IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 Crl.Rev.Pet.No. 4033 of 2009() ------------------------------ CC.277/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... REVN. PETITIONER(S): PETITIONER/ACCUSED ---------------------------------------------------------------------------- K.GANESHAN, AGED 36, S/O.KUNNUMMEL NALINI, NEAR JASEENTHA JUNCTION, P.O.WEST MATTOOL, KANNUR. BY ADV. SRI.K.S.MADHUSOODANAN RESPONDENT(S): COMPLAINANT & FORMAL PARTY -------------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STATION HOUSE OFFICER, PAYANGADI, KANNUR. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.4033 of 2009 = = = = = = = = = = = = = = Dated this the 22 nd day of February, 2010 ORDER The revision petitioner who is the accused in C.C.No.277 of 2007 on the file of the J.F.C.M, Payyannur for an offence punishable under Section 420 IPC challenges the order dated 20.11.2009 passed by the learned Magistrate dismissing his application filed as CMP No.4608 of 2009 for a discharge under Section 239 Cr.P.C. 2. The case of the prosecution instituted on a police report is that on 10.11.2004, the revision petitioner who had deceived the de facto complainant into believing that she would be appointed as an employee in the institution by name Akshaya Janasevana Kendram, Payangadi, after receiving an advance of Rs.25,000/- cheated her by not paying the salary beyond two months and not repaying the amount collected on termination of service as agreed. 3. The learned counsel for the revision petitioner placing reliance upon the decisions Varghese Mathew v. State of Kerala and others (2008(2) KHC 663), Kedar Singh and Crl.R.P. No.4033 of 2009 2 others v. State of Bihar (AIR 99 SC 1480) submitted that ingredients of offence of cheating are not made out even going by the allegations in the charge sheet and that the learned Magistrate erred in not discharging the revision petitioner. 4. The only consideration before the Magistrate when framing the charge is as to whether a prima facie case is made out for proceeding against the accused. The learned Magistrate was satisfied about that. If so, the only course open to the Magistrate is to frame the charge and the petitioner will have to stand the trial. I see no good ground to interefere with the discretion exercised by the learned Magistrate. It is made clear that the petitioner shall be entitled to raise all contentions available to him in law including the decisions cited above during the trial of the case. If a question of identity does not arise for consideration in the trial, the petitioner may file a petition for personal exemption during trial by incorporating the necessary averments. This Crl.R.P is accordingly dismissed. Dated this the 22 nd day of February, 2010. V. RAMKUMAR, JUDGE sj