IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 Crl.Rev.Pet.No. 673 of 2011 --------------------------------------- [CC.NO.1333/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, PERUMBAVOOR] .................... REVIPETITIONER/PETITIONER/ACCUSED: ------------------------------------------------------------ BABY, AGED 43 YEARS, S/O.VARGHESE, ARAKKAL HOUSE, KURUPPAMPADY, PRESENTLY RESIDING AT DOOR NO.978, NEAR G.P.THEATRE, RADHAKRISHNAN ROAD, COIMBATORE DIST., TAMIL NADU. BY ADVS. SRI.B.PREMNATH, SMT.BOBBY RAPHEAL.C. RESPONDENTS/RESPONDENTS/STATE AND DEFACTO COMPLAINANT: ------------------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PERUMBAVOOR POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SKARIA, S/O.XAVIOR, AGED 45 YEARS, AMBATT HOUSE, DEVNAGAR, SAHIR TALUK, SHIMOGA DISTRICT, KARNATAKA STATE-560 022. 3. JINS.V.VARGHESE, S/O.VARGHESE, VITHAYATHIL HOUSE, RAMALLOOR KARA, KOTHAMANGALAM VILLAGE, ERNAKULAM DISTRICT-686 691. R1 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/03/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.673 OF 2011 ------------------------------------------------- Dated this the 4th day of March, 2011. ORDER The accused in CC No.1333/2008 of the court of Judicial Magistrate of First Class, Perumbavoor, preferred this revision petition challenging the order dated 5-1-2011 in MP.No.2758/2010 in the above case, by which the learned Magistrate declined the request of the petitioner for discharge under Section 239 of Cr.P.C. 2. I have heard the learned counsel appearing for the petitioner and the learned Public Prosecutor and I have perused the order impugned as well as the documents produced along with the revision petition. 3. CC No.1333/2008 is instituted in the court of Judicial Magistrate of First Class perumbavoor, upon the report in Crime No. 1690/2008 of the Perumbavoor Police Station for the offence punishable under Section 420 of IPC. The case of the prosecution is that the accused obtained Rs.5 lakhs from CW1 offering to return it as Rs.50 lakhs. It is also the case of the prosecution that the accused represented to CW1 that a bond of Rs.54,000/- Crores is going to be encashed which has come from the foreign country, for the formation of Charitable Trust. It is also the case that like CW1, CW2 and 3 were also cheated by after receiving money on promissing return of huge Crl.R.P.NO.673 OF 2011 2 amount. Thus according to the prosecution the revision petitioner has committed the offence punishable under Section 420 of IPC. The petitioner moved an application MP.No.2758/2010 before the trial court seeking his discharge under Section 239 of Cr.P.C from the above case. The learned Magistrate by her impugned order by dismissed the above petition. 4. Learned counsel vehemently submitted that the prosecution has not produced any document to show the receipt of money by the accused from the defecto complainant as well as other charge witnesses. It is also the submission of the learned counsel that in fact the cheque in question was not presented for encashment, though the Police had a version that the defacto complainant had presented the cheque for encashment, but dishonour for want of sufficient funds. The learned counsel invited my attention to the 161 statement of CW4, the Secretary of the Bank. On the basis of the 161 statement of CW4, the counsel submitted that as the cheque has not presented for encashment, no offence under Section 420 would lie against the accused. Thus according the learned counsel the entire prosecution story is false one and the petitioner is entitled to get a discharge. 5. The learned Magistrate has elaborately considered the contention of the accused/revision petitioner. Though I have heard elaborately the counsel for the revision petitioner, no explanation is Crl.R.P.NO.673 OF 2011 3 forthcoming from her as to how the cheque in question, which pertain to the account of the revision petitioner and bear his signature reached in the hands of the defacto complainant. It is also beyond dispute that the defacto complainant as well as the accused are not strangers and they were together conducting in Pine apple business. If that be so, all the contentions now raised by the revision petitioner has to be addressed the trial court during the trial of the above case on the basis of the evidence yet to be adduced in the above case. Whether the petitioner had offered the return of Rs.50 lakhs on the basis of a sum of Rs.5 lakhs which allegedly obtained by him from the charge witnesses and whether the petitioner has got any fraudulent intention at the time of the alleged receipt of Rs.5 lakhs and other amounts are also to be assessed during the time of trial that too only on the basis of evidence and proper appreciation of the same. Therefore, I find no reason to interfere with the impugned order of the learned Magistrate, in this revision petition. 6. As this Court is not inclined to interfere with the order of learned Magistrate, the counsel for the revision petitioner submitted the petitioner may be exempted from appearing before the trial court during the trial. The question of exemption is also to be considered by the learned Magistrate in case an application is preferred in this regard. Prosecution case is mainly based upon the cheque in Crl.R.P.NO.673 OF 2011 4 question. Therefore, I am of the view that unless and until the physical presence of the petitioner is inevitable the learned Magistrate will not insist for the physical presence of the revision petitioner. Therefore, the revision petitioner is directed to approach the Magistrate by filing a petition under Section 205 for his personal exemption which shall be considered by the learned Magistrate on merit and in accordance with law and the facts and circumstances involved in this case. Subject to the above observation, this revision petition is dismissed. V.K.MOHANAN, JUDGE pm