M.K.Aboobacker vs State Of Kerala

G. Girish, J

The petitioners are accused Nos.1 to 3 in C.C.No.332/2017 on the files of the Judicial First Class Magistrate Court, Kakkanad. The aforesaid case originated from a private complaint instituted by the second respondent alleging the commission of offence under Section 465 read with Section 34 I.P.C. The learned Magistrate, after conducting the enquiry under Section 202 Cr.P.C, took cognizance of the offence and issued summons to the petitioners herein. Annexure-A1 complaint so instituted by the second respondent and Annexure-A2 order of the learned Judicial First Class Magistrate, Kakkanad taking cognizance of the offence under Section 465 I.P.C read with Section 34 I.P.C upon the said complaint, are under challenge in this proceedings instituted under Section 482 Cr.P.C.

The sum and substance of the accusation against the petitioners is that they obtained building permit for the construction of a four storied commercial building in their property by making use of forged documents. It is stated that the forged documents made use of by the petitioners for getting occupancy certificate from the Municipal authorities included building plan and other records purportedly issued by an Engineer by name Harihara Kumar. After the construction of the first floor, the petitioners are alleged to have rented out the above floor for the functioning of a private hospital by a person who was originally arraigned as the fourth accused in the complaint; but later on the case against the above person was split up and considered separately.

The contention of the petitioners is that they had entrusted the responsibility of taking necessary steps for the building permit with a Building Designer by name M.B.Abdulla, and that it was the above person who had arranged the Engineer by name Harihara Kumar for the preparation of building plan and other records. It is also stated that the above Engineer was a close associate of the above said M.B.Abdulla, and that they had conspired and cheated the petitioners in procuring the building permit by making use of the building plan issued by that Engineer at a time when his licence was not renewed. The above said Engineer, after issuing the building plan, allegedly denied the issuance of the above said plan since his licence obtained from the Department of Urban Affairs was not renewed during the period from 17.11.2012 to 18.04.2013. Alleging that the Designer M.B.Abdulla and the Engineer Harihara Kumar had cheated the petitioners, a private complaint was said to have been instituted against them by the petitioners, which was taken into files as against the Designer M.B.Abdulla alone, and numbered as C.C.No.857/2018 by the Judicial First Class Magistrate Court, Kakkanad. Thus, it is stated that the petitioners are in no way involved in the alleged forgery committed by the Building Designer M.B.Abdulla and the Engineer Harihara Kumar, and hence the proceedings initiated against the petitioners in this case are to be quashed.

Heard the learned counsel for the petitioners, the learned counsel for the second respondent and the learned Public Prosecutor representing the State of Kerala.

C.C.No.332/2017 on the files of the Judicial First Class Magistrate Court, Kakkanad is in respect of the forgery said to have been committed by the petitioners herein in procuring building permit, making use of forged building plan. The building plan so fabricated by the petitioners is said to have contained the forged signature of the Engineer by name Harihara Kumar. According to the petitioners, they cannot be held liable for the aforesaid forgery since the responsibility for getting the building permit was entrusted with a Building Designer by name M.B.Abdulla, who was a close associate of the Engineer who signed the building plan. The denial of issuance of building plan by the above said Engineer, according to the petitioners, was due to the reason that, at the relevant time when he issued the above building plan, his licence from the Department of Urban Affairs was not renewed. Thus, it is contended that the Building Designer and the Engineer had cheated the petitioners by producing for sanction, the building plan issued by the Engineer at a time when he was having no licence, and thereafter denying the signature of the Engineer when the dispute arose about the competence of the Engineer to issue such a plan. To substantiate the above contention, the petitioners would rely on the institution of C.C.No.857/2018 by them against the Building Designer for the commission of offence of cheating.

The learned counsel for the second respondent would contend that the petitioners cannot evade from the liability of using forged building plan for getting permit for his building construction by putting the blame upon the Building Designer and the Engineer. By relying on the sworn statement of the above Engineer as CW4 in the enquiry conducted by the learned Magistrate under Section 202 Cr.P.C, it is argued by the learned counsel for the second respondent that the above Engineer had stoutly denied his signature in the building plan and also his acquaintance with the petitioners. As regards the institution of C.C.No.857/2018 by the petitioners, the learned counsel for the second respondent, by adverting to the relevant entries in the e-court services, pointed out that the aforesaid case was disposed of by the Judicial First Class Magistrate, Kakkanad by discharging the Building Designer M.B.Abdulla under Section 245(2) Cr.P.C. Thus, it is stated that the institution of complaint by the petitioners against the Building Designer and Engineer was only a ploy to escape from the criminal liability in this case.

A reading of Annexure-A1 complaint would reveal that the offence of forgery punishable under Section 465 I.P.C is clearly brought out from the allegations set forth in that complaint. The fact that CW4, who is said to have issued the disputed building plan, had stoutly denied the issuance of that document and contended that he had no acquaintance with the petitioners, would further probabilise the forgery alleged in this case. It is also pertinent to note that there were issues about the construction made by the petitioners in violation of Building Rules and that the above matters were taken up before the Ombudsman and also the Civil Court. Writ petitions are also said to have been instituted before this Court in connection with the building construction done by the petitioners in violation of law.

All the above aspects prima facie point to the complicity of the petitioners in the procurement of building permit, making use of the forged building plan. The question whether the petitioners were actually having the mens rea for the commission of that crime, or they were the victims of the foul play committed by the Building Designer and the Engineer, are all matters to be considered by the Trial Court after analysing the evidence in the case. It is not possible for this Court to adjudicate the above aspect in a proceeding initiated under Section 482 Cr.P.C. It would not be proper for this Court to analyse the case of the petitioners in the light of all probabilities in order to determine whether a conviction would be sustainable.

The following excerpt from the judgment of the Apex Court in V.Y. Jose v. State of Gujarat, (2009) 3 SCC 78 would be capable of elucidating the law in this regard with precision and clarity:

“31. Before parting, however, we may notice a decision of this Court in State of M.P. v. Awadh Kishore Gupta [(2004) 1 SCC 691 : 2004 SCC (Cri) 353] whereupon strong reliance has been placed by Mr Jain. This Court, therein upon referring to Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] opined as under: (Kishore Gupta case [(2004) 1 SCC 691 : 2004 SCC (Cri) 353] , SCC pp. 700-01, para 11)

“11. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. (See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1] .) It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decide the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings.”

(emphasis supplied)

It is argued by the learned counsel for the petitioners that Annexure-A2 order passed by the learned Magistrate does not contain the essential particulars as to the reason why the court decided to take cognizance of the offence and to issue summons to the petitioners. It is true that Annexure-A2 order is confined to three sentences indicating that summons is ordered to the accused after taking cognizance of the offence under Section 465 I.P.C read with Section 34 I.P.C and numbering the case as C.C.No.332/2017. But the above aspect cannot be taken as a reason to quash the said order and Annexure-A1 complaint, upon which the said order is passed. This is because of the reason that the Magistrate, taking cognizance of an offence and issuing process to the accused under Section 204 Cr.P.C, is not required to pass a detailed order stating the reasoning for arriving at a finding that there is sufficient ground for proceeding against the accused. It is true that in Annexure-A2 order it is not even stated that there is sufficient ground for proceeding against the accused for the commission of offence under Section 465 read with Section 34 I.P.C. However, it could be seen from the records that the said order has been passed after the completion of enquiry under Section 202 Cr.P.C with examination of four witnesses as CW1 to CW4. Though the said order does not contain a recital to the effect that there were sufficient grounds to proceed against the petitioners, the indication thereunder about taking cognizance for the offence under Section 465 I.P.C read with Section 34 I.P.C presupposes the existence of sufficient grounds.

It is not possible to stifle the prosecution for the sole reason that the learned Magistrate omitted to incorporate the formal words in Annexure-A2 order that there were sufficient grounds to proceed against the petitioners. Therefore, the challenge against the maintainability of Annexure-A1 and Annexure-A2 on that ground, cannot be accepted.

In the light of the settled principles of law in the above regard about the scope and ambit of exercise of the powers under Section 482 Cr.P.C, the prayer in this petition to terminate the criminal prosecution initiated under Annexure-A1 complaint cannot be allowed.

In the result, the petition is hereby dismissed. All pending interlocutory applications are closed.