P. Chellammal vs R. Karuppiah

T. Mathivanan, J.—This memorandum of criminal appeal is directed against the judgment dated 08.05.2008 and made in C.C. No. 1366 of1995 on the file of the Learned Judicial Magistrate, Periyakulam, acquitting the accused on the ground that the acquisition u/s 204 and 477 of IPC., has not been proved beyond all reasonable doubts. Being aggrieved by the impugned judgment the Appellant who is the complainant in the above said case has approached this Court after invoking the proviso to Section 378 of Code of Criminal Procedure, 1973.

For easy reference, both the Appellant and the Respondent may hereinafter be referred to as the complainant and the accused wherever it occurs.

The facts which giving rise to this memorandum of criminal appeal may be summarized briefly as follows;

3.1. The complainant is the wife of late Perumal, who is the younger brother of the accused herein. Originally, the complaint was filed by Perumal against this accused and after taking cognizance and framing of necessary charges, he had passed away on 09.04.1996. Hence, on a petition, the present complainant who is the wife of the original complainant Perumal was ordered to be imp leaded to continue the prosecution against the accused.

3.2. The original complainant Perumal, the accused herein and their father one Ramu Servai, had partitioned their joint family properties under a registered partition deed dated 12.06.1986 and as per the covenants of the partition deed the B Schedule property i.e., the Mango Grove comprised in Survey No. 704/1, 705/1, 705/3, 706/2 and Survey No. 702/2 measuring 4 acres, 59 cents was allotted to the accused. The C Schedule property, i.e., the tamarind grove comprised in Survey No. 690 measuring 4 acres and 49cents was allotted to the share of Perumal (original complainant) and the C Schedule properties were allotted to the share of their father Ramu Servai.

3.3. Later the said Ramu Servai, while he was in the sound disclosing state of mind had executed a will on15.12.1992 after revoking the previous will dated21.09.1992 bequeathing all his properties specified in A Schedule in the partition deed dated 12.06.1986, in favour of the accused and his brother Perumal (original complainant).

3.4. As the properties allotted to the sons were quite in equal in value, a representation was made to the father, Ramu Servai and on the basis of that representation he had suggested exchange of properties allotted in the partition deed between the accused and the original complainant Perumal, as the suggestion was accepted and a deed of exchange got scribed on 16.12.1992, and thereby Perumal and the accused herein had exchanged their respective properties i.e., the C Schedule property, Tamarind Grove was given to the accused instead, the B Schedule property, Mango Grove was given to Perumal by the accused.

3.5. The accused instead of complying with the transfer of Patta, in respect of Tamarind Grove which was given in his possession, he had applied for transfer of patta in respect of Mango Grove on 12.12.1994, putting forth the partition deed and suppressing the deed of exchange. Proceedings were initiated with regard to the transfer of patta in the Revenue Department. Ultimately, a common order was passed on 03.03.1995, by the Tahsildar of Periyakulam in RTR No. 888/94-95 and RTR No. 916/94-95, infavour of the present complainant''s husband Perumal after dismissing the petition filed by the accused.

3.6. Since the accused had cunningly tried to grab the original of the exchange deed and tried to trespass over the Mango Groves, Perumal had preferred a complaint before the Learned Judicial Magistrate, Periyakulam which was taken on file in C.C. No. 1366of 1995.

3.7. After taking cognizance necessary charges u/s 204 and 477 were framed and when the ingredients of the charges were explained and questioned, the accused had pleaded innocent and hence he was put on trial.

3.8. In order to establish her case, the complainant herself had examined as Ex. PW 1. Besides her three other witnesses were examined on behalf of the complainant and during the course of their examination Exs.P1 to P9, we remarked.

3.9. When the accused was examined u/s 313 Cr.P.C., after explaining the incriminating circumstances arising out of the testimonies of the prosecution witnesses, he had denied their testimonies and replied that this case was foisted against him. No oral evidence was adduced on behalf of the accused excepting the documentary evidences under Exs.D1 to D4. On appreciation of the evidences both oral and documentary and the other materials available on record, the Learned Judicial Magistrate, Periyakulam had proceeded to pronounce the judgment on08.05.2008 acquitting the accused of the charges under Sections 204 and 477 of IPC. Challenging the judgment of acquittal, the complainant has approached this Court by way of this appeal.

Heard both sides.

Special leave was granted u/s 378(iv) for the Appellant/complainant to file the present memorandum of criminal appeal. It is apparent from the records that the complaint in this case was originally filed by one Perumal who is non other than the husband of the present complainant. After taking cognizance, and framing of necessary charges under Sections 304 and 477 of IPC, he had passed away. Hence, this present complainant who is the wife of the original complainant was allowed to step into the shoes of her husband in order to continue the prosecution as against the accused.

When the appeal came up for hearing, the learned Counsel appearing for the accused has adverted to that the complaint itself is not maintainable and since it was dismissed on merit after analyzing the evidence on record, the present appeal which is preferred by the present complainant is also not maintainable as she is not having locus stand to continue the prosecution as her husband Perumal who is the original complainant had passed away.

It may be relevant to extract the provision of Section 256 of Cr.p.c

(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks itproper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of Sub-section (1) shall, so far as may be, apply also to cases where then on-appearance of the complainant is due to his death.

The words in Sub-Section 1 of Section 256 Cr.P.C.i.e, "unless for some reason he thinks it proper to adjournthe hearing of the case to some other date" plays an important role.

Sub-section (2) also contemplates that the Sub-section (1) may also apply to cases where the non-appearance of the complainant is due to his death."

The words "as far as may be" employed in Sub-Section 2 of Section 256 suggests that the Magistrate will have to decide having regard with the facts and circumstances of each case.

In Gautam Ranjan Basu and Others Vs. Smt. Shanta Mukherjee and Another, the Hon''ble Kolkatta High Court has held as follows;

In case of demise of the complainant there cannot be any ipso facto termination of the criminal proceedings. Magistrate has every power to allow substitution upon demise of the original complainant if he is satisfied from the other surrounding circumstances and materials on recordthat such permission should be given. That satisfaction is to be subjective satisfaction derived from the records of the case and a satisfaction derived on fact as available on record.

The same, principle has also been laid down in Raviselvam Vs. Nalini Vijayakumar, and in Jagan Nath Ghosh and Ors. v. Pasupati Nath Ghosh reported in 1993 (2) C.L.R. 250 (cal). Hence, it is made clear from the above cited decisions and also under the footing of Section 256 Sub-section (1) and (2) that the death of the original complainant Perumal cannot ipso factoring about the termination of the criminal proceedings and there is also no impediment for the present complainant who is none other than the wife of Perumal to continue the criminal proceedings.

The complaint was preferred by the complainant to prosecute the accused for the offences under Sections 204 and 477 of IPC alleging that he had burked the original deed of exchange and refused to cause production of the same before the court, so as to establish the factum that the properties more fully described in B and C Schedule of the partition deed dated 12.06.1986 which were originally alloted to the accused and his brother Perumal respectively, were subsequently exchanged between them under a deed of exchange dated 16.12.1992. It is also the case of the complainant that the original deed of exchange has been secreted by the accused.

Section 204 of IPC contemplates that;

Whoever secretes or destroys any document [or electronic record] which he may be lawfully compelled to produce as evidence in a Court of Justice, or in any proceeding lawfully held before a public servant, as such, or obliterates or renders illegible the whole or any part of such document [or electronic record] with the intention or preventing the same from being produced or used as evidence before such Court or public servant as aforesaid, or after he shall have been lawfully summoned or required to produce the same for that purpose, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 204 of IPC contains the following ingredients;

(i) That the accused secreted (or destroyed)any document or electronic record; or The accused obliterated or rendered illegible the whole or any part of such documents or electronic record;

(ii) That the accused was legally required to produce such document or electronic recordin any judicial proceedings before a public servant or before any Court of Justice; and (iii) That the accused did so after being summoned to produce such document or recordin such proceedings or Court of Justice.

Similarly, the complainant is bound to prove the offences in the following manner;

(i) that the accused hid or destroyed the document; or that he obliterated, or rendered illegible, the whole, or any part of such document;

(ii) that he was lawfully compellable to produce the same as evidence (a) in a Court of Justice; or (b) in proceedings lawfully held by a public servant;

(iii) that he secreted or destroyed the document with the intention of preventing the same from being produced or used as such evidence; or that he did as in (1) after head been lawfully summoned or required to produce the same for that purpose.

Section 477 of IPC contemplates;

Whoever fraudulently or dishonestly, or with intent to cause damage or injury to the public or to any person, cancels, destroys or defaces, or attempts to cancel, destroy or deface, or secretes or attempts to secrete any document which is or purports to be a will, or an authority to adopt a son, or any valuable security, or commits mischief in respect to such document, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

In order to bring home the guilt u/s 477 IPC the complainant has to prove the following;

(i) That the accused cancelled destroyed or defaced (or attempted to do); or

(ii) Secreted (or attempted to do) any document which is (or purports) to be a will or an authority to adopt a son or any valuable security; or

(iii) Commits mischief in respect of such document; and

(iv) That he did so fraudulently or dishonestly or with intent to cause damage (or injury) to public or to any person.

In connection with the properties alleged to have been exchanged between the accused and the complainant, several Civil proceedings were instituted.

The learned Counsel for the complainant during the course of his argument has submitted that the husband of the complainant Perumal while he was alive had filed a suit in O.S. No. 388 of 1995, on the file of the Sub Court Periyakulam on the basis of the alleged deed of exchange dated 16.12.1992, directing the accused to hand over the B Schedule property as per covenance of the exchange deed dated 16.12.1992. The suit was dismissed for non-prosecution. The learned Counsel has also submitted that another suit in O.S. No. 143 of 1995, was also instituted against the accused on the file of District Munsif, Periyakulam for the relief of declaration on the basis of the deed of exchange dated 16.12.1992. This suit was also dismissed for non-prosecution.

Besides this one Thangapandian, who is the tenant in respect of Mango Grove specified in the schedule of deed of exchange, had filed a suit against the accused as well as against the complainant''s husband, Perumal for the relief of permanent injunction. Along with the suit he has also filed an Interlocutory Application in I.A. No. 7 of1995 seeking an ad interim injunction. After hearing both sides, the Learned District Munsif, Periyakulam had rejected that application. From the above circumstances it may be inferred that several civil proceedings were instituted between the complainant and the accused and it also appears that the suits in O.S. No. 388 of 1995,O.S. No. 143 of 1995, were dismissed for non-prosecution.

The learned Counsel for the complainant has also submitted that the Learned Judicial Magistrate, Periyakulam had grossly erred in observing that the original document alleged to be secreted by the accused cannot be admitted in evidence in Court of law and hence the offence u/s 204 of IPC, had not been proved beyond all reasonable doubts, and that the finding of the Learned Judicial Magistrate, Periyakulam has acquired perverse as the proviso to Section 204 of IPC in an unambiguous terms mandates whoever secrets any document by which he may be lawfully compelled to produce as evidence in a court of Justice shall be punished. He has also argued that the copy of the exchange deed was not admitted into the evidence by the Judicial Magistrate, Periyakulam and it ought to have been received as a documentary evidence since the original was kept and burked by the accused.

In order to substantiate his arguments, he as placed reliance upon the decision in Hari om Agrawal v. Prakash Chand Malviya reported in 2007 4 L.W. 878 (SC). This Court has carefully gone through the above cited decision and found that the facts and circumstances narrated in the above cited case cannot be made applicable to the factual situation of the instant case on hand.

On the other the learned Counsel for the Respondent/accused has submitted that the complaint has-been vexatiously filed against the accused and he had been harassed by the complainant by initiating several proceedings and hence, he has urged before the Court that the judgment of the trial Court need not be interfered with.

PW 1 who is the wife of the original complainant Perumal did not know directly about the execution of the deed of exchange dated 16.12.1992. Her evidence has also not given clear account either about the burking of the said deed of exchange by the accused or about the destruction of the said documents.

It appears from her evidence as well as the evidence given by the PW 2 to 4 that the alleged deed of exchange was not registered. PW 2 is the brother-in-law of the accused and the original complainant Perumal. As per his evidence, though the deed of exchange was executed in front of the Registrar Office at Periyakulam, it was no taken for registration. It is further revealed that PW 2had signed as a witness in the said deed of exchange. He has also stated that in accordance with the deed of exchange, the properties which were allotted to the accused and Perumal originally, as per their family partition, were exchanged. In his cross-examination he would state that Near Velluar Statue at Periyakulam, the original deed of exchange was handed over to the accused by him. Whileso, the father of the accused and the complainant Rama Servaiwas also present. But he has fairly admitted that there is no averment in the deed of exchange as to who has to possess the original exchange deed.

PW 3 has also witnesses all the witnesses in the said deed of exchange. PW 4 had scribed the deed of exchange. He has also stated that he did not scribe as to who has to possess the original deed. Thought 4 witnesses were examined and 10 documents were exhibited on the side of the Plaintiff, nothing is found helpful to the Plaintiff. As disclosed earlier, the prime ingredients of Section 204 and 477 have not been established by the Plaintiff. It is also obvious to note here that no evidence is available to substantiate the acquisition as against the accused that he had either burked or destroyed the evidences sought to be produced.

Secondly, the complainant has also failed to substantiate her contention that the accused had secreted or destroyed the documents after he was summoned to produce the same.

The learned Counsel appearing for the accused has also submitted that the entire complaint revolves around the alleged deed of exchange dated 16.12.1992. He would submit further that the entire averments of the complainant discloses only a civil law and do not make a criminal case. He has also maintained that even if the alleged document is true and the original deed of exchange is in the possession of the accused as alleged by the complainant, the complainant should have given a notice to the accused calling him to produce the document which is sought to be produced. But the complainant had not chosen to adopt such procedure which is known to law instead, the original complainant, Perumal opted to file this complaint and after his demise the present complainant who is his wife has been continuing the proceedings as against the accused which is unsustainable and is liable to be rejected.

On appreciation of the testimonies of PW 1 to PW4, and other documentary evidences marked on behalf of either side, this Court is of the considered view that the judgment dated 08.05.2008 and made in C.C. No. 1366 of 1995on the file of the Judicial Magistrate, Periyakulam does not require any interference.

In the result, the Criminal Appeal is dismissed.