IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 Crl.Rev.Pet.No. 3844 of 2010() ------------------------------ AGAINST THE ORDER DATED 18/08/2010 IN CRMP.1893/2010 IN CC.258/2009 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER: PETITIONER ------------------------------- K.R.RENJITH, S/O.K.R.RAVI,KUZHIKKATHIL HOUSE, AZHOOR MURI, PATHANAMTHITTA BY ADV. SRI.S.SHANAVAS KHAN RESPONDENTS: ---------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM BY P.P. SMT. REKHA C. NAYAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 3844 of 2010 ---------------------------------------- Dated the 2nd Day of June, 2011 ORDER The accused in C.C.No.258/2009 of the court of Chief Judicial Magistrate. Pathanamthitta is the revision petitioner as he is aggrieved by the order dated 18.8.2010 in Crl.M.P.No.1893/10 of the learned Magistrate rejecting his request for discharge under section 239 of CRPC. 2. The learned counsel, in support of her pleadings the favour of the revision petitioner, to assail the order impugned, submitted that one of the vehicles, namely Maruthi car involved in the case was not recovered from the revision petitioner, but the recovery was effected from one Abdul Sherif and it is the further submission of the learned counsel that the said vehicle was entrusted with the said Abdul Sherif by the R.C owner himself and therefore, the entire allegation will go against the prosecution itself and therefore the petitioner is entitled to get a discharge. It is also the submission of the learned counsel that, originally though altogether there were 5 accused, after investigation all other persons were deleted from the array of accused and there is delay also in filing the complaint. Thus CRRP 3844/10 -2- according to the learned counsel, the petitioner is entitled to get a discharge under section 239 Cr.P.C. 3. On the other hand the learned Public Prosecutor on instruction submitted that the learned Magistrate has considered the prayer of the petitioner elaborately and by the impugned order, rejected the same on the ground that there are sufficient grounds to proceed against the accused. Thus according to the learned Pubic Prosecutor, no interference is warranted. 4. I have carefully considered the arguments advanced by the counsel for the petitioner as well as the learned Public Prosecutor. I have perused the order impugned and the C.D. made available to me by the learned Public Prosecutor. 5. When a court of law, while considering an application for discharge, either under section 239 or under Section 245 Cr.P.C., is expected to consider whether the report made available or the complaint and the materials constitute grounds to proceed against the accused and at that stage, it not the duty of the court to see whether there is any prospect for the conviction of the accused or to weigh the evidence. It is a CRRP 3844/10 -3- settled position that at the time of framing of charge or considering the application for discharge, there is no question of appreciation of the evidence or materials produced by the police or the complainant. In the present case, the offences involved are under sections 406, 468 and 471 of IPC. The case of the complainant is that the petitioner/accused approached him offering that he will make arrangements for getting a loan on low rate of interest for which he demanded the papers of the vehicle involved in the case, namely, one Maruthi Car and one Scorpio Van and he had by forging the documents cheated the complainant and committed the offences punishable under Sections 406, 468 and 471 of IPC. The arguments advanced by the learned counsel that no recovery was effected from the revision petitioner/accused or the original other accused were deleted from the final report or the delay in filing the complaint etc. are matters to be considered at the time of consideration of application for discharge. From the police report and the records it appears that the Matruthi Car was seized by the Circle Inspector of Police, Nilambur Police station when the car was produced by one Abdul Sherif before the said police officer. CRRP 3844/10 -4- From the seizure mahazar it is seen recorded that the said vehicle was entrusted with the said Abdul Sherif by the R.C owner of the vehicle namley Ranjith Kumar. But in the police report it is seen that the said vehicle was entrusted with Abdul Sherif by the complainant/Accused No.1, the petitioner herein and the other accused, at Nilambur. The above statement that contained in the police report is part of the confession statement allegedly made by the revision petitioner when he was arrested and questioned. If the above facts are true and correct, at this stage, neither the trial court nor this court can say as to under what circumstances the complainant went along with the revision petitioner and other accused to entrust the vehicle with the said Abdul Sherif, especially, when there is an allegation under sections 406, 468 an 471 of IPC. These are all factors to be appreciated on the basis of evidence that is yet to be adduced during the trial of the case. In view of the decisions reported in Vijayan v. State of Kerala (2007(3) KLT 495); State of Maharashtra v. Priya Sharan Maharaj (1997(4) SCC 393), and Palwinder Singh v. Balwinder Singh (2008(14) SCC 504), the grounds taken by the revision petitioner in support CRRP 3844/10 -5- of his pleadings for a discharge are irrelevant. Therefore, according to me, the learned Magistrate is fully justified in his observation and finding that contained in the order impugned to reject the prayer for a discharge of the petitioner under section 239 Cr.P.C. Therefore, there is no merit in the Crl.R.P. and accordingly, the same is dismissed. V.K. MOHANAN JUDGE KVM/-