Kerala High Court
Febin K Xavier vs State Of Kerala
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 14TH DAY OF OCTOBER 2014/22ND ASWINA, 1936
Crl.Rev.Pet.No.1220 of 2014
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Crl.MP No.144/2014 in CC No.825/2006 of JUDICIAL FIRST CLASS MAGISTRATE
COURT.-III,THRISSUR.
CRL.REVISION PETITIONER/PETITIONER/ACCUSED:
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FEBIN K XAVIER,S/O.K.K.XAVIER,KOONAMPLAVIL HOUSE,
THRIKKOOR VILLAGE,THYKATTUSSERY KARA,
THALORE P.O.,THRISSUR DISTRICT.
BY ADVS.SRI.MADHU RADHAKRISHNAN
SRI.NELSON JOSEPH
RESPONDENTS/RESPONDENTS:
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1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
2. ANTONY,S/O.MATHEW,KIZHAKOODAN VEEDU,
THYKKATTUSSERY KARA,EDAKKUNNI VILLAGE,
THALORE-680306, THRISSUR DISTRICT.
R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN
R2 BY ADVS.SRI.P.SANTHOSH P. PODUVAL
SMT.R.RAJITHA
SRI.K.D.SREEVISAKH
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 14-10-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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Crl.Rev.Pet.No.1220 of 2014
APPENDIX
PETITIONERS ANNEXURES:
ANNEXURE A1:TRUE COPY OF THE NOTICE DATED 5.5.2005 SENT BY THE 2ND
RESPONDENT WITH THE ACKNOWLEDGMENT.
ANNEXURE A2:TRUE COPY OF THE PRONOTE.
ANNEXURE A3:TRUE COPY OF THE FINAL REPORT.
ANNEXURE A4:TRUE COPY OF THE EXPERT OPINION.
RESPONDENTS ANNEXURES
ANNEXURE R2(a): TRUE COPY OF REPORT NO.CX-5/06 DATED 30.9.2006.
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K. RAMAKRISHNAN, J.
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Crl.R.P.No.1220 of 2014
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Dated this the 14th day of October, 2014.
O R D E R
The accused in C.C.No.825/2006 before the Judicial First Class Magistrate Court-III, Thrissur filed this revision challenging the order in Crl.M.P.No.144/2014 of that court by filing this petition.
2. Originally, the second respondent filed a private complaint against the present petitioner alleging commission of the offence under Sections 420, 463 and 464 of the Indian Penal Code alleging that he had forged a promissory note said to have been executed by the second respondent on 7.1.2004 for an amount of Rs.3,80,000/- and misusing that promissory note filed a suit for recovery of the amount before the civil court and thereby he had committed the above said offences.
3. A complaint was forwarded to the police for investigation under Section 156(3) of the Code and on that basis a crime was registered and after investigation final report was filed for the above said offences and it was taken on file as C.C.No.825/2006 on the file of the Judicial First Class Magistrate Crl.R.P.No.1220 of 2014 2 Court-III, Thrissur. Thereafter summons was issued to the accused. He challenged cognizance of the case by filing Crl.M.C.No.72/2014 before this Court for quashing the proceedings. This Court by order dated 2.1.2014 disposed of the above petition with liberty for the petitioner to move the court below for discharge. It is also seen from the order itself that since disputed promissory note has not been examined by an expert, a petition was filed for further investigation under Section 173(8) of the Code and the same was allowed and expert opinion was obtained and further report was filed reiterating the allegations of accusations made against the accused by the defacto complainant. After dismissal of the Crl.M.C by this Court, the petitioner filed Crl.M.P.No.144/2014 before the Judicial First Class Magistrate Court-III, Thrissur under Section 239 of the Code for discharge and the learned Magistrate after hearing both sides, by the impugned order dismissed the application which is being challenged by the petitioner by filing this revision petition.
4. Heard the counsel for the revision petitioner and the learned Public Prosecutor appearing for the first respondent and the counsel appearing for the second respondent. Crl.R.P.No.1220 of 2014 3
5. The counsel for the petitioner submitted that there is no application of mind on the part of the Magistrate while dismissing the application. There is nothing mentioned as to what all are the materials considered by the court below for coming to the conclusion that there is prima facie case made out for framing charge. No discussion has been made in the impugned order. So it shows that there is lack of application of mind and it must be set aside and sent back for the purpose of proper appreciation of the material and passing appropriate order. He had earlier issued a notice to the accused when the cheque said to have been given by him was dishonoured and even prior to that, the present petitioner had filed the suit for realisation of the amount on the basis of the promissory note executed by the defacto complainant. There was no possibility of fabrication of any document at that time arises. So these aspects were not considered by the court below.
6. The counsel for the second respondent submitted that at that stage the court need only consider whether on the basis of the materials collected by the investigating agency there is prima facie materials to proceed against the accused by framing charge or whether allegations are groundless so as Crl.R.P.No.1220 of 2014 4 to discharge the accused. If the court feels that there are grounds to proceed, then the court can frame charge only. Only in the case of discharging accused, detailed order need be passed stating the reason for discharge. So there is no illegality committed by the court below.
7. Heard the Public Prosecutor as well.
8. The case of the second respondent was that the revision petitioner had concocted a promissory note dated 4.1.2004 for an amount of Rs.3,80,000/- forging the signature of the defacto complainant and filed a false suit. Further, the case of the complainant was that the revision petitioner has issued a cheque in discharge of his liability for the amount due from him to the defacto complainant and when that was presented, it was dishonoured and a notice has been issued and in order to overcome the possibility of filing a complaint on the basis of the dishonoured cheque, he had on the same day of receiving notice, concocted a promissory note and filed a suit as O.S.No.421/2005 using that forged promissory note. He had filed a private complaint which was forwarded to the police and after investigation, final report has been filed and on the basis of the final report, the learned Magistrate has taken cognizance Crl.R.P.No.1220 of 2014 5 of the case as C.C.No.825/2006. It is also an admitted fact that the present revision petitioner filed Crl.M.C.No.14/2014 before this Court for quashing the proceedings but that was disposed of by this Court leaving open the right of the petitioner to move for discharge before the trial court. It was on that basis that, the present petition has been filed before the court below, which was dismissed by the court below, the legality of which is being challenged by the petitioner.
9. Section 239 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') reads as follows:
239. When accused shall be discharged:- If, upon 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 groundless, he shall discharge the accused, and record his reasons for so doing.
10. It is clear from wordings of Section 239 of the Code that only if the court is satisfied that the materials collected by the investigating officer and produced before court are groundless to proceed against the accused, then only the Crl.R.P.No.1220 of 2014 6 court need pass an order of discharge. Further, the counsel for the petitioner relied on the decision reported in Shoraj Singh Ahlawat v. State of U.P (AIR 2013 SC 52). In the same decision, he had relied on paragraph 15 of the judgment, where it was observed as follows:
15. Even in Smt. Rumi Dhar v. State of West Bengal & Anr. (2009) 6 SCC 364: (AIR 2009 SC 2195: 2009 AIR SCW 2890), reliance whereupon was placed by counsel for the appellants the tests to be applied at the stage of discharge of the accused person under Section 239 of the Cr.P.C., were found to be no different. Far from readily encouraging discharge, the Court held that even a strong suspicion in regard to the commission of the offence would be sufficient to justify framing of charges. The Court observed:
".... While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form a opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law..."
But, ultimately, it was observed in the decision that what is required by the court while considering the application under Section 239 of the Code is whether on the basis of the material Crl.R.P.No.1220 of 2014 7 on record to see whether there is ground to presume that the accused had committed any offence. Even strong suspicion about acceptance of fact constitute an offence will be sufficient to refuse discharge.
11. In this case, admittedly a suit was filed by the revision petitioner as O.S.No.421/2005 before the Sub Court, Thrissur on the basis of the disputed promissory note. When the complainant came to know about the same, he filed a private complaint, on the basis of which, after investigation, final report was filed. Further, since the disputed promissory note has not been sent for expert opinion, an application was filed by the defacto complainant, for further investigation under Section 173 (8) of the Code and the same was allowed and the document was sent for expert opinion and expert opinion has been obtained and further report was filed under Section 173 (8) of the Code by the investigating officer reiterating the same allegations of commission of offence by the accused.
12. It is settled law that for the purpose of considering the questions as to whether there is prima facie case for framing charge, the court need not pass a detailed order. What is required only the satisfaction by the court as to whether the Crl.R.P.No.1220 of 2014 8 materials collected are sufficient to proceed against the accused by framing charge. Only if the court feels that accusation alleged on the basis of the materials collected are groundless, the court need allow the application for discharge. In this case, admittedly, there are some materials before the court in the form of an expert opinion that the signature found in the promissory note appears to be not that of the complainant. Whether that is correct or whether that is sufficient to come to the conclusion that there was forgery committed by the accused or not is a matter for evidence. It is also revealed during investigation that the suit O.S.No.421/2005 filed by the revision petitioner against the first respondent was dismissed. Once there is some material available for the court to proceed, the court can deny the discharge application filed by the accused. But it is true that there is no details mentioned regarding the materials that has been considered by the court. On going through the entire discussions in the impugned order, it will be seen that the court has considered the fact that the suit filed by the petitioner has been dismissed relying on the expert opinion and other evidence and the expert opinion shows that there is possibility of forger. So, when there is suspicion regarding the Crl.R.P.No.1220 of 2014 9 acceptance of certain facts to be proceeded against the accused, that will be sufficient for the court to proceed against the accused by framing charge. Whether that is sufficient or not, that is sufficient for conviction are matters to be considered after evaluation of the evidence by the court below at the time of disposal of the case. So, under the circumstances, the submission made by the counsel for the revision petitioner that there is no application of mind on the part of the court below, appears to be not correct and no illegality has been committed by the court below in dismissing the application, which warrants interference by this Court by invoking the power under revisional jurisdiction. So the revision petition lacks merit and the same is liable to be dismissed.
In the result, the revision petition is dismissed. Office is directed to communicate this order to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge Crl.R.P.No.1220 of 2014 10