IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 Crl.Rev.Pet.No. 3001 of 2010 () ------------------------------ (CMP.8906/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR) .................... REVN. PETITIONER/COMPLAINANT ---------------------------------------------------- MUHAMMED ASLAM M.K., AGED 57 YEARS, S/O. KUNHIMUHAMMED, MADATHIPPARAMBIL HOUSE, POST NATTIKA, TRICHUR DISTRICT. (WITHIN VALAPPAD POLICE STATION) BY ADVS. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.T.P.SAJID RESPONDENTS/ACCUSED ------------------------------------ 1. A.T.MUSTHAFA, AGED 46 YEARS, S/O. IBRAHIM, RESIDING AT AL-FAJAR, NARATH, KANNUR DISTRICT, PIN-670 603. 2. M.MAHAMOOD, AGED 52 YEARS, S/O. IBRAHIM, BEN APARTMENT, PACHALAM, KOCHI-18. 3. MUHAMMED ASHRAF, AGED 50 YEARS, S/O. ABDULLA MOULAVI, CHATHOTHU MUTHAMMAL HOUSE, PULPI, KANNADIPPARAMBA, KANNUR DISTRICT-670604. 4. IBRAHIM KANNOTHVEETTIL, AGED 53 YEARS, S/O. MOOSA MOLLA, THIRURKKADU, POST PERINTHALMANNA-679 322. 5. SUB INSPECTOR OF POLICE, VALAPPAD POLICE STATION, PIN-680 567. 6. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN-31. R5 & R6 BY PUBLIC PROSECUTOR, SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3001 of 2010 ------------------------------- Dated this the 12th day of October, 2010. O R D E R The petitioner herein is the complainant in C.M.P.No.8906/09 in Crime No.582/09 of Valapad Police Station, which was pending before the Judicial First Class Magistrate Court-Kodungallur. The learned Magistrate by an order dated 28.7.2010, dismissed the above complaint and hence this revision petition. 2. According to the complainant, he is a timber merchant and conducting a firm by name “Inter Sale Timber Traders” at Valapad and accused No.2 is conducting export business at Ernakulam and the complainant was introduced to Accused No.2 by one Thankapa Menon, who is the friend of the complainant and accused Nos.1, 3 and 4 are the partners of accused No.2. According to the complainant, Thankapa Menon, a friend of complainant had introduced A2 to the complainant on 25.2.2004 at the firm of the complainant at Valapad and the complainant 2 Crl. R.P.No.3001 of 2010 was told that he was going to start an exporting business and requested to arrange a bank loan from the Federal Bank, Thriprayar, by using the influence of the complainant. According to the complainant, the accused offered him to join as a partner in the firm. According to the complainant, he was also made believe that A3 and A4 and their business partners are ready to pledge their property in the bank for obtaining loan. It is also the case of the complainant that, he was also informed that A3 and A4 and their business partners are ready to submit the requisite papers as guarantors and complainant would be the principal borrower and asked the complainant to arrange bank loan. According to the complainant, believing the words of the accused that they are ready to repay the loan and interest, the complainant has submitted loan application before the bank. It is also the case of the complainant that, after accepting the documents of A3 and A4 and other partners, the bank has sanctioned loan and at the time when the documents was produced by A3 and A4, for producing it before the bank, A2, A3 and A4 demanded three blank cheque leaves from the 3 Crl. R.P.No.3001 of 2010 complainant and believing the words of the accused, the complainant entrusted three blank cheques with the 1st accused on 15.3.2004. It is also the case of the complainant that, as per the agreement between the complainant and the accused, the accused has to give Rs.75 lakhs to accused No.2 and at the time when he gave this amount, three blank cheques will be returned back by A1. According to the complainant on 30.3.2004 the complainant had entrusted Rs.75 lakh with A2 and A2 has accepted the same and gave a receipt. 3. It is the further case of the complainant that the accused had conspired together and with a dishonest intention to make unlawful gain they have filled up the three cheque leaves and accused No.1 has presented the cheque leaves before the bank. It is also the case of the complainant that, three cheque leaves were presented in the bank, under the pretext that the complainant owed Rs.25 lakhs each to the accused. Thus it is the case of the complainant that, all the accused has conspired together to cheat the complainant and created forged documents and accused has started to threaten him and his 4 Crl. R.P.No.3001 of 2010 family members with the help of gundas. 4. Thus the complaint preferred by the revision petitioner against the above accused was forwarded to the Valapad police station and they undertook an investigation and the said police filed a refer report. It is against the above refer report, in Crime No.582/09 in the Valapad Police Station, the complainant filed the present complaint and on receiving the complaint, the learned Magistrate recorded the sworn statement of the complainant and also the statement of two witnesses. After perusal of the sworn statement and the statement of the other witnesses, the learned Magistrate has observed that the complainant has produced the certified copies of three complaints filed by A1 before the Court of Judicial First Class Magistrate-Kannur, which shows that A1 herein preferred three complaints against the complainant u/s.138 of Negotiable Instruments Act and in each complaint, the cheque amount is Rs.25 lakhs and all those three complaints were filed during the year 2006 and the cognizance were taken as S.T.No.1450/09 on 15.1.2009, S.T.No.987/09 and S.T.No.988/09 on 16.2.2009 5 Crl. R.P.No.3001 of 2010 respectively. It is also observed by the learned Magistrate that according to the statements of the witnesses, loan amount of Rs.75 lakh was entrusted by the complainant with the accused but they have not returned the cheque leaves. Thus according to the learned Magistrate, if it is true that the complainant has entrusted Rs.75 lakhs with the complainant, why he failed to initiate any proceedings against the accused for not returning the cheques and therefore the case of the complainant is doubtful. The learned Magistrate has further observed that, even according to the complainant, the accused approached him for arranging loan from the bank and made an offer to take him as partner in the firm of the accused and the complainant did not approach the accused for taking the loan. Thus according to the learned Magistrate, if the loan was for the accused, there was no necessity for the complainant to give blank cheque leaves. In the absence of any contemporary documents with respect to the transactions claimed by the complainant, I am of the view that the learned Magistrate is perfectly right and legal in arriving into such a conclusion. It is 6 Crl. R.P.No.3001 of 2010 also a specific finding of the learned Magistrate that, till the complainant was introduced to A2 by Thankapa Menon in the year 2004, all the accused are strangers to the complainant and if he is availing a loan for such a huge amount on the basis of the acquaintance of a short period, definitely there should have been a written document for the fulfillment of the offer. The learned Magistrate has also observed that the complainant was fully aware of the proceedings pending in the Judicial First Class Magistrate Court-Kannur, but he had kept silent regarding those matters in the complaint. Thus the learned Magistrate has observed that without initiating any legal proceedings against the accused from the year 2004, the complainant approached the court only during the year 2009 and therefore the veracity of the case of the complainant is under doubt. 5. Thus after considering the sworn statement and the statement of the witnesses, the learned Magistrate has held that there is an inordinate delay on the part of the complainant in approaching the court in not initiating any proceedings against the accused at appropriate time. It is also pertinent to note that 7 Crl. R.P.No.3001 of 2010 initially on the basis of the complaint preferred by the complainant, the matter was sent to the police u/s.156(3) of Cr.P.C. and after investigation, the police has filed a refer report, which facts are sufficient and supplemental to the correctness of order of the learned Magistrate, holding that the complainant has totally failed to make out a prima facie case to proceed against the accused in dismissing the complaint. 6. The learned counsel for the revision petitioner submitted that the delay is not a ground to disbelieve the version of the complainant and dismissing the complaint. In the light of the facts and circumstances referred above, it can be seen that it is not a mere dismissal of a complaint on the basis of the delay. It is a case where the complainant had initially approached the court by filing a complaint, which was sent for investigation u/s.156(3) of Cr.P.C. and after a thorough investigation the police had preferred a report referring the case. Against the opinion formed by the police, the only allegation is that the police colluded with the respondents and filed a refer report. But the facts and circumstances involved in the case, would show 8 Crl. R.P.No.3001 of 2010 that the complainant was aware of the fact that the three cases were pending against him and he had also appeared therein but those facts were suppressed in the present complaint. The learned Magistrate after considering the entire materials and through a detailed discussion, formed an opinion that there is no ground to proceed further, since the complainant has miserably failed to make out a prima facie case. In the light of the above facts and discussions, I find no reason to interfere with the order of the learned Magistrate and accordingly, this revision petition is dismissed. V.K.MOHANAN, Judge. ami/