IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 Crl.Rev.Pet.No. 723 of 2011() ----------------------------- CMP NO.1336/2010 IN CC.816/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY .................... REVN. PETITIONERS: PETITIONER/ACCUSED --------------------------------------- THOMAS, AGED 44 YEARS, S/O.VARGHESE, MECHERY HOUSE, PALAPPILLY, MELOOR P.O., THRISSUR DISTRICT. BY ADV. SRI.C.A.CHACKO RESPONDENTS: RESPONDENT/STATE ------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No.723 of 2011 ---------------------------------------- Dated the 24th Day of March , 2011 ORDER The revision petitioner is the accused in C.C.No.816/2009 of the court of Judicial First class Magistrate, Chalakkudy, who moved an application i.e., CMP No.1336/2010 under section 239 of Cr.P.C. for a discharge from the above case, but by order dated 29.7.2008, the learned Magistrate dismissed the above petition and hence this Crl.R.P. 2. I have heard Sri.C.A. Chako, the learned counsel appearing for the revision petitioner and also the learned Public Prosecutor. 3. The revision petitioner/accused is facing the charge under sections 405 and 406 of IPC on the allegation that the accused dishonesty removed the oil mill machinery worth Rs.3,66,614/- which was installed after availing a loan from the National Small Industries Corporation Limited, Kochi, (fort short 'NSIC') without their knowledge and consent. (in the impugned order it is wrongly mentioned as 'SIDCO'). As per the CRL.R.P 723/11 -:2:- agreement, the above firm is the owner and custodian of the Oil Mill. From the order it appears that, the agreement is to the effect that the revision petitioner shall not sell, mortgage, pledge, assign, lend or otherwise deal with or part with the possession of the said machineries. According to the prosecution, while the said agreement is in force, the accused abandoned the oil mill business and sold the machineries and removed the same from the oil mill premises wherein the machineries were installed. The factum of removal of the oil mill machineries came to the knowledge of the NISC when conducted inspection in the business premises of the accused. On the basis of the above fact, a statement was preferred before the Station House Officer, Chalakudy (Koratty) consequent to which Crime No.252/2008 was registered in the said police station for the offences under sections 405 and 406. 4. The learned counsel for the revision petitioner submitted that there were several cases pending against the revision petitioner/accused and all those cases were settled CRL.R.P 723/11 -:3:- by making payment and thereby the revision petitioner is not indebted to the financial institution The learned Public Prosecutor submitted that the order of the learned Magistrate is fully justified since the accused has removed the machineries in violation of the terms and conditions of the loan agreement. 5. I have carefully considered the arguments advanced by the counsel for the petitioner as well as the Public prosecutor. 6. While considering a petition under section 239 Cr.P.C for discharge, the learned Magistrate of the trial court is expected to consider the materials furnished by the prosecution so as to come into a conclusion as to whether there are sufficient grounds to proceed against the accused. There is no arguments on these aspects. The submission made by the learned counsel is to the effect that all the liabilities and commitment to the financial institution was discharged and therefore, no offence is attracted. These are facts to be considered by the trial court at the time of CRL.R.P 723/11 -:4:- appreciation of evidence after the process of recording evidence. According to me, the revision petitioner has no case that the machineries were removed either in accordance with the terms and conditions of the agreement or with the consent or knowledge of the financial institution or its officials. In the absence of any such contentions or materials in support of such contentions, I am of the view that the learned Magistrate is fully justified in dismissing the petition for discharge. The petitioner has no case that the learned Magistrate has failed to exercise his jurisdiction properly or exceeded the same. Thus I find no merit in the Crl.R.P and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/-