IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 Crl.Rev.Pet.No. 528 of 2009() ----------------------------- CMP NO.11192/2008 IN CC.12/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY .................... REVN. PETITIONER(S): PETITIONER/ACCUSED --------------------------------------- THOMAS, S/O.OUSEPH,THARAYIL VEEDU, NELLUVAI DESOM, THRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA,REPRESENTED BY P.PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.528 of 2009 -------------------------------------- Dated this the 27th day of May, 2009. ORDER Heard counsel for petitioner and the Public Prosecutor. 2. Petitioner stands accused of offences punishable under Sections 406 and 420 of the Indian Penal Code in C.C.No.12 of 2007 of Judicial First Class Magistrate, Wadakkanchery the allegation against him being that as managing director of M/s.Erumapetty Tharayil Trading Company which is a financial institution, collected amounts from witness Nos. 1 to 4 making them believed that the amount will be repaid on demand but cheated them by not returning the amount and misappropriated the said amount. Police investigated the case and filed final report to that effect along with statement of the witnesses and certain documents. Petitioner filed C.M.P.No.11192 of 2008 stating that no prima facie case is made out and hence he be discharged under Section 239 of the Code of Criminal Procedure (for short, “the Code”). That petition was dismissed by the learned magistrate as per impugned order. 3. Learned counsel submitted that apart from the bald statement in the final report, the statement of the witnesses incorporated with the final report and produced before the learned magistrate do not disclose the necessary ingredients of the offences punishable under Sections 406 and 420 of the Indian Penal Code and hence, learned magistrate was not justified in dismissing the Crl.R.P.No.528 of 2009 2 petition for discharge. Learned Public Prosecutor produced the CD file and pointed out that there are sufficient materials on record to show atleast prima facie that the offences alleged are made out. 4. As per Section 239 of the Code what the court has to consider is whether upon considering the police report and the documents sent with it under Section 173 of the Code and making such examination if any of the accused as the magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the magistrate considers the charge against the accused to be groundless. I have gone through the CD file produced by the Public Prosecutor to satisfy myself whether the finding of the learned magistrate is legally correct. 5. Apart from the final report, in the first information statement given by the first informant it is stated that by the impugned act petitioner cheated him. It is true that the details of the alleged cheating are not stated. Statement of witness No.1 shows that he deposited certain amount with the petitioner on the representation made by the latter that interest will be paid on the amount and the principal amount will be repaid as and when demanded but it was not so done. Investigating Officer has shown to the witnesses certain documents purporting to be receipts and vouchers said to be issued by the witness. The witness denied that and claimed that he had not issued any such receipts and vouchers. These statements and documents appended to the final report produced before the court under Section 173 of the Code are also to be looked Crl.R.P.No.528 of 2009 3 into. At this stage I am not inclined to accept the contention of the petitioner that there is no ground to proceed against the petitioner. Therefore, learned magistrate is justified in dismissing the petition (C.M.P.No.11192 of 2008). No interference is required. Revision petition fails. It is dismissed. Crl.M.A.No.1628 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks