IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH MARCH, 2010 / 14TH PHALGUNA, 1931 Crl.Rev.Pet.No. 231 of 2010(D) ---------------------------------- (AGAINST ORDER DTD.10.8.2009 IN CMP 3814/2008 IN CC NO.558/2007 OF JUDICIAL FIRST CLASS MAGISTRATE, MATTANNUR) REVN. PETITIONER(S)/2ND ACCUSED/DEFACTO COMPLAINANT: ----------------------------------------------------------------------- T.P.SAINUDHIN, S/O.KUNHAMMAD, T.P.HOUSE, MUZHAKKUNNU AMSOM DESOM, POST VILAKODE, IRITTY, KANNUR. BY ADV. SRI.SUNIL NAIR PALAKKAT RESPONDENTS/ STATE & ACCUSED NOS.1 & 3: ----------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, IRITTY POLICE STATION, KANNUR, (THROUGH PUBLIC PROSECUTOR OF HIGH COURT OF KERALA, ERNAKULAM). 2. KAYIKKAL YOUSEF, S/O.MAMU, NADUVANNUR AMSOM, MOOLADU DESOM, KOYILANDI, KOZHIKODE. * 3. SOUDHA, W/O.KAYIKKAL YOUSEF, NADUVANNUR AMSOM, MOOLADU DESOM, KOYILANDI, KOZHIKODE. R1 BY PUBLIC PROSECUTOR SRI.C.S.HRITHIK. * THE THIRD RESPONDENT'S NAME IS CORRECTED AS PER ORDER IN CRL.M.A. NO. 2117 OF 2010 DATED 5.3.2010. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/02/2010, THE COURT ON 05/03/2010 PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 231 of 2010 --------------------------------------------- Dated this the 5th day of March, 2010 O R D E R The petitioner is the second accused in C.C.No.558 of 2007 of the Judicial First Class Magistrate Court, Mattannur. He approached the said court by filing CMP No.3814 of 2008 in C.C.No.558 of 2007 with a prayer to discharge him from the above case. The learned Magistrate, by Annexure A4 order, dismissed the said petition and declined the prayer. It is the above order challenged in this revision petition. 2. Heard Advocate Mr.Sunil Nair Palakkat, learned counsel appearing for the revision petitioner and also the learned Public Prosecutor. 3. Learned counsel for the revision petitioner vehemently submitted that the implication of the petitioner, who is the de facto complainant in the above case as one of the accused itself is illegal, irregular and improper. According to the learned counsel, the above Crl.R.PNO.231 of 2010 :-2-: case was instituted upon the Police report in Crime No.265 of 2006 of Iritty Police Station which is a crime registered on the basis of the complaint dated 29.8.2006 received in the said Police Station from the Judicial First Class Magistrate Court, Mattannur under Section 156(3) of the Cr.P.C., when he approached the court by filing the said complaint. So, according to the learned counsel, in a crime registered upon the complaint of the revision petitioner, he cannot be implicated as an accused. It is also the contention of the learned counsel that as on today, there is no grievance against him since he had paid off the entire amount to the persons from whom he collected the amount for arranging visa. Therefore, according to the learned counsel, the petitioner is entitled to get a discharge. 4. On the other hand, the learned Public Prosecutor submitted that even though the crime was registered upon a complaint of the revision petitioner, the further investigation reveals the involvement of the revision petitioner and hence, Crl.R.PNO.231 of 2010 :-3-: the revision petitioner is implicated as second accused. The materials on record, justify arraying the petitioner as accused. According to the learned Public Prosecutor, the trial court has already considered the prayer of the petitioner and examined the same in the light of the materials on record and thereafter, rejected the request and hence, no interference of this Court is warranted. 5. I have carefully considered the arguments advanced by the learned counsel for the revision petitioner as well as the learned Public Prosecutor and also perused the available materials on record and the impugned order. 6. The present allegation against the petitioner in the Criminal case pending before the court below is that the revision petitioner has obtained huge amount from ten persons, offering and agreeing to arrange visa to them. Thus, on investigation, according to the prosecution, the petitioner has collected a total sum of Rs.7,70,000/- from various persons. The court below found that though the Crl.R.PNO.231 of 2010 :-4-: petitioner had claimed that the entire amount was paid to the first accused, no document is produced to substantiate such claim. It is further found that the Police records would show that all the persons, who were allegedly cheated, have paid the amounts to the petitioner and there is no record to show that the persons so deceived in the transaction have paid the amount to the first accused. According to the court below, the Police report further shows that during the investigation, it is revealed that the candidates, who paid the huge amount to the petitioner for obtaining visa, approached the revision petitioner for repayment of the amount and at that time, the revision petitioner filed the above mentioned complaint against the first accused. 7. On the basis of the above factual inputs of the case pending against the petitioner, the court below has found that the revision petitioner has filed such complaint against the first accused so as to get over the anticipated proceedings against him at the instance of the deceived Crl.R.PNO.231 of 2010 :-5-: candidates. The trial court has also found on perusing the prosecution records that the revision petitioner has active role in collecting the amount from various persons with an offer to arrange visa. So the court below has formed an opinion that if the revision petitioner is discharged, it will adversely affect the trial of the prosecution case. The trial court also found that there is sufficient material on record to prove the guilt of the revision petitioner in the case. Thus, the trial court concluded that the prosecution has established a prima facie case against the revision petitioner. 8. The above observation and finding of the lower court is based upon the materials collected through the investigation and produced in the form of a final report under Section 173(2) of Cr.P.C. The only claim of the petitioner is that he had paid back the amount to the persons from whom, he collected the amount. According to me, even if such claim is admitted as true, it cannot be said Crl.R.PNO.231 of 2010 :-6-: that the revision petitioner can be absolved from the criminal liability for which now the trial is pending. The court below has only found that there is no material to show that he had entrusted the said money with first accused. It is also discernible from the order that the revision petitioner approached the court below by filing a complaint only when the deceived candidates approached him with demand to repay the amount so collected from them. If the said facts are true, it is clear that he moved the court below with ulterior motive which would amount to another fraud. 9. In this juncture, it is relevant to note that the petitioner has once approached this Court by filing Crl.M.C.No.2608 of 2008 with a prayer to quash the proceedings against him under Section 482 of the Cr.P.C. But, this Court by order dated 10.7.2008 dismissed the above petition with observation that the petitioner can approach the Magistrate by invoking Section 239 of the Cr.P.C. The above Crl.M.C. was filed at a stage after the Crl.R.PNO.231 of 2010 :-7-: filing of the report in the crime. At this stage, the only difference is that the court below has passed an order rejecting the prayer for discharge. Therefore, the facts and circumstances, which are now pressed, were present even at the time of filing Crl.M.C. In fact, there is no substantial change in the circumstances from the stage of dismissing the above Crl.M.C. Really, at present, by the impugned order, the trial court in terms of the direction issued by this Court in the above Crl.M.C,. found that there are materials to proceed against the revision petitioner and prosecution has established a prima facie case against him. Therefore, absolutely no interference with the order of the trial court is warranted at this stage. The petitioner is free to take, whatsoever his defence and plea before the trial court, at appropriate stage. In the result, I find no reason to interfere with Annexure A4 order of the court below and as such there is Crl.R.PNO.231 of 2010 :-8-: no merit in the revision petition and the same is dismissed. sd/- V.K.Mohanan, Judge MBS/ -true copy- P.S.TO JUDGE. Crl.R.PNO.231 of 2010 :-9-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 ------------------------------------ -------- O R D E R Crl.R.PNO.231 of 2010 :-10-: DATED: -10-2009