IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 19TH DAY OF DECEMBER 2011/28THAGRAHAYANA 1933 CRRP.No. 2966 of 2011 ( ) ================= CC.132/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-V, KOZHIKODE ................ REVISION PETITIONER(S)/ACCUSED 1 TO 3 ============================= 1. P. VENUGOPALA MENON, AGED 72 YEARS, S/O. PADMANABHAN NAIR, NECHIYIL HOUSE, KODAL NADAKKAVU, PANTHIRANKAVU. 2. V.C.VELAYUDHAN NAIR, AGED 69 YEARS, S/O. GOVINDAN NAIR,CHIRUNGOTH HOUSE, KODAL, NADAKKAVU, PANTHIRANKAVU. 3. MACHINGAL RAVEENDRAN NAIR, AGED 72 YEARS, S/O. RAVUNNIKUTTY NAIR, MACHINGAL HOUSE, KODAL, NADAKKAVU, PANTHIRANKAVU. BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.JOSEPH GEORGE(MULLAKKARIYIL) RESPONDENT/RESPONDENT/COMPLAINANT(S) =============================== STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. R. SEENA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs S.S. SATHEESACHANDRAN, J. ------------------------------------------ Crl. R.P No.2966 OF 2011 ------------------------------------------ Dated this the 19th day of December, 2011. O R D E R Petitioners are accused in CC 132/2008 on the file of Judicial Magistrate of First Class-V, Kozhikode. They are being prosecuted for offences punishable under section 406, 420, 418, 423 and 465 of IPC on a report filed by the Sub Inspector of Police, Nallalam Police station. 2. The case of the prosecution against the petitioner is that when they were officiating as the President, Secretary and Treasurer of Karayogam No.3002, NSS Kodal Nadakkavu, a property of the Karayogam, in violation of the bylaws of the parent organisation, Nair Service Society, had been dishonestly and fraudulently transferred by them in favour of a Trust and thereby they have caused loss to the aforesaid Society. Prosecution against the petitioners commenced on a private complaint filed by the aforesaid society before the Magistrate which was referred to investigation and report under Section 156 (3) of Cr.P.C. Crl.R.P No.2966/2011 -2- Petitioners have previously moved Crl.M.C No.3474/2010 before this Court for quashing the criminal proceedings initiated against them on the complaint of the Society. That petition was disposed of reserving the right of the petitioners to seek for their discharge, in case any report after investigation, is filed against them, provided they are entitled to do so. Subsequent to the filing of the report indicting them of offences aforesaid petitioners moved an application for discharge. The Magistrate after perusing the report and also the materials produced, being satisfied that there is sufficient reason to presume this guilt on the accused for the offences alleged turned down the plea of discharge canvassed. The petitioners have filed the revision in questioning the legality, propriety and correctness of that order of the Magistrate . 3. I heard the learned counsel for the petitioner and also the learned public prosecutor. The facts and circumstances involved in the case shows that it is only a civil wrong and already a civil case is pending before the Crl.R.P No.2966/2011 -3- competent court is the submission of the counsel for the petitioners to contend that the prosecution initiated against them and continued before the Magistrate Court cannot at all be sustained. The allegations set out would only violations of the bylaws of the society, and that by itself would never give rise to an offence as imputed, is the further submission before court. The application is opposed by the public prosecutor contending that the materials produced by the prosecuting agency disclose prima facie culpability of the petitioners for the offences imputed and as such a trial of the case in accordance with law is necessary to advance the ends of justice. Needless to pointed out that in a case requiring trial as a warrant case on a report filed by the police the accused can sustain a plea of discharge only on showing that the accusation made against them is groundless. At that stage the magistrate/judge is only forming an opinion on the materials placed, the report and the accompaniments produced thereto, whether offences is made out are prima facie which Crl.R.P No.2966/2011 -4- he is competent to try and punish the accused named in such a report. The offences imputed in the report as such are not made out by the materials will not come to the aid of the accused to contend that plea of discharge under Section 239 of the Code is available to him, but, he should show that no offence is made out and the charge itself is groundless. Where the magistrate is satisfied that plea of discharge canvassed by the accused under Section 239 of the Code is meritless, after perusing the reports and hearing the counsel for the accused and the public prosecutor, he need not even state any reason to form such opinion. He is expected to state reasons only when an order of discharge is passed in favour of the accused. Submission made by the counsel that disputes raised at best only give rise to civil wrong, no doubt, can be canvassed as defence in the trial of the case. Where the report filed by the police with the materials produced with such report, prima facie, disclose that the offences imputed against the accused warranted further proceedings against them, as observed by the Crl.R.P No.2966/2011 -5- magistrate, and having regard to the facts and circumstances presented in the case, I find there is no infirmity in the order of the Magistrate in turning down the plea of discharge set up by the accused. Revision lacks merit, and it is dismissed. Sd/- S.S. SATHEESACHANDRAN, JUDGE AMG True copy P.A to Judge