IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 Crl.Rev.Pet.No. 1744 of 2007() ------------------------------ CRA.354/2004 of SESSIONS COURT, KOLLAM CC.285/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA .................... REVISION PETITIONER: APPELLANT/ACCUSED: ----------------------------------------------------------------------- C.M.GEORGEKUTTY, S/O T.M.MATHAI, CHARUVILA PUTHEN VEEDU, ELAMPALMURI, VILAKKUDY, PATHANAPURAM. BY ADV. SRI.SAJU.S.A RESPONDENT: RESPONDENT: ---------------------------------------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOLLAM POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *ADDL.R2 IS IMPLEADED: R2. GEORGE MATHEW, KANIYANADAKKAL VEEDU, NELLIKKUNNAM, UMMANNUR. (*ADDL.R2 IS IMPLEADED AS PER ORDER DTD. 17/07/2008 IN CRL.M.A.NO.7044/2008) BY PUBLIC PROSECUTOR SRI. C.M.NAZAR ADV. SRI. K.SHAJ FOR R2 SRI.SAJJU.S FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 1744 OF 2007 ............................................ DATED THIS THE 17th DAY OF OCTOBER, 2008 ORDER Petitioner is the accused in C.C.285 of 2000 on the file of Judicial First Class Magistrate-I, Kottarakara. Police registered the F.I.R, after Magistrate directed investigation under Section 156(3) of Code of Criminal Procedure on a complaint filed by defacto complainant. After investigation, S.I of Police, Kottarakara laid the charge for the offence under Section 420 IPC. Petitioner pleaded not guilty. Prosecution examined only PW1 and marked Exts.P1 to P3. 2. On the evidence, petitioner was found guilty and was convicted for the offence under Section 420 IPC and sentenced to simple imprisonment for one month, apart from a compensation of Rs.40,000/- under Section 357(3) of Code of Criminal Procedure. Petitioner challenged the conviction and sentence before Sessions Court, Kollam in Crl.A.354 of 2004. Learned Sessions Judge, on hearing the appeal, found that Magistrate proceeded the case as if it is a private complaint alleging an offence under Section 138 of N.I.Act. Finding that even Investigating Officer was not examined, learned Sessions CRRP 1744/2007 2 Judge set aside the conviction and remanded the case to the Magistrate for fresh disposal after complying with the procedure. The order of remand is challenged in this revision petition filed under Section 397 read with 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 4. Learned counsel appearing for petitioner submitted that judgment of Sessions Court itself shows that police has not properly investigated the case and apart from examining the defacto complainant, no other evidence was adduced. Learned counsel pointed out that in order to establish an offence under Section 420 IPC, it is mandatory for the prosecution to establish that at the time of parting with the money, there was an inducement and it was with the intention to cheat and such an allegation is not revealed in the evidence of PW1 and in such circumstances, learned Sessions Judge should not have remanded the case back to trial court. There is force in the submission of learned counsel that for a conviction under Section 420 IPC, prosecution has to prove that the accused had an intention to cheat at the time of inducement and it should be CRRP 1744/2007 3 before parting with the money. If there is no evidence to prove these ingredients, petitioner can only be acquitted. But learned Sessions Judge found that the records do not establish that learned Magistrate has complied with the procedure provided for trial of a case chargesheeted by the police. In such circumstances, I do not find any reason to interfere with the order of remand. Suffice to say that learned Magistrate shall dispose the case as expeditiously as possible and personal presence of the petitioner shall not be insisted, except, when absolutely necessary. M.SASIDHARAN NAMBIAR, JUDGE lgk/-