IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 11TH DAY OF OCTOBER 2011/19TH ASWINA 1933 Crl.MC.No. 568 of 2007 ( ) -------------------------- CMP.9104/2006 in C.C.No.1141/2005 in Crime No.CR/349/92 of Crime Branch C.I.D., Alappuzha of J.M.F.C.-I, ALAPPUZHA PETITIONER(S)/ACCUSED: --------------------- K.K.KUMARAN, S/O KRISHNAN, KUTTIPURATH VEEDU, THUMPOLI, ALAPPUZHA. BY ADV. SRI.S.KRISHNAMOORTHY RESPONDENTS/STATE & COMPLAINANT: --------------------------- 1. STATE OF KERALA REP. BY DETECTIVE INSPECTOR, CRIME BRANCH, C.I.D. 2. PRABHAKARAN,(DE FACTO COMPLAINANT) S/O. MAHADEVAN, VETTAPARAMBIL VEEDU, THUMPOLI ALAPPUZHA. BY PUBLIC PROSECUTOR SRI.L.G.SURESH BABU FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-10-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 568 of 2007 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A- TRUE COPY OF THE JUDGMENT IN CRL.M.C.NO.3612/2005 DATED 22.11.06 OF THIS HON'BLE COURT. ANNEXURE B- TRUE COPY OF THE FIR NO.349/CR/92 OF CRIME BRANCH C.I.D., ALAPPUZHA. TRUE CERTIFIED COPY OF THE ORDER IN C.M.P.NO.9104/06 IN C.C.No.1141/05 DATED 15.1.2007 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE-I, ALAPPUZHA. TRUE CERTIFIED COPY OF THE CHARGE IN C.C.NO.1141/05 DATED 6.6.06 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALAPPUZHA. // TRUE COPY // TKS P.S. TO JUDGE C.T.RAVIKUMAR, J. ---------------------------- Crl.M.C.No.568 of 2007 ---------------------------- Dated 11th October, 2011 ORDER The accused in C.C.No.1141 of 2005 on the file of the Court of Judicial First Class Magistrate-I, Alappuzha is the petitioner. This petition has been filed with the prayer to set aside the order in C.M.P.No.9104/2006 in C.C.No.1141 of 2005 dated 15.1.2007. As per the same the revision petitioner has raised objection in framing the charges and taking cognizance under section 406 of the Indian Penal Code on the ground that it is barred by limitation under Section 468(2) Cr.P.C. The allegation is that during the year 1986-87 the petitioner/accused had misappropriated 2450.55 grams of gold ornaments pledged during 3.1.1987 to 31.12.1987 with the Trust namely, Thumpoly Sree Narayana Guru Smaraka Samithi Trust. The petitioner was the Chairman and President of the Trust during the period 1986-2001. Essentially, an offence punishable under section 406 of the Indian Penal Code has been alleged against the petitioner in the wake of such allegations. The charge was laid before the Chief Judicial Magistrate, Alappuzha on 5.2.2004 and on 23.7.2005 the case was made over to Judicial First Class Magistrate, Alappuzha and was numbered as C.C.No.1141 of 2005. As already noticed hereinbefore, the allegation is that gold ornaments pledged with the Trust had been Crl.M.C.No.568/2007 2 misappropriated. Charge B pertains to the year 1987. Earlier, the petitioner approached this Court by filing Crl.M.C.No.3612 of 2005 contending that the action of the court below in taking cognizance of an offence under section 406 of the Indian Penal Code is illegal as it is barred by limitation under section 468(2)of the Code of Criminal Procedure. The said Crl.M.C. was disposed of as per Annexure-A order. A perusal of Annexure-A order would reveal that at that point of time the charges were not framed. In the said circumstances, this Court allowed the Crl.M.C. in part and directed the learned Magistrate to consider the plea of the petitioner that framing of charge under section 406 IPC stood barred by limitation. The said question was directed to be decided after hearing the contestants in the matter. It is thereafter that C.M.P.No.9104 of 2006 was filed seeking appropriate orders after examining the records and taking into account the objection based on the question of limitation. The contention of the petitioner is that the final report in the case would indicate that the charge levelled against the petitioner was one under section 406 IPC. The prosecution under section 406 IPC is impermissible in this case in view of the fact that it is barred by limitation in view of the provisions under section 468(2) Cr.P.C. The order dated 15.1.2007 in C.M.P.No.9104 of 2006 in C.C.No.1141 of 2005 would reveal that on a careful consideration of the final report and the documents sent along with it the court found that the allegations Crl.M.C.No.568/2007 3 constitute an offence under section 409 IPC. It is held that an offence under section 409 IPC is not affected by section 468(2) Cr.P.C. The pleadings in this petition would reveal that the petitioner himself admits the said position that an offence under section 409 IPC will not be affected by section 468(2) Cr.P.C.. In short, the power to alter charge under section 216 Cr.P.C. is not under challenge. The contention of the petitioner is that originally, the petitioner was charge sheeted under section 406 IPC and the petitioner took up the contention that no prosecution under section 406 IPC could be initiated against the petitioner as it is barred by limitation under section 468(2) Cr.P.C. It is only thereafter that the charge was altered to one under section 409 IPC. Evidently, this Court as per order in Crl.M.C. virtually granted liberty to the petitioner to take up the plea of limitation as regards charge under section 406 IPC in the light of section 468(2) Cr.P.C. But, that cannot take away the power of the court below to alter the charge under section 216 Cr.P.C. A scanning of the order impugned in this case would reveal that the allegations against the petitioner were elaborately considered by the learned Magistrate and upon finding that the allegations would constitute an offence under section 409 IPC the learned Magistrate though it fit to alter the charge from 406 IPC to one under section 409 IPC. In view of the nature of the allegations in the complaint which was considered by the learned Magistrate for arriving at a conclusion that the Crl.M.C.No.568/2007 4 allegations would attract an offence under section 409 IPC it cannot be said to be illegal or improper. The learned counsel for the petitioner submits that the petitioner had taken possession the gold ornaments only as a custodian and there was no entrustment as such. At any stretch of imagination he can be considered as a banker. I do not think that this Court should consider those questions at this stage. Prima facie, the order of the learned Magistrate in altering the charge after taking into account the allegations levelled against the petitioner from one under section 406 IPC to 409 IPC cannot be said to be an order passed without any jurisdiction or it cannot be said that the learned Magistrate had exceeded his jurisdiction in doing so. In the absence of any legally sustainable challenge against such alteration of charge made in exercise of the power under section 216 Cr.P.C. the petitioner is not entitled to succeed in this revision. The order in Annexure-A cannot and will not take away the power under section 216 Cr.P.C. In that view of the matter this revision petition is liable to fail. In the circumstances, this revision petition is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS