating the same as patta land instead of government land is clearly supported by the prosecution records. Thus, the prosecution allegation against the 3 rd accused is well made out prima facie 17. On analysis of the materials, it is crystal clear that there is forgery of document No.291/06 and use of the same as genuine. Thereafter, accused Nos.1 and 9 trespassed upon the government land in Sy.No.148/1 of Venad Thavalam, Chinnakanal village and attempted to make the same as their property and to avoid the claim of the government so as to get illegal pecuniary gain. In such a case, it is not proper to hold at this stage that none of the offences made out against accused Nos.1, 3 and 9 and the contentions raised by them would require consideration only after adducing evidence during trial. Therefore, the challenge raised by accused Nos.1, 3 and 9 in these revision petitions is found to be unsustainable and the same is liable to be negatived. Therefore, the dismissal of discharge petitions at the option of accused Nos.1,3, and 9 by the Special Court is only to be confirmed with direction to the trial court to proceed with trial and finish the same at the earliest. 18. In the result, Crl. R.P. Nos. Therefore, the dismissal of discharge petitions at the option of accused Nos.1,3, and 9 by the Special Court is only to be confirmed with direction to the trial court to proceed with trial and finish the same at the earliest. 18. In the result, Crl. R.P. Nos. 221/2024 and 235/2024 stand dismissed. 19. As regards to the revision petition filed by the State, the entire prosecution against the 6 th accused could not be said as unwarranted at the pre-trial stage, since forged document No.291/2006 was prepared and produced by the 6 th accused for registration and in the said document, CW11 was impersonated as already discussed. Therefore, a strong suspicion as to involvement of the 6 th accused is discernible from the prosecution records warranting trial against him. In such view of the matter, order discharging the 6 th accused in this crime is found unsustainable. Therefore, Crl.R.P.No.1113/2024 challenging the discharge of the 6 th accused is liable to succeed. Accordingly, the same is set aside with direction to the 6 th accused to face trial. 20. The interim order of stay granted by this Court in these revision petitions stands vacated. Registry is directed to forward a copy of this common judgment to the trial court forthwith. It is specifically made clear that the observations in these revision petitions are for the purpose of deciding the question of discharge and the same have no binding effect while deciding the case on merits. It is also ordered that the petitioners are free to raise all these contentions before the trial court during trial.