IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.04.2010
CORAM:
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Crl. O.P. No. 24762 of 2007
and
M.P. Nos. 1 & 4 of 2007
1.Chatrumal Takkur Das
2.Vandana Chatrumal
3.C.H.Mugesh
4.Jyothi S.Nair .. Petitioners
v.
1.The State rep. By
Inspector of Police
Central Crime Branch
Egmore, Chennai-8.
(Crime No. 283 of 2006)
2.Meera M.Pai
(Impleaded as second respondent
as per order of this Court dated
15.11.2007 in M.P. No.3 of 2007 .. Respondents
Prayer: Criminal Original Petition is filed under Section 482 of Criminal Procedure Code, to call for the records in C.C. No. 1540 of 2007, on the file of the Additional Chief Metropolitan Magistrate, Egmore, Chennai and quash the same as illegal, incompetent and unjust in so far as the petitioners are concerned.
For Petitioners : Mr. V.Raghavachari
For Respondent 1 : Mr. J.C. Durairaj
Govt. Advocate (Crl.Side)
For Respondent 2 : Mr. R.Amizhdhu
*****
O R D E R
The petitioners who are facing prosecution in C.C. No. 1540 of 2007 pending on the file of the Additional Chief Metropolitan Magistrate, Egmore, Chennai, seek quash of proceedings as against them.
2.The petitioners are the second and fifth accused in the case. On complaint preferred by the second respondent, Crime No. 283 of 2006 was registered by the first respondent, and upon completion of investigation, final report has been filed under Section 173(2) Cr.P.C. The case as reflected in the charge sheet is as follows:
“(b) The gist of the F.I.R. Is that the husband of the complainant Mohan M.Pai of M/S. Primech Enterprises was allotted a Industrial Unit by SIDCO in Ambattur Industrial Estate during, 1972 in Plot No.L.22, measuring 2255 sq.ft., with 1053 sq.ft. built up area and he was passed away on 05.05.2005. That being so, prior to his death the sale deed was registered in the name of M.Pai during January, 1993 by forging the signature by the accused S.Sethu and based on this created General Power of attorney in his favour purported to have been executed by M.M.Pai and sold the property to A2 to A5 and got registered with the intent to grab the property. Hence, the F.I.R.
(d) Whether any offences appears to have committed and if so, by whom?
The investigation in this case revealed that the property of Primech Enterprises was allotted Industrial Unit at Ambattur Industrial Estate during the year, 1972 by SIDCO. The Primech Enterprises was owned by Tr.Mohan M.Pai who passed away on 05.05.2005. Subsequently, his wife Tmt. Meera M.Pai, the complainant herein took the management and found forgery of the signature of her husband by accused A1 while getting the Industrial Unit registered in her husband name by impersonating himself as Mohan M.Pai.
That in the course of the same transaction, the accused A1 created forged power of attorney favouring the accused A1 Sethu with which the General Power of Attorney, the Industrial Unit was sold to A2 to A5 represented as partners of M/S. Vandhana Associates who were fully aware of the forged character of General Power of Attorney and knowing the said unit was owned by the complainant’s husband.
That the first accused appears to have committed offences punishable under Sections 419, 420, 465, 467, 468 and 471 r/w 468 I.P.C. while A2 to A5 appear to have committed offences punishable under Sections 420 I.P.C. r/w 34 I.P.C. and 467, 468, 471 r/w 468 I.P.C. r/w 109 I.P.C.”
3.Heard Mr.V.Raghavachari, the learned counsel for the petitioners and the learned Government Advocate (Crl. Side) for the first respondent as well as Mr.R.Amizhdhu, the learned counsel for the second respondent.
4.The learned counsel for the petitioners would submit that it might have been well proved that the first accused had committed various acts of forgery towards holding the title deeds to the Industrial Units as also towards making it appear that he was the duly power agent of the owner thereof. These petitioners merely had purchased the property on the representations made by the first accused. They were bonafide purchasers and no criminality could be attributed to them. The learned counsel informed that the memo of evidence filed in the charge sheet reflected that none were to be examined on the wrongful acts allegedly committed by these petitioners. The learned counsel would submit that 161 Cr.P.C. statements would show that none were examined by the investigating officer for such purpose. Further, the learned counsel would submit that towards implicating these petitioners what was relied upon was the confessional statement of the first accused. The petitioners cannot be called upon to answer charges merely upon the confession of a co-accused.
5.On the other hand, the learned counsel for the respondents would submit that besides the confession statement of the first accused, in the very complaint preferred by the second respondent, it had been informed that the accused 2 to 5 as partners of the M/S. Vandhana Associates, were fully aware of forgery of the General Power of Attorney and that they had knowledge of such unit being owned by the defacto complainant’s husband. In the statement under Section 161 Cr.P.C. the criminal conspiracy of the first accused with the third petitioner/A4 was spoken about. The learned counsel would submit that notices have been exchanged between the defacto complainant’s husband, the original owner of the property and the petitioners’ herein, wherein, the petitioners had claimed to be the tenants under the first accused. They were aware of the property being in the hands of the defacto complainant’s husband and also were aware that the power of attorney put up by the first accused was a forged one. A prima facie case stood established and cognizance has been taken by the lower Court on the basis of the charge sheet filed in the matter. The relevant documents were before the lower Court and the question of whether the petitioners are bonafide purchasers would be a matter for trial. The learned counsel refers to several Judgments to inform that this Court would go slow in interfering with criminal proceedings at the initial stage. It is not the case of the petitioners that there was no material against them. Each partner was an agent of the firm and in the circumstances of the case, each of them would have to prove their defence at the trial. It was not a case where vicarious liability was attributed, but it was one where they are being proceeded against in their individual capacity.
6.Considered the rival submissions.
7.In appreciating whether the present is a fit case for exercise its power under Section 482 Cr.P.C., this Court can peruse the materials available. The First Information Report in the case merely informs the wrong committed by the first accused and seeks restitution of the Industrial Unit to the defacto complainant. The said first information report merely informs that the unit has been sold to M/S.Vandana Associates, the partnership firm of the petitioners herein. Of the Section 161 Cr.P.C. statements recorded in the case, we find that it is only in one statement that some mention is made of a criminal conspiracy between one of the petitioners and the first accused. In the circumstances of the present case, this Court, despite being aware of the position that an F.I.R. is not an encyclopedia, is inclined to observe that had criminal conspiracy being suspected in the first instance, the same would have been informed in the F.I.R. A perusal of the charge sheet would reflect the position that this case in so far as the petitioners are concerned solely would rest upon the confessional statement of the first accused.
8.In Kashmira Singh v. The State of Madhya Pradesh (1952) Crl.L.J. 839, the three Judges Bench of the Honourable Apex Court has observed as follows:
“(8) Gurubachan’s confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King, 76 Ind. App.147 at p. 155
“It does not indeed come within the definition of ‘evidence’ contained in S.3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination.”
Their Lordships also point out that it is
“obviously evidence of a very weak type………….. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities.”
They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in “support of other evidence.” In view of these remarks, it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the Judge refuses to believe him except in so far as he is corroborated?
9.In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor v. Lalit Mohan, 38 Cal. 559 at p.588 where he said that such a confession can only be used to “lend assurance to other evidence against a co-accused” or to put it in another way as Reilly J. did in In re Periyaswami Moopan, 54 Mad. 75 at p.77:
“the provision goes no further than this where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in S.30 may be thrown into the scale as an additional reason for believing that evidence.”
(10) Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. It if is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain & conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.”
Thus, the confession of the co-accused can at best have corroborative value. In the instance case, we find that there is no material which would gain corroboration through the confession of the 1st accused. The inference necessarily would be that there is no material to support the prosecution of the petitioners herein.
9.For the above reasons, this criminal original petition shall stand allowed and the Proceedings in C.C. No. 1540 of 2007, on the file of the Additional Chief Metropolitan Magistrate, Egmore, Chennai stands quashed as far as the petitioners are concerned. Consequently, the connected miscellaneous petitions are closed.
gm/kj
To
1.The Additional Chief Metropolitan Magistrate,
Egmore, Chennai.
2.The Inspector of Police, Central Crime Branch
Egmore, Chennai-8.
3.The Public Prosecutor, High Court,
Madras