K.R. Syamkumar v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 29[TH] DAY OF NOVEMBER 2023 / 8TH** **AGRAHAYANA, 1945** **CRL.REV.PET NO. 73 OF 2018** **CRIME NO.1205/2013 OF Thrikkakara Police Station,** ## **Ernakulam** **AGAINST THE ORDER IN C.M.P. NO.2359/2017 IN C.C.NO.** **2157/2015 OF THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, KAKKANAD DATED 17.10.2017** ## **REVISION PETITIONER/DEFACTO COMPLAINANT/FIRST WITNESS:** **K.R.SYAMKUMAR AGED 54 YEARS, SON OF K.RAGHAVAN, 'SYAM SADAN', THENGANA, PERUMPANCHI P.O., 686536, CHANGANASSERY, KOTTAYAM DISTRICT.** **BY ADVS. SRI.ALAN PAPALI SMT.O.V.BINDU KUM.NIHARIKA HEMA RAJ SRI.J.VIMAL** ## **RESPONDENTS/STATE AND ACCUSED 1 TO 4:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** - **2 ANILKUMAR SON OF SUKUMARAN, AGE 51/13, MELEMANAKKAD VEEDU, MUTTADA P.O., KAVIDIYAR VILLAGE, THIRUVANANTHAPURAM, PIN-695025, (PROPRIETOR, ALUCO, PANELS INDUSTRIES, PIPELINE ROAD).** - **3 ARUNKUMAR SON OF SUKUMARAN, AGE 46/13, MELEMANAKKAD VEEDU, MUTTADA P.O., KAVIDIYAR VILLAGE, THIRUVANANTHAPURAM, PIN-695025, (REGIONAL MANAGER, ALUCO PANEL INDUSTRIES, PANAMPILLY NAGAR).** - **4 YESUDAS** 2 Cr.R.P No.73 of 2018 **SON OF JOSEPH, AGE 42/13, A2-GOLDEN JUBILEE APARTMENT, K. K. NAGAR, CHENNAI ANNA ROAD, PIN-600002, (CHIEF EXECUTIVE OFFICER, ALUCO PANELS, PANAMPILLY NAGAR).** **5 SUNIL BABU SON OF GOPINAD, AGE 35/13, SANDRAM HOUSE, MANIKANDESHWARAM, VATTIYOORKAV P.O., THIRUVANANTHAPURAM, PIN-695013, (REGIONAL SALES MANAGER, ALUCO PANELS, PANAMPILLY NAGAR). BY ADVS. SMT.K.V.RESHMI SMT.R.ANJANA SMT.C.C.BINDHYA SRI.M.J.KIRANKUMAR SMT.R.PRIYA SRI.M.B.SANDEEP SRI.B.SURJITH SMT.K.P.SREEJA SMT.SHERIN VARGHESE** **SMT SEENA C..GP** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 24.11.2023, THE COURT ON 29.11.2023 DELIVERED THE FOLLOWING:** 3 Cr.R.P No.73 of 2018 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.R.P.No.73 of 2018 ----------------------------------------------------------Dated this the 29[th] day of November, 2023** ## **O R D E R** C.C No.2157 of 2015 before the Judicial Magistrate of the First Class, Kakkanad was instituted on the police report submitted by the Sub Inspector of Police, Thrikkakkara in Crime No.1205 of 2013 of that Police Station. The learned Magistrate took cognizance of the offences punishable under Sections 120B, 403, 406, 417 and 420 r/w 34 of the Indian Penal Code, 1860 (IPC). There are four accused. They appeared before the court and filed C.M.P No.2359 of 2017 seeking discharge. The court below disposed of that petition holding that there are sufficient materials to proceed against accused Nos.1 and 2 for the offences punishable under Sections 403, 406, 420 r/w 34 of the IPC. However, accused Nos.3 and 4 were discharged. The defacto complainant, aggrieved by the said order filed this revision petition under Section 397 r/w 401 of the Code of Criminal Procedure, 1973. 4 Cr.R.P No.73 of 2018 2. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for respondent No.4. Other respondents did not turn up to make their submissions. 3. Annexure 1 is a copy of the final report. The accusation against the respondent Nos.2 to 5, who are the accused, in the final report is the following: The petitioner-defacto complainant is the proprietor of KRS marketing. Accused Nos.1 and 2 are brothers. They are relatives of the defacto complainant. Defacto complainant and the 1[st] accused resolved to commence a joint business under the name and style 'Panels India'. The business proposed by them was distributorship in Ernakulam district of Aluco Panel Industries. For that purpose, a building was availed on rent by them at Ernakulam. An amount of Rs.20 lakhs was transferred on 22.11.2013 by the defacto complainant to Aluco Panel Industries for that purpose. A few other payments were also made by the defacto complaint for the purpose of arranging the business. A blank cheque drawn in the account of the defacto complainant at 5 ## Cr.R.P No.73 of 2018 Changanassery branch of Union Bank of India was given to the 3[rd] accused. All such payments were made and acts were done on the assurance of accused nos.1 to 4 that the business of distribution of the products of Aluco Panel Industries in Ernakulam district would be commenced in the name of the defacto complainant. Accused Nos.2 to 4 who were the employees of Aluco Panel Industries, with the connivance of the 1st accused misappropriated the said amounts and instead of commencing the business in the name of the defacto complainant, it was commenced in the name of the 1[st] accused. The accused thus cheated the defacto complainant. 4. The court below after considering the matter in detail found that the materials collected by the investigating agency were insufficient to implicate accused Nos.3 and 4 to the offence. The learned counsel appearing for the petitioner would assail the said order on many grounds. It is contended that most of the facts narrated in the impugned order are incorrect. It is urged that the court below without considering the statements of witnesses No.1 to 3 and also 6 ## Cr.R.P No.73 of 2018 the discrepancy as regards credit given to Rs.20 lakhs in Annexure V vis-a-vis Annexure VI statements and also the obvious manipulation evident from Annexure VI e-mail, arrived at a wrong finding that no materials were produced to establish the complicity of accused Nos.3 and 4. Referring to the statements of witnesses Nos.1 to 3 it is submitted that they are the only probable witnesses who could state about the involvement of accused Nos.2 to 4 and the transaction which took place at their instance. It is therefore contended that there is no reason to discard the evidence of witnesses Nos.2 and 3 who are the wife and an employee of the defacto complainant. 5. It is pointed out that Annexure V is a copy of the statement of accounts maintained in Aluco Panel Industries in the name of KRS Marketing which was sent to the defacto complainant on 18.01.2013 and Annexure VI is the statement of accounts for the same period sent on 23.07.2023. Addition of an entry regarding payment by KRS Marketing to Aluco Panel Industries on 22.11.2012 in Annexure VI which is absent in Annxure V itself is enough to 7 ## Cr.R.P No.73 of 2018 show the manipulation by accused Nos.2 to 4 who are the employees of Aluco Panel Industries. It is the further contention of the learned counsel for the petitioner that the court below proceeded with while considering the application for discharge on the impression that accused Nos. 2 to 4 were the employees of Panels India Ltd and that also resulted in arriving at a wrong conclusion in the impugned order. 6. The learned counsel for the 3[rd] accused-4[th] respondent on the other hand would submit that except the bald statements of the defacto complainant and two other interested witnesses nothing is brought on record to prove the complicity of accused Nos.3 and 4 who have absolutely no connection to the transaction the defacto complainant had with accused No.1. When it is evident from Annexure VI that the amount KRS Marketing had paid on 22.11.2012 was given due credit in the accounts of Aluco Panel Industries and the defacto complainant was informed as per the e-mail communication dated 23.07.2013 that, having the business could not go through, Rs.10 lakhs from the advance amount 8 ## Cr.R.P No.73 of 2018 would be repaid after adjusting the remaining as security, no misappropriation of funds or manipulation of documents could be seen. Touching the allegation that accused Nos.3 and 4 also involved in the business of Panels India Ltd., it is contended that there is absolutely no material to implicate accused No. 3 and 4 in any of the transactions. If at all the defacto complainant was cheated in the matter of commencement and conduct of the said business, it was by the 1[st] accused, and accused Nos.3 and 4 are not liable to be proceeded against. 7. In **State of Bihar v. Ramesh Singh [AIR 1977 SC 2018]** the Apex Court held that at the stage of framing charge, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At that stage, the truth, veracity and effect of the evidence, which the prosecution proposes to adduce, are not to be meticulously judged. It is also unnecessary to weigh the probable defence of the accused. The view taken by the Apex Court in **Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia** 9 Cr.R.P No.73 of 2018 **and another [(1989) 1 SCC 715]** is that the court need not conduct an elaborate enquiry in sifting and weighing of the evidence at the time of framing charge. It is also not necessary to delve into various aspects. All that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. In **Union of India v. Prafulla Kumar Samal and another [(1979) 3 SCC 4]** the Apex Court held that where the materials disclosed grave suspicion against the accused, which has not been properly explained, the court would be justified in framing a charge against the accused. In **Soma Chakravarty v. State through CBI [(2007) 5 SCC 403]** the Apex Court reiterated the said view by holding that when there exists a strong suspicion, a charge can be framed. It was also cautioned that a mere suspension as distinguished from grave suspicion is not enough to frame a charge. 8. In **Vijayan P. v. State of Kerala and another [(2010) 2 SCC 398]** the Apex Court held that the judge who considers a question where a charge is liable to be 10 Cr.R.P No.73 of 2018 framed is not a mere Post Office to frame the charge at the behest of the prosecution. The judge is expected to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In **State of Gujarat v. Dilipsinh Kishorsinh Rao (MANU/SC/1113/ 2023]** , the Apex Court held that at the stage of considering an application for discharge, the court shall proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate such materials in order to determine whether the facts emerging from the materials taken on its face value disclosed the existence of necessary ingredients of the offences alleged. 9. In the light of the aforesaid principles of law, the statements of witness Nos.1 to 3 have to be taken on its face file. As pointed out by the learned counsel for the petitioner, if Annexure V and VI are duly proved, a discrepancy as regards crediting of Rs.20 lakhs in the account of Aluco Panel Industries will be evident. If in the statement, communicated to the defacto complainant on 11 Cr.R.P No.73 of 2018 18.01.2013, the aforesaid Rs.20 lakhs is not given credit. Whereas, the amount is given credit in the statement communicated on 23.07.2013. That by itself, may amount to fraudulent misappropriation, although for a limited period. 10. In the above context, the statements of witness Nos. 1 to 3 and Annexure III authorisation letter to be considered. The authorisation in Annexure III in favour of the 2[nd] accused was for commencement of a distributorship in Ernakulam district from M/s.Aluco Panel Industries. Going by the prosecution allegations accused Nos.2 to 4 are the employees of Aluco Panel Industries. The version of the defacto complainant as also other two witnesses is that accused Nos.1 to 4 together gave assurance that distributorship of Aluco Panel industries in Ernakulam district would be commenced in the name of the defacto complainant. If the said evidence proposed by the prosecution is taken on its face value, the same is enough to hold that there is ground for presuming that accused Nos.1 to 4 in furtherance of their common intention committed the offences. As rightly observed by the court below, the alleged 12 ## Cr.R.P No.73 of 2018 acts would amount to offences punishable under Sections 403, 406 and 420 r/w 34 of the IPC. Therefore the impugned order is liable to be set aside to the extent it discharged accused Nos.3 and 4 who are respondent Nos.4 and 5 herein. This revision petition is accordingly allowed. The order dated 17.10.2017 of the Judicial Magistrate of the First Class, Kakkanad in C.M.P No. 2359 of 2017 in C.C. No. 2157 of 2015 is set aside. The learned Magistrate will frame charge against accused Nos. 1 to 4 for the offences punishable under Sections 403, 406 and 420 r/w 34 of the IPC and proceed with C.C. No. 2157 of 2015 in accordance with law. ## **Sd/P.G. AJITHKUMAR JUDGE** PV