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D. Manmohan Shenoy, Managing Partner, Vidya Offset Printers, Kochi & Others v/s The State of Kerala, Represented by Public Prosecutor, High Court of Kerala, Kochi & Others

    Crl. MC. Nos. 2432 of 2015, 7092 & 7373 of 2016

    Decided On, 23 July 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE V. RAJA VIJAYARAGHAVAN

    For the Petitioners: S. Sreekumar, Sr. Advocate, Sebastian Paul, Lizamma Augustine, Sabeena P. Ismail, Ben Tom, Ron Bastian, K. Shibili Naha, Manjunath Menon, P. Martin Jose, P. Prijith, R. Githesh, Thomas P. Kuruvilla, Advocates. For the Respondents: M.K. Pushpalatha, M.S. Breez, Sr. Public Prosecutors, Sunny Mathew, N. Raghuraj, Advocates.



Judgment Text

1. These petitions are filed under Section 482 of the Cr.P.C seeking to quash all further proceedings in C.C.No.221/2016 pending on the files of the Chief Judicial Magistrate Court, Kasargod.

2. The petitioner in Crl.M.C.No.7092 of 2016 is the 1st accused, those in Crl.M.C.No.7373 of 2016 are the accused Nos.2 to 5 and the petitioner in Crl.M.C.No.2432 of 2015 is the 6th accused in the aforesaid case. They have been hauled up to answer a charge under Sections 465, 468, 471, 482 r/w. Section 34 of the IPC.

3. The party respondent herein filed a complaint before the Judicial First Class Magistrate Court-I, Kasaragod, in the year 2014, wherein it is alleged as follows:

The 2nd respondent is the Managing Trustee of Shree Varadaraja Venkataramana Temple at Kasaragod, an ancient temple of the ‘Gouda Saraswatha Brahmin’ community. It is alleged that Shrimad Sudheendra Thirtha Swamiji is the ‘Madathipathi’ of Shri Kashi Math Samsthan at Varanasi. It is the “Dharma Peeth” of the Gouda Saraswatha Brahmin community. In the year 1989, the 1st accused, who was then known as Sivananda Pai, accepted Sanyasa Deeksha and he came to be known as Raghavendra Thirtha. As part of a prolonged grooming process, he was entrusted with certain duties with effect from 12.12.1994. He is alleged to have performed his duties till 04.11.1999. By declaration dated 19/07/2000, the Guru and 'Madathipathi', Shrimad Sudheendra Thirtha Swamiji, is alleged to have relieved him from all duties and responsibilities. It is alleged that after having been divested from all duties, the 1st accused styling himself as the 'Madathipathi' of Shri.Kashi Math Samsthan, and with the active assistance of the other accused, brought out a publication by name 'Srivyasavani'. In the said publication, the 1st accused is alleged to have proclaimed himself as the ‘Madathipathi’ of Shri.Kashi Math Samsthan with intent to fraudulently and dishonestly mislead 'Gouda Saraswatha Brahmin' community and the devotees of Shri.Kashi Math Samsthan, for making unlawful gain. It is alleged that the booklet by name 'Srivyasavani' was printed in the press run by the 6

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th accused and the 3rd accused was the Circulation Manager. Accused Nos.2, 4 and 5 are alleged to have contributed articles to the booklet and thereby aided the acts of the 1st accused. The complaint filed as aforesaid was forwarded to the police by the learned Magistrate and Crime No.979/2014 was registered at the Kasaragod Police Station. After completing investigation, final report was laid before the learned Magistrate on 5.5.2016, inter alia, under Sections 465, 468, 471 and 482 of the IPC.

4. Sri.S.Sreekumar, the learned Senior Counsel appearing for the 1st accused, contended that the allegations in the final report, even if it is taken as such in its entirety, will not make out any offence as against the petitioners herein. According to the learned counsel, it is evident from the complaint itself that the 1st accused was anointed as the Swamiji of Samsthan in the year 1994 and he had continued as such till 19.07.2000. The 1st accused was considered as the spiritual head by a section of the community. This led to a bitter feud between two factions and the lodging the complaint is just an offshoot of the strife between the two sections. Referring to the booklet published by the accused, he would contend that the same is published by the disciples by showing the 1st accused as the head of the Math and his name and photograph are printed in the front and the back of the booklet. In the preface itself, it is mentioned that Shrimad Raghavendra Thirtha Swamy is the 'Madathipathi' and his photo and the insignia of the 1st accused are depicted. In the same manner, in the back cover, the photograph of the 1st accused is clearly shown. It is contended that in order to attract the offence under Section 463 of the IPC, the condition precedent is that the accused should make a false document. To constitute a false document, it needs to be shown that the accused made or executed a document claiming to be someone else or that he had altered a document or tampered with a document or that he had obtained a document by practicing deception. None of the said circumstances arises in the instant case, submits the learned Senior Counsel. The essential ingredients of the offence having not made out, the continuance of the proceedings is an abuse of process, contends the learned Senior counsel. Much reliance is placed on the decision of the Apex Court in Mohammed Ibrahim and Others v. State of Bihar (2009) 8 SCC 751) to accentuate his submissions.

5. Sri. N. Raghuraj, the learned counsel appearing for accused Nos. 2 to 5, adopted the contentions of the learned Senior Counsel. According to the learned counsel, the specific allegation against accused Nos. 2 to 5 are that they had contributed/compiled articles to the booklet and it is also alleged that the 3rd accused acted as Circulation Manager. By merely contributing certain articles to a pamphlet brought out by their spiritual guru, wherein all that they have stated is to exhort the followers to lead a righteous path. The offences alleged will not be attracted, contends the learned counsel. He would further urge that the allegation that the accused had used any false property mark cannot be sustained as the insignia used by the accused in the booklet has no resemblance whatsoever to the insignia of Shri Kashi Math Samsthan, Varanasi.

6. Sri. Sebastian Paul, the learned counsel appearing for the 6th accused, submitted that the 6th accused is neither the printer nor publisher of the booklet. He is merely the declared keeper of the press and has no role in the selection and printing of the alleged offensive publication. It is further urged that as the keeper of the printing press, the 6th accused can only ensure that the materials printed are not abusive, obscene, or offensive. All that the 6th accused had done was receive the material in PDF format through the internet and provided the printed the pamphlet. He has no role whatsoever in the acts of rest of the accused, contends the learned counsel.

7. Sri.Sunny Mathew, the learned counsel appearing for the de facto complainant, would zealously refute the submissions of the learned counsel appearing for the accused. He argued that the booklet was printed and published by the accused by showing the 1st accused as the 'Madathipathi' of Shri Kashi Math Samsthan. He would point out that the 1st accused had instituted a suit before the Civil Court to declare him as the ‘Madathipathi’ of the Math and also to restrain the 20th Pontiff of the Math from exercising powers, duties and privileges as the ‘Madathipathi’. The said suit was dismissed and the judgment was confirmed by the Appellate court as well. He would further contend that during the pendency of the suit, the 1st accused had filed an application for an injunction seeking the parties to maintain status quo in respect of the functioning of the ‘Madathipathi’. The said application was dismissed by the trial court and the Appellate court and the matter was taken up before the Hon'ble Supreme Court. The Apex Court confirmed the order passed by the courts below. Thereafter, the accused had conspired and brought out the booklet sometime in the month of September, 2013 claiming that he is the 'Madathipathi' of the Shri Kashi Math Samsthan, which he was not. According to the learned counsel, the pamphlet is a false document and the accused are clearly liable for the various offences alleged against them. The moment the accused brought out the booklet by portraying the 1st accused as the 'Madathipathi' of the Shri Kashi Math Samsthan, the ingredients of the offences alleged will be attracted and this Court in exercise of powers under Section 482 of the Cr.P.C. will not be justified in quashing the proceedings is the submission.

8. I have heard the learned Senior Public Prosecutor and have considered the submissions advanced.

9. The specific prosecution allegation is that the 1st accused had portrayed himself as the 'Madathipathi' of Shri Kashi Math Samsthan, Varanasi and had brought out 'Srivyasavani' and deceived the members of the ‘Gouda Saraswatha Brahmin’ Community. The question is, as to whether, in the facts of the instant case, the petitioners can be prosecuted for having committed the offences under Sections 465, 468, 471, 482 r/w Section 34 of the IPC.

10. It is clear from the records that there is a long standing dispute between two groups of the ‘Gouda Saraswatha Brahmin’ community and the civil courts have held that the 20th Pontiff cannot be prevented from exercising powers and discharging duties as the ‘Madathipathi’ of Shri Kashi Math Samstan and that the contention of the 1st accused is that he is the ‘Madathipathi’ cannot be sustained. The finding of the trial court has been upheld by the High Court as well. The issue herein is whether the allegations in the complaint prima facie constitute the offence of forgery (S.463), forgery for the purpose of cheating (S.468), using as genuine a forged document (S.471) and punishment for using a false property mark (S.482).

11. To attract the offences under Sections 465, 468 and 471 of the IPC, the prosecution will have to show that the accused have committed the offence of forgery. The relevant sections read thus:

“Section 463 – Forgery:

“Whoever makes any false documents or false electronic record or part of a document or electronic record with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.”

Section 468 - Forgery for purpose of cheating:

“Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

Section 471 - Using as genuine a forged document or electronic record:

“Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.”

Section 482 - Punishment for using a false property mark:

“Whoever uses any false property mark shall, unless he proves that he acted without intent to defraud, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”

12. It would be apposite at this juncture to refer to Section 464 of the IPC, which defines “making a false document”. It reads as follows:-

“464. Making a false document. A person is said to make a false document or false electronic record:

First - Who dishonestly or fraudulently –

a) makes, signs, seals or executes a document or part of a document;

b) makes or transmits any electronic record or part of any electronic record;

c) affixes any digital signature on any electronic record;

d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or

Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or

Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration.

Explanation 1 - A man's signature of his own name may amount to forgery.

Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.”

13. The section defines a false document by descriptive enumeration of the processes by which it may be rendered false. To bring the case within clause (1) of Section 464 of the IPC, it is necessary to establish that the accused intended to induce a belief that a document was made, signed, sealed or executed by the authority of a person who did not make, sign, seal or execute it or that it was made signed or sealed or executed at a time when it was not so done. In other words, the document must purport to have been made, signed or sealed by a person who did not in fact make it. It is the essence of making a false document that the signature, seal or date shown on it should be false. The mere making of a false statement in a document would not come within the ambit of Section 464 of the IPC and would not amount to forgery.

14. In Md. Ibrahim (supra), the Apex Court had occasion to expatiate on the question whether a person, who executes a sale deed claiming himself to be the owner of the property, can be held guilty of the offence of forgery on the ground that he had made a false document. In that case, the 1st accused had executed a sale deed in favour of the 2nd accused, claiming that the property being sold belonged to him. The actual owner of the property filed a criminal complaint contending that the title to the property sold, belonged to him, and therefore, the 1st accused had committed the offence under Sections 467 and 471 of the IPC. The issue before the Apex Court was whether the 1st accused can be said to have committed the act of forgery even if the facts alleged by the actual owner were accepted as true. While partly allowing the petition, the Apex Court had held as follows in paragraph No. 14.

“14. An analysis of Section 464 of Penal Code shows that it divides false documents into three categories:

1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.

2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.

3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.

In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.”

15. Elucidating on the facts of the said case, it was held as follows in paragraph Nos. 15 to 17 of the report.

“15. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category.

16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.

17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code is attracted.”

16. Applying the principles to the case on hand, the prosecution records emphatically reveals that the accused have brought out a pamphlet by name 'Srivyasavani'. The booklet has been produced as Annexure-A4 in Crl.M.C.No.7373 of 2019. In the opening page itself, the name of the 1st accused is boldly stated as 'H.H. Shrimad Raghavendra Thirtha Swamy' and he is portrayed as the ‘Madathipathi’. His passport size photograph is also affixed, which can be used to identify him. He also states that he is the ‘Madathipathi’ of the 'Kashi Math Samsthan'. Furthermore, in the back cover, a full size photograph of the 1st accused conducting ‘Pooja’ is shown in full glory. In the case on hand, the 1st accused has not claimed that he is someone else nor is he claiming that he has been authorized by someone else. He ignores the judgment of the Civil Court and continues to assert that he is the ‘Madathipathi’ of the 'Kashi Math Samsthan'. As to whether, in view of the judgment of the Civil Court, he was justified in portraying himself as the ‘Madathipathi’ is not the question here. The question is whether by claiming to be the ‘Madathipathi’, he can be held to have created a false document. I am of the view that by claiming himself to be the ‘Madathipathi’ and by making a statement which was apparently incorrect, he cannot be held responsible for having committed the offence of forgery. If there was an injunction restraining the 1st accused from acting as the ‘Madathipathi’, the party aggrieved can always approach the Civil Court for interdicting him, but not in this fashion. The booklet, for the aforesaid reasons, cannot be held to be false document as defined under Section 464 of the IPC and the printing or publishing of the document will not amount to forgery. In that view of the matter, the offence under Sections 465, 468 or 471 of the IPC will not be made out against any of the petitioners. Insofar as the offence under Section 482 of the IPC is concerned, the prosecution will have to show that the accused used any false property mark. The insignia of the 1st accused is clearly different from the insignia of the 'Kashi Math Samsthan' and even the learned counsel appearing for the party respondent does not dispute the said position.

17. It is by now settled that the powers possessed by this Court under Section 482 of the Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. However, if on appreciation of the final report as a whole and if it appears that the ingredients of the offence are absent and that the continuance of proceedings will only result in abuse of process, this Court will be well justified in quashing the proceedings in exercise of its inherent powers. Having gone through the entire materials, I am of the considered view that it would be an abuse of process of court to allow the prosecution to continue.

In the result, these petitions are allowed. All further proceedings in C.C.No.221 of 2016 on the file of the Chief Judicial Magistrate Court, Kasaragod against the petitioners herein are quashed.

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