Krishnan v. Shameela and Others

Crl.R.P.No.130 of 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 4[TH] DAY OF AUGUST 2023 / 13TH SRAVANA, 1945 CRL.REV.PET NO. 130 OF 2023** **AGAINST THE ORDER/JUDGMENT in CRMP 3199/2019 OF ADDITIONAL** **DISTRICT COURT, THRISSUR** ## **REVISION PETITIONER/PETITIONER:** KRISHNAN, AGED 64 YEARS S/O.LATE.PARANGODAN, KOMARATH HOUSE, UROOB NAGAR, PALLAPPURAM, PONNANI.P.O, MALAPPURAM., PIN - 679577 BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ## **RESPONDENTS/RESPONDENTS AND STATE:** 1 SHAMEELA, AGED 28 YEARS W/O.NOUFAL.M.S, MADAPPATTUPARAMBIL HOUSE, CHIRAMANANANGAD, PANNITHADAM.P.O, THALPPILLY TALUK, THISSUR, PIN - 680604 2 NOUFAL.M.S AGED 35 YEARS S/O.SIDHIK, MADAPPATTUPARAMBIL HOUSE, CHIRAMANANANGAD, PANNITHADAM.P.0, THALPPILLY TALUK, THISSUR, PIN - 680604 3 BUNNIYA MEEN ANVAR AGED 55 YEARS CHIRAKKAL HOUSE, CHIRAMANANANGAD.P.O, MARATHAMKODE, THALAPPILLY, THRISSUR, PIN - 680604 4 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 **OTHER PRESENT:** Crl.R.P.No.130 of 2023 2 SR.PP.RENJITH GEORGE **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11.07.2023, THE COURT ON 4/8/2023 DELIVERED THE FOLLOWING:** Crl.R.P.No.130 of 2023 3 ## **V.G.ARUN J.** ----------------------------- Crl.R.P. No. 130 of 2023 **--------------------------** Dated this the 4[th] day of August 2023 ## **O R D E R** The revision petitioner had filed a private complaint before the jurisdictional court under Section 14(1) of Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act and Section 193 of Cr.P.C. The complaint was filed alleging commission of offences punishable under Sections 120B & 347 of IPC and Sections 3 (1)(p), 3 (1)(q), 3(2)(va)&(vii) of the SC & ST(POA) Act. The gist of the complaint is as follows; The petitioner is a business man, belonging to the scheduled caste. On 30/3/2015, respondent No.2 availed a loan of Rs.50,00,000/- from the petitioner and issued post dated cheques towards discharge of that debt. Respondent No.2 received another loan of Rs.60,00,000/- from one Sandeesh and entrusted six blank cheque leaves towards security for the loan. Sandeesh handed over those cheques to the petitioner. The second respondent having failed to repay the amount, the petitioner went to his residence and demanded immediate Crl.R.P.No.130 of 2023 4 repayment of the money. The second respondent's wife(first respondent), who was present in the house, informed the petitioner that he can take away the second respondent's car, in partial discharge of the amount due. Believing her words, the petitioner left the house in the car. Immediately, respondents 1 and 2 approached the police alleging that the petitioner had stolen their vehicle. Thereupon, the petitioner was summoned to the Thrissur Town Police Station and made to sign on stamp papers by respondents 1 to 3. According to the petitioner, by reason of the above illegal act committed by the respondents, he suffered a loss of Rs.1,24,65,500/-. Initially, the court forwarded the petitioner’s complaint to the police for investigation under Section 156(3) of Cr.P.C. That order was challenged by respondents 1 to 3 and set aside by this Court as per the judgment in Crl.Appeal No.114/2021, finding the complaint to have been forwarded in a mechanical manner. While allowing the appeal, this Court directed the court below to consider the complaint afresh and pass an order within the mandate of Section 190 read with Section 156(3) of Cr.P.C. Based on the direction, the complaint was taken up for consideration again. Instead of forwarding the complaint under Crl.R.P.No.130 of 2023 5 Section 156(3), the court below decided to conduct an enquiry, following the procedure laid down in Section 200 Cr.P.C. Accordingly, an enquiry was conducted and statements of three witnesses (CWs 1 to 3), recorded. After careful consideration of the averments in the complaint and the statements, the court below dismissed the complaint under Section 203 of Cr.P.C. 2. Learned Counsel for the petitioner contended that, this Court having set aside the order forwarding the complaint under Section 156(3) with a direction to consider the complaint afresh and take decision following the mandate of Section 156(3) read with Section 190 of Cr.P.C **,** the court below committed grave illegality by dismissing the complaint under Section 203 of Cr.P.C. The further contention is that the averments in the complaint and statement of witnesses are sufficient to attract the offences under the SC & ST (PoA) Act, in view of the undisputed fact that the petitioner is a member of the scheduled caste and respondents 1 to 3 belong to other caste. According to the Counsel, mere institution of false, malicious or vexatious suits or criminal or other legal proceedings against a member of a scheduled caste is sufficient to attract the offence under Section 3(1)(p) and giving false or frivolous information to a public servant, thereby causing such Crl.R.P.No.130 of 2023 6 public servant to use his lawful power to the injury or annoyance of a member of a scheduled caste would attract the offence under Section 3(1)(q). It is submitted that, respondents 1 to 3 having given false information resulting in criminal proceedings being initiated against the petitioner, the court ought to have proceeded with the complaint. 3.Learned Public Prosecutor contended that, insofar as the impugned order was passed after considering the available materials, including the statement of witnesses, there is no justifiable reason for this Court to interfere with the order. 4. The first contention raised on behalf of the revision petitioner is that, in the light of this Court's direction in Crl.Appeal No.114/2021, the court below could have proceeded only under Section 156(3) of Cr.P.C. That argument will not stand legal scrutiny since the Code empowers the jurisdictional court to decide whether to forward the complaint under Section 156(3) or to conduct a enquiry under Section 200. The earlier direction of this Court, issued after setting aside the order forwarding the complaint under Section 156(3), cannot be understood to have fettered with the lower court's discretion to act upon the complaint in any of the modes provided under the Crl.R.P.No.130 of 2023 7 Code. 5. The contention that mere initiation of criminal proceedings against a member of the scheduled caste is sufficient to attract the offences under Sections 3(1)(p) and 3(1)(q) of the Act is liable to be rejected, since the basic requirement for attracting the offences under the Act is commission of the offence with the knowledge that the victim is a member of the scheduled caste. As held by this Court in **Sandeep Saju v. State of Kerala (2020 (1) KHC 100)** , for attracting the offences under the Act, knowledge or awareness of the culprit that the victim is a member of the scheduled caste is mandatory. The position was further clarified by the decision in **XXXX v. State of Kerala and Another** ( **2022 KHC 716)** , wherein it is held that, in order to give rise to the presumption under Section 8 regarding commission of offences under the Act, there should be an allegation that the victim belongs to SC/ST community and that fact was known to the offender. Only when these foundational facts are disclosed, the presumption under Section 8 can be drawn. 6. The court below having found that in the complaint or the statement of witnesses, no allegation regarding commission Crl.R.P.No.130 of 2023 8 of the alleged offences with the knowledge that the appellant belongs to the scheduled caste is raised, the revisional court cannot arrive at a different finding based on the very same materials. Needless to say that, dismissal of the complaint by the Special Court, will not stand in the way of the petitioner approaching the jurisdictional magistrate court with the complaint alleging commission of offences under Sections 120B and 347 IPC. In the result, Criminal Revision Petition is dismissed. Sd/- **V.G.ARUN JUDGE** dpk