IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 Crl.Rev.Pet.No. 3352 of 2008() -------------------------------------- AGAINST THE ORDER DATED / / IN CRMP.4147/2005 IN CC.1062/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... REVN. PETITIONER(S): PETITIONER ----------------------------------------------------- THOMAS @ LOUI, S/O. GEE VARGHESE, SIRIBY SADANAM, ADOOR. BY ADV. SRI.MANOJ .R. NAIR RESPONDENT(S): RESPONDENT ---------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ================== Crl.R.P.No. 3352 of 2008 ================== Dated this the 17th day of November, 2008. O R D E R Revision petitioner is the first accused in C.C. No. 1062 of 2004 on the file of Judicial First Class Magistrate, Adoor. The Sub Inspector of Police, Adoor Police Station submitted a final report under Section 173 of the Code of Criminal Procedure against the revision petitioner and second accused alleging that they committed offence under Section 420 read with Section 34 of the Indian Penal Code. The learned Magistrate based on the final report took cognizance of the offence. The revision petitioner appeared and filed Crl. M.P. NO. 4147 of 2005, under Section 239 of the Code of Criminal Procedure, for an order of discharge contending that there is no material to proceed against the revision petitioner. The learned Magistrate as per order dated 4.9.2008 dismissed the petition holding that there is material to frame a charge and to proceed. The revision is filed challenging that order. 2. Learned Counsel appearing for revision petitioner and learned public prosecutor were heard. Crl.R.P.No. 3352 of 2008 -2- 3. The argument of the learned counsel appearing for the revision petitioner is that the final report does not show that revision petitioner had an intention to cheat at the time of inception and intention to cheat cannot be interfered, when there is no material to prove that there was an intention to cheat or that with the intention revision petitioner induced and due to the inducement money was parted with and so learned Magistrate should not have proceeded further with the case and should have discharged the revision petitioner under Section 239 of Code of Criminal Procedure. The learned counsel argued that even if the prosecution case is to be accepted there is only an agreement to arrange visa and even if the agreement was violated, it would only attract civil liability and no offence under Section 420 of Indian Penal Code is attracted and learned Magistrate should have discharged the revision petitioner. 4. The learned public prosecutor pointed out that the statements of witnesses recorded under Section 161 of the Code of Criminal Procedure appended to the final report show that Rs.20,000/- was parted by the prosecution witnesses to the second accused on the instructions of the revision petitioner Crl.R.P.No. 3352 of 2008 -3- and the revision petitioner induced them to part with of money and later it was realised that there was an intention to cheat at the very beginning. It was argued that statements show that there was an intention to cheat and for the purpose of framing the charge, it is sufficient and no order of discharge can be passed, as contended by the learned counsel. 5. Section 239 of Code of Criminal Procedure provides that if, on considering the police report and the documents sent with it under Section 173 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 ground less he shall discharge the accused after recording reasons for doing so. Section 240 provides for framing of charge. If on hearing the prosecution and accused as provided under Section 239, Magistrate is of the opinion that there is ground for presuming that the accused has committed the offence, he shall frame the charge against the accused. Therefore to discharge the accused, learned Magistrate on the materials before him must be of the opinion that the charge against the accused is groundless. What is to Crl.R.P.No. 3352 of 2008 -4- be considered by the learned Magistrate to form the opinion is the final report, the documents sent along with the final report including statements of witnesses recorded under Section 161 of Code of Criminal Procedure and the arguments of prosecution and the defence. If the materials are accepted as such, un rebutted and it is not possible to convict the accused on the said materials, the accused to be discharged. The records sent along with the final report under Section 173 including the statements recorded at the time of investigation under Section 161 of the Code of Criminal Procedure shall be considered by the learned Magistrate. The statement of one of the witnesses recorded in this case if accepted, prima facie show that money was parted with on the directions of the revision petitioner. The statement as also the subsequent conduct of the revision petitioner show that he had an intention to cheat even at that time. When the money was parted by the prosecution witness, he was aware that the accused had an intention to cheat, he would not have parted with the money, Otherwise there cannot be a successful cheating. Therefore for the reason that when the money was parted with to the second accused, witness was unaware of the Crl.R.P.No. 3352 of 2008 -5- cheating, it cannot be said that ingredients of the an offence under Section 415, which is necessarily to be established to attract an offence under Section 420 of Indian Penal Code is not attracted. If the statement of the prosecution witnesses recorded under Section 161 of Code of Criminal Procedure stands accepted it cannot be said that the charge against the petitioner is groundless. If so finding of the learned Magistrate that the petitioner cannot be discharged under Section 239 of Code of Criminal Procedure is not illegal and does not call for interference. Question whether evidence is sufficient to convict the petitioner for the offence under Section 420 of Indian Penal Code is a different aspect, to be considered after recording the evidence. The revision is dismissed. M.SASIDHARAN NAMBIAR JUDGE rhs/-