IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 2932 of 2008() ------------------------------ CC.635/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... REVN. PETITIONER(S): ACCUSED: ---------------------------------------------------- JOSEPH CHANDY, S/O.JOSEPH, AGED 59 YEARS THOTUVELIL HOUSE, TALIPARAMBA P.O., KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT(S): COMPLAINANT AND STATE: --------------------------------------------------------------------- 1. P.J.JOSEPH, S/O.JOSEPH, AGED 76 YEARS, PONNAMPARA HOUSE, TABORE POST, TALIPARAMBA TALUK. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 2932 OF 2008 ............................................ DATED THIS THE 1st DAY OF DECEMBER, 2008 ORDER Revision petitioner is the accused in C.C.635 of 2004 on the file of Judicial First Class Magistrate, Taliparamba. First respondent filed a complaint alleging that petitioner committed offences punishable under Section 409, 465 and 477(A) IPC. After recording the sworn statement of first accused and witnesses, learned Magistrate took cognizance of the offence. Petitioner challenged that order before this court in Crl.M.C.2252 of 2007, which was disposed by this court, holding that it is for the petitioner to appear before the Magistrate and claim for discharge under Section 245(2) of Code of Criminal Procedure. Though petitioner appeared and in his presence complainant and three witnesses were examined as is not bound to, the witnesses were not cross examined. Petitioner did not file a separate application for discharge. Learned Magistrate, after hearing the prosecution and defence, found that there is prima facie evidence of commission of offences under Section 409, 465 and 477A IPC. Case was posted for framing charge. The order is challenged in this petition filed under Section 397 read CRRP 2932/2008 2 with 401 of Code of Criminal Procedure. 2. Learned counsel appearing for revision petitioner was heard. The argument of the learned counsel is that learned Magistrate did not consider the materials in the proper perspective and omitted to take note of the fact that it is the sale officer, who has to conduct the sale as provided under Rule 76(x) of Kerala Co-operative Societies Rules and even as per the complaint, revision petitioner was the Secretary of the society and in that capacity, he cannot conduct a sale or receive the sale price or create documents and this material aspect was omitted to be taken into consideration by learned Magistrate. I find force in the submission. 3. When a Magistrate discharges an accused under Section 245(1) or (2) of Code of Criminal Procedure, Magistrate has to record reasons for doing so. On the other hand, if Magistrate is of the opinion that there is ground for presuming that accused has committed the offence, charge is to be framed. Though he need not record reasons for framing charge, except finding that there is prima facie case against revision petitioner that he committed the offence. As revision petitioner did not file a petition for discharge, learned Magistrate did not analyse the CRRP 2932/2008 3 material and had given reasons for finding that there is a prima facie case. 4. If the allegation of first respondent and supported by the statement of witnesses recorded is to be accepted, the attached arecanuts of revision petitioner were sold on 15.5.1999 for a sale price of Rs.24,444.90 and it was received by revision petitioner and he did not credit the amount in the account of the society and though there was no sale on 20.10.2001, he created records to show that sale was conducted on 20.10.2001 and the sale price was Rs.5,103.40. Learned Magistrate did not consider the crucial question whether revision petitioner in his capacity as Secretary is authorised to conduct a sale or receive the sale price. Under sub-rule x of Rule 76, at the appointed time for sale, the properties shall be sold in public auction in terms of one or more lots by the sale officer. As provided under sub-rule 11 of Rule 76, the sale officer has to pay the excess amount, if any, received on such sale to the defaulter. Records of sale is to be maintained by the sale officer. If that be so, the question whether revision petitioner could conduct the sale and receive the sale price and whether he is liable to show the amount which did not come in his hands are all matters to be considered by the CRRP 2932/2008 4 Magistrate, before deciding the question whether a prima facie case is made out against petitioner. As these aspects were not considered by the learned Magistrate, the order dated 18.6.2008 is quashed. Judicial First Class Magistrate, Taliparamba is directed to hear the prosecution and defence and consider these material aspects and decide whether there is prima facie case to presume that petitioner committed the offence and to frame charge or whether petitioner is liable to be discharged. If accused seeks permission to cross examine the witnesses already examined, learned Magistrate to grant permission for the same. Send back the records. Petitioner to appear before the Magistrate on 3.1.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk/-