Kerala High Court
Integrated Finance Co.Ltd vs P.G.Thomas
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 3RD DAY OF DECEMBER 2012/12TH AGRAHAYANA 1934
Crl.Rev.Pet.No. 1667 of 2012 ()
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[AGAINST THE ORDER DATED 26.6.2012 IN CMP.NO.456/2012 IN CC.197/2006 of
THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-I, ALAPPUZHA]
REVISION PETITIONERS(S)/PETITIONERS/ACCUSED:
----------------------
1. INTEGRATED FINANCE CO.LTD.,
VAIRAMS, 112, THYAGARAJA ROAD
T. NAGAR, CHENNAI-600017
2. GEORGEE KURUVILA
MANAGING DIRECTOR, INTEGRATED FINANCE CO. LTD
VAIRAMS 112, THYAGARAJA ROAD
T. NATGAR, CHENNAI-600017
3. P.B. APPIAH,
DIRECTOR, INTEGRATED FINANCE CO. LTD, VAIRAMS
112, THYAGARAJA ROAD, T. NAGAR
CHENNAI-600017
4. D.G. NAYAR,
DIRECTOR, INTEGRATED FINANCE CO. LTD, VAIRAMS
112, THYAGARAJA ROAD, T. NATGAR
CHENNAI-600017
5. K.J. SAMUEL,
BRANCH MANAGER & DEPOSIT CONSULTANT
INTEGRATED FINANCE CO. LTD, NCHUNGAL BUILDINGS
NORTH OF IRON BRIDEGE, ALAPPUZHA
BY ADVS.SRI.JOSEPH KODIANTHARA (SR.)
SRI.V.ABRAHAM MARKOS
SRI.MATHEWS K.UTHUPPACHAN
SRI.BINU MATHEW
SRI.TERRY V.JAMES
SRI.B.J.JOHN PRAKASH
SRI.TOM THOMAS (KAKKUZHIYIL)
RESPONDENTS/RESPONDENT/COMPLAINANT(S)AND STATE:
---------------
1. P.G.THOMAS
PUTHENPURAYIL, POWER HOUSE WARD, ALAPPUZHA 688004
2. THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM KOCHI 682031
R1 BY ADV. SRI.B.PRAMOD
R2 BY PUBLIC PROSECUTOR SRI.VIJU THOMAS.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 15-11-2012, ALONG WITH CRRP. 1668/2012, CRRP. 1669/2012, CRRP.
1670/2012, THE COURT ON 03-12-2012 PASSED THE FOLLOWING:
APPENDIX
(Crl.R.P.No.1667 of 2012)
REVISION PETITIONERS' EXHIBITS:
Annex-A: True copy of complaint dtd.10.10.2005 in CC
No.197/2006 filed by the first respondent before the
court of Judicial First Class Magistrate-I, Alappuzha.
Annex-B: True copy of complaint dtd.27.1.2006 in OP
No.20/2006 filed by the first respondent before the
Consumer Disputes Redressal Forum, Alappuzha.
Annex-C: True copy of Order dtd.12.8.2011 passed by
this Court in Crl.M.C. No.897 of 2006.
Annex-D: True copy of CMP No.456/2012 dtd.11.9.2010
filed under Section 245(2) of the Code of Criminal
Procedure by the revision petitioners in CC
No.197/2006.
Annex-D1: True copy of Objection dtd.25.4.2012 filed
by the 1st respondent to the application CMP.NO.456/2012
filed by the revision petitioners.
Annex-E: Certified copy of Order dtd.26.6.2012 passed
by the court of Judicial First Class Magistrate-I,
Alappuzha in CMP No.456 of 2012 in CC No.197/2006.
Annex-F: True copy of the Proceedings dtd.12.8.2005 of
the Chairman of the meeting of the Deposit Holders
appointed by the Madras High Court.
-true copy-
P.S.TO JUDGE.
V.K.MOHANAN, J.
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Crl.R.P.Nos. 1667, 1668, 1669 and 1670 of 2012 'C.R.'
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Dated this the 3rd day of December, 2012
O R D E R
As the petitioners and the second respondent- the State of Kerala in all the above revision petitions are one and the same, though the contesting first respondent in the above cases are different, particularly the question of law and facts involved are identical, all the above Criminal Revision Petitions are heard together and being disposed of by this common order.
2. In all these revision petitions, the prayer is to set aside the orders passed by the trial court, dismissing the petitions filed by the revision petitioners to quash the respective complaint filed against them as not maintainable and to discharge the accused therein who are the revision petitioners.
3. Crl.R.P.No.1667 of 2012 is preferred against the order dated 26.6.2012 in CMP No.456 of 2012 in C.C.No.197 of 2006 of the court of the Judicial First Class Magistrate-I, Alappuzha. In the above Crl.R.P.No.1667 of 2012 and connected cases :-2-:
case instituted upon the complaint preferred by the first respondent, the offence alleged against the revision petitioners/accused is under Section 420 read with Section 34 of I.P.C. In C.C.No.230 of 2006 against which Crl.R.P.No.1668 of 2012 is filed, no specific section of offence is raised. But, in Annexure C order passed by this Court in Crl.M.C.No.898 of 2006 and in Annexure B discharge petition filed by the revision petitioners, their stand is that no offence under Section 120B,409 or 420 I.P.C. would be attracted, but according to the first respondent/complainant, offences under Section 409 and 34 are attracted against the revision petitioners. Crl.R.P.No.1669 of 2012 is also filed challenging the order dated 26.6.2012 in CMP No.493 of 2012 in C.C.No.240 of 2006 wherein the offences alleged against the revision petitioners are under Section 409 read with Section 34 of I.P.C. Similarly in Crl.R.P.No.1670 of 2012 preferred against the order dated 26.6.2012 in CMP No.825 of 2012 in CC No.239/2006, the offence alleged against them is also under Section 409 read with Section 34 of I.P.C. Hence, on a close scrutiny of the allegations and Crl.R.P.No.1667 of 2012 and connected cases :-3-:
contentions taken in the revision petitions and going by the documents produced along with the same, it can be seen that as per the proceedings of the court below, except in Crl.R.P.No.1667 of 2012, in all other connected cases covered by the revision petitions, cognizances were taken for the offences punishable under Section 409 read with Section 34 of I.P.C. against the petitioners whereas in Crl.R.P.No.1667 of 2012 related to C.C.No.197/06, cognizance was taken for the offence punishable under Section 420 read with Section 34 of I.P.C.
4. Thus, in the calendar cases, against which Crl.R.P.Nos.1668, 1669 and 1670 of 2012 are filed, the allegations are similar in nature though the respondents/complainants are different persons and the offences alleged are under Section 409 read with Section 34 of I.P.C.
whereas the offence alleged against the revision petitioners in Crl.R.P.No.1667 of 2012 which is covered by C.C.No.197 of 2006, the offences alleged are under Section 420 read with Section 34 of I.P.C.
Crl.R.P.No.1667 of 2012 and connected cases :-4-:
5. Now let me consider the allegations against the revision petitioners, who are the accused in the respective calender cases.
Hereinafter for convenience, the parties are referred to according to their positions in the complaint, which is produced as Annexure A in all the above revision petitions. According to the complainant, the first accused is a limited company having its registered and administrative office in Chennai, which is mainly doing banking business by accepting deposits, lending money and also engaged in hire purchase finance business, share brokering etc. and it is legally bound to follow the orders of the Reserve Bank of India and the first accused/company is having one of its branch at Alappuzha and the second accused is the Managing Director of the first accused/company whereas accused numbers 3 and 4 are its Directors and the fifth accused is the Branch Manager of the first accused/company, Alappuzha Branch. According to the complainant, accused nos.2 to 5 are in charge and responsible to the first accused/company for its conduct of business. It is the further allegation that the first Crl.R.P.No.1667 of 2012 and connected cases :-5-:
accused/company was accepting deposits from the public in the ordinary course of their business with an option for regular or cumulative interest and regular interest was payable monthly or quarterly till the expiry of the period of deposit. It is the further allegation that the fifth accused is known to the complainant and her family for a long time who made representation to the complainant to the effect that the first accused as part of its business is accepting deposit from the public and if money is deposited to the first accused/company, the maturity value of the deposit amount would be given back properly on its period of maturity. According to the complainant, believing that representation, the complainant joined the five year plan on a particular date by depositing specific amount as per the specific and particular deposit account number through the Alappuzha Branch of the first accused/company, which was acted for and on behalf of the other accused and also given the maturity value of the deposit amount and thereafter, the first accused, as an acknowledgment of such deposit, issued deposit receipt. It is also Crl.R.P.No.1667 of 2012 and connected cases :-6-:
averred that the fifth accused made specific undertaking to the complainant that the amount entrusted, along with its maturity value, would be returned on attainment of maturity period. It is further alleged that after the maturity period, the complainant surrendered the deposit receipt to the fifth accused as the Branch Manager of the first accused/company, in order to effect the payment of the maturity value, but the accused persons failed to pay money to the complainant. Thereafter, on several occasions, the complainant demanded the payment of the money, but by saying some excuse or other, the accused evaded from effecting the payment. It is also averred that in the mean while, the complainant came to understand that the Reserve Bank of India had imposed a ban against the first accused from accepting deposits from any person since the first respondent/accused has violated the provisions of the Reserve Bank of India Act,1934 and various directions issued under the said Act. It is also averred that in addition to that, from the conduct and behavior of the accused, the complainant realised that the accused have dishonestly Crl.R.P.No.1667 of 2012 and connected cases :-7-:
misappropriated, fraudulently converted and misapplied the money entrusted with the accused persons by the complainant, for their own use. It is specifically averred in the complaint that accused Nos.2 to 5 acted in furtherance of their common intention of causing unlawful gain to the accused persons 1 to 5 and to cause unlawful loss to the complainant. It is also submitted specifically that the act of the accused is a clear violation of the terms of the contract as well against the trust reposed on them by the complainant. Thus, according to the complainant, the act of the accused constitutes offences punishable under Section 409 read with 34 of I.P.C. and they are liable to be prosecuted and punished for the same.
6. The allegations in the complaint, covered by Annexure-A produced in Crl.R.P.No.1667 of 2012, on the basis of which C.C.No.197 of 2006 was instituted, after stating about the status of the accused and the revision petitioners and the business of the first accused/company as that of in the other complaints covered by the other revision petitions, which is specifically averred in paragraph 4 Crl.R.P.No.1667 of 2012 and connected cases :-8-:
are that the first accused/company had accepted deposits from the public in the ordinary course of their business, with an option for regular or cumulative interest and regular interest was payable monthly or quarterly till the expiry of the period of deposit and the regular income deposit includes one year to five years plan with variation in the interest rate. It is also submitted that the fifth accused and the complainant have acquaintance and knew each other for a very long time. The complainant had three fixed deposits of `1 lakh each in the Alappuzha Branch of the Union Bank of India and the same were to mature on 29.1.2005, 15.2.2005 and 5.4.2005 respectively and the fifth accused was aware of the above deposits and their date of maturity. Thus, it is the specific averment in the complaint that while so, on 25.1.2005 at about 11 a.m., the fifth accused came to the house of the complainant and made representation to the complainant and his wife to the effect that the first accused company as part of its business is accepting deposit from the public and higher rate of interest would be given on each month if Crl.R.P.No.1667 of 2012 and connected cases :-9-:
the complainant deposits the amount, which would be received from the Union bank on its maturity and that the deposit amount would be given back on maturity. According to the complainant, the fifth accused further represented that the first accused/company is accepting deposits strictly under the supervision and control of the Reserve Bank of India. Thus, in paragraph 7 of the complaint, it is stated that believing such representation and inducement made by the fifth accused, the complainant and his wife on 29.1.2005, 15.2.2005 and 5.4.2005 respectively deposited `3 lakhs in the regular income scheme of three year Plan of the first accused company vide cheques bearing Nos.57310,57311 and 57313 respectively drawn on the Alappuzha Branch of Union Bank of India through the Alappuzha Branch of the first accused/company, which was acting for and on behalf of the other accused. According to the complainant, the interest offered by the first accused/company was 9% per annum and on each occasion of deposit, a temporary receipt was given to the complainant. Thereafter, the first accused, as an acknowledgment of Crl.R.P.No.1667 of 2012 and connected cases :-10-:
the same, issued receipts dated 10.3.2005,10.3.2005 and 4.5.2005 bearing Nos.33027,33103 and 33382 respectively to the complainant from its head office at Chennai and the same were signed by one of its Directors and an authorised signatory of the first accused/company. According to the complainant, they parted with the money to the first accused solely on the representation and inducement made by the fifth accused, who acted for and on behalf of the first accused/company and other accused as their representative. It is the further case of the complainant that contrary to the agreement, interest was paid till April,2005 for the first two deposits and absolutely, no interest was paid for the third deposit and though the complainant and his wife repeatedly demanded for the payment of monthly interest, the accused by saying some excuse or other paid no interest thereafter. Hence, according to the complainant, himself and his wife demanded back the deposit amount as well as the interest from the accused and the accused, on lame excuse or other, evaded the payment. It is also averred that the complainant and his wife came to understand that the Crl.R.P.No.1667 of 2012 and connected cases :-11-:
Reserve Bank of India had imposed a ban against the first accused from accepting deposits from any person since the first accused has violated the provisions of the Reserve Bank of India Act,1934 and various directions issued by the said Bank. It is also averred that the said fact was published by the R.B.I. in an advertisement through the Indian Express Daily on 19.1.2005. Thus, according to the complainant, only on publication of the above advertisement of the RBI, the complainant and his wife realised that the accused with deliberate intention of cheating, dishonestly and fraudulently induced them by making false representation to deposit money with the first accused/company and further represented falsely that the first accused was accepting the deposit in accordance with the provisions of the Reserve Bank of India Act and the directions issued thereunder. It is specifically pleaded in paragraph 11 of the complaint that at the time of making the above representation, the accused were fully aware that they have no right to accept the deposit from the public since their action was quite contrary to the specific directions of the Reserve Crl.R.P.No.1667 of 2012 and connected cases :-12-:
Bank of India. Hence, it is alleged that the accused Nos.2 to 5 have acted in furtherance of their common intention of causing unlawful gain to accused Nos.1 to 5 and to cause unlawful loss to the complainant and his wife and hence the act of the accused constitute the offence punishable under Section 420 read with Section 34 of I.P.C. and the accused are liable to be prosecuted and punished for the said offences.
7. Thus, when the above complaints are preferred before the trial court, after considering the allegations raised in the complaints supported by the sworn statement and the documentary evidence, the court below took cognizance for the said offences and accordingly, issued summons under Section 204 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C' only) to the revision petitioners herein/accused. Thus, when the revision petitioners received the summons issued from the trial court on each case, they approached this Court by filing separate Crl.M.Cs. under Section 482 of Cr.P.C. to quash the complaints in each case. Thus, Crl.R.P.No.1667 of 2012 and connected cases :-13-:
Annexure-C orders produced along with the above revisions petitions, are the orders passed by this Court while disposing of such Crl.MCs. Though the prayer in the above petitions was to quash the complaints, this Court was not inclined to entertain such petitions and to quash the complaints at that stage, but observed that it would be open to the petitioners to plead discharge before the trial court at appropriate stage raising all relevant points and did not express any opinion on the merit of the case. While disposing of the Crl.MCs. a learned Judge of this Court has directed the trial court to release the petitioners on bail, on fixing suitable conditions and also directed the learned Magistrate to dispense the personal appearance of the revision petitioners/accused on appropriate terms and conditions.
8. Thereafter, the revision petitioners have preferred separate petitions for discharge in each of the calendar cases pending before the trial court. Annexure D is the copy of such petition. Against the prayer for discharge sought as per Annexure D petition, the respondent/complainant has filed Annexure D1 objection in all the Crl.R.P.No.1667 of 2012 and connected cases :-14-:
cases. It is after considering the argument of the counsel for both sides and the averments and the objection of the contesting parties, the trial court passed the impugned orders by which the learned Magistrate dismissed the petition for discharge and thus, consequently the present revision petitions are filed challenging the orders of the trial court declining their prayer for discharge.
9. I have heard Sri.Joseph Markose, learned Senior counsel appearing for the revision petitioners and Sri.D.Pramod, learned counsel appearing for the contesting respondent and Sri.Viju Thomas, the learned Public Prosecutor for the State.
10. The learned Senior counsel Sri.Joseph Markose for the revision petitioners strenuously submitted that the impugned orders passed by the learned Magistrate are liable to be set aside and the revision petitions are to be allowed as the revision petitioners are entitled to get discharge under Section 245(2) of the Cr.P.C., since no offence is revealed and as such no prosecution would lie against them.
The learned Senior Counsel has also submitted before me that the Crl.R.P.No.1667 of 2012 and connected cases :-15-:
Honourable High Court of Madras has formulated a scheme for the settlement of the rights and liabilities, including the amount due to the complainants, since the large number of investors approved the scheme. It is also the submission of the learned counsel that though a Division Bench of the Madras High Court has set aside the judgment of the learned Single Judge of the same High Court, the matter is taken before the Honourable Apex Court and the same is pending there and in case the Honourable Supreme Court approves the decision of the learned Single Judge of the Madras High Court, it would be futile and prejudicial to the interest of the revision petitioners, to face the trial.
11. Besides the above submission, after taking me through Sections 420, 405 and 409 of I.P.C., it is the submission of the learned counsel that no offence as alleged in the complaint would lie against the revision petitioners since even according to the complainant, the offence was committed by the first accused/company and not by accused Nos.2 to 5 who are only the officers of the company.
Crl.R.P.No.1667 of 2012 and connected cases :-16-:
According to the learned counsel, in the absence of any specific averment or statutory provision to fix vicarious liability on the officers of the company who is the first accused, no offence would lie against such officers of the company and the learned Magistrate of the trial court has not considered the above legal aspects. It is the further case of counsel for the revision petitioners that going by the averments contained in the complaint, especially in the light of the facts and circumstances involved in the case, the essential ingredients of Sections 405,409 and 420 of I.P.C. are not attracted and therefore, the revision petitioners/accused are entitled to get a discharge and the trial court has not considered those legal and factual issues and the contentions advanced by the revision petitioners. According to the learned counsel, when this Court disposed of Section 482 petitions filed by the revision petitioners, the petitioners were relegated to approach the trial court taking the plea for discharge and consequently, though petitions were filed for discharge, the same were dismissed without proper consideration of the facts and circumstances Crl.R.P.No.1667 of 2012 and connected cases :-17-:
involved and the legal contentions raised, in spite of the direction issued by this Court.
12. On the other hand, Advocate Sri.D. Pramod, learned counsel appearing for the contesting respondents in all the above Criminal Revision Petitions vehemently submitted that proper and specific averments are taken in the complaints against each of the revision petitioners/accused and the sworn statement of the complainant and the documents produced along with the complaint prima facie made out a strong case against the revision petitioners/accused for the offences punishable under Section 409 read with Section 34 of I.P.C. as well as Section 420 read with Section 34 of I.P.C. The learned Magistrate, on facts, has pointed out that the receipts acknowledging the acceptance of the amount from the complainant were issued by the members of the Director Board of the company and the deposits were made on the basis of the representations and inducements made by the fifth accused, who was acting on behalf of the other accused and such representations and Crl.R.P.No.1667 of 2012 and connected cases :-18-:
inducements were made fully knowing that the same were against the directions of the Reserve Bank of India and thus, dishonest intention of the accused was crystal clear. Therefore, according to the counsel, it was for the accused to face the trial and to convince the court that they are innocent and they are not responsible for the commission of the offences.
13. I have carefully considered the arguments advanced by the learned Senior Counsel for the revision petitioners as well as the counsel for the contesting respondents. I have gone through the materials and the documents produced along with the revision petitions and the impugned order.
14. In the light of the rival contentions advanced by the senior counsel for the revision petitioners and the counsel for the contesting respondents and in the light of the available materials on record and considering the stage at which the impugned orders are passed, the question to be considered is whether the impugned orders of the court below are liable to be set aside as they are illegal, Crl.R.P.No.1667 of 2012 and connected cases :-19-:
incorrect and improper and whether the petitioners are entitled to get a discharge as prayed for, at the present stage of proceedings, in the trial court.
15. It is pertinent to note that while disposing of Section 482 petitions filed by the revision petitioners, this Court has observed that they can approach the trial court for discharge at appropriate stage.
From those orders, it appears to me that the learned Judge of this Court was reluctant to quash Annexure A complaints at that stage, at which those Crl.M.C.s were filed and disposed of, as the learned Judge was not satisfied to grant such relief on the basis of the available materials, facts and circumstances involved. Otherwise, this Court would not have declined such relief. It is pertinent to note that after the disposal of those Crl.MCs., absolutely there was no progress in the inquiry of the trial court, except the filing of the discharge petition or objection thereto and the impugned orders thereof. That means there is no change of circumstances or progress towards the inquiry and no new stage was arrived in this regard. Therefore, the Crl.R.P.No.1667 of 2012 and connected cases :-20-:
stage of inquiry remained as such, on the date of disposal of the Crl.M.Cs.
16. In this juncture, it is also relevant to note that in the impugned orders, the learned Magistrate has specifically found that the predecessor of the learned Magistrate, after examination and study of the complaint and the sworn statement of the witnesses had prima facie found that the accused has committed the offences punishable under Section 409 read with Section 34 of I.P.C. as well as Section 420 read with Section 34 of I.P.C. and accordingly, the court took cognizance for the said offences. It is also found that subsequent to the issuance of process against the accused under Section 204 of the Cr.P.C., no fresh or any further material has been produced by the complainant as well as the accused. Therefore, according to the learned Magistrate, there was no fresh material, other than what was already produced, before issuing the process, to come into a different opinion deviating from the decision to issue process against the accused. According to me, the finding and observation of Crl.R.P.No.1667 of 2012 and connected cases :-21-:
the learned Magistrate are factually correct and legally relevant. In the absence of any such fresh material or evidence, according to me, if the learned Magistrate forms a different opinion, it will amount to review of issuing the process under Section 204 of the Cr.P.C. against the revision petitioners/accused which is impermissible in law by virtue of Section 362 of the Cr.P.C. Of course, if once the process is issued, it does not mean that the court has no option, but to proceed with the trial and to come to its logical ends, either convicting or acquitting the accused.
17. The learned counsel for the revision petitioners submitted that in view of sub-section(2) of Section 245, the revision petitioners are entitled to get a discharge at the present stage and in support of the above submission, the learned counsel heavily relied upon the decision of this Court reported in Manmohan Malhotra v. Abdul Salam [1994(1) KLT 365] which reads as follows:-
"It is clear that the stage envisaged in sub-section (1) would reach only after taking all the evidence which prosecution may produce. What is envisaged in sub- Crl.R.P.No.1667 of 2012 and connected cases :-22-:
section (2) is "at any previous stage of the case". The discharge order under sub-section (1) can be passed when the Magistrate finds that "no case has been made out". But the discharge order envisaged in sub-section (2) could be passed only if the magistrate considers the "charge to be groundless". Since the section empowers a Magistrate to pass such an order at any previous stage of the case, it is not necessary that evidence should have been adduced. If the accused, after his appearance in court, convinces the magistrate that the allegations in the complaint, even if proved, would not amount to the offence, the magistrate has the power to discharge the accused. Merely because the magistrate was earlier of opinion that there was sufficient ground for proceeding, the Magistrate need not refrain from performing his judicial duty to discharge the accused.
No doubt a Magistrate issued process to the accused as per S.204 of the Code since he was of opinion that there was sufficient ground for proceeding. But such opinion formed at the stage envisaged in S.204 of the Code is no bar in forming a different opinion after accused appears and convinces him that the charge would be groundless. The order issuing process has only the effect of an interim order and it is open to the accused to canvass for its alteration or revocation (vide K.M.Mathew v. State - 1992(1) KLT 1)."
The learned Judge of this Court laid down the above dictum, relying upon the decision reported in K.M.Mathew v. State of Kerala [1992 (1) KLT 1], but it is relevant to note that the Honourable Apex Court has overruled the decision in K.M.Mathew's case (supra), in the decision reported in Adalat Prasad v. Rooplal Jindal [2004 KHC Crl.R.P.No.1667 of 2012 and connected cases :-23-:
1137]. In the said decision, the Apex Court has held as follows:-
"16. Therefore, in our opinion, the observation of this Court in the case of Mathew (supra) that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the scheme of the Code which has not provided for review and prohibits interference at interlocutory stages.
Therefore, we are of the opinion that the view of this court in Mathew's case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law."
So according to me, the decision in Manmohan Malhotra's case cited by the learned counsel has no application in the present case.
18. On the other hand, Sri.D.Pramod, learned counsel for the contesting respondent, relying on the decision reported in Mathew Paily v. Prabhakaran [1980 KLT 926], submitted that in the present case, the petitioners have no right to claim for a discharge without recording the evidence as contemplated under Section 244 of the Cr.P.C. and the present claim is immature.
19. It is relevant to note that in the decision reported in Mathew Paily v. Prabhakaran [1980 KLT 926], His Lordship Crl.R.P.No.1667 of 2012 and connected cases :-24-:
Justice U.L.Bhat has held, in paragraph 4, as follows:-
"4. ............................ When a complaint is filed in court in regard to a warrant case there are five stages of disposal. S.200 of the Code requires the Court to examine upon oath the complainant and the witnesses, if any, present in the court and reduce the substance of such examination to writing and take the signatures of the complainant and the witnesses therein. After so doing, under S.202 of the Code, the Magistrate may either postpone the issuance of process to the accused and inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding with the case. In other words, after recording the sworn statement of the complainant and of the witnesses, the above alternatives are open before him under S.202 pf the Code if he decides, to postpone process. S.203 of the Code lays down that if, after considering the statements on oath of the complainant and of the witnesses and the result of the inquiry or investigation, if any, under S.202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint recording briefly the reasons for so doing. This is one way of final disposal of a complaint contemplated in the Code."
On examination of the facts and circumstances involved in the present case and the procedure of the court below, in the light of the above decision, it can be seen that the stage under Sections 202 and 203 of Cr.P.C. are already over. Therefore, the learned Magistrate issued process against the accused under Section 204 of the Cr.P.C. Crl.R.P.No.1667 of 2012 and connected cases :-25-:
20. The next stage of inquiry is prescribed in Section 244 and under Section 245(1) or 245(2) of Cr.P.C. In the decision in Mathew Paily's case (supra), this Court has further held as follows:-
"6. The next stage is found in S.244 of the Code. Under this section, the Magistrate shall hear the prosecution and take all such evidence as may be produced in support of the prosecution. Having taken all such evidence, it is open to the Magistrate to do one of the two things, viz.(i) pass an order of discharge under S.245(1) of the Code on the ground that no case against the accused has been made out which, if unrebutted, would warrant his conviction, or(ii) proceed to frame charge against the accused under S.246 of the Code. When once a charge is framed, the Magistrate has to conduct the trial (that is, in a warrant case) as laid down in S.246 and 247 of the Code and pass orders under S.248 of the Code either acquitting or convicting the accused. These are two other stages of disposal. Under S.249 of the Code, on any hearing day, the Magistrate has power to discharge an accused in a compoundable or non-cognizable offence if the complainant is absent.
7. I have now referred to four stages in a warrant case. There is yet another intermediary stage covered by S.245(2) of the Code. It is true that under S.244 of the Code, the Magistrate is under a duty to take all such evidence as may be produced by the prosecution, and it is after taking all such evidence that he must decide whether there should be an order of discharge under S.245(1) of the Code or a charge under S.246 of the Code. There may be cases where after examining one or two witnesses, the evidence and the circumstances placed before Magistrate may appear to be of such a nature that he may legitimately think that Crl.R.P.No.1667 of 2012 and connected cases :-26-:
further enquiry would serve no purpose at all, much less the interest of justice. In such a case, it is open to him to come to the conclusion that the charge is groundless. Thereupon, S.245(2) of the code permits the Magistrate to pass an order of discharge and this, in my opinion, is the second stage of disposal of a warrant case. Similarly, even without taking the entire prosecution evidence, it is open to the Magistrate to halt the enquiry and frame a charge as contemplated in S.246 of the Code."
(emphasis supplied) In this juncture, according to me, it is appropriate to refer to Section 245 of the Cr.P.C. which reads as follows:-
"245. When accused shall be discharged (1) If, upon taking all evidence referred to in section 244, the Magistrate consider, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
In the light of the decision in Mathew Paily's case, after issuing process under Section 204 of Cr.P.C., the stage of discharge comes under Section 245 of the Cr.P.C. In view of Section 245(1) of Cr.P.C., even after taking all the evidence, which may be adduced by Crl.R.P.No.1667 of 2012 and connected cases :-27-:
the complainant in terms of Section 244 of the Cr.P.C., if the Magistrate is of the opinion after considering such evidence that no case against the accused has been made out, which if unrebutted would warrant his conviction, the learned Magistrate shall discharge the accused by recording his reasons thereof. In the light of the above decision, after recording the evidence of one or two witnesses produced in terms of Section 244 of Cr.P.C. and if the evidence and circumstances placed before the Magistrate is of such a nature, the Magistrate may legitimately think that further inquiry would serve no purpose at all and in such a case, then it is open to the Magistrate to come to a conclusion that the charge is groundless and accordingly, accused can be discharged as per Section 245(2) of the Cr.P.C., by recording his reasons for the same. In this juncture, it is pertinent to note that the term "previous stage of the case" referred to in sub- section (2) of Section 245 of Cr.P.C., according to me, is not a stage before recording the evidence under Section 244 of Cr.P.C. and after issuing process under Section 204 of Cr.P.C. As observed in Mathew Crl.R.P.No.1667 of 2012 and connected cases :-28-:
Paily's case, specific provisions are incorporated in Chapter XV, particularly in sub-chapter B of Chapter XIX which deals with 'Trial of Warrant Cases by Magistrate, cases instituted otherwise than on police report'. Thus, on a careful analysis of the procedure prescribed for the trial of warrant case by the Magistrate upon private complaint, it can be seen that if once the process issued under Section 204 of Cr.P.C., the accused can be discharged, only after recording the evidence under Section 244 of Cr.P.C. and that too, in terms of Section 245. In a recent decision reported in Manharibhai Muljibhai Kakadia and Anr. v. Shaileshbhai Mohanbhai Patel and Ors. (2012 (7) Supreme 257), after examining the scope of Sections 202 and 203 of Cr.P.C., the Apex Court, while reiterating the legal position, has held as follows:
"..........The Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204....................................." Indeed in the decision in Adalat Prasad v. Rooplal Jindal [2004(3) Crl.R.P.No.1667 of 2012 and connected cases :-29-:
KLT 382 (SC) = 2004 KHC 1137], the Apex Court has clarified that recalling an order of issuance of process run counter to the scheme of Cr.P.C,. where there is no provision for review and prohibits interference at interlocutory stages. Resultantly, the inevitable conclusion that can be arrived is that after the appearance of the accused in receipt of process from the court under Section 204 of the Cr.P.C., the first opportunity for the accused to convince the trial court which issued the process, for a discharge, is under Section 245 (1) or (2) of Cr.P.C. and that too only after recording the evidence as contemplated under Section 244 of Cr.P.C. Of course, Section 249 of Cr.P.C. is another provision to discharge the accused due to the absence of the complainant which, according to me, is not relevant in the present case. It is further relevant to note that the 2nd sub-section to Section 245 of Cr.P.C. empowers the Magistrate to discharge the accused, without taking all the evidence referred to in Section 244 of Cr.P.C. , but at any intermediate stage after starting the process of recording such evidence as observed in Mathew Paily's case, if the Crl.R.P.No.1667 of 2012 and connected cases :-30-:
Magistrate is of the opinion, on consideration of such evidence that the charge is to be groundless. It is for that reason sub-section (2) is incorporated to Section 245 in the chronological order and that too after prescribing the procedure under Section 244. Therefore, the discharge referred to in Section 245(2) of Cr.P.C. is not on any previous stage to Section 244 of Cr.P.C. As I indicated earlier, even if the complaint is not dismissed under Section 203 of Cr.P.C., it does not mean that the accused has to face the trial in pursuance of the process under Section 204 of Cr.P.C. Thus, in case the complaint and the materials and the evidence which are recorded under Section 244 of Cr.P.C. are not capable to withstand the test prescribed under Section 245(1) or (2), the complainant cannot further pursue the complaint and the accused need not undergo the ordeal of trial. Thus, according to me, the provisions for discharge of the accused contained in Section 245(1) and (2) are the check measures specifically incorporated to prevent the accused from facing a vexatious or frivolous complaint and thereby, to save the interest of the accused. Crl.R.P.No.1667 of 2012 and connected cases :-31-:
21. In this juncture, it is relevant to note that while disposing of the Crl.M.Cs. filed under Section 482 of the Cr.P.C., this Court has observed that the petitioners therein, who are the accused and the revision petitioners herein, can approach the trial court for discharge at appropriate stage. It is also relevant to note that when the revision petitioners approached this Court to quash the complaint, they were already served with the summons issued in terms of Section 204 of the Cr.P.C. As indicated earlier, after the issuance of summons by the trial court in terms of Section 204 of the Cr.P.C. against the petitioners/accused and after disposal of the Crl.M.Cs., there was no progress towards the inquiry and therefore, there was no meaning in filing discharge petition before the trial Magistrate after having invited the orders of this Court in Crl.M.Cs. and especially when the learned Magistrate is not expected to pass any orders of his own after the orders passed by the High Court on examination of the available materials and evidence and particularly, in the absence of any change of circumstances or fresh materials or evidence. Hence, according Crl.R.P.No.1667 of 2012 and connected cases :-32-:
to me, the appropriate stage mentioned in the order issued by the learned Judge of this Court while disposing Section 482 petitions, are yet to come after recording the evidence under Section 244 of the Cr.P.C. So, according to me, the revision petitioners had preferred the petitions for discharge at an inappropriate stage, especially in the light of the decision of this Court reported in Mathew Paily's case (supra) particularly in view of the orders passed by this Court while disposing of the Section 482 petition. Thus, according to me, the petition for discharge filed by the revision petitioners in the trial court for the aforesaid reason are not proper and not maintainable, but they invited an order from the trial court which was not at all warranted. Therefore, according to me, at this stage, this Court need not go into the merits or demerits of the case of the revision petitioners with respect to the prayer for discharge, especially when no legal scrutiny of the impugned orders is warranted. But at the same time, the impugned order should go so as to enable the trial court to pass appropriate orders after recording the evidence under Section 244 of Crl.R.P.No.1667 of 2012 and connected cases :-33-:
the Cr.P.C.
22. In the light of the above discussion, especially in the light of the decision in Mathew Paily's case (supra), after issuing the process under Section 204 of the Cr.P.C., the next stage of discharge would come, only after recording the evidence as contemplated under Section 244(1) of the Cr.P.C. and under Section 245(1) or (2) of Cr.P.C., otherwise it will amount to review of the decision of the learned Magistrate to issue the process under Section 204 of Cr.P.C.
and such a course is impermissible in view of Section 362 of the Cr.P.C. Therefore, the petitioners are not entitled to get an order of discharge as prayed for in these revisions at this stage.
23. Therefore, the orders impugned in these revision petitions are set aside so as to enable the trial court to pass appropriate orders either under Section 245(1) or under Section 245(2) of the Cr.P.C., in case the petitioners approach the trial court for their discharge after recording the evidence as contemplated under Section 244 of the Cr.P.C. Thus, if the trial court after recording of the evidence in terms Crl.R.P.No.1667 of 2012 and connected cases :-34-:
of Section 244 of Cr.P.C. or after considering the discharge application, if any, preferred by the petitioner after recording the evidence under Section 244, decide to step into the next stage, i.e. framing of charge, the trial court is free for the same and proceed with the trial of the case in accordance with the procedure and law and to arrive at its logical conclusion or if the trial court is of the opinion that the petitioners are entitled to get discharge as contemplated either under Section 245(1) or under Section 244(2) as the case may be, the trial court can discharge the accused.
In the result, these Criminal Revision Petitions are disposed of setting aside the orders impugned in these revision petitions and relegating the revision petitioners to approach the trial court, if they are so advised for an order for their discharge, after recording the evidence of prosecution under Section 244 of the Cr.P.C. The learned Magistrate of the trial court is directed to proceed with the inquiry of Crl.R.P.No.1667 of 2012 and connected cases :-35-:
the case as directed above and dispose of the same on merit in accordance with the procedure and law.
V.K.MOHANAN, Judge MBS/ Crl.R.P.No.1667 of 2012 and connected cases :-36-: