KRISHNAN KESAVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Krishnan Kesavan, the appellant, who was the accused in Sessions Case No. 55 of 1956 on the file of the Sessions Court of Trivandrum has been convicted by the learned Sessions Judge of that Court under Section 474, I.P.C., for having been in possession of a 'valuable security', to wit, a lease deed, knowing the same to lie forged and intending that the same shall fraudulently or dishonestly be used as genuine and sentenced to undergo rigorous Imprisonment for a period of 1 year. The lease deed in question is Ext. P-3 and the case arose out of a complaint filed by P.W. 1 before the Taluk Second Class Magistrate of Chirayinkil on November 9, 1953. The complainant, who is an Advocate, alleged in his petition of complaint that on March 20, 1953 he had permitted the accused to live in a building situate in the northern portion of Parambil Purayidom in. Attingal Pakuthy for a period of 3 months and that when he demanded surrender of the same, the accused set up title to the building and paramba as a lessee setting up a case that on 16-5-1117 the complainant had executed a lease deed in his favour. Exhibit P-2, dated November 3, 1953 is the reply notice sent by the accused in answer to the 'quit notice' issued by the complainant through a lawyer. The institution of the complaint followed soon afterwards on 9-11-1953 and the complaint set out that the accused was guilty of the offences punishable under Section 467, I.P.C. (forgery of valuable security), Section 471, I.P.C., read with Section 511, I.P.C. ("attempt to use a forced document as genuine) and Section 474. I.P.C. (having possession of a forged document knowing it to be forged and intending to use it as genuine). After the complaint was entertained, at the instance of the complainant, the Court issued a search warrant for the recovery of the alleged forged document. The Police however returned the warrant without executing it. Afterwards, on November 30, 1953 the complainant moved the learned Second Class Magistrate to issue a notice to the accused to produce the document in Court and the Court accordingly called upon the accused to produce the same. Complying with that notice, the lease deed (Ext. P-3) was produced by the accused before the Court on February 9, 1954. The case was afterwards transferred to the file of the Attingal First Class Magistrate, who after the usual preliminary enquiry, committed the accused for trial before the Trivandrum Sessions Court for commission of offences punishable under Section 465 (forgery), Section 467 and Section 474, I.P.C. At the trial the learned Sessions Judge found that there was no evidence that the accused had committed forgery, but held that the offences under Section 474 was brought home to him. Accordingly, while acquitting the accused of the charges under Sections 465 and 467, I.P.C., convicted and sentenced Him as stated above under Section 474, I.P.C. The appeal is against the said conviction and sentence,

(2.) Parambil Purayidom in Attingal Pakuthy, comprised in Sy. Plot 300, was 2 acres arid "26 cents in extent, it belonged to the, tarwad of the complainant and in O.S. 145 of 1120 on the file of the Trivandrum District Court, the complainant obtained a decree for partition of the same under which 85 cents in the northern portion was allotted to his share.. A prayer made in the plaint in the suit was that the share P.W. l had in the property should be given to his daughter Leelarathi Amma. who was plaintiff 2 in the case and the decree granted that prayer. Pursuant thereto the executing Court delivered the said 85 cents to her. This delivery was on March 7, 1953, vide delivery receipt.Ext, P-l. As plaintiff 2 was a minor it was her mother, plaintiff 3 in the suit, who passed the receipt to the Amin who effected the delivery. The complainant's case is that after the delivery he remained in possession of the property, for and on behalf of his minor daughter and according to the complainant, at the instance of the complainant's son. P.W. 2, an Advocate practising at Attingal he permitted the accused to occupy the building temporarily for a period of 3 months. This arrangement is alleged to have been made on March 20, 1953. The complaint would have it that when surrender of the building was sought after the expiry of the period, the accused denied the arrangement and as per Ext. p-2 set up a case that he was not aware of the decree in O. S. 145 of 1120 the delivery in execution thereof and that he was in possession of the property as per the lease deed granted by the complainant on 15-5-1117.

(3.) To make out the case that Ext, P-3 was a forgery the prosecution depended upon the evidence of P.W. 1, the complainant, P.W. 2, the complainant's son and P.W. 3, the clerk of P.W. 2 These are the only witnesses examined in the case and all of them stated that the signature in Ext. P-3 purporting to be that of P.W. 1, was not really his signature. P.W. 1 definitely stated that he had not granted any lease in favour of the accused or put his signature to Ext, P-3. P. Ws. 2 and 3 supported that evidence by stating that the signature in Ext. P-3 was not that of P.W.1. However, P.Ws 2 and 3 admitted that Ext, P-3 was in the handwriting of P.W. 3 and that P.W. 3 wrote it with the permission of P.W. 2. P.W. 3 went further and said that the contents of it was dictated to him by P.W. 2.. According to P.W. 3 it was written on the day it purports to have been written, that is, 15-5-1117 and after the writing was finished, he handed it over to P.W. 2 who in his turn handed it over to the accused. P.W. 1 had not signed the document before it was so handed over. P.W. 2 did not admit that he dictated the contents of the document to P. W. 3 though he would agree that he permitted the latter to write it. He also denied having handed over Ext. P-3 to the accused. These differences in the versions of these two material witnesses apart, we find it difficult to believe that P.W. 2 or P.W. 3 would have on their own handed over, even though unsigned, a document purporting to have been grunted by P.W. 1 and acknowledging receipt of Fs. 350/- and stipulating a rent of Fs. 300/- a year for a property belonging to P.W. 1 and which property, as stated earlier, and as mentioned in the document, was of an extent of 2. acres and 26 cents. The stamp paper on which the lease deed is engrossed was vended in the name of P.W 1 and whether the denial of P.W. 1 that the had not signed the lease deed be true or not, as stated earlier, we cannot accept the version that P.W. 2 or P.W. 3 handed it over to the accused in the form in which they would have the Court believe, it was handed over, namely without any signature. Even if the denial of the signature by P.W. 1 be true, we cannot help thinking that whoever put the signature it must have been there when it was handed over to the accused. P. W. 1 while stating that signature was hot his, also said that a great effort would appear to have been made to make that approximate to his signature.-