## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI**
**WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942**
## **Crl.Rev.Pet.No.144 OF 2016(C)**
**C.M.P.NO.7240 OF 2015 IN CC 717/2011 DATED 10-12-2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, THODUPUZHA**
## **- - PETITIONERS PETITIONERS ACCUSED:**
|**1**|**JOSEPH**|
|---|---|
||**S/O. JOSEPH, VARIKKAMAKAL HOUSE, MUTTOM POST,**|
||**THODUPUZHA.**|
|**2**|**SHEENA**|
||**W/O. LONAPPAN, NILAYATHUMKAL HOUSE, ANGADI KARA,**|
||**CHEMBUKAVU VILLAGE, THRISSUR TALUK.**|
**BY ADVS. SRI.MATHEW JOHN (K) SHRI.DOMSON J.VATTAKUZHY**
## **- - RESPONDENTS RESPONDENTS COMPLAINANTS:**
|**1**|**GEORGE**|
|---|---|
||**S/O. JOSEPH, VARIKKAMAKKAL ESTATE, ARECKADU,**|
||**SIDHAPOOR, KUDAKU - 761 109.**|
|**2**|**STATE OF KERALA**|
||**REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF**|
||**KEALA, ERNAKULAM.**|
||**R1 BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT**|
||**R1 BY ADV. SRI.P.VIJAYA BHANU SR.**|
||**R2 BY SRI B JAYASURYA SR PP**|
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.02.2021, THE COURT ON 24.02.2021 PASSED THE FOLLOWING:**
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## **R.NARAYANA PISHARADI, J**
************************
Crl.R.P.No.144 of 2016
-----------------------------------------------Dated this the 24[th] day of February, 2021
## **O R D E R**
The petitioners are the first and the second accused in the case C.C.No.717/2011 pending in the Court of the Judicial First Class Magistrate-I, Thodupuzha.
2. The case is one instituted upon the complaint filed by the first respondent (hereinafter referred to also as 'the complainant'). The offences alleged against the accused in the case are punishable under Sections 403, 409, 420, 468 and 120B I.P.C.
3. The petitioners shall be hereinafter referred to as the accused. The second accused is the daughter of the first accused. The first respondent, the complainant, is the brother of the first accused.
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4. The complainant had executed a power of attorney in favour of the first accused authorising him to deal with his property. The first accused executed a sale deed in favour of the second accused in respect of the property owned by the complainant by using the power of attorney. The crux of the allegations in the complaint is that, in that sale deed, instead of affixing the thumb impression and the photograph of the complainant, the thumb impression and the photograph of another person were affixed and impersonation and forgery were committed. The other accused in the case are persons who had said to have assisted the petitioners in execution and registration of the sale deed in the above manner.
5. In the court below, the case had reached the stage of adducing evidence under Section 244 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). PW1 and PW2 were examined and Exts.P1 to P4 documents were marked on the side of the complainant.
6. The petitioners filed an application as Crl.M.P.No.7240/2015 before the trial court seeking discharge.
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As per the order dated 10.12.2015, the learned Magistrate dismissed the aforesaid application.
7. The first and the second accused have filed this revision petition challenging the legality and propriety of the aforesaid order passed by the learned Magistrate, dismissing the application filed by them for discharge.
8. Heard learned counsel for the petitioners and the first respondent and also the learned Public Prosecutor.
9. There are several grounds mentioned in the revision petition to challenge the legality and the propriety of the order passed by the learned Magistrate, dismissing the application for discharge filed by the petitioners. However, at the time of hearing, learned counsel for the petitioners has raised only one contention. Learned counsel has submitted that the first respondent had earlier filed a complaint against the petitioners in the Court of the Chief Judicial Magistrate, Thodupuzha and the complaint filed in the present case is on the same set of facts as contained in the previous complaint. Learned counsel for the petitioners has contended that a second complaint, on the same
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set of facts, is not maintainable in law. At the time of hearing of the revision petition, learned counsel for the petitioners has not raised any other factual or legal contentions.
10. It is well settled that there is no statutory bar in filing a second complaint on the same facts but it will be entertained only in exceptional circumstances. However, this principle is not attracted to the facts of the present case.
11. The allegation in the complaint in the present case is that, using the power of attorney executed in his favour by the complainant, the first accused executed a sale deed in the name of the second accused, who is his daughter, in respect of the property owned by the complainant. It is alleged that while executing and registering that document, instead of the photograph and the thumb impression of the complainant, the photograph and the thumb impression of another person were affixed in the sale deed.
12. However, admittedly, the allegation in the previous complaint filed by the first respondent in the Court of the Chief Judicial Magistrate is that, using the power of attorney executed
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by the complainant in his favour, the first accused executed a sale deed in favour of his wife, the second accused in that case. The allegation in that complaint is also that, in that sale deed, instead of affixing the thumb impression and the photograph of the complainant, the thumb impression and the photograph of another person were affixed. Therefore, it can be seen that the documents allegedly forged and fabricated by the petitioners are different in the two cases. The sale deed executed in the previous complaint is in favour of the wife of the first accused. In the present case, the sale deed is executed in favour of the daughter of the first accused. In such circumstances, it cannot be found that, the present complaint is based on the same set of facts as contained in the previous complaint filed by the first respondent in the Court of the Chief Judicial Magistrate, Thodupuzha.
13. The learned Magistrate has found in the impugned order that the evidence of PW1 and PW2 discloses the case alleged against the accused persons in the complaint.
14. Under Section 227 of the Code, the Court is required to discharge the accused if it “considers that there is not
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sufficient ground for proceeding against the accused”. However, discharge under Section 239 of the Code can be ordered when “the Magistrate considers the charge against the accused to be groundless”. The power to discharge under Section 245(1) of the Code can be exercised when, “the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction”.
15. Sections 227 and 239 of the Code provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245(1) of the Code, on the other hand, is reached only after the evidence referred to in Section 244 of the Code has been taken.
16. There is difference in the language employed in the above provisions. But, notwithstanding the difference in the language, whichever provision is applicable, the Court is required at this stage to see that there is a _prima facie_ case for
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proceeding against the accused (See **Tarun Jit Tejpal v. State of Goa : 2019 SCC OnLine SC 1053** ).
17. If the evidence adduced by the complainant at the stage of Section 244 of the Code, if unrebutted, _prima facie_ discloses the ingredients of the offences alleged against the accused, no order of discharge can be passed under Section 245(1) of the Code and the learned Magistrate would be required to frame charge against the accused under Section 246 of the Code.
18. In the instant case, as noticed earlier, learned counsel for the petitioners, at the time of hearing, has not challenged the impugned order on the ground that the evidence adduced by the complainant under Section 244 of the Code does not disclose the offences alleged against the accused. In such circumstances, in the light of the discussion above, the revision petition is liable to be dismissed.
Consequently, the revision petition is dismissed.
## (sd/-) **R.NARAYANA PISHARADI, JUDGE jsr**
**True Copy PS to Judge**
