IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 Crl.Rev.Pet.No. 2279 of 2007() ------------------------------ CRL.M.P.NO.1267/2007 IN CC.495/2005 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER(S)/CR.PETITIONER & ACCUSED: --------------------------------------------- SANTHOSH, S/O. SADANANDAN, MATTATHILCHIRAYIL VEEDU, WARD NO.11, MARARIKULAM SOUTH PANCHAYATH. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ RESPONDENT(S)/PETITIONER/DE-FACTO COMPLAINANT: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE S.I. OF POLICE, ALAPPUZHA NORTH POLICE STATION, ALAPPUZHA. 2. MURALI, S/O. RAMACHANDRA PANICKER, MUNDUKATTIL VEEDU, WARD NO.5, PUNNAPRA PANCHAYATH. ADDL.3RD RESPONDENT: 3.M/S.ALLEPPEY COMPANY LIMITED, REP. BY THE AUTHORISED OFFICER, POST BOX NO.2602, ALAPPUZHA DISTRICT. ADDL.3RD RESPONDENT IS IMPLEADED AS PER ORDER DATED 23.6.2011 IN CRL.M.A.NO.3314/2011 IN CRL.R.P.NO.2279/2007. PUBLIC PROSECUTOR SRI.SABU SREEDHARAN SRI.G.PRIYADARSAN THAMPI FOR R2 SRI.V.S.AFSAL KHAN FOR ADDL.R3 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON 18/08/2011 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.2279 OF 2007 ----------------------------------- Dated this the 18th day of August, 2011 O R D E R The accused in C.C.No.495 of 2005 on the file of the Chief Judicial Magistrate Court, Alappuzha, has filed this revision challenging the legality and correctness of the order dated 17th May, 2007 passed by the learned Magistrate, directing reinvestigation in the case. 2. The above case arose on a complaint filed by the 2nd respondent employed as a Production Assistant in a company engaged in the production of coir products. His complaint filed before the court was referred to police for investigation, on which a crime was registered, and later, a final report filed indicting the accused (revision petitioner) for offences under 420, 464, 468 and 471 of the Indian Penal Code. The revision petitioner (accused) is stated to be a transporting contractor, who had been engaged by the company for transportation of Crl.R.P.No.2279/2007 2 goods in lorries from the company. The accused had fabricated documents and produced them as genuine and encashed a sum of Rs.5,775/- from the company, and to perpetrate such cheating, previous declarations, forms etc. issued by the complainant as Production Assistant of the company were made use of, was the crux of the case to impute the aforesaid offences. When summons was issued to the complainant (CW1) in the trial of the case, he appeared and moved an application for further investigation of the crime under Section 173 (8) of the Code of Criminal Procedure contending that the investigating agency has not seized and produced before the court some of the vital documents, enumerating such documents in his petition. He contended that scrutiny of such documents by the investigating agency and production of the same before court is essential for a fair trial. The order of the learned Magistrate shows that though the accused objected to further investigation of the crime, the prosecution, (Director of Prosecutions) had no objection at all. The learned Magistrate, whose attention was invited to two decisions of the Apex Court, referred to in its order, relying on such decisions, passed the impugned order directing for Crl.R.P.No.2279/2007 3 reinvestigation of the crime by a higher officer nominated by the Superintendent of Police. The accused in the case, feeling aggrieved with the order, has filed this revision. 3. In the revision, a third party, the company, in which, the de facto complainant (2nd respondent) worked as the Production Assistant and the revision petitioner (accused) was engaged as a contractor to transport its goods moved an application for impleadment and that being allowed, it was impleaded as the additional 3rd respondent. 4. I heard the counsel on both sides and also the learned Public prosecutor. The learned counsel for the petitioner (accused) assailed the order of the learned Magistrate contending that a reinvestigation of the crime as ordered in the case was thoroughly improper and unsustainable under law. The 1st respondent de facto complainant had requested only for further investigation of the crime for the reason that some vital documents have not been examined and produced before the court, is pointed out by the counsel that the order passed for Crl.R.P.No.2279/2007 4 “reinvestigation of the crime” was quite uncalled for. No interference with the order passed by the Magistrate is required or called for in exercise of the revisional jurisdiction is the submission of the learned counsel for the 2nd respondent, the de facto complainant, in the case. However, the learned counsel for the additional 3rd respondent company submitted that it has filed a complaint against the accused and also the 2nd respondent, its employee, alleging of fabrication of documents and cheating, producing forged documents as genuine and encashing enormous sums towards transportation of goods through vehicles, and after investigation of the crime registered on its complaint, a charge has been laid against the petitioner, the transporting contractor and that is also pending on the file of the court below. The company has suffered a loss of about Rs.20 lakhs by the cheating and forgery committed by the petitioner with the 2nd respondent, one of its employees and some others, and to escape from the prosecution launched by the company, the 2nd respondent had filed the complaint against the petitioner, the transporting contractor, is the further submission of the counsel. The learned counsel also submits that on the complaint Crl.R.P.No.2279/2007 5 filed by the company, a crime was registered as Crime No.770/2005 of Alappuzha police station, and in that crime, a final report had been filed before the court for offences punishable under Sections 420, 464, 468 and 471 of the IPC. 5. The order passed by the learned Magistrate on the application of the 2nd respondent seeking further investigation of the crime, whatever be the grounds thereof directing reinvestigation of the crime, is thoroughly improper and unsustainable. It is within the province and authority of the court to order further investigation of the crime under Section 173 (8) of the Cr.P.C. even after filing of the final report if justifiable grounds demand such investigation. However, ordering reinvestigation of the crime once a final report is filed, can be done only by the superior courts and even then only on exceptional circumstances presented warranting such reinvestigation. Section 173 (8) of the Cr.P.C. empowers only 'further investigation' and not 'reinvestigation'. Even leaving that aspect, on the facts presented as well, it appears, the learned Magistrate has not looked into the competency of the 2nd Crl.R.P.No.2279/2007 6 respondent, an employee of the company, to prosecute the petitioner (accused) for the offence of cheating and forgery when the loss, if any, was suffered by the company. The employer asked for his explanation when some forgery and fraud was detected with respect to the transportation of goods, seems to be the basis for filing of the complaint against the transporting contractor by the 2nd respondent complainant, on which, the police registered the crime and later filed a final report. Another complaint filed by the company as against the revision petitioner and also the 2nd respondent and some others in relation to cheating and fraud, that too, to a tune of about Rs.20 lakhs, as borne out by the affidavit filed by the additional 3rd respondent before this Court, which are reiterated by its counsel also at the time of hearing, was pending investigation when the police filed a report in the present case. From the submissions made by the counsel for the 3rd respondent, police has filed a report in the case registered on the complaint of the company for offences under Sections 420, 464, 468 and 471 of the IPC. Submissions made by the learned counsel for the 3rd respondent that the complaint filed by the 2nd respondent against the present Crl.R.P.No.2279/2007 7 petitioner (accused) at a time when the company had launched prosecution proceedings against them over the detection of cheating and fraud causing loss of substantial sum, in the light of the facts presented as aforesaid, cannot be brushed aside in examining the challenges set up in the revision. The petition filed by the 2nd respondent seeking further investigation enumerating the documents, which are stated to have been not examined by the investigating agency and produced before the court, no doubt, deserve to be examined with respect to his competency to file a complaint in relation to the loss suffered by the company and that too, in the backdrop the employer company has got a case of his involvement also in the cheating and fraud by fabricating and forging records. Evidently, neither the investigating agency nor the Director of Prosecutions has brought to the notice of the learned Magistrate the prosecution launched by the company, the registration of the crime thereof and also the report filed before the court after completion of the investigation of such crime, in which, it is submitted, at least the petitioner herein has been indicted as an accused for the offence of cheating and forgery. The documents, which are sought to be Crl.R.P.No.2279/2007 8 seized by the investigating agency, in the present case, in all probabilities, may be required for trial in the other case. In the facts and circumstances of the case, the learned Magistrate shall issue notice to the investigating officer and also the 3rd respondent and hear them also as to what further orders are to be passed in the application moved by the 2nd respondent for further investigation of the crime and also with respect to further proceedings in the case, in which, final report has been filed by the investigating agency. If such a course is not followed, there is every reason to hold that it would amount to a travesty of justice and the court being taken for a ride to scuttle the trial of the case over the crime registered at the instance of the 3rd respondent company. 6. Setting aside the impugned order, the learned Magistrate is directed to examine the matter afresh and pass appropriate orders on the application moved by the 2nd respondent for further investigation, as expeditiously as possible, at any rate, within a period of six weeks from the date of receipt of a copy of this order. Parties in the proceedings including the Crl.R.P.No.2279/2007 9 additional 3rd respondent are directed to mark their appearance before the learned Chief Judicial Magistrate Court, Alappuzha on 10.10.2011. Revision is disposed as indicated above. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.No.2279/2007 10