IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 Crl.Rev.Pet.No. 1219 of 2001() ------------------------------ {C.C.NO.319/1999 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, CHENGANNUR} .................... REVN. PETITIONER(S)/COMPLAINANT: --------------------------------------------------------------- MATHAI YOHANNAN (BABU), PARAYA PADICKAL PADITTATHIL, KODUKULANJI KAROTHU MURIYIL, VENMANI VILLAGE, CHENGANNUR TALUK. BY ADVS. SRI.P.VIJAYA BHANU & SMT.P.MAYA RESPONDENT(S)/ACCUSED 2 & 4 & STATE: ---------------------------------------------------------------------- 1. SUSAMMA THOMAS, W/O.THOMAS JOHN, THUNDIYIL VEEDU, KOYIPRAM VILLAGE, THIRUVALLA TALUK. 2. M.P.MATHEW (THANKACHAN), MANDAKATHIL VEEDU, KODUKULANJI KAROTHU MURI, VENMANI VILLAGE, CHENGANNUR TALUK. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.P.VINODKUMAR R3 BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.R.P.No.1219 of 2001 B ------------------------- Dated this the 10th day of February, 2009. O R D E R The complainant, in C.C.No.319/99 on the file of the Judicial Magistrate of First Class-I, Chengannur, challenges the order of discharge passed by the magistrate, in relation to accused 2 and 4. 2. The case of the complainant is that accused 1 to 3 were running a travel agency under the name and style 'Take Off Travels' at Pullad in Thiruvalla Taluk. They were introduced to the complainant by the 4th accused, who is a neighbour of the complainant. They had come to the complainant's house promising to secure him employment abroad on 25.3.1995 and on the said day, his passport and a sum of Rs.5,000/- was paid to accused 1 to 3. Thereafter, accused 1 to 3 had again come to the house of the complainant on 27.5.1995 and supplied a copy of the Visa after receiving an amount of Rs.35,000/-. On 7.6.1995 accused 1 to 3 had visited the CRL.R.P.No.1219 of 2001 B :: 2 :: house of the complainant and had taken another amount of Rs.15,000/- stated to be towards the charges for Air Ticket. Visa was not thereafter procured. A cheque for Rs.40,000/- was issued in favour of the complainant. The cheque contains the signature of the 1st accused. When it was presented, it was dishonoured stating that the signature of the drawer differed, that the seal of 'Take Off Travels' was not affixed and there was insufficiency of funds. On these allegations, the complaint was originally filed before the Magistrate Court and it was referred for investigation under Section 156(3) of the Code of Criminal Procedure. The police investigated the case and laid a charge sheet against accused 1 and 3. C.C.No.101/98 was registered against accused 1 and 3. Alleging that the exclusion of accused 2 and 4 was improper, another complaint was filed by the complainant and this was taken on file as C.C.No.319/99. CRL.R.P.No.1219 of 2001 B :: 3 :: 3. Pws.1 to 4 were examined on the side of the complainant. PW.1 being the complainant and PW.2 being his wife. Accused 1 and 3 were absconding. Accused 2 and 4 sought for a discharge on the ground that the evidence adduced, even if unrebutted, will not warrant a conviction. Learned magistrate accepted the plea and proceeded to discharge accused 2 and 4 under Section 245(1) of the Code. The case against accused 1 and 3 was refiled as C.C.No.351/01. It is this order of discharge that has been challenged in this Crl.R.P. 4. I had perused the complaint and the evidence of Pws.1 to 4 and Exts.P1 to P3. PW.1 complainant has deposed that accused 1 to 3 was introduced to him by the 4th accused (M.P.Mathew) and that he was also present when accused 1 to 3 came to his house. It is on the same day the passport and the amount of Rs.5,000/- was handed over by the complainant to the accused. Insofar as the 4th accused CRL.R.P.No.1219 of 2001 B :: 4 :: is concerned, significantly neither PW.1 nor any of the other witnesses speak about the complicity of the 4th accused. Anyway, the role of the 4th accused was confined to introducing accused 1 to 3 to the complainant. The presence of the 4th accused in the house of the complainant while accused 1 to 3 visited the complainant cannot be considered as unnatural and suggestive of any motive. 1st accused admittedly was a neighbour of the complainant. I am satisfied that the evidence in the case, even if unrebutted cannot lead to the conviction of the 4th accused. The order of discharge of the 4th accused does not warrant any interference. 5. A different story is spelt out insofar as the 2nd accused is concerned, Pws.1 and 2 specifically deposed regarding the presence of accused 1 to 3 when money changed hands. They also speak about the 2nd accused being present in the office of the travel agency. CRL.R.P.No.1219 of 2001 B :: 5 :: PW.4, another person, who had approached the travel agency speaks about the presence of the 2nd accused in the office of the travel agency. 2nd accused is the wife of the 1st accused and Ext.P4 visiting card, which was marked in evidence, shows the name of accused 1 and 2 as proprietor of the travel agency. The court below seems to have discarded Ext.P4 without sufficient reasons. At any rate, Ext.P4 merited an explanation by the accused which, of course, could have been given either at the stage of statement under 313 of the Code or the defence evidence, if the accused decided to lead any such evidence. 6. PW.3, the person, who was acquainted with the complainant and the accused and who was present when accused 1 to 3 had visited the complainant speaks about the conversation which took place in the house of the complainant. He also speaks about the 2nd accused offering a piece of paper to the complainant stating that CRL.R.P.No.1219 of 2001 B :: 6 :: it is a copy of the Visa that will be issued to the complainant. The active involvement of the 2nd accused in the affairs of the travel agency have been spoken to by Pws.1 to 4 and it cannot be said that the evidence already adduced, even if unrebutted under no circumstance will lead to the conclusion that the 2nd accused is involved in the case. The order of discharge insofar as 2nd accused is concerned, is neither warranted nor justified. In the result, Criminal Revision Petition is allowed in part. The order of discharge of the 2nd respondent is set aside. The court below is directed to continue with the case against the 2nd accused. But, I make it clear that I have given my opinion as regards the evidence, only for the purpose of interfering with the order of discharge and therefore it, shall, under no circumstances be treated as reflection of my opinion as regards the sufficiency or adequacy of the evidence for CRL.R.P.No.1219 of 2001 B :: 7 :: the conviction of the accused. That is a matter for independent appreciation by the court below, after trial. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge