IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 Crl.Rev.Pet.No. 173 of 2011 ------------------------------------ AGAINST THE ORDER DATED 18/08/2010 IN CRMP 604/2010 IN CC.334/2009 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... REVN. PETITIONERS: ACCUSED ---------------------------- 1.FR.JOSE,AREECHIRAYIL, ST.MARY'S CHURCH, KHANDVA, MADHYA PRADESH, NOW RESIDING AT ST.THRESA'S CHURCH, ROSHINI P.O. KAHALWA (VIA) KHANDVA DISTRICT, MADHYA PRADESH - 450117. 2. BENNY JOSEPH, 116 C-MAYER IHAR, NEW DELHI, RESIDING AT 21,THE TURN PIKE, FULWOOD, PRESTON, PR-23 NT,U.K. 3. ANNAMMA @ KUNJUMOL @ ANNAMMA J. PURHUSSERIL, MEMURI, ANVETTOM, ST.MARY'S CHURCH, KHANDVA, MADHYA PRADESH, RESIDING AT 10Y01 ROCKEY, CT, TAMPA, FL 33447, USA. 4. MARYKUTTY JOY, 166 C MAYUR VIHAR, NEW DELHI 91, RESIDING AT 25, POLICE COLONY HAUZ KHAS, NEW DELHI. 5. SELIN JOSEPH, 160 B MAYER VIHAR, NEW DELHI, NEW SELIN RAJU, W/O.M.P.RAJU, 52B, POCKET IV, MAYUR VIHAR, NEW DELHI-91. BY ADV. SRI.LIJI.J.VADAKEDOM RESPONDENTS: --------------------- STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 173 of 2011 ---------------------------------------- Dated the 23 rd Day of March, 2011 ORDER Revision petitioners are the accused Nos.3 to 7 in C.C.No.334/2009 pending before the Judicial First Class Magistrate Court-I, Ettumanoor in which court, they preferred M.P.No.604/2010 for a discharge from the above Calendar Case in which the offences alleged against them are under sections 409 and 420 read with Section 34 of IPC. The above request is declined by the learned Magistrate by a common order dated 18.8.2010 while disposing of the above petition as well as the petition preferred by the other accused for the very same relief. 2. I have heard Smt. Liji J. Vadakkedom, the learned counsel appearing for the revision petitioner and the learned Public Prosecutor and I have perused the CRRP NO.173/11 -2- impugned order and other documents produced in this Crl.R.P. 3. The allegation against the accused, who are 8 in numbers, is that the accused with fraudulent intention to cheat the de facto complainant and similarly situated persons and to get unlawful enrichment, misrepresented before the persons like the complainant offering 24% interest and received deposit altogether to the tune of Rs.30 lakhs and thereafter no money was repaid as offered and thus the accused who are partners of the firm, viz., Arichira Financiers, committed the offences punishable under sections 409 and 420 read with 34 IPC. 4. On the above allegation, crime No.127/2004 was registered in the Ettumanoor police station and after investigation, the police preferred a charge based upon which cognizance was taken by the learned Magistrate for the above offences against the accused and CRRP NO.173/11 -3- instituted C.C.No.334/2009. Thereafter accused No.2 filed Crl.M.P.No.1575/10 and Accused Nos. 3 to 7 preferred M.P.No.604/10 for their discharge from the above case. No such petition has been filed either by Ist accused or by 8 th accused. It is the above request of the petitioners declined by the learned Magistrate. 5. The learned counsel for the revision petitioners, on the basis of Annexure-2, which forms part of the prosecution records, submitted that Arichira Financiers, Ettumanoor is a proprietory concern conducted by AJ Thomas, who is the Ist accused and therefore the prosecution allegation that the said financial institution is a partnership firm in which the other accused are partners, is absolutely baseless and there is no other material in support of the above allegation. Another contention taken by the learned counsel is that except against accused Nos.1, 2 and 8, CRRP NO.173/11 -4- none of the witnesses made any allegation or overt act regarding the misrepresentation or canvassing of deposit etc. It is also the submission of the learned counsel that in the absence of any evidence that the revision petitioners are partners of Arichira Financiers, which is a proprietory concern of Ist accused, particularly in the absence of any materials, no offence under section 409 would lie against the revision petitioners. Similarly , in the absence of allegation of any overt act against the petitioners, section 420 IPC also not disclosed against the revision petitioners and thus there is no grounds to proceed against the revision petitioners for the offences under sections 409 and 420 IPC. 6. On the other hand, the learned Public Prosecutor stoutly opposing the contention raised by the learned counsel for the revision petitioners submitted that the petitioners are part and parcel of CRRP NO.173/11 -5- Arichira Financiers and 161 statement of the witness shows involvement of the revision petitioners in committing the fraud. Thus according to the learned Public Prosecutor, the learned Magistrate is perfectly justified in rejecting the request of the petitioners for a discharge. 7. I have carefully considered the arguments advanced by the learned counsel for the petitioners as well as the learned Public Prosecutor and I have also perused the order impugned and other materials produced in this Crl.R.P. 8. It is true , in order to proceed against the revision petitioners for the offences under sections 420 IPC or 409 IPC, there need not be any deed or partnership agreement. But in the present case, the specific allegation of the de facto complainant and other witnesses is that the revision petitioners are partners of CRRP NO.173/11 -6- Arichira Financiers. But as rightly pointed out by the counsel for the revision petitioners, it appears that the learned Magistrate has miserably failed to consider annexure-2 which forms part of the prosecution records, and came into a conclusion as to whether there are grounds to proceed against the revision petitioners under section 420 and 409 IPC. It is equally important to note that in the present case, in order to attract Section 409, the prosecution has to furnish materials to show that the revision petitioners will come under the category of public servants, bankers, merchants or agents. But Annexure 2 would show that the revision petitioners will not come under any of the above category. But as pointed out by the learned Public Prosecutor, if the petitioners had acted as agents of Ist accused, there may be grounds to proceed against the revision petitioners. But in the impugned order, there is no CRRP NO.173/11 -7- reference to any such materials produced by the prosecution to show that the petitioners will come under any of the categories mentioned in Section 409. So this is a matter to be reconsidered by the trial court. Except the 161 statement of CWs 1 and 3, no other witness has made any statement or allegation of over act against the revision petitioners and it is for the learned Magistrate to find out whether those witnesses have made any specific overt act against these revision petitioners, regarding their role in the commission of the above offences. Going by the materials it appears that subject to further verification and findings of the learned Magistrate, the main allegations are against accused Nos.1, 2 and 8. Therefore, it is for the learned Magistrate to reconsider the materials and find out whether there is any ground to proceed against the revision petitioners. In the light of the above CRRP NO.173/11 -8- discussions and the points considered above, I am of the view that this is a matter to be remitted back to the learned Magistrate for fresh consideration and for making fresh orders after hearing the prosecution as well as the revision petitioners. In the result, this Crl.R.P. is disposed of setting aside the order dated 18.8.2010 in M.P.No.604/10 in C.C.No.334/2009 and remitting the matter back to the trial court for fresh consideration and for fresh order after hearing the revision petitioners as well as the prosecution. The learned Magistrate is directed to expedite the matter and pass orders as expeditiously as possible. V.K.MOHANAN JUDGE. kvm/- CRRP NO.173/11 -9- kvm/-