## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS**
**MONDAY, THE 1ST DAY OF DECEMBER 2014/10TH AGRAHAYANA, 1936**
## **Crl.Rev.Pet.No. 1581 of 2014 ()**
**--------------------------------**
**(ORDER IN CMP NO.1694/2014 IN C.C.NO.1590/2008 DTD.25.8.14 OF J.F.C.M. COURT-I, ERNAKULAM)**
## **REVISION PETITIONER(S)/PETITIONER:**
**------------------------------------------------------------------**
**RAJESH K. MATHEW S/O.MATHEW, KALLEPARAMBIL HOUSE, ETTUMANOOR P.O. KOTTAYAM.**
**BY ADV. SRI.P.BABU KUMAR**
## **RESPONDENT(S)/RESPONDENTS:**
**----------------------------------------------------**
## **1. M.P.JAYASREE**
**W/O.K.P.DAMODARAN NAIR, MANAGING PARTNER M/S.MAYFAIR HOTEL, VENNALA, PALARIVATTOM KOCHI - 682 028, RESIDING AT 35/1872, SHABARI SOUTH JANATHA ROAD, PALARIVATTOM, KOCHI - 682 025.**
## **2. STATE OF KERALA,**
**REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA KOCHI - 682 031.**
**R1 BY ADV. SRI.MATHEW SKARIA R2 BY PUBLIC PROSECUTOR SRI.R.GITHESH**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 0112-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
ALEXANDER THOMAS, J. ================== Crl.R.P.No. 1581 of 2014
================== Dated this the 1[st ] day of December, 2014 O R D E R
This Revision Petition instituted under Sec.397 read with 401 of the Cr.P.C. is directed against the impugned Annexure-A order dated 25.8.2014 based by the Judicial First Class Magistrate's Court-I, Ernakulam, on Criminal Miscellaneous Petition No.1694/2014 in the Calendar Case C.C.No. 1590/2008 on the file of that court, whereby the prayer of the revision petitioner herein seeking for discharge in the Calendar Case, was dismissed by the court below. The revision petitioner herein is the 3[rd] accused in C.C.No.1590/2008 pending before the court below. The said Calendar Case has been instituted on the basis of a protest complaint filed by the complainant (1[st] respondent herein). Earlier the case was directed to be investigated by the police as per the order issued by the learned Magistrate under the enabling provisions under Sec. 156(3) of the Cr.P.C. and the matter was referred by the police as a dispute involving a civil matter, which prompted the complainant herein to file the protest complaint, which led to the institution of the Calendar Case C.C.No.
Crl.R.P.1581/14 - : 2 :-
1590/2008 before the court below. The brief of the case of the complainant is that the complainant (R-1) is the Managing Partner of a firm which is running a hotel, viz., M/s.Mayfair Hotel, Palarivattom, Ernakulam, in which there are four partners including the complainant. It is the case of the complainant that A-1 and A-2 in this case were entrusted only with the supervisory work of running the restaurant and the lodging in the said hotel and that M/s.Mayfair Hotel has no other relation with A-1 and A-2. It is averred that the above said Hotel received a lawyer's notice from M/s.Kotak Mahendra Bank stating that A-2 and A-3 in this case are borrowers and that A-1 and the complainant herein are guarantors for a loan of Rs. 10 lakhs with the bank and that the complainant came to the know that A-2 and A3 availed a loan from the above said bank after A-1 introduced himself to be the Managing Partner of the hotel and that A-2 and the complainant have represented as the partners of the said hotel and that the accused entered into agreements and submitted documents before the bank in that regard, whereby A-2 and A-3 as borrowers availed a loan by showing that A-1 and the complainant are guarantors for the loan of Rs. 10 lakhs. According to the complainant, she has not entered
Crl.R.P.1581/14 - : 3 :-
into any partnership agreement with A-1 to A-3 and that A-1 to A- 3 and A-1 to A-3 are not partners of M/s.Mayfair hotel. It is the case of the complainant that the accused in furtherance of their common intention to cheat the complainant have forged the signature of the complainant and fabricated the loan request agreements and other bank documents, by falsely showing that the complainant is a guarantor and that A-1 is the Managing Partner of the said hotel firm and thus A-2 and A-3 availed the loan of Rs. 10 lakhs. It is in the conspectus of these facts and circumstances that the complainant has alleged that A-1 to A-3 have committed the offences punishable under Secs. 468, 420, 471 read with Sec. 34 of the IPC. After commencement of the enquiry under Sec.244 of the Cr.P.C., the revision petitioner herein (A-3) submitted application for discharge. PWs 1 to P5 were examined and Exts.-P1 to P5 and Ext.X1 to X14(a) were marked under Sec.244(1) of Cr.P.C. PW-1 gave her evidence and stated that she does not know A-3. Her specific case is that A-1 and A-2 forged her signature by showing falsely that she is a guarantor for the loan and that A-1 is the Managing Partner of the firm and thus paved way for the bank to have sanctioned and disbursed loan amount of Rs. 10 lakhs to A-2
Crl.R.P.1581/14 - : 4 :-
and A-3. A-1 and the complainant are thus shown as sureties due to the forgery committed by the accused with their common intention to cheat the complainant and her firm. The court below held that at the stage of Sec.245(1) of Cr.P.C., it is only necessary to find whether there is a prima facie case against the accused and that the evidence adduced by the complainant under Sec.244 of the Cr.P.C. need not be appreciated by the Magistrate by applying the standard, which is to be adopted by the court below at the time of appreciation of evidence to find out whether the accused is guilty of the offences or not. In other words, the considered opinion of the court below was that the court can proceed, if there is a prima facie case against the accused and that the appreciation of evidence at the final stage is not called for at the present stage for consideration of the discharge of the accused. Accordingly, the court below found that there is prima facie case against the accused to proceed against them after framing charge and that in this view of the matter, the court below while dismissing the application for review as per the impugned Annexure-A order held that based on this aspect of the matter, there is ground now for presuming that A-3 has committed an offence and therefore the request made by
Crl.R.P.1581/14 - : 5 :-
A-3 for discharging her cannot be allowed and accordingly, the discharge application was dismissed. It is against this dismissal of the discharge request that the revision petitioner has approached this Court in order to impugn the said Annexure-A order.
2. Heard the learned counsel for the petitioner, the learned counsel appearing for the 1[st] respondent, and the learned Public Prosecutor appearing for the 2[nd] respondent
3. It is the specific case of the complainant that she and three others are the partners of the above said firm owning and running the above said hotel and that none of the accused are partners of the above said firm and that A-1 and A2 have been given only the function of running the restaurant and lodging of the hotel and that they are not partners of the said hotel. It is her specific case that the accused with the common intention to cheat the complainant and her firm have forged documents to show that A-1 has Managing Partnership of the firm and that A-1 and complainant are sureties of the loan application submitted by A-2 and A-3 and based on such forged documents falsely showing that A-1 as the Managing Partner of the firm and the complainant stood as sureties for the loan application of A-2 and A-3, which has
Crl.R.P.1581/14 - : 6 :-
led to the bank sanctioning and disbursing a loan amount of Rs. 10 lakhs to A-2 and A-3. It is on an appreciation of these aspects, that the court below has come to the considered conclusion that at this stage the court has found out that there is prima facie case to proceed against the accused including A-3 and that therefore there is no requirement to follow the standard of proof required at the time of the final stage in the trial, which is called for only for assessing the guilt or otherwise of the accused at the final stage and that what is required only is that if there is prima facie case against the accused to proceed with the matter so as to frame charge against the accused, prayer for discharge cannot be allowed. In this view of the matter, the court below has rejected the plea for discharge of A-3. This Court in the case Mani v. Joseph reported in 1999 (3) KLT 49, para 11, has conclusively held that the evidence adduced by the complainant under Sec.244 Cr.P.C. need not be appreciated by the Magistrate by applying the standard of test, which has to be adopted by the Magistrate at the time of appreciating the evidence for finding out whether the accused is guilty of the offence or not at the final stage of the case and that the attempt of the Magistrate at the present stage is to be limited to
Crl.R.P.1581/14 - : 7 :-
find out whether a prima facie case is made out to proceed against the accused after framing charge and that a reading of Sec.245(1) would make it clear that the materials placed by the complainant before the court at the stage of adducing evidence under Sec.244 of the Cr.P.C. has to be taken into account by the Magistrate as if those materials stand unrebutted and it is in the above manner that the Magistrate would have to find out whether the evidence adduced by the complainant is sufficient to make out a prima facie case against the accused. The Apex Court in the case Gopal Vijay Verma v. Bhuneshwar Prasad Sinha and Others reported in (1982) 3 SCC 510, has held that it cannot be said that the Magistrate could not take cognizance of a case upon complaint, because he had earlier refused to take cognizance of the case on a police report. In this view of the matter, there is no illegality or impropriety in the view taken by the court below in refusing to accept the plea of discharge of the accused and in having decided to proceed further with the case. This Court in the final order dated 11.10.2014 in Crl.M.C.No. 1996/2014 had found that the impugned complaint therein cannot be quashed as prayed therein and that the court below will dispose of the case as expeditiously as possible, at any rate, within four
Crl.R.P.1581/14 - : 8 :-
months, etc. Having regard to the facts and circumstances of this case, the court below shall take all reasonable measures to ensure that the case is finally disposed of without any further delay.
With these observations, this Criminal Revision Petition stands dismissed.
sdk+
Sd/ALEXANDER THOMAS, JUDGE
///True copy///
P.S. to Judge
