Joseph S/o Joseph and Thresiamma v. KuriAn S/o Joseph and State of Kerala (Crl.R.P. No.143 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **Crl.Rev.Pet.No.143 OF 2016(C)** **IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I C.M.P.NO.7257 OF 2015 IN CC 718/2011** ## **- - PETITIONERS PETITIONERS ACCUSED:** |**1**|**JOSEPH**| |---|---| ||**S/O. JOSEPH, VARIKKAMAKAL HOUSE, MUTTOM POST,**| ||**THODUPZHA.**| |**2**|**THRESIAMMA**| ||**D/O. THOMAS, MATTAPPILLIL HOUSE, ALANADU KARA,**| ||**BHARANANGANAM VILLAGE, MEENACHIL TALUK.**| **BY ADVS. SRI.MATHEW JOHN (K) SHRI.DOMSON J.VATTAKUZHY** ## **RESPONDENT/S:** **1 KURIAN S/O. JOSEPH, VARIKKAMAKKAL HOUSE, VETTILAPPARA KARA, KOTHAMANGALAM TALUK - 614 624. 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. SR.PP SRI.B.JAYASURYA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.02.2021, THE COURT ON 01.03.2021 PASSED THE FOLLOWING:** Crl.R.P.No.143/2016 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.143 of 2016 ------------------------------------------Dated this the 1[st] day of March, 2021 ## **O R D E R** The petitioners are the first and the second accused in the case C.C.No.718/2011 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 wife of the first accused. The first respondent, the complainant, is the brother of the first accused. Crl.R.P.No.143/2016 3 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 of the complainant, the thumb impression of some other person was affixed. The other accused in the case are persons who had allegedly assisted the petitioners in the preparation and registration of the sale deed. 5. In the court below, the case had reached the stage of adducing evidence under Section 244 of the Code of Criminal Procedure, 1973 (for short '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.7257/2015 before the trial court seeking discharge. As per the order dated 10.12.2015, the learned Magistrate dismissed the aforesaid application. Crl.R.P.No.143/2016 4 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 for discharge filed by them. 8. Heard learned counsel for the petitioners and the first respondent and also the learned Public Prosecutor. 9. At the time of the final hearing of the revision petition, learned counsel for the petitioners has raised only one contention before this Court. Learned counsel would submit that the first respondent had earlier filed a complaint against the petitioners in the Court of the Chief Judicial Magistrate, Thodupuzha and the aforesaid complaint was dismissed under Section 203 of the Code 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, the complaint in the instant case, being the second complaint on the same set of facts, is not maintainable in law. Crl.R.P.No.143/2016 5 10. Learned senior counsel who appeared for the first respondent submitted that, as per the explanation provided to Section 300 of the Code, dismissal of a complaint does not amount to an acquittal for the purpose of that provision and therefore, the complaint in the present case is maintainable. 11. The submissions made by the learned counsel for both parties with regard to the earlier or previous complaint filed by the first respondent appear to be factually incorrect. Learned counsel for the parties have made available for perusal by this Court the copies of the two complaints filed against the petitioners by the first respondent. On a perusal of them, it is seen that the complaint filed by the first respondent in the present case is dated 20.06.2011. The complaint filed by the first respondent in the Court of the Chief Judicial Magistrate, Thodupuzha is dated 01.06.2012 and it was dismissed by the learned Magistrate under Section 203 of the Code on 01.07.2013. Therefore, it is evident that the complaint in the present case is not the second complaint but it is the first complaint. The second complaint is the one filed in the Court of the Chief Judicial Crl.R.P.No.143/2016 6 Magistrate, Thodupuzha. In such circumstances, the contention raised by the learned counsel for the petitioners in the present case with regard to the maintainability of the complaint, does not survive for consideration. 12. At this juncture, it is to be noted that, as per the order dated 23.02.2021 in Crl.R.P.No.2002/2013, this Court has set aside the order passed by the Chief Judicial Magistrate, Thodupuzha by which that court dismissed the complaint filed by the first respondent under Section 203 of the Code and this Court has directed the learned Magistrate to conduct further enquiry in that complaint and pass appropriate orders. 13. If the learned Chief Judicial Magistrate takes cognizance of the offences on the basis of the complaint filed before him, then the petitioners herein could, at the appropriate stage in that case, raise the contention that it is a second complaint on the same facts and they could seek appropriate relief in the appropriate forum on that ground. 14. As far as this revision petition is concerned, the challenge made is with regard to the legality and propriety of the Crl.R.P.No.143/2016 7 order passed by the learned Magistrate, dismissing the application for discharge filed by the petitioners under Section 245(1) of the Code. 15. Section 245(1) of the Code provides that, if, upon taking all the evidence referred to in Section 244 of the Code, 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, the Magistrate shall discharge him. 16. Under Section 227 of the Code, the trial court is required to discharge the accused if it “considers that there is not 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 of discharge under Section 245(1) of the Code can be exercised by the Magistrate 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”. Crl.R.P.No.143/2016 8 17. 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. 18. There is difference in the language employed in the above provisions. But, notwithstanding these differences, whichever provision may be applicable, the court is required at this stage to see that there is a _prima facie_ case for proceeding against the accused (See **Tarun Jit Tejpal v. State of Goa : 2019 SCC OnLine SC 1053** ). 19. In the present case, the learned Magistrate has found in the impugned order that, the evidence of PW1 and PW2 discloses the fraudulent acts committed by the first accused as alleged in the complaint. If the evidence adduced by the complainant at the stage of Section 244 of the Code, if Crl.R.P.No.143/2016 9 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. 20. Learned counsel for the petitioners has not made any submission before this Court on the above finding made by the learned Magistrate. There is nothing to show that the learned Magistrate has arbitrarily exercised his jurisdiction in passing the impugned order or that the impugned order is manifestly perverse or against well-settled principles of law. 21. The quality of depth and consideration at the stage of Section 245 of the Code cannot be approximated to the same quality and consideration at the stage of entering conviction. What is required at that stage is not evidence to prove that the accused has committed the offence. Only _prima facie_ material to presume, is enough. Proof comes later. Discharge need to be made, only if no case is made out on the material before the court, if it stands unrebutted. Rebuttal on grounds of law and Crl.R.P.No.143/2016 10 facts, is for a later stage (See **Jacob Thomas v. Assistant Collector of Customs : 1988 (1) KLT 741** ). 22. The discussion above leads to the conclusion that there is no sufficient ground to interfere with the impugned order passed by the learned Magistrate. 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_