IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 Crl.Rev.Pet.No. 1239 of 2010() ------------------------------ CC.155/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALATHUR .................... REVISION PETITIONER/COMPLAINANT (PARTY-IN-PERSON) :- ----------------------------------------------------------------------------------------- R.HEMAMALINI, PROPRIETRESS, SREE RAM SPICES, WADAKKENCHERY REPRESETNED BY POWER OF ATTORNEY HOLDER, K.RAMACHANDRA IYER @ SWAMI, VIII/1695, MULLACKAL BHAGAWATHY LANE, KOCHI-2. BY ADV. MR.M.R.JAYAPRASAD RESPONDENT(S)/ACCUSED AND STATE :- --------------------------------------------------------- 1. NARAYANAN, KARAPPADAM, MUDAPPALLOOR, PALAKKAD DISTRICT. 2. JOSEPH MATHEW, PERUMATTIKUNNEL, POOTHE ROAD, CHITTANCHERRY P.O., ALATHUR, PALAKKAD DISTRICT. 3. STATE OF EKRALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR.SAJAN VARGHEESE K. FOR R1 MR.JOHNSON P.JOHN FOR R2 MR.BABY MATHEW FOR R2 PUBLIC PROSECUTOR MR.M.R.VENUGOPAL FOR R3 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1239 of 2010 --------------------------------- Dated this the 9th day of June 2010 O R D E R This revision petition is filed under Sec.397 read with Sec.401 of Cr.P.C., by the complainant in a private prosecution for various offences, as she is aggrieved by the order of discharge pronounced by the learned Magistrate under Sec.244 Cr.P.C. 2. Initially the present revision petition is filed by a person namely; R.Hemamalini, Proprietress, Sree Ram Spices, Wadakkenchery represented by Power of Attorney Holder Mr.K.Ramachandra Iyer. During the pendency of the matter, this Court by order dated 11.3.2010 directed the said Ramachandra Iyer to approach the High Court Legal Services Committee to engage a lawyer, if he is not able to engage a lawyer on behalf of the complainant since on the Crl.R.P.No.1239 of 2010 : 2 : strength of the power of attorney holder, he cannot conduct the prosecution on behalf of the complainant. Accordingly, Mr.M.R.Jayaprasad, Advocate of this Court, appointed by the legal Service authority, to prosecute the revision petition on behalf of the petitioner. 3. Thus, I have heard Mr.M.R.Jayaprasad, the learned counsel appearing for the petitioner, Mr.Sojan Varghese, the learned counsel appearing for R1, Mr.Baby Mathew, the learned counsel appearing for R2 and the learned Public Prosecutor for the State, R3. 4. The case of the complainant is that the said firm is engaged in the business of rubber sheet and spices. The 1st accused is the President of the Chittalancherry Cherukida Rubber Karshaka Ulpadaka Sanghom and other accused are the executive committee members of the said society. 1st respondent in this revision petition is the President of the said society and 2nd respondent is one of the Director board members of the said society. According to the complainant, Crl.R.P.No.1239 of 2010 : 3 : the rubber sheets were purchased from the society on cash receipts as well as on credit basis. On 6.6.1997 the outstanding balance to be paid to the society was Rs.2,500/- by the complainant and the further case of the complainant is that subsequently on 7.6.1997, the complainant purchased rubber sheets for the value of Rs.1,88,635.55, on 21.6.1997, for an amount of Rs.1,34,581.60 and on 5.7.1997 for an amount of Rs.1,25,065.60 from the society. Thus, according to the complainant, the total amount to be paid to the society as on 5.7.1997 was only a sum of Rs.4,50,782.75 including that of Rs.2,500/-. According to the complainant, the godown of the complainant had caught fire on 7.7.1997 and they have sustained pecuniary loss to the tune of Rs.12,00,000/- connected with the damage due to fire. But according to the complainant the society demanded money and without looking into the account, Rs.5,75,000/- were paid to the society. According to the complainant, though the complainant actually paid a sum of Rs.5,75,000/-, the Crl.R.P.No.1239 of 2010 : 4 : entire amount same was not entered in the register of the society, and what entered is only a sum of Rs.3,55,000/- and thereby the complainant has sustained heavy loss to the tune of Rs.2,20,000/- and according to the complainant, the entry in the cash book of the society for a sum of Rs.3,55,000/- was made in pursuance of a conspiracy hatched between the accused. Thus, according to the complainant, the accused have committed the offences punishable under Sections 403, 406, 409, 417, 465, 468, 471, 477(a), 120b r/w 34 of the Indian Penal Code. 5. On the basis of the above complaint and the sworn statement of the PW1, cognizance was taken and instituted C.C.No.155/2005 in the court of Judicial First Class Magistrate of Alathur. At that time, the 1st accused who is the 1st respondent herein approached this Court by filing Crl.M.C.No.4056/2005 with a prayer to quash Annexure-A & Annexure-B. This Court by order dated 11.10.2007 dismissed the above Crl.M.C. with an Crl.R.P.No.1239 of 2010 : 5 : observation that the petitioner therein can advance all the contentions that he raised in the Crl.M.C., before the trial court and canvas for a discharge, if so advised. Thereafter, in the above case, evidence was adduced including oral and documentary and on the basis of the materials and available evidence, the trial court came into a conclusion that there are no grounds to proceed against the accused and accordingly discharged the accused under Sec.245(1) of Cr.P.C. It is the above order challenged in this revision petition. 6. The learned counsel for the revision petitioner submitted that the learned Magistrate is not bound to consider evidence at this stage and what the learned Magistrate is expected to consider is whether a prima facie case is made out and if the answer is positive, the Magistrate is bound to proceed with the trial. The learned counsel invited my attention to the order passed by this Court in Crl.M.C.No.4056/2005 and submitted that this Crl.R.P.No.1239 of 2010 : 6 : Court has already found that there is prima facie case to proceed. 7. The learned counsel appearing for the 2nd respondent submitted that the present case is filed as a counter blast against the complaint launched against the brother of the complainant under Sec.138 of the N.I.Act. 8. The learned counsel for the 1st respondent submitted that the learned Magistrate is perfectly legal and correct in his conclusion that there is no ground to proceed against the accused. It is also the contention of the learned counsel that the learned Magistrate passed the impugned order not at the threshold of the launching of the complaint but after taking evidence adduced by the complainant. Thus, the learned counsel invited my attention to Sec.244 and 245 of Cr.P.C. According to the learned counsel, in the absence of any materials and evidence to proceed against the accused, the impugned order is legal, correct and proper and this Court is not expected to interfere with the Crl.R.P.No.1239 of 2010 : 7 : findings arrived on by the court below. 9. I have carefully considered the contentions of the counsel appearing for the parties and also perused the impugned order, the main allegations raised against the accused are under Sections 403, 406, 409, 417, 465, 468, 471, 477(a) and 120(b) r/w 34 of IPC. The learned Magistrate in his order considered the allegations and contentions raised by the complainant. Accordingly, the grievance of the complainant is that, though on 6.6.1997 the outstanding liability was only Rs.4,50,782.75, the complainant had, without looking into account, an amount of Rs.5,75,000/- was paid and also the payment of Rs.1,00,000/- on 1.8.1997 and Rs.12,000/- on 10.12.1997 are of equally credited. At the stage of framing of the charge, the court is not expected to weigh the evidence on record and the purported enquiry must be conducted to find out any ground for its satisfaction to proceed further. But it is incumbent and the task of the court to find as to whether Crl.R.P.No.1239 of 2010 : 8 : the available materials and evidence are sufficient to proceed further with the trial against the accused. In the present case, the main allegation of the complainant is that though he was liable to pay a sum of Rs.4,50,782.75, though not accepted as final, he had paid a sum of Rs.5,75,000/- not withstanding the fact that he was facing financial crisis at that point of time connected with the fire occurred in their godown and loss sustained by them to the tune of Rs.12,00,000/-. The complainant has no case that he was having dealings with the respondents/accused in their personal capacity. His case is that he had made excess payment to the society. If it is made to the society, which is a co-operative institution that payment would have been acknowledged by proper receipt. Then it is for the complainant to allege and produce materials to prove or substantiate the payment or entrustment of such amount with the society. In the absence of such pleading and allegation supported by document, no offence with respect Crl.R.P.No.1239 of 2010 : 9 : to breach of trust or misappropriation will lie. The learned Magistrate after considering the evidence on record came into the conclusion that the version and cases of the complainant is absolutely improbable and to be treated as false one. It is also the finding of the learned Magistrate that the entire allegation in the complaint is fabrication and falsification of the account by the society and therefore, the complainant has to produce evidence of payment of the amount on 1.8.1997 and 10.12.1997, but there is no materials or evidence to that effect also. It is also the finding of the learned Magistrate that the complainant is miserably failed to produce evidence namely; the judgment in C.C.No.285/1998. It is on the basis of the above finding which arrived on the basis of the available materials and evidence on record. It is pertinent to note when this Court disposed Crl.M.C.No.4056/2005, the proceeding in the court below had not realised in the stage of evidence. But the same was filed immediately after the taking of cognizance Crl.R.P.No.1239 of 2010 : 10 : upon the above complaint. Now the learned Magistrate after considering the evidence and materials on record, has specifically found that there is no ground to proceed further as the allegations are improbable and false. Hence, in exercise revisional jurisdiction, this Court is not justified in interfering with such factual finding. Therefore, I am of the opinion that there is no merit in the revision petition and accordingly the revision petition is dismissed. V.K.MOHANAN, JUDGE. Jvt