MANU/KE/2093/2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. M.C. No. 5542 of 2014
Decided On: 07.06.2019
Appellants: S.K. Pandit
Vs.
Respondent: Chandraprakash D. Deo and Ors.
Hon'ble Judges/Coram:
R. Narayana Pisharadi, J.
Counsels:
For Appellant/Petitioner/Plaintiff: G. Krishnakumar, Adv.
For Respondents/Defendant: N. Ratheesh, Suma Ratheesh, Advs. and M.K.
Pushpalatha, PP
ORDER
R. Narayana Pisharadi, J.
1. The petitioner is the second accused in the case C.C. No. 467/2012 on the file of
the Court of the Judicial First Class Magistrate, Kochi. He seeks to quash the
proceedings against him in the case by invoking the power of this Court under
Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the
Code').
2. The case against the petitioner is one instituted upon the complaint (Annexure-II)
filed by the first respondent (hereinafter referred to as 'the complainant'). The history
of the Sree Krishna Swamy Devaswom/Temple (hereinafter referred to as 'the
temple') and the administration and management of the properties of the temple is
narrated in the complaint. However, the material averments/allegations in the
complaint, with regard to commission of the offences alleged against the accused,
are the following: The complainant is the Managing Trustee of the temple. The
temple exclusively belongs to Maharashtra Brahmins who are generally known as
'Pandithars'. The first accused is a Maharashtra Brahmin settled down in
Mattancherry. The second accused is also a Maharashtra Brahmin. He is a person who
has settled down in Pune District in Maharashtra. The first accused is a rival to the
family business of the complainant and he is on inimical terms with the present
managing committee of the temple headed by the complainant. He has been trying to
oust the present office bearers of the committee. One V.A. Pandit was managing the
temple during the period 1947-1977. The second accused, may be at the persuasion
of the first accused, claimed himself as a hereditary trustee of the temple in his
capacity as the brother and successor-in-interest of V.A. Pandit, filed complaints in
the year 2008 before the Cochin Devaswom Board against the Board of Trustees of
the temple. In those complaints, the second accused stated that a 'chattapathram'
(scheme) framed in the year 1075 M.E existed in respect of the temple and as per the
said scheme, the temple belonged to his family. The Cochin Devaswom Board, as per
the order dated 30.04.2008, gave direction to include three hereditary trustees in the
Board of Trustees of the temple. The Board of Trustees then filed W.P.(C) No.
4205/2009 in the High Court challenging the order of the Cochin Devaswom Board.
In that writ petition, the High Court directed the Ombudsman for the Travancore and

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Cochin Devaswom Boards to make a report. At that time, the Law Officer of the
Cochin Devaswom Board stated that the Board had in their possession a handwritten
copy of the chattapathram framed in the year 1075 M.E which was attested by V.A.
Pandit on 15.04.1970. This stand made by the Cochin Devaswom Board was against
their earlier stand that there was no such document in existence. In the enquiry
conducted by the Cochin Devaswom Board, the second accused produced a copy of
the chattapathram framed in the year 1075 M.E. The handwritten copy of the
chattapathram newly found available in the office of the Cochin Devaswom Board
would have been fabricated and forged by the second accused with the connivance of
the first accused. The complainant believes that the attested handwritten copy of the
chattapathram produced by the accused before the Devaswom Board is a document
forged by them. The attempt of the accused by submitting such forged handwritten
copy of the chattapathram might be to persuade the Devaswom Board to believe that
the temple belonged only to the family of the accused. The second accused is in no
way connected with the affairs of the temple. But, for the illegal and illicit design of
the first accused, he would have come to Kochi and become instrumental for
fabricating the handwritten copy of the chattapathram and somehow stealthily placed
it before the Cochin Devaswom Board. The accused furnished the handwritten copy of
the aforesaid document before the enquiry officer of the Devaswom Board knowing
fully well that it is a forged and fabricated document. They have persuaded the
Cochin Devaswom Board to believe that it is a genuine document to get an order in
their favour. The accused have committed the offences under Sections 415, 460, 465,
468 and 474 read with 34 of the Indian Penal Code (for short 'I.P.C').
3 . After conducting enquiry under Section 202 of the Code, the learned Magistrate
found that there is a prima facie case against the accused and took the complaint on
file for the offences under Sections 415, 465, 468 and 474 read with 34 I.P.C and
ordered to issue summons to the accused.
4. Heard learned counsel for the petitioner and the learned Public Prosecutor and also
the learned counsel for the first respondent.
5 . The learned counsel for the petitioner has contended that the
averments/allegations in the complaint do not attract the offences alleged against the
petitioner. Learned counsel has submitted that the averments in the complaint would
indicate that even the complainant is not certain that the petitioner has committed
any offence of forgery or cheating. On the other hand, learned counsel for the first
respondent would contend that the averments in the complaint would spell out the
offences alleged against the petitioner and that this Court would not be justified in
quashing the proceedings against the petitioner at the inception.
6 . At this juncture, it is pertinent to note that the complainant had earlier filed a
complaint against the very same accused before the Magistrate's Court and the
Magistrate had forwarded it to the police under Section 156(3) of the Code for
investigation. However, after registration of a case and conducting investigation, the
police filed refer report stating that there was no evidence to find that the accused
had committed the offences alleged against them.
7. According to the complainant, the chattapathram of 1075 M.E produced before the
enquiry officer of the Cochin Devaswom Board is a forged document. Whether it is a
forged or genuine document is not a matter to be decided at this stage in this
petition.
8. The offences alleged against the petitioner are under Sections 415, 465, 468 and
474 read with 34 I.P.C.

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9. Section 415 of the Indian Penal Code reads as follows:
"415. Cheating. - Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property, or
intentionally induces the person so deceived to do or omit to do anything
which he would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in body,
mind, reputation or property, is said to "cheat".
1 0 . The ingredients to constitute an offence of cheating are as follows: (i) there
should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a)
the person so induced should be intentionally induced to deliver any property to any
person or to consent that any person shall retain any property, or (b) the person so
induced should be intentionally induced to do or to omit to do anything which he
would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b)
above, the act or omission should be one which caused or is likely to cause damage
or harm to the person induced in body, mind, reputation or property. A fraudulent or
dishonest inducement is an essential ingredient of the offence of cheating.
11. The averment in the complaint with regard to the offence of cheating committed
by the petitioner is that he furnished the handwritten copy of the chattapathram
before the enquiry officer of the Cochin Devaswom Board knowing fully well that it is
a forged and fabricated document and persuaded the Board to believe that it is a
genuine document to get an order in his favour. But, there is no averment in the
complaint with regard to any dishonest inducement made by the petitioner to any
officer of the Cochin Devaswom Board or any other person. Even if the averment in
the complaint that the petitioner persuaded the Cochin Devaswom Board to pass an
order in his favour is treated as averment regarding dishonest inducement made by
him, there is no averment in the complaint as to the damage or harm caused to the
Cochin Devaswom Board on acting upon such inducement made by the petitioner. It
is to be noted that, as per the definition of cheating given under Section 415 I.P.C,
the damage or harm has to be sustained or suffered by the person who is induced by
the accused. On a perusal of the averments in the complaint, I am of the considered
view that the ingredients of the offence of cheating, as defined under Section 415
I.P.C, are not made out against the petitioner.
12. The other offence alleged against the petitioner is forgery of document.
13. Section 463 I.P.C defines forgery and Section 464 I.P.C deals with making a false
document. Section 463 provides that whoever makes any false document 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. In order to constitute forgery, the first essential condition is that the accused
should have made a false document. The false document must be made with an
intent to cause damage or injury to the public or to any class of public or to any
community. The definition of the offence of forgery declares the offence to be
completed when a false document or false part of a document is made with specified
intention. In a case of forgery, the questions are: (i) is the document false (ii) is it
made by the accused and (iii) is it made with an intent to defraud. Every forgery
postulates a false document either in whole or in part, however, small.
14. An analysis of Section 464 I.P.C shows that it divides false documents into three

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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 authorised 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 (See Mohammed Ibrahim v. State of Bihar:
MANU/SC/1604/2009 : (2009) 8 SCC 751). After the amendment of the Indian Penal
Code by Act 10 of 2009, the act of a person affixing any electronic signature on any
electronic record also amounts to making a false document.
15. Making any false document is sine qua non to attract the offence of forgery. In
Sheila Sebastian v. Jawaharaj : MANU/SC/0542/2018 : AIR 2018 SC 2434, the Apex
Court has held that the definition of "false document" is a part of the definition of
"forgery" and both must be read together. A person is said to make a false document
or record if he satisfies one of the four conditions as noticed hereinbefore and
provided for under Section 464 I.P.C.
16. In the instant case, the allegation in the complaint is that the handwritten copy
of the chattapathram produced by the petitioner before the enquiry officer of the
Cochin Devaswom Board is a forged document. The allegations/averments against
the petitioner in the complaint with regard to the commission of the offence of
forgery are extracted in the succeeding paragraphs.
17. In paragraph 9 of the complaint, it is stated as follows:
"Therefore it can be easily concluded that the handwritten copy of the so
called Chattapathram newly found available in the office of Cochin Devaswom
Board would have been fabricated and forged at the end of the Accused No. 2
with the connivance of Accused No. 1 and it might be clandestinely and
stealthily placed lately in the office of the Cochin Devaswom Board without
the notice of its officials by the Accused with malafide intention to snatch the
properties and administration of the Sree Krishnaswamy Devaswom/Temple."
(emphasis supplied).
18. In paragraph 12 of the complaint, it is stated as follows:
"The complainant therefore believes that the said attested handwritten copy
of Chattapathram was clandestinely produced by the Accused before
Devaswom Board and it is a forged and faked one only at their end. The
attempt of the accused by submitting such forged handwritten copy of an
illusory chattapathram might be to persuade the Devaswom Board authorities
to believe that the temple belonged only to a family of Pandit and Accused
No. 2 is one of a successor of the said family on the basis of his surname as
Pandit."
(emphasis supplied).

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19. In paragraph 13 of the complaint it is stated as follows:
"In the instant case Accused No. 2 is a total stranger to the Sree
Krishnaswami Devaswom/temple for long time. He is hailing from Pune. He
is not in any way connected with the affairs of the said Devaswom/temple at
all. But for the illegal and illicit design of Accused No. 1 he would have come
to Kochi and become instrumental for fabricating a false document, viz., the
handwritten copy of Chattapathram with attestation as alleged, and somehow
stealthily placed it before the Cochin Devaswom Board."
20. Again in paragraph 13 of the complaint it is stated as follows:
"The complainant presumed that the Accused had fabricated so many other
copies from the said faked handwritten copy of chattapathram with false
attestation of Mr. V.A. Pandit, for materializing their ill object."
(emphasis supplied).
21. In paragraph 15 of the complaint, it is stated as follows:
"The Accused have furnished the handwritten copy and produced the copy
thereof before the enquiry officer of the Devaswom Board viz., Mr. M.S. Sajai
knowing fully well that it is a forged and fabricated document at their end.
They have persuaded the Board to believe it to be a genuine document to get
an order in their favour by surreptitiously and secretly placed in their office
lately. They have committed the offence of forgery with common intention
for the purpose of cheating knowing the same to be forged and with that
intention they used it fraudulently and dishonestly as genuine."
22. The aforesaid averments/allegations in the complaint would show that even the
complainant is not certain or sure whether the petitioner has committed an act of
forgery. All the aforesaid allegations raised against the petitioner are based on
surmises and conjectures and on the belief of the complainant.
23. In Sheila Sebastian (supra), the Apex Court has held as follows:
"Keeping in view the strict interpretation of penal statute i.e., referring to rule
of interpretation wherein natural inferences are preferred, we observe that a
charge of forgery cannot be imposed on a person who is not the maker of the
same. As held in plethora of cases, making of a document is different than
causing it to be made. As Explanation 2 to Section 464 further clarifies that,
for constituting an offence under Section 464 it is imperative that a false
document is made and the accused person is the maker of the same,
otherwise the accused person is not liable for the offence of forgery".
(emphasis supplied).
24. In the instant case, there is no definite and specific allegation in the complaint
that the petitioner is the person who has made the handwritten copy of the
chattapathram of the year 1075 M.E. The ingredients of the offence of forgery are not
made out against the petitioner from the allegations/averments in the complaint. It
follows that the offences punishable under Sections 465, 468 and 474 are not made
out against the petitioner.
2 5 . Learned counsel for the petitioner has stated that the petitioner has already
instituted a suit in the civil court for framing a scheme for the administration and
management of the temple. This fact is not disputed by the learned counsel for the

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first respondent/complainant. Necessarily, the genuineness or otherwise of the
chattapathram of the year 1075 M.E would be an issue for consideration in the
aforesaid suit.
2 6 . In the aforesaid circumstances, I am satisfied that continuation of the
proceedings against the petitioner would be an abuse of the process of the court. The
proceedings against him are liable to be quashed.
2 7 . Consequently, the petition is allowed. All proceedings against the petitioner
alone in the case C.C. No. 467/2012 on the file of the Court of the Judicial First Class
Magistrate, Kochi, which are based on Annexure-II complaint, are hereby quashed.

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