{"id":242768,"date":"2008-09-19T00:00:00","date_gmt":"2008-09-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mariyumma-vs-abdul-salam-on-19-september-2008"},"modified":"2015-12-07T14:16:11","modified_gmt":"2015-12-07T08:46:11","slug":"mariyumma-vs-abdul-salam-on-19-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mariyumma-vs-abdul-salam-on-19-september-2008","title":{"rendered":"Mariyumma vs Abdul Salam on 19 September, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Mariyumma vs Abdul Salam on 19 September, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 570 of 2001()\n\n\n\n1. MARIYUMMA\n                      ...  Petitioner\n\n                        Vs\n\n1. ABDUL SALAM\n                       ...       Respondent\n\n                For Petitioner  :SRI.K.S.MADHUSOODANAN\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice A.K.BASHEER\n\n Dated :19\/09\/2008\n\n O R D E R\n<\/pre>\n
                                      A.K. BASHEER, J.\n<\/p>\n
              – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                                 Crl.A. No. 570 of 2001\n<\/p>\n
             – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                  Dated this the 19th day of September, 2008
\n                                          Judgment<\/p>\n
      Appellant is the complaint in a private complaint. She had filed the<\/p>\n
complaint against respondents 1 to 3 herein alleging commission of offence<\/p>\n
punishable under sections 197 and 198 read with Section 34 of the Indian<\/p>\n
Penal Code. After considering the oral and documentary evidence adduced<\/p>\n
by    both sides, the trial court acquitted the accused holding that the<\/p>\n
complainant had failed to prove her case against them. The above order of<\/p>\n
acquittal is impugned in this appeal.\n<\/p>\n
      2. The case of the appellant\/complainant in brief was that accused<\/p>\n
No.1 in his capacity as the Secretary of Elookara Co-operative Society had<\/p>\n
issued Exts.P5 and P6 certificates containing false particulars\/information in<\/p>\n
respect of the property belonging to the complainant, in order to help<\/p>\n
accused Nos.2 and 3, so that they could claim possession of the said<\/p>\n
property. The complainant further alleged that all the three accused knew<\/p>\n
that the contents of Exts.P5 and P6 were false and that accused Nos.2 and 3<\/p>\n
did not have any right over the property belonging to the complainant.<\/p>\n
      3. It may be necessary to refer to some more essential facts and<\/p>\n
materials which came out in evidence, in order to consider the question<\/p>\n
whether any interference is warranted with the order of acquittal passed by<\/p>\n
the court below.\n<\/p>\n
      4. The complainant Smt.Mariyumma is indisputably having title over<\/p>\n
1.50 acres of land situated in Sy.No. 202\/2 in Kadungalloor village by<\/p>\n
virtue of Ext.P12 registered assignment deed of the year 1966.<\/p>\n
Crl.A. 570\/2001                        2<\/span><\/p>\n
Smt.Mariyumma had married Sri.Pareekutty who passed away on February<\/p>\n
10, 1997. Late Pareekutty had two sons born in his first wife, who are<\/p>\n
accused Nos.2 and 3.        It is not in dispute that Sri.Pareekutty was in<\/p>\n
possession of 3.25 acres of land in the same survey number, viz. 202\/2. It<\/p>\n
appears that the two properties belonging to Smt.Mariyumma                 and<\/p>\n
Sri.Pareekutty lie contiguous to each other.\n<\/p>\n
       5. The case of the complainant before the court below was that<\/p>\n
accused Nos.2 and 3 had attempted to trespass into her property which<\/p>\n
ultimately culminated in a suit for prohibitory injunction filed by the<\/p>\n
complainant against those two persons as OS.620\/1997 on the file of the<\/p>\n
Munsiff’s Court, Paravur. In the said suit accused Nos. 2 and 3, who were<\/p>\n
the defendants,    contended, inter alia, that Smt.Mariyumma was not in<\/p>\n
possession of the plaint schedule property and that they had been cultivating<\/p>\n
the said property along with     the property which originally belonged to<\/p>\n
their father. They had a further case that their father, during his life time,<\/p>\n
had orally gifted respective portions of his property to them. It was in this<\/p>\n
context that the defendants     had   produced Exts.P5 and P6 certificates<\/p>\n
issued by the Secretary of the Society (accused No.1) to show that they had<\/p>\n
been paying water cess for irrigating      the property for the purpose of<\/p>\n
cultivation. The suit was decreed by the Munsiff’s Court on November 27,<\/p>\n
1999 repelling the contentions of the defendants and restraining them from<\/p>\n
trespassing into the plaint schedule property or causing any nuisance to the<\/p>\n
peaceful possession of the plaintiff (Smt.Mariyumma).<\/p>\n
       6.  The complainant had filed the private complaint before the<\/p>\n
Judicial Magistrate of First Class, Paravur during the pendency of the above<\/p>\n
civil suit, apparently after the defendants had produced Exts.P5 and P6<\/p>\n
Crl.A. 570\/2001                       3<\/span><\/p>\n
certificates which were marked in the suit as Exts.B10 and B11. The<\/p>\n
complainant alleged that accused Nos.2 and 3 had procured the certificate<\/p>\n
from accused No.1 containing false averments, in their attempt to prove<\/p>\n
their possession over the plaint schedule property. It was further alleged that<\/p>\n
accused No.1 knew that the contents of the certificates were false.<\/p>\n
       7. The complainant, in support of her case was examined herself as<\/p>\n
Pw.1.     Her witness was examined as Pw.2. Exts.P1 to P19(c) series were<\/p>\n
also marked on her side. Accused No.1 got himself examined as Dw.1 .<\/p>\n
Exts.D1 to D2(b) series were marked on the side of the accused. The<\/p>\n
learned Magistrate,     after an elaborate consideration of the       oral and<\/p>\n
documentary evidence on record,          came to the conclusion that the<\/p>\n
complainant had failed to prove that the accused were guilty of the offences<\/p>\n
alleged against them.\n<\/p>\n
       8. While assailing the findings entered by the trial court,         it is<\/p>\n
contended by Sri.Madhusoodanan, learned counsel for the appellant, that<\/p>\n
the court below had proceeded at a palpably erroneous tangent and glossed<\/p>\n
over the material aspects of the case. He submits that the evidence adduced<\/p>\n
by the complainant will clinchingly show that accused No.1 had issued<\/p>\n
Exts.P5 and P6 certificates knowing fully well that the contents thereof<\/p>\n
were totally false and contradictory to or against the contents of the relevant<\/p>\n
records maintained in the society. It is also contended that accused Nos.2<\/p>\n
and 3, particularly the latter, were very well aware that they had no<\/p>\n
possession over the property in question        at any point of time.      But<\/p>\n
nevertheless   they had pressed into service Exts.P5 and P6 certificates<\/p>\n
before the civil court with the full knowledge that the contents of those<\/p>\n
certificates were totally false. Thus it is contended by the learned counsel<\/p>\n
Crl.A. 570\/2001                         4<\/span><\/p>\n
that the offences punishable under Sections 197and 198 read with the aid of<\/p>\n
Section 34 IPC were clearly attracted and therefore the learned Magistrate<\/p>\n
was not justified in brushing aside the evidence adduced by the plaintiff.<\/p>\n
      9. In this context it is profitable to peruse the provisions contained in<\/p>\n
Sections 197 and 198 of the Indian Penal Code which are extracted<\/p>\n
hereunder:\n<\/p>\n
                ” 197. Issuing or signing false<\/p>\n
                certificate:–Whoever issues or signs<\/p>\n
                any certificate required by law to be<\/p>\n
                given or signed, or relating to any<\/p>\n
                fact of which such certificate is by<\/p>\n
                law admissible in evidence, knowing<\/p>\n
                or believing that such certificate is<\/p>\n
                false in any material point, shall be<\/p>\n
                punished in the same manner as if he<\/p>\n
                gave false evidence.<\/p><\/blockquote>\n
<\/blockquote>\n
                   198. Using as true a certificate<\/p>\n
                known      to    be    false:–Whoever<\/p>\n
                corruptly uses or attempts to use any<\/p>\n
                such certificate as a true certificate,<\/p>\n
                knowing the same to be false in any<\/p>\n
                material point, shall be punished in<\/p>\n
                the same manner as if he gave false<\/p>\n
                evidence.”<\/p><\/blockquote>\n
     10. Going by the provisions contained in Section 197, any person who<\/p>\n
issues or signs any certificate required by law to be given or signed or<\/p>\n
Crl.A. 570\/2001                        5<\/span><\/p>\n
relating to any    fact of which such certificate is by law admissible in<\/p>\n
evidence, knowing or believing that such certificate is false in any material<\/p>\n
point, shall be punished in the same manner as if he gave false evidence.<\/p>\n
(emphasis supplied).     Obviously Section 197 would be attracted only<\/p>\n
against accused No.1 because admittedly Exts.P5 and P6 were issued by<\/p>\n
accused No.1 in his capacity as the Secretary of the Society.<\/p>\n
      11. It had come out in evidence that the Society had been maintaining<\/p>\n
Ext.D1 register containing the particulars of those members who were<\/p>\n
eligible for water cess under the Scheme implemented by the Society for<\/p>\n
agriculturists in that Society. The relevant pages relating to accused Nos.2<\/p>\n
and 3 were marked in the case as Exts.D1(a) and D1(b) and D2(a) and D2<\/p>\n
(b). The relevant pages in the register indicated that accused Nos.2 and 3<\/p>\n
had remitted water cess in the Society in respect of the properties which<\/p>\n
they had been cultivating. Accused No.1, while he was examined as Dw.1,<\/p>\n
had deposed before the Court that he had issued Exts.P5 and P6 certificates<\/p>\n
on the basis of the entries which were available in Ext.D1 register.<\/p>\n
Admittedly, accused No.1 had assumed charge as the Secretary only in the<\/p>\n
year 1996. Exts.P5 and P6 certificates were issued by him on August 1,<\/p>\n
1997. It had come out in evidence which had not been controverted also,<\/p>\n
that the entries in Ext.D1 register were made by some other employees in<\/p>\n
the Society.\n<\/p>\n
       12. But learned counsel for the appellant, while inviting my attention<\/p>\n
to Ext.P19 (a), (b) and (c) would contend that in the year 1996 Pareekutty<\/p>\n
and his two sons viz., accused Nos.2 and 3 had requested the Society to<\/p>\n
make appropriate mutation in Ext.D1 register with regard to the actual<\/p>\n
extent of land in their possession, for which they had been remitting water<\/p>\n
Crl.A. 570\/2001                        6<\/span><\/p>\n
cess.   With specific reference to accused No.3 and Ext.P19(c), learned<\/p>\n
counsel points out that the said accused had inherited only 1.23 acres in<\/p>\n
Sy.No.202\/2 from his father. But in Ext.P6 certificate it was indicated by<\/p>\n
the Secretary that the said accused No.3 had been cultivating an extent of<\/p>\n
2.73 acres in Sy.No.202\/2. According to the learned counsel, the said entry<\/p>\n
clearly showed that accused No.3 had claimed an extent of 1.50 acres which<\/p>\n
was owned and possessed by the complainant, as otherwise accused No.3<\/p>\n
could have claimed, going by Ext.P19(c), only an extent of 1.23 acres in<\/p>\n
Sy.No.202\/2. The entire case of the complainant revolves on the above two<\/p>\n
aspects.\n<\/p>\n
       13. First of all I will deal with the case against accused No.1 in the<\/p>\n
backdrop of the facts adverted to above. As mentioned earlier, accused<\/p>\n
No.1 had issued Exts.P5 and P6 certificates in his capacity as the Secretary<\/p>\n
of the Society. The evidence on record clearly indicated that he had only<\/p>\n
relied on the entries in Ext.D1 register. Of course, the complainant may be<\/p>\n
justified in contending     that while issuing Exts.P5 and P6 certificates<\/p>\n
accused No.1 ought to have perused Ext.P19 (a) to ( c ) also. Anyhow, no<\/p>\n
evidence had been adduced by the complainant to show that accused No.1<\/p>\n
had wilfully overlooked or ignored Ext.P19 before issuing Exts.P5 and P6<\/p>\n
certificates. Moreover, no other material piece of evidence was brought on<\/p>\n
record to show that accused No.1 knew that the contents of Exts.P5 and P6<\/p>\n
were false. Admittedly, the relevant pages of Ext.D1 certificate relating to<\/p>\n
accused Nos.2 and 3 clearly indicated that they had been paying water cess<\/p>\n
in respect of the properties mentioned in Exts.P5 and P6 certificates. In that<\/p>\n
view of the matter, the charge under Section 197 which was sought to be<\/p>\n
fastened against accused No.1 could not have been sustained at all, as<\/p>\n
Crl.A. 570\/2001                         7<\/span><\/p>\n
rightly held by the trial court.\n<\/p>\n
      14.   Learned counsel for the appellant has advanced yet another<\/p>\n
argument. He points out that the total extent of land which was in the<\/p>\n
possession of late Pareekutty was 3.58 acres, whereas Smt.Mariyumma was<\/p>\n
in possession of 1.50 acres. In Ext.P19 Sri.Pareekutty had requested the<\/p>\n
Society to effect mutation of 1.23 acres in favour of accused No.3. At the<\/p>\n
same time, he had also requested the Society to effect mutation in respect of<\/p>\n
1.53 acres in the name of accused No.2.       But in Exts.P5 and P6 , accused<\/p>\n
No.1 certified that a total extent of 4.26 acres in Sy.No.202\/2 was being<\/p>\n
cultivated by accused Nos.2 and 3. According to the learned counsel, this<\/p>\n
entry was totally false because even Pareekutty did not have a case that he<\/p>\n
owned or possessed 4.26 acres in Sy.No.202\/2.\n<\/p>\n
      15. As mentioned earlier, accused No.1 had issued the certificate<\/p>\n
only on the basis of the entries in Ext.D1 register. Moreover, Exts.P5 and P6<\/p>\n
did not indicate or show that accused Nos.2 and 3 were in ownership or in<\/p>\n
possession of the lands in question.       The certificates only     stated that<\/p>\n
accused Nos.2 and 3 had been paying water cess in respect of the cultivation<\/p>\n
that was being carried out in the lands in question. Therefore in my view,<\/p>\n
the court below was fully justified in holding accused No.1 not guilty of the<\/p>\n
offence under Section 197 IPC.\n<\/p>\n
      16. The case against accused Nos.2 and 3 is that they had produced<\/p>\n
Exts.P5 and P6 certificates in the civil suit as true certificates knowing them<\/p>\n
to be false. It is the case of the complainant that accused Nos.2 and 3 knew<\/p>\n
all along that they were not in possession of 1.50 acres which belonged to<\/p>\n
Smt. Mariyumma, the complainant. I am afraid the above contention cannot<\/p>\n
be accepted for reasons more than one. As mentioned earlier, in the civil<\/p>\n
Crl.A. 570\/2001                       8<\/span><\/p>\n
suit, the specific case of accused Nos.2 and 3 was that Smt.Mariyumma was<\/p>\n
not in possession of the plaint schedule property which is the subject matter<\/p>\n
of the two certificates.\n<\/p>\n
       17. In this context it is pertinent to note that Smt.Mariyumma had<\/p>\n
candidly admitted while she was examined as Pw.1 and also before the civil<\/p>\n
court that she had not been paying revenue for the plaint schedule property,<\/p>\n
at any point of time. But she still maintained in the civil suit that she was<\/p>\n
in possession of the property. She had a further case that though she had<\/p>\n
been cultivating the plaint schedule property along with her husband, she<\/p>\n
had not paid water cess separately. This, according to her, was because she<\/p>\n
was not a member of the Society. But according to her, water cess was<\/p>\n
being remitted by her in the name of her husband who was a member of the<\/p>\n
Society. In fact Smt.Mariyumma had relied on Ext.P2 certificate regarding<\/p>\n
remittance of water cess in the name of her husband Sri.Pareekutty from<\/p>\n
1966 onwards. It may be noticed that Ext.P2 and Ext.D1 are one and the<\/p>\n
same. I have already referred to the relevant entries in Ext.P2 register. It is<\/p>\n
evident that there existed dispute with regard to the possession over the<\/p>\n
property in question. While Sri.Mariyumma insisted that she had all along<\/p>\n
been in possession of the disputed property, the specific case of accused<\/p>\n
Nos.2 and 3, both before the civil court and the criminal court, was that<\/p>\n
they had been in possession of that property and that they had been<\/p>\n
cultivating the same after remitting water cess,       along with the other<\/p>\n
property situated       in the very same survey number and which was<\/p>\n
admittedly in their possession.\n<\/p>\n
       18. Anyhow, in the case on hand, it is not necessary at all to consider<\/p>\n
the above question in detail. The short question as far as culpability of<\/p>\n
Crl.A. 570\/2001                         9<\/span><\/p>\n
accused Nos.2 and 3 is concerned is only whether the offence under<\/p>\n
Section 198 will be attracted against them on the allegation that they had<\/p>\n
used or attempted to use Exts.P5 and P6 certificates as true certificates<\/p>\n
knowing them to be false at any material point of time.<\/p>\n
       19.    Sri.Madhusoodanan has vehemently contended that the<\/p>\n
cumulative effect of the two entries in Exts.P5 and P6 as regards the total<\/p>\n
extent of the land in Sy.No.202\/02, would be that accused Nos.2 and 3 had<\/p>\n
used those two certificates as true in their attempt to establish that they were<\/p>\n
in possession of the entire extent       shown in those      certificates. This,<\/p>\n
according to the learned counsel, would clearly show that they had<\/p>\n
committed the offence under Section 198 IPC. I am unable to agree.<\/p>\n
        20. As mentioned earlier, Exts.P5 and P6 certificates will not in any<\/p>\n
manner show that the entries therein are to the effect that accused Nos.2 and<\/p>\n
3 are in ownership or possession of any land indicated therein. Those<\/p>\n
certificates only contained the statement that accused Nos. 2 and 3 had been<\/p>\n
paying water cess to the Society in respect of the lands mentioned therein.<\/p>\n
By no stretch of imagination can it be said that accused Nos. 2 and 3 could<\/p>\n
have claimed title or possession over the lands indicated therein on the basis<\/p>\n
of those two certificates.\n<\/p>\n
        21. Admittedly, Smt.Mariyumma had got title over 1.50 acres of<\/p>\n
land situated in Sy.No.202\/2, as could be seen from Ext.P12. The question<\/p>\n
of title and possession has to be necessarily decided by a civil court. Of<\/p>\n
course, it is on record that the Munsiff Court has already held that the<\/p>\n
complainant had been in possession of the property in question. But it has<\/p>\n
been brought to my notice that the decree and judgment of the Munsiff<\/p>\n
Court in OS.620\/97 were set aside by the appellate court in AS.60\/99 but<\/p>\n
Crl.A. 570\/2001                         10<\/span><\/p>\n
Sri. Madhusoodanan submits that a Second Appeal is pending before this<\/p>\n
Court against the judgment and decree of the appellate court. Therefore<\/p>\n
obviously the dispute with regard to possession is still at large.<\/p>\n
       22. Having carefully perused the entire evidence on record , I am<\/p>\n
satisfied that the court below was justified in acquitting the accused. It has<\/p>\n
to be remembered that the scope of interference by the appellate court<\/p>\n
against an order of acquittal is very narrow and limited. I have carefully<\/p>\n
perused the order passed by the trial court. The learned Magistrate, in my<\/p>\n
view,    had very meticulously       and carefully examined the oral and<\/p>\n
documentary evidence adduced by the parties. All the material aspects of<\/p>\n
the case were considered by the court below carefully. Learned counsel for<\/p>\n
the appellant did not have a case that any material issue was omitted to be<\/p>\n
considered by the learned Magistrate.\n<\/p>\n
        23. In any view of the matter I find no reason to interfere with the<\/p>\n
order of acquittal passed by the trial court.\n<\/p>\n
       The Crl.Appeal is dismissed.\n<\/p>\n<\/p>\n
                                                  A.K.BASHEER
\n                                                          Judge<\/p>\n
an.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Mariyumma vs Abdul Salam on 19 September, 2008 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-242768","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMariyumma vs Abdul Salam on 19 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mariyumma-vs-abdul-salam-on-19-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mariyumma vs Abdul Salam on 19 September, 2008 - 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