IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 Crl.Rev.Pet.No. 2554 of 2008() ------------------------------ (AGAINST THE ORDER DATED 25/04/2008 IN CMP 613/2008 IN CC.360/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR) .................... REVN. PETITIONER(S)/SECOND ACCUSED: --------------------- K.M.PRABHAKARAN, S/O.KRISHNAN NAIR AGED 57 YEARS, R/AT.KRISHNA, ATHIRAKAM PO., MUNDAYAD, KANNUR. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENT(S)/COMPLAINANT: --------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. STATION HOUSE OFFICER, KANNUR CITY POLICE STATION, KANNUR SHRI.C.M.NAZER, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.REV.PETITION NO.2554/2008 ORDER ON CRL.M.A.No.7714 OF 2008 IN CRL.REV.PETITION NO.2554 OF 2008 DISMISSED. 25/09/2008 SD/- (M.SASIDHARAN NAMBIAR, JUDGE) //TRUE COPY// PA TO JUDGE. jg M.SASIDHARAN NAMBIAR, J. ---------------------------------- Crl. Rev. Petition No. 2554 of 2008 ------------------------------------------ Dated, this the 25th day of September, 2008 O R D E R This petition is filed under Section 397 and 401 of the Code of Criminal Procedure challenging the order dismissing C.M.P. No.613 of 2008 in C.C. No.360 of 2007 on the file of Judicial First Class Magistrate Court II, Kannur. After investigation based on a complaint filed by the defacto complainant, Manager of the Chovva Co-operative Bank, Sub Inspector of Police, City Police Station, Kannur submitted a final report alleging that the two accused committed the offences under Sections 419, 420 and 468 read with Section 34 of Indian Penal Code. Petitioner is the second accused. The prosecution case is that first accused approached the defacto complainant for the purpose of opening a savings account representing herself as R.P.Nisha and as there was nobody to introduce her, the Bank officials insisted to produce identity and she returned bank along with the petitioner, the Secretary in-charge of the Bank, who declared that he knows first accused, and based on that, first accused was allowed to open a Crl.Rev.Petition No.2554/2008 -2- bank account and she deposited Rs.250/- and opened the account. The case is that as cheque leaf cannot be issued for a deposit of Rs.250/- and when she insisted for cheque leaf, which was not issued to her, she brought petitioner, who asked the Bank officials to give two cheque leaves and cheque leaves were also given. The prosecution case is that first accused impersonated herself as R.P.Nisha, Rayaroth Parambil House, Pallikunnu, Kannur and opened an account and it was in furtherance of the intervention of the petitioner, who introduced her, and the accused thereby committed the offences. Petitioner filed C.M.P.No.613 of 2008 to discharge him. The learned Magistrate found that the materials available are sufficient to frame charge against petitioner also and dismissed the application filed by him to discharge him. This order is challenged in this revision petition. The argument of the learned counsel appearing for the petitioner is that there is no material to connect the petitioner with the offences charged and therefore learned Magistrate should have discharged him as provided under Section 239 of Code of Criminal Procedure. Crl.Rev.Petition No.2554/2008 -3- 2. Section 239 provides that if, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving prosecution and the accused opportunity of being heard, learned Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. While considering the question of framing charge, learned Magistrate is not expected to analyse the evidence and decide whether the evidence sought to be adduced by the prosecution is sufficient to convict the accused. The learned Magistrate needs only to consider whether the materials are such that if unrebutted make out a case to proceed further after framing the charge. Even if there is no written document evidencing the introduction of first accused by the petitioner, it cannot be said that there is no material. Statement of the Bank officials is to the effect that first accused was allowed to open the account by impersonation only because of her introduction by the petitioner. The record produced by the accused cannot be considered at this stage. If Crl.Rev.Petition No.2554/2008 -4- the statements of the witnesses recorded under Section 161 and produced under Section 173 of Code of Criminal Procedure reveal that petitioner introduced first accused, it cannot be said that the case against the petitioner is groundless so as to discharge him as the case against petitioner is groundless. This is not a stage for weighting the pros and cons of all materials or for sifting the materials produced by the prosecution. Only if the materials relied on by the prosecution, if relied on, will not prima facie show the involvement of the petitioner he could be discharged under Section 239 as the charge is groundless. This is not such a case. The revision petition is, therefore, dismissed. (M.SASIDHARAN NAMBIAR, JUDGE) jg