Hentry Thomas vs State of Kerala

K. Ramakrishnan, J.—This is an application filed by the accused numbers 2, 4 and 5 in C.C. No. 505 of 2009 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram to quash the proceedings under Section 482 of Code of Criminal Procedure.

It is alleged in the petition that the petitioners arrived as accused numbers 2, 4 and 5 in C.C. No. 505 of 2009 pending before the Additional Chief Judicial Magistrate Court Thiruvananthapuram. The 2nd respondent as complainant filed a private complaint as Annexure A8 before the Additional Chief Judicial Magistrate Court against the 7 accused persons including the petitioners alleging offences under Section 120(b), 192, 193, 196, 463, 464, 468 and 471 of Indian Penal Code. The learned Magistrate forwarded the complaint to the police for investigation under Section 156(3) of Code of Criminal Procedure and Annexure 9 First Information Report was registered as crime No. 260 of 2005 of Vanchiyoor Police Station and after investigation, final report was filed and it was taken on file as C.C. 505 of 2009 and pending before the Additional Chief Judicial Magistrate Court Thiruvananthapuram. In fact, the 1st and 3rd accused who are the main persons according to the complainant responsible for the creation of the document filed Criminal M.C. No. 3673 of 2009 before this Court to quash the proceedings and this Court by order dated 24.7.2013 allowed the application and the case against the accused numbers 1 and 3 was quashed. Since the case against the main accused has been quashed and allegations are not sufficient to attract the offence and complaint itself was filed after the complainant had lost his battle in the civil court, the proceeding with the case is nothing but an abuse of process of Court. So the petitioners have no other remedy, except to approach this Court seeking the following remedies:-

"To quash the final report Annexure-A10 and all further proceedings in C.C. No. 505 of 2009 of Additional Chief Judicial Magistrate Court, Trivandrum."

Though notice was served on the 2nd respondent, he remained absent.

Heard the counsel for the petitioners and the learned Public Prosecutor appearing for the 1st respondent.

The counsel for the petitioners submitted that it will be seen from Annexure A1 to A7 that there were litigations between the defacto complainant and the predecessor of the petitioners and also the original 1st accused in respect of these documents and the civil court found against the complainant and after loosing those litigations, now he had filed the present complaint after lapse of nearly 20 years. So, the case against the accused numbers 1 and 3 was quashed by this Court and it is nothing survives, if the case against them was quashed. So he prayed for allowing the application.

The learned Public Prosecutor submitted that it is a matter for evidence and it is not a fit case to invoke the power under Section 482 of the Code of Criminal Procedure.

It is an admitted fact that the 2nd respondent filed Annexure 8 private complaint as Criminal M.P. 5553 of 2005 before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram against the petitioners and for others and alleging the commission of the offences under Section 120B, 192, 193, 196, 463, 464, 468 and 471 of Indian Penal Code. The learned Magistrate forwarded this complaint for investigation to the Police under Section 156(3) of Code of Criminal Procedure and on that basis Annexure A9 First Information Report was registered as Crime No. 260/2005 of Vanchiyoor Police Station. After investigation, Annexure 10 report was filed and it was taken on file as C.C. No. 505 of 2009 and it is pending before that Court. It is seen from the report of the Additional Chief Judicial Magistrate Court that 7th accused Madhavan Nair reported no more and the counsel for the petitioners submitted that the 6th accused is no more now. It is also seen from the report that the case against the accused numbers 1 and 3 was quashed by this Court as per Annexure 11 order.

The case of the complainant was that the accused Nos. 1 to 5 conspired together and created false document in order to grab the property of the complainant and use the same as genuine documents before the Judicial forums and this was done with the help and connivance of accused numbers 6 and 7 and who were the scribe and witnesses to the document. The main allegation was that all these were done at the instance of the original 1st accused Krishnana Nair. Annexure A1 to A7 will go to show that there was litigation between the complainant and the original 1st accused as OS 183 of 2005 and OS 279 of 2006 before the Sub Court Thiruvananthapuram and those suits were ended against the 2nd respondent. It was a case as that the documents relied on by the 1st accused was not genuine and it was fabricated for the purpose of obtaining the property of the 2nd respondent against he fled appeals before this Court and this Court by Annexure 2 judgment dismissed the appeals as well. This was confirmed by the Supreme Court by Annexure A3 judgment. In the subsequent suit OS 279 of 2006 filed by the 2nd respondent, he prayed for setting aside the judgment and decree in OS 183 of 1985 which was confirmed by Annexure 2 common judgment by this Court and by Annexure 3 order of the Supreme Court and for consequential injunction. He filed an interim injunction application which was dismissed by the trial court and that was challenged before this Court by filing W.P. (C). No. 31626 of 2007 and that was dismissed by this Court by Annexure 5 order and confirmed by Supreme Court by Annexure 6 order. Annexure A7 is the delivery receipt obtained from this Court regarding the delivery of the property. So as rightly pointed by this court in Crime No. 3673 of 2009 the civil courts have already find that the case of the complainant is not genuine and granted the relief in favour of the 1st and 3rd accused and which will be binding on the criminal court and rightly to quash the proceedings as against those accused persons. If the case against the accused numbers 1 and 3 against whom mainly allegation were made and case against them was quashed by this Court, then nothing survives to be decided as against the other accused persons, viz., the present petitioners. So, under the circumstances, this Court feels that no purpose will be served by proceeding with the case and allowing the case to continue will only amount to abuse of process of Court as it was filed after the complainant lost his battle in the court in respect of an incident occurred after 20 years ago and this should be encouraged as well. So the case apart the petitioner is liable to be quashed and I do so. In the result, petition is allowed and further proceedings in C.C. No. 505 of 2009 (crime No. 260 of 2005 of Vanchiyoor Police Station) pending before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram as against the petitioners is quashed. Office is directed to communicate this order to the concerned Court immediately.