IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 570 of 2001()
1. MARIYUMMA
... Petitioner
Vs
1. ABDUL SALAM
... Respondent
For Petitioner :SRI.K.S.MADHUSOODANAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
Dated :19/09/2008
O R D E R
A.K. BASHEER, J.
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Crl.A. No. 570 of 2001
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Dated this the 19th day of September, 2008
Judgment
Appellant is the complaint in a private complaint. She had filed the
complaint against respondents 1 to 3 herein alleging commission of offence
punishable under sections 197 and 198 read with Section 34 of the Indian
Penal Code. After considering the oral and documentary evidence adduced
by both sides, the trial court acquitted the accused holding that the
complainant had failed to prove her case against them. The above order of
acquittal is impugned in this appeal.
2. The case of the appellant/complainant in brief was that accused
No.1 in his capacity as the Secretary of Elookara Co-operative Society had
issued Exts.P5 and P6 certificates containing false particulars/information in
respect of the property belonging to the complainant, in order to help
accused Nos.2 and 3, so that they could claim possession of the said
property. The complainant further alleged that all the three accused knew
that the contents of Exts.P5 and P6 were false and that accused Nos.2 and 3
did not have any right over the property belonging to the complainant.
3. It may be necessary to refer to some more essential facts and
materials which came out in evidence, in order to consider the question
whether any interference is warranted with the order of acquittal passed by
the court below.
4. The complainant Smt.Mariyumma is indisputably having title over
1.50 acres of land situated in Sy.No. 202/2 in Kadungalloor village by
virtue of Ext.P12 registered assignment deed of the year 1966.
Crl.A. 570/2001 2
Smt.Mariyumma had married Sri.Pareekutty who passed away on February
10, 1997. Late Pareekutty had two sons born in his first wife, who are
accused Nos.2 and 3. It is not in dispute that Sri.Pareekutty was in
possession of 3.25 acres of land in the same survey number, viz. 202/2. It
appears that the two properties belonging to Smt.Mariyumma and
Sri.Pareekutty lie contiguous to each other.
5. The case of the complainant before the court below was that
accused Nos.2 and 3 had attempted to trespass into her property which
ultimately culminated in a suit for prohibitory injunction filed by the
complainant against those two persons as OS.620/1997 on the file of the
Munsiff’s Court, Paravur. In the said suit accused Nos. 2 and 3, who were
the defendants, contended, inter alia, that Smt.Mariyumma was not in
possession of the plaint schedule property and that they had been cultivating
the said property along with the property which originally belonged to
their father. They had a further case that their father, during his life time,
had orally gifted respective portions of his property to them. It was in this
context that the defendants had produced Exts.P5 and P6 certificates
issued by the Secretary of the Society (accused No.1) to show that they had
been paying water cess for irrigating the property for the purpose of
cultivation. The suit was decreed by the Munsiff’s Court on November 27,
1999 repelling the contentions of the defendants and restraining them from
trespassing into the plaint schedule property or causing any nuisance to the
peaceful possession of the plaintiff (Smt.Mariyumma).
6. The complainant had filed the private complaint before the
Judicial Magistrate of First Class, Paravur during the pendency of the above
civil suit, apparently after the defendants had produced Exts.P5 and P6
Crl.A. 570/2001 3
certificates which were marked in the suit as Exts.B10 and B11. The
complainant alleged that accused Nos.2 and 3 had procured the certificate
from accused No.1 containing false averments, in their attempt to prove
their possession over the plaint schedule property. It was further alleged that
accused No.1 knew that the contents of the certificates were false.
7. The complainant, in support of her case was examined herself as
Pw.1. Her witness was examined as Pw.2. Exts.P1 to P19(c) series were
also marked on her side. Accused No.1 got himself examined as Dw.1 .
Exts.D1 to D2(b) series were marked on the side of the accused. The
learned Magistrate, after an elaborate consideration of the oral and
documentary evidence on record, came to the conclusion that the
complainant had failed to prove that the accused were guilty of the offences
alleged against them.
8. While assailing the findings entered by the trial court, it is
contended by Sri.Madhusoodanan, learned counsel for the appellant, that
the court below had proceeded at a palpably erroneous tangent and glossed
over the material aspects of the case. He submits that the evidence adduced
by the complainant will clinchingly show that accused No.1 had issued
Exts.P5 and P6 certificates knowing fully well that the contents thereof
were totally false and contradictory to or against the contents of the relevant
records maintained in the society. It is also contended that accused Nos.2
and 3, particularly the latter, were very well aware that they had no
possession over the property in question at any point of time. But
nevertheless they had pressed into service Exts.P5 and P6 certificates
before the civil court with the full knowledge that the contents of those
certificates were totally false. Thus it is contended by the learned counsel
Crl.A. 570/2001 4
that the offences punishable under Sections 197and 198 read with the aid of
Section 34 IPC were clearly attracted and therefore the learned Magistrate
was not justified in brushing aside the evidence adduced by the plaintiff.
9. In this context it is profitable to peruse the provisions contained in
Sections 197 and 198 of the Indian Penal Code which are extracted
hereunder:
” 197. Issuing or signing false
certificate:–Whoever issues or signs
any certificate required by law to be
given or signed, or relating to any
fact of which such certificate is by
law admissible in evidence, knowing
or believing that such certificate is
false in any material point, shall be
punished in the same manner as if he
gave false evidence.
198. Using as true a certificate
known to be false:–Whoever
corruptly uses or attempts to use any
such certificate as a true certificate,
knowing the same to be false in any
material point, shall be punished in
the same manner as if he gave false
evidence.”
10. Going by the provisions contained in Section 197, any person who
issues or signs any certificate required by law to be given or signed or
Crl.A. 570/2001 5
relating to any fact of which such certificate is by law admissible in
evidence, knowing or believing that such certificate is false in any material
point, shall be punished in the same manner as if he gave false evidence.
(emphasis supplied). Obviously Section 197 would be attracted only
against accused No.1 because admittedly Exts.P5 and P6 were issued by
accused No.1 in his capacity as the Secretary of the Society.
11. It had come out in evidence that the Society had been maintaining
Ext.D1 register containing the particulars of those members who were
eligible for water cess under the Scheme implemented by the Society for
agriculturists in that Society. The relevant pages relating to accused Nos.2
and 3 were marked in the case as Exts.D1(a) and D1(b) and D2(a) and D2
(b). The relevant pages in the register indicated that accused Nos.2 and 3
had remitted water cess in the Society in respect of the properties which
they had been cultivating. Accused No.1, while he was examined as Dw.1,
had deposed before the Court that he had issued Exts.P5 and P6 certificates
on the basis of the entries which were available in Ext.D1 register.
Admittedly, accused No.1 had assumed charge as the Secretary only in the
year 1996. Exts.P5 and P6 certificates were issued by him on August 1,
1997. It had come out in evidence which had not been controverted also,
that the entries in Ext.D1 register were made by some other employees in
the Society.
12. But learned counsel for the appellant, while inviting my attention
to Ext.P19 (a), (b) and (c) would contend that in the year 1996 Pareekutty
and his two sons viz., accused Nos.2 and 3 had requested the Society to
make appropriate mutation in Ext.D1 register with regard to the actual
extent of land in their possession, for which they had been remitting water
Crl.A. 570/2001 6
cess. With specific reference to accused No.3 and Ext.P19(c), learned
counsel points out that the said accused had inherited only 1.23 acres in
Sy.No.202/2 from his father. But in Ext.P6 certificate it was indicated by
the Secretary that the said accused No.3 had been cultivating an extent of
2.73 acres in Sy.No.202/2. According to the learned counsel, the said entry
clearly showed that accused No.3 had claimed an extent of 1.50 acres which
was owned and possessed by the complainant, as otherwise accused No.3
could have claimed, going by Ext.P19(c), only an extent of 1.23 acres in
Sy.No.202/2. The entire case of the complainant revolves on the above two
aspects.
13. First of all I will deal with the case against accused No.1 in the
backdrop of the facts adverted to above. As mentioned earlier, accused
No.1 had issued Exts.P5 and P6 certificates in his capacity as the Secretary
of the Society. The evidence on record clearly indicated that he had only
relied on the entries in Ext.D1 register. Of course, the complainant may be
justified in contending that while issuing Exts.P5 and P6 certificates
accused No.1 ought to have perused Ext.P19 (a) to ( c ) also. Anyhow, no
evidence had been adduced by the complainant to show that accused No.1
had wilfully overlooked or ignored Ext.P19 before issuing Exts.P5 and P6
certificates. Moreover, no other material piece of evidence was brought on
record to show that accused No.1 knew that the contents of Exts.P5 and P6
were false. Admittedly, the relevant pages of Ext.D1 certificate relating to
accused Nos.2 and 3 clearly indicated that they had been paying water cess
in respect of the properties mentioned in Exts.P5 and P6 certificates. In that
view of the matter, the charge under Section 197 which was sought to be
fastened against accused No.1 could not have been sustained at all, as
Crl.A. 570/2001 7
rightly held by the trial court.
14. Learned counsel for the appellant has advanced yet another
argument. He points out that the total extent of land which was in the
possession of late Pareekutty was 3.58 acres, whereas Smt.Mariyumma was
in possession of 1.50 acres. In Ext.P19 Sri.Pareekutty had requested the
Society to effect mutation of 1.23 acres in favour of accused No.3. At the
same time, he had also requested the Society to effect mutation in respect of
1.53 acres in the name of accused No.2. But in Exts.P5 and P6 , accused
No.1 certified that a total extent of 4.26 acres in Sy.No.202/2 was being
cultivated by accused Nos.2 and 3. According to the learned counsel, this
entry was totally false because even Pareekutty did not have a case that he
owned or possessed 4.26 acres in Sy.No.202/2.
15. As mentioned earlier, accused No.1 had issued the certificate
only on the basis of the entries in Ext.D1 register. Moreover, Exts.P5 and P6
did not indicate or show that accused Nos.2 and 3 were in ownership or in
possession of the lands in question. The certificates only stated that
accused Nos.2 and 3 had been paying water cess in respect of the cultivation
that was being carried out in the lands in question. Therefore in my view,
the court below was fully justified in holding accused No.1 not guilty of the
offence under Section 197 IPC.
16. The case against accused Nos.2 and 3 is that they had produced
Exts.P5 and P6 certificates in the civil suit as true certificates knowing them
to be false. It is the case of the complainant that accused Nos.2 and 3 knew
all along that they were not in possession of 1.50 acres which belonged to
Smt. Mariyumma, the complainant. I am afraid the above contention cannot
be accepted for reasons more than one. As mentioned earlier, in the civil
Crl.A. 570/2001 8
suit, the specific case of accused Nos.2 and 3 was that Smt.Mariyumma was
not in possession of the plaint schedule property which is the subject matter
of the two certificates.
17. In this context it is pertinent to note that Smt.Mariyumma had
candidly admitted while she was examined as Pw.1 and also before the civil
court that she had not been paying revenue for the plaint schedule property,
at any point of time. But she still maintained in the civil suit that she was
in possession of the property. She had a further case that though she had
been cultivating the plaint schedule property along with her husband, she
had not paid water cess separately. This, according to her, was because she
was not a member of the Society. But according to her, water cess was
being remitted by her in the name of her husband who was a member of the
Society. In fact Smt.Mariyumma had relied on Ext.P2 certificate regarding
remittance of water cess in the name of her husband Sri.Pareekutty from
1966 onwards. It may be noticed that Ext.P2 and Ext.D1 are one and the
same. I have already referred to the relevant entries in Ext.P2 register. It is
evident that there existed dispute with regard to the possession over the
property in question. While Sri.Mariyumma insisted that she had all along
been in possession of the disputed property, the specific case of accused
Nos.2 and 3, both before the civil court and the criminal court, was that
they had been in possession of that property and that they had been
cultivating the same after remitting water cess, along with the other
property situated in the very same survey number and which was
admittedly in their possession.
18. Anyhow, in the case on hand, it is not necessary at all to consider
the above question in detail. The short question as far as culpability of
Crl.A. 570/2001 9
accused Nos.2 and 3 is concerned is only whether the offence under
Section 198 will be attracted against them on the allegation that they had
used or attempted to use Exts.P5 and P6 certificates as true certificates
knowing them to be false at any material point of time.
19. Sri.Madhusoodanan has vehemently contended that the
cumulative effect of the two entries in Exts.P5 and P6 as regards the total
extent of the land in Sy.No.202/02, would be that accused Nos.2 and 3 had
used those two certificates as true in their attempt to establish that they were
in possession of the entire extent shown in those certificates. This,
according to the learned counsel, would clearly show that they had
committed the offence under Section 198 IPC. I am unable to agree.
20. As mentioned earlier, Exts.P5 and P6 certificates will not in any
manner show that the entries therein are to the effect that accused Nos.2 and
3 are in ownership or possession of any land indicated therein. Those
certificates only contained the statement that accused Nos. 2 and 3 had been
paying water cess to the Society in respect of the lands mentioned therein.
By no stretch of imagination can it be said that accused Nos. 2 and 3 could
have claimed title or possession over the lands indicated therein on the basis
of those two certificates.
21. Admittedly, Smt.Mariyumma had got title over 1.50 acres of
land situated in Sy.No.202/2, as could be seen from Ext.P12. The question
of title and possession has to be necessarily decided by a civil court. Of
course, it is on record that the Munsiff Court has already held that the
complainant had been in possession of the property in question. But it has
been brought to my notice that the decree and judgment of the Munsiff
Court in OS.620/97 were set aside by the appellate court in AS.60/99 but
Crl.A. 570/2001 10
Sri. Madhusoodanan submits that a Second Appeal is pending before this
Court against the judgment and decree of the appellate court. Therefore
obviously the dispute with regard to possession is still at large.
22. Having carefully perused the entire evidence on record , I am
satisfied that the court below was justified in acquitting the accused. It has
to be remembered that the scope of interference by the appellate court
against an order of acquittal is very narrow and limited. I have carefully
perused the order passed by the trial court. The learned Magistrate, in my
view, had very meticulously and carefully examined the oral and
documentary evidence adduced by the parties. All the material aspects of
the case were considered by the court below carefully. Learned counsel for
the appellant did not have a case that any material issue was omitted to be
considered by the learned Magistrate.
23. In any view of the matter I find no reason to interfere with the
order of acquittal passed by the trial court.
The Crl.Appeal is dismissed.
A.K.BASHEER
Judge
an.