IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.07.2008 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Crl.R.C.No.1132 of 2006 Eswara Gounder ...Petitioner/ Defacto Complainant Versus 1. K.P.Thangamani 2.State by Inspector of Police Kavindapadi Police Station Erode District. (Crime No.88 of 2006)...Respondents/Petitioner/Accused Respondent/Complainant Criminal revision petition preferred against the Order passed by the learned Judicial Magistrate II, Gobichettipalayam in CMP.No.1214 of 2006 in C.C.No.117 of 2006, dated 25.08.2006. For Petitioner : Mr.A.K.Kumaraswamy For Respondents : Mr.N.Manoharan for R1. Mr.N.Kumanan Government Advocate (criminal side) for R2. JUDGMENT The first respondent herein is an accused in C.C.No.117 of 2006, on the file of the Judicial Magistrate-II, Gobichettipalayam, and the revision petitioner herein is the defacto complainant. The revision petitioner has preferred this revision against the order passed by the learned Judicial Magistrate-II, Gobichettipalayam, in C.M.P.No.1214 of 2006 under Section 239 of the Criminal Procedure Code discharging the accused from the charges under Section 4 r/w 76 (1) of the Chit Fund Act, 1982, and Sections 420 and 409 IPC (three counts) 2. The case of the prosecution is that during the period between 1990-1995, the accused being the owner of 'Mani finance' and the said finance establishment was conducted without any sanction of the Government. The accused collected deposits from witnesses, Eswara Gounder, Venugopal and Kuppayammal a sum of Rs.1,25,000/-, https://hcservices.ecourts.gov.in/hcservices/ Rs.20,000/- and Rs.95,000/- respectively and on their demand for the return of the amount, the accused by executing promissory notes and deposit receipts and thereby making them to believe that he would return the money with interest, but subsequently failed to return the money to them and repeated demand was made by them in the year 1991. Holding a finance meeting the accused instructed the witnesses to tender the promissory notes and deposit receipts (except one promissory note dated 15.04.1990 for Rs.5000/- executed in favour of Eswara Gounder) and after receiving those promissory notes and receipts, the accused retained them and subsequently also destroyed and thereby prevented the witnesses from taking any legal action against them to recover the money. Thereby the accused committed criminal breach of trust and misappropriated the amount of the witnesses. 3. A petition was filed by the accused before the learned Magistrate under Section 239 Cr.P.C stating that there was no material to make out a prima facie case against the accused and the complaint was filed against the accused only at the instigation of the political enemies in the locality. 4. Counter also was filed by the State denying the allegation and also stating that sufficient materials are available against the accused. 5. The learned Magistrate passed the order of discharge stating mainly for the reasons that (i) the prosecution relied upon only two documents namely the letter given by the District Registrar, Gobichettipalayam and the one blank pro-note signed by the accused and there is no whisper about the deposit of Rs.1,67,000/- made in the finance company either in the FIR or 161 Statement of the defacto complainant. (ii) the letter given by the District Registrar for the period 1989-1991 is not sufficient ground to implicate the accused. (iii) the prosecution failed to point out when the blank pronote was executed and how the blank pronote came to the custody of the complainant and the version of the defacto complainant is contradictory. (iv) The facts alleged in the complaint is one of civil nature and the defacto complainant tries to get the remedy through criminal code using blank code approaching the civil court. 6. Mr.A.K.Kumaraswamy, learned counsel for the petitioner herein submitted that the learned Magistrate made an erroneous approach while discharging the accused and even though the prima facie case is made out, the learned Magistrate by observing wrong factual details in the order and holding that the statement of the defacto complainant is contradictory, had discharged the accused. https://hcservices.ecourts.gov.in/hcservices/ 7. The learned counsel for the petitioner further pointed out that the statement of the defacto complainant Eswara Gounder and other witnesses Venugopal and Kuppayammal make out a case of cheating and criminal breach of trust. Though the accused had to make payment to them, by receiving back the promissory note from the witnesses, though promissed to return the amount, as he had failed to return the amount, the accused had committed an offence of cheating and misappropriation. There is no reason to reject the statement of the witnesses at this stage, as they make out ingredients of the offences. 8. The learned counsel for the respondent submitted that the complaint was given by the defacto complainant with an ulterior motive and there is no document or material to support the statement of the witnesses under Section 161 Cr.P.C. All the three witnesses who are said to have deposited the amount to the accused are related to each other. Mere suspicion cannot be a ground for framing charges. 9. The learned counsel for the first respondent/accused relied on the decision of the Honourable Supreme Court reported in Dilawar Balu Kurane vs. State of Maharashtra (2002(2) SCC 135), where in it has been held as follows: "12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting the trial (see Union of India vs. Prafulla Kumar Samal."-1979 S.C.C(Crl.)609) https://hcservices.ecourts.gov.in/hcservices/ 10. The learned counsel for respondent also relied on the judgment of this Honourable High Court in A.R.Saravanan vs. State through Inspector of Police Crime Branch CID, Madurai reported in (2003-1 LW (Crl.)73), wherein it has been held as follows: "7. The words "groundless" employed in Section 239 means there is no ground for presuming that the accused is guilty. When there is no ground for presuming that the accused has not committed an offence, the charge must be considered as groundless." 11. This Court considered the submission made by both parties and perused all the records. It is the categorical statement of the witnesses- (i)Eswara Gounder, (ii)Venugopal and (iii)Kuppayammal, that they were all depositing the amount in the finance establishment of the accused. When they demanded back the money with interest, the accused did not make the payment. But in the year 2002, the accused saying, that he has closed the finance establishments and asked witnesses to hand over the promissory notes executed by him and he promised to give money on the next day after verifying the accounts. But he had neither paid the amount nor returned the promissory note executed by him. The main allegation against the accused is not the mere non payment of the amount deposited, but having made the witnesses to believe to make the payment, got back the promissory notes. The said circumstances spoken by the witnesses to the police is an incriminating material against the accused. Whether the statement of the witnesses are true or false cannot be considered at the stage of framing charges. Whether the statement of the witnesses were supported by the documents or not also cannot be considered at this stage. Whether the allegations and averments made against the accused make out a prima facie case is only to be seen. 12. The learned Judicial Magistrate-II, Gobichettipalayam, had observed in his order that there is no whisper about the deposit amount of Rs.1,67,000/- being made in the finance company either in the FIR or in the 161 statement. On perusal of the first information report and 161 statement, this Court finds the averments being made by the defacto complainant in the First Information Report as well as in his statement to the police recorded under Section 161 Cr.P.C., but how the learned Magistrate could make such an observation erroneously is not known. The further observation of the learned Magistrate in th order is that the prosecution has failed to point out when the blank pronote was executed and also it is not explained by the prosecution that how the said blank pronote came to the custody of the defacto complainant. The one blank promissory note which is produced by the prosecution belongs to the witness Kuppayammal and according to her statement, with one particular pronote was available with her. Of course, it may be difficult to believe such statement; but at this stage, it is not possible to conclude the averments are false. The Magistrate cannot disbelieve the statement of witnesses at the stage of framing charges by elaborate and painstaking examination of the materials. It has to be seen only that the materials placed before the Court, if unrebutted whether would make out a prima facie case against the accused or not. https://hcservices.ecourts.gov.in/hcservices/ 13. Even as per the decision of the Honourable Supreme Court reported in Dilawar Balu Kurane v. State of Maharashtra (2002(2) SCC 135), which was brought to the notice of this Court by the learned counsel for the petitioner himself, it is oberved that "The Judge while considering the question of framing charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case made out against the accused, where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge......." In view of the above said principle, it cannot be said in this case that the accused has properly explained the suspicion which arises against the accused. 14. This Court finds that the prima facie materials available to proceed against the accused. The order passed by the learned Judicial Magistrate to discharge the accused is set aside. The revision petition is allowed. Sd/ Asst. Registrar /true copy/ Sub Asst. Registrar ksr To 1. Judicial Magistrate-II, Gobichettipayalam. 2. -do- 'thro' The Chief Judicial Magistrate,Erode. 3. The Public Prosecutor, High Court, Madras. +1 cc to Mr.A.K.Kumaraswamy, Advocate, SR.No.35763 +1 cc to Mr.N.Manokaran , Advocate, SR.No.35974 Pre-delivery Order in Crl.R.C.No.1132 of 2006 BV (CO) SMK/14.7.08 https://hcservices.ecourts.gov.in/hcservices/