K.K. Haneefa v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934 Crl.Rev.Pet.No. 1470 of 2012 () -------------------------------- AGAINST THE ORDER IN CC 264/2009 of J.M.F.C.-IV,KOZHIKODE DATED 31.8.2011 REVISION PETITIONER/1ST ACCUSED: ------------------------------------- K.K.HANEEFA, AGED 42 YEARS S/O. IBRAHIM HAJI, KAIRALI VILLA, MOODADI VILLAGE P.O.MOODADI NORTH, VEEMANGALAM DESOM KOYILANDY TALUK. BY ADV. SRI.M.R.VENUGOPAL RESPONDENT(S)/RESPONDENT/STATE: -------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. KOCHI-31 *ADDL.R2 IMPLEADED *ADDL.R2 SRI. A. ABDULLA, S/O.KUNHAMMAD, 59 YEARS, AYOLI VEEDU, KUNNAKKATU, P.O. OORAKAM MELMURI, MALAPPURAM DISTRICT MANAGING DIRECTOR, MEEZAN JEWELLERS LTD., GALLERIA TRADE CENTRE, MAVOOR ROAD, KOZHIKODE. (*IS IMPEADED AS ADDL.R2 AS PER ORDER DATED 7.6.2012 IN CRL.M.A.4243/2012) ADDL.R2 BY ADVS. SRI.BABU S. NAIR SRI.K.RAKESH BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1470 of 2012 () ## APPENDIX ## PETITIONER'S ANNEXURES ANNEXURE A: TRUE COPY OF THE COMPLAINT DATED 2.5.2006 ANNEXURE B: TRUE COPY OF THE FIR IN CR.NO.165/2006 OF NADAKKAVU POLICE STATION. ANNEXURE C: TRUE COPY OF THE REFER REPORT DATED 10.7.2006 IN CR.165/2006 OF NADAKKAVU POLICE STATION. ANNEXURE D: TRUE COPY OF THE PROVATE COMPLAINT NO. CMP 1885/2008 SATED 25.4.2008 FILED BY THE DEFACTO COMPLAINANT ANNEXURE E: CERTIFIED COPY OF THE ORDER DATED 31.8.2011 OF JFCM-IV, KOZHIKODE. ANNEXURE F: TRUE COPY OF THE PARTNERSHIP DEED EXECUTED IN BETWEEN THE PETITIONER AND THE DEFACTO COMPLAINANT ANNEXURE G: TRUE COPY OF THE LAWYER NOTICE DATED 8.3.2006 ISSUED BY THE DEFACTO COMPLAINANT ANNEXURE H: TRUE COPY OF THE REPLY NOTICE DATED 12.4.2006 ANNEXURE I: TRUE COPY OF THE ORDER DATED 8.2.2012 IN CRL.M.C. 4345/2011. RESPONDENTS ANNEXURES: NIL //TRUE COPY// P.A. TO JUDGE. dlk ## **C.T.RAVIKUMAR, J** ## **--------------------------------Crl.R.P. No. 1470 of 2012 ------------------------------------** Dated this the 6[th] day of July,2012 ## **ORDER** This revision petition is directed against the order for framing charges in C.C.No.264/2009 of the Judicial First Class Magistrate Court-IV, Kozhikode. The revision petitioner is the first accused therein. The defacto complainant/2[nd] respondent herein earlier filed a complaint alleging commission of offences under Section 420 r/w Section 34 of the Indian Penal Code against the revision petitioner. That complaint was forwarded for investigation under Section 156 (3) of the Code of Criminal Procedure and after registering a crime investigation was conducted. On completion of the investigation a final report in terms of Section 173 of the Cr.P.C. was filed and that happened to be a refer report. Pursuant to that the 2[nd] respondent herein/the defacto complainant preferred a protest complaint alleging commission of offence under Section 420 r/w Section 34 of the IPC against the revision petitioner. The sworn statement of the complainant as also the statement of witnesses were thereupon taken. After conducting a preliminary **Crl.R.P. No. 1470 of 2012** 2 enquiry in terms of Section 202 of the Code of Criminal Procedure the protest complaint was taken into file and registered as C.C.No.264 of 2009. Summons was issued thereafter to accused Nos.1 & 3 therein. Accused Nos. 2 & 4 were absconding. On appearance of accused Nos.1 & 3 copies of complaint and relevant documents were furnished to them. It was then posted for evidence and after taking evidence under Section 244 of the Cr.P.C. the plea taken up by the petitioner and the other persons for discharge under Section 455(1) was considered. Evidently, the case of the 3[rd] accused that he was only a witness to the partnership deep and there is no other specific allegation against him. Consequently, the 3[rd] accused was discharged. 2. Upon perusing the materials and hearing the arguments on either side, the court found that there is sufficient ground for proceeding against the 1[st] accused on the allegation of having committed the offence under Section 420 of the IPC. After the said order which was passed on 31.8.2011, the petitioner unsuccessfully approached this court for getting the complaint quashed. Criminal M.C.No.4345 of 2011 filed by the petitioner under Section 482 of **Crl.R.P. No. 1470 of 2012** 3 the Cr.P.C. for quashing the complaint against him as also against the others were rejected by this court. It is observed that the petitioner could up the plea of discharge before the trial court after the evidence under Section 244 of the Cr.P.C. The court below considered the plea of discharge and impugned order dated 31.8.2011 was passed. However, that order was not challenged by the petitioner and in the circumstances, as per Annexure-1 order this court found Criminal M.C. No. 4345/2011 as not sustainable. However, liberty was granted to the petitioner to assail Annexure-E order dated 31.8.2011 to assail the same if so advised and if such a right survives. It is in the said circumstances that this revision has been filed challenging the order dated 31.8.2011 whereby the prayer of the petitioner for discharge under Section 245(1) was dismissed and consequently ordered for framing the charges. 3. There can be no doubt with respect to the position that at the time of framing of charge the court need only to look into the question whether a prima facie case is made out against the accused concerned. In this context it is to be noted that it is after taking sworn statements from the petitioner as also his witnesses **Crl.R.P. No. 1470 of 2012** 4 that cognizance was taken under Section 420 of the Cr.P.C. by the court below. Thereafter the evidence under Section 244 of the Cr.P.C. was also taken. In was after perusing such materials available before the court that the learned Magistrate arrived at the finding that sufficient materials are available to proceed with the complaint against the petitioner viz., the first petitioner. Collection of evidence is a matter for trial and that cannot be done in a revision petition. 4. The learned counsel for the petitioner contended that the allegations in the complaint is only to the effect that with a view to start a joint venture the petitioner and the defacto complainant entered into an agreement and thereafter the petitioner started the business in his own name and refused to part with the benefits with the complainant. The further case of the defacto complainant is with respect to the alleged action on the part of the revision petitioner herein to exploit the goodwill of the defacto complainant. Annexure D is the protest complaint filed by the 2[nd] respondent after Annexure C refer report. Obviously, further steps were taken and the impugned order was passed based on **Crl.R.P. No. 1470 of 2012** 5 that complaint. The petitioner has also produced Annexure G letter which is a lawyer notice caused to be issued by the 2[nd] respondent calling upon the petitioner to pay compensation. 5. I do not propose to go into the veracity of the allegations or rather the sustainability of the allegations therein. However, I have adverted to the facts only to the limited purpose of ascertaining whether the finding of the learned Magistrate is right in holding that prima facie a case is made out for framing the charge. A perusal of Annexure G and Annexure D would reveal that the ingredients to attract an offence under Section 420 is alleged in Annexure G and Annexure D. The learned counsel for the petitioner in support of the contentions relied on a decision of the Hon'ble Apex Court in **Hari Prasad Chamaria v. Bishun Kumar Surekha and Others** reported in 1974 KHC 735. Essentially the case of the complainant therein was that is relating the breach of contract against the accused therein. It is true that in that case also the accused and complainant therein in furtherance of their common intention to start a joint business entered into an opinion and pursuant to that the complainant therein handed over some **Crl.R.P. No. 1470 of 2012** 6 amount to the accused therein. But essentially after taking into the allegations in the complaint it was found that his grievance was only against the breach of contract. In this case Annexures D & G would reveal that the complainant thus raised the said allegations to attract an offence under Section 420 IPC. Evidence under Section 244 Cr.P.C for prosecution was also produced to support the prosecution. When after such an exercise it was found that a case is made against the petitioner for prosecution. In the said circumstances I do not find any error, illegality or impropriety in the order passed by the learned Magistrate in C.C.No.264/2009 dated 31.8.2011. Resultantly, this revision petition is dismissed. Sd/- ## **C.T.RAVIKUMAR,JUDGE.** dlk