IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 Crl.Rev.Pet.No. 4023 of 2008() ------------------------------ CC.12/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER(S): PETITIONER/2ND ACCUSED ------------------------------------------- NAMBRAN VASU,PUTHIYAKAVIL, S/O.KRIHNAN NAIR,THALASSERY AMSOM, DESOM, THALASSERY TALUK. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR OF THE HIGH COURT OF KERALA, ERNAKULAM. 2. REVEENDRAN,S/O.SANKARAN NAMBIAR, KERALA STATE FINANCIAL ENTERPRISES, KANNUR, KANNUR DISTRICT. PUBLIC PROSECUTOR SRI.M.SASINDRAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.4023 of 2008 -------------------------------------- Dated this the 25th day of June, 2009. ORDER Petitioner, arrayed as accused No.2 in C.C.No.12 of 2008 on the file of learned Judicial First Class Magistrate-I, Kannur sought his discharge under Section 239 of the Code of Criminal Procedure (for short, “the Code”) vide C.M.P.No.30 of 2008. Learned magistrate rejected the prayer vide order dated 1610.2008. 2. Case is that accused No.1 joined a kuri conducted by respondent No.2 on 20.6.1997 and he availed a loan on the security of an equitable mortgage over 2.50 acres of land in R.S.No.15/1993 suppressing the fact that of the said 2.50 acres, he had sold 40 cents to the petitioner/accused No.2 as per sale deed No.2220/1996 dated 3.5.1996. Accused No.1 created forged possession certificate and encumbrance certificate with the help of other accused and used the same as genuine knowing or having reason to think that those documents are forged, cheated respondent No.2 and thus committed offences punishable under Sections 406, 420, 468 and 471 read with Section 34 of the Indian Penal Code. As the prosecution case goes, petitioner allegedly shared common intention with accused No.1 and others in the commission of the offences. Accused No.8 as originally arrayed was the then Managing Director of respondent No.2 who is said to have sanctioned the loan on the Crl.R.P.No.4023/2008 2 strength of documents produced by accused No.2. Charge against him was quashed by this Court as per order dated 23.7.2007 in W.P.(C) No.6907 of 2005. Accused Nos. 1 to 7 including the petitioner remained in the charge sheet. Accused No.7 is the Village Officer who is said to have issued the certificate of possession in favour of accused No.1 concerning the entire 2.50 acres. Petitioner pleaded in the court below that the materials on record are not sufficient to proceed against him and hence he may be discharged. That petition did not find favour with learned magistrate. It is contended by learned counsel for petitioner that there is no material on record to show either that there was any fraudulent or dishonest intention on the part of the petitioner or that he shared common intention with accused No.1 or any other accused. 3. I also heard learned Public Prosecutor who appeared for respondent No.1 and learned counsel for respondent No.2. Learned counsel for respondent No.2 invited my attention to the averments in the complaint originally preferred by respondent No.2 concerning the involvement of the petitioner. 4. It is not disputed by petitioner also that sale deed No.2220 of 1996 is executed in his name on 3.5.1996 in respect of 40 cents out of the 2.50 acres which originally belonged to accused No.1 and which was subjected to the Crl.R.P.No.4023/2008 3 equitable mortgage in favour of respondent No.2 . Concededly, it was almost a year after execution of the sale deed that accused No.1 joined the kuri with respondent No.2 and it is still later on 1.11.1997 that he is said to have raised the loan from respondent No.2 on the security of equitable mortgage over the said 2.50 acres. In the complaint it is stated so far as petitioner is concerned, that though petitioner purchased 40 cents from accused No.1 (in the complaint document number is stated to be as 1260 of 1996) he purposely or intentionally omitted to produce details of purchase in the Village Office or before other authorities as required under law and further that petitioner and accused No.1 influenced the officials in the Sub Registrar's office at Peravoor and for the purpose of cheating respondent No.2 and for their illegal gain, obtained encumbrance certificate without showing the transaction. Learned Public Prosecutor after perusing the entire case diary stated that the only witnesses questioned by the investigating officer so far as the alleged involvement of the petitioner is concerned are Cws 16 and 18. CW16 was the Special Tahsildar of respondent No.2 and he stated that as pr order dated 24.4.2000 of the District Collector, he initiated steps for attachment of the 2.50 acres for realisation of the amount due to respondent No.2 from accused No.1 and gave notice for attachment on 29.6.2000 and 18.8.2000. Further notice was given on 25.11.2000. Pursuant to that on 16.4.2001 he placed the property for auction. Crl.R.P.No.4023/2008 4 On 29.11.2003 when the property was placed for auction, a notice was received from petitioner stating that he has already purchased 40 cents out of the property proclaimed for sale as per assignment deed No.2220/1996 and hence that portion of the property is not liable to be proceeded against for the loan allegedly due from accused No.1. According to that witness, records stated that 40 cents was purchased by petitioner but suppressing that, accused No.1 placed entire property as security before respondent No.2 and availed the loan. Witness No.18 is the Village Officer concerned. He, in response to a notice served on him by the Sub Inspector who investigated the case stated that as per the village records it is accused No.1 who had paid the basic tax for the entire 2.50 acres till 27.1.20000, thereafter nobody has paid tax for the said 2.50 acres and no mutation was effected in the name of petitioner. 5. Question for consideration is whether with this much material on record charge could be framed against petitioner for offences first above mentioned. Under Section 239 of the Code if upon considering the final report and the documents produced along with it under Section 173 of the Code and making such examination if any of the accused the magistrate considers the charge to be groundless he could discharge the accused. Binding authorities on the point say that to frame a charge it is sufficient that there is strong Crl.R.P.No.4023/2008 5 suspicion concerning the involvement of the accused concerned. In this case, what is projected by the prosecution in the investigation and final report and also through the statement of CWs 16 and 18 is only that petitioner had not paid the basic tax for the 40 cents he purchased at any time after the purchase and further that he had not effected mutation of the property in his name. As the Public Prosecutor pointed out that there is no other materials on record to show that petitioner had any hand in the matter of accused No.1 placing the entire property as security with respondent No.2 or obtaining the relevant documents concerning the entire property. There is also no case or material on record to show that in the matter of sale in favour of petitioner being not mentioned in the encumbrance certificate, petitioner had any role. With the only allegation that petitioner did not pay basic tax after the assignment in his name or that he had not effected mutation of the property in his name, I am unable to say that a case of strong suspicion of his involvement in the alleged offences is made out. May be, petitioner has not discharged his responsibility to pay basic tax to the Government or effected mutation. That cannot be taken as an indication about his involvement in a serious crime in the nature alleged. I am persuaded to think after hearing submission of learned counsel on both sides and Public Prosecutor and on perusing the materials produced by the prosecution under Section 173 of the Code that this is not a case where strong suspicion is made out against the Crl.R.P.No.4023/2008 6 petitioner so that he could be asked to face trial along with remaining accused and await the ultimate verdict. Hence in my view petitioner is entitled to succeed. Resultantly this revision is allowed. Order under challenge is set aside and C.M.P.No.30 of 2008 will stand allowed. Petitioner is discharged of the charges levelled against him. Crl.M.A.No.12260 of 2008 will stand dismissed. THOMAS P.JOSEPH, Judge. cks