KLW‎ > ‎Volume 43‎ > ‎

(2015) 434 KLW 620 – B. Ushakumari Vs. State of Kerala [Section 466 IPC]

Google+ Facebook Twitter Email PrintFriendly Addthis
The gadget spec URL could not be found
The gadget spec URL could not be found
The gadget spec URL could not be found

(2015) 434 KLW 620

IN THE HIGH COURT OF KERALA AT ERNAKULAM

B.KEMAL PASHA, J.

Crl.M.C. No. 7419 of 2014

Dated this the 4th day of November, 2015

CC 1211/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM

PETITIONER(S)/1ST ACCUSED

B USHAKUMARI

BY ADV. SRI.ALAN PAPALI 

RESPONDENT(S)/STATE & COMPLAINANT

STATE OF KERALA AND ANR.

R1 BY PUBLIC PROSECUTOR SMT.MAYA 

O R D E R 

The petitioner is the 1st accused in C.C.No.1211 of 2012 of the Judicial First Class Magistrate's Court-II, Kollam, for the offences punishable under 

Sections 420 and 466 read with Section 34 IPC.

2. The petitioner was working as an Amin at the Musiff’s Court, Kollam, who was entrusted with the delivery proceedings in the execution in O.S.No.773 of 1996, which was a partition suit. The allegation against the petitioner is that she had deliberately cheated the third defendant by delivering Item No.2 property having an extent of 1.26 cents to the plaintiff/decree holder instead of delivering it to the 3rd defendant. The 2nd respondent herein, who is the complainant, who purchased the property later from the 3rd defendant, has field a private complaint before the court below alleging the aforesaid offences against the petitioner herein and the 2nd accused.

3. The complainant had preferred a complaint before the learned District Judge, Kollam. The learned District Judge, Kollam initiated disciplinary actions against the petitioner and imposed a punishment of withholding of two increments with cumulative effect. An appeal was filed against the said order, to the Administrative side of this Court. The Registrar (Subordinate Judiciary) of this Court considered the matter and allowed the appeal in part by ordering the withholding of three increments without cumulative effect. In Annexure-IV order passed by the Registrar (Subordinate Judiciary), it was clearly found that it was an error committed by the petitioner due to oversight and the same was unintentional.

4. One of the offences alleged against the petitioner is one under Section 466 IPC. No doubt, the offence under Section 466 IPC is one coming under the definition of forgery under Section 463 IPC. In 

Govind Mehta v. State of Bihar [(1971) 3 SCC 329] 

followed by the decision of the three Judges Bench of the Honourable Supreme Court in 

S.L.Goswami v. the High Court of Madhya Pradesh at Jabalpur [(1979) 1 SCC 373]

it was held that the offence under Section 466 IPC is one falling within the description of the offence of forgery defined in Section 463 IPC and therefore, Section 195(1)(b)(ii) Cr.P.C. will takes in the offence under Section 466 IPC also. Therefore, no court can take cognizance of the offence under Section 466 IPC except on the complaint in writing of that court or by such officer of the court as that court may authorise in writing in that behalf or of some other court to which that court is subordinate. Evidently, there is no such complaint in this case alleging an offence under Section 466 IPC. Matters being so, the cognizance taken by the court below for the offence under Section 466 IPC is bad in law.

5. Regarding the offence under Section 420 IPC also, it seems that no such offence can be invited to the facts and circumstances of this case. The 3rd defendant in the suit has no complaint at all. The 2nd respondent herein, who is the complainant, has preferred a private complaint has no locus standi to step into the shoes of the 3rd defendant to forward such an allegation of cheating as against the petitioner herein. Over and above it, in the enquiry conducted, it has come out that such error crept in the delivery proceedings were unintentional and it was only a mere error on account of oversight. Matters being so, an offence under Section 420 IPC is also not sustainable in this case.

6. From all the above, it has come out that the continued proceedings against the petitioner in C.C.No.1211 of 2012 of the Judicial First Class Magistrate's Court-II, Kollam based on Annexure-I private complaint are liable to be quashed. 

In the result, this Crl.M.C. is allowed and the continued proceedings against the petitioner in C.C.No.1211 of 2012 of the Judicial First Class Magistrate's Court-II, Kollam based on Annexure-I private complaint are hereby quashed. 

Sd/- B.KEMAL PASHA JUDGE 

DSV/6/11/15 // True Copy // P.A. To Judge