Saleem Naduthodi v. State of Kerala and P.V. Anvar (Crl.R.P No.725 of 2023)

2025:KER:29866 1 **==> picture [58 x 58] intentionally omitted <==** Crl.R.P No.725 of 2023 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 8[TH] DAY OF APRIL 2025 / 18TH CHAITHRA, 1947** **CRL.REV.PET NO. 725 OF 2023** **AGAINST THE ORDER DATED 10.05.2023 IN RC NO.18 OF 2022 OF** **CHIEF JUDICIAL MAGISTRATE COURT,MANJERI** ## **REVISION PETITIONER:** **SALEEM NADUTHODI, AGED 60 YEARS, S/O LATE AHAMMEDKUTTY, NADUTHODI HOUSE, PANAKKAD AMSOM, DESOM, PATTARKKADAVU, ERANAD TALUK, MALAPPURAM DISTRICT, PIN - 676122** **BY ADVS. MARTIN JOSE P THOMAS P.KURUVILLA(K/420-B/2005) M.A.MOHAMMED SIRAJ(K/1227/1999)** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682531** 2025:KER:29866 2 **==> picture [58 x 58] intentionally omitted <==** Crl.R.P No.725 of 2023 **2 P.V.ANVAR, 55 YEARS OF AGE, S/O SHOWKATHALI HAJI (LATE), PUTHENVEETTIL HOUSE, ERANAD TALUK, PERAKAMANNA AMSOM, OTHAI DESOM, ERANAD TALUK, MALAPPURAM DISTRICT -676 122.** **BY ADVS. FIROZ K.M. M.SHAJNA(K/1017/2006) SRI.G.SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08.04.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 3 **==> picture [58 x 58] intentionally omitted <==** **==> picture [102 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> 2025:KER:29866<br>**----- End of picture text -----**<br> Crl.R.P No.725 of 2023 ## K.BABU, J. -------------------------------------- ## Crl.R.P No.725 of 2023 --------------------------------------Dated this the 8[th] day of April, 2025 ## O R D E R The order of a learned Magistrate accepting a report by the Investigating agency under Section 173(2) Cr.PC and dropping the proceedings is under challenge at the instance of the defacto complainant. 2. The facts leading to the Criminal Revision Petition are as follows: 2.1. The revision petitioner, a Non-Resident Indian working in Abu Dhabi, on 17.02.2012, entered into an agreement with respondent No.2, whereby the former invested a sum of Rs.50 Lakhs in an industrial unit named “K.E Stone Crusher” in the Karnataka State. In 2011, the parties started negotiations. The revision petitioner handed over Rs.40 Lakhs on 30.12.2011 to respondent No.2 at his office at Manjeri. In February, 2012, the Crl.R.P No.725 of 2023 4 **==> picture [58 x 58] intentionally omitted <==** **==> picture [102 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> 2025:KER:29866<br>**----- End of picture text -----**<br> revision petitioner paid the balance amount of Rs.10 Lakhs and the agreement referred to above was executed between them. 2.2. On 22.11.2017, the revision petitioner filed a complaint before the Sub Inspector of Police, Manjeri Police Station, alleging an offence punishable under Section 420 of the IPC against respondent No.2. In the complaint, the revision petitioner alleged that respondent No.2 deceived the revision petitioner after dishonestly inducing him to invest in the business agreeing to share profits, but failed to share any profit as promised. The Police did not register an FIR based on the complaint dated 22.11.2017 filed by the revision petitioner. After that, the revision petitioner filed CMP No. 3391/2017 before the Chief Judicial Magistrate Court, Manjeri on 20.12.2017. The learned Chief Judicial Magistrate forwarded the complaint to the Police under Section 156(3) Cr.PC. The Police registered FIR No.588/2017 of Manjeri Police Station. 2.3. The revision petitioner approached this Court filing W.P(C) No.11213/2018, seeking to hand over the investigation to a Crl.R.P No.725 of 2023 5 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:29866 different agency. This Court allowed the writ petition with a direction to entrust the investigation to the Economic Offence Wing of the CBCID. The revision petitioner filed Crl.MP No.909/2021 before the Chief Judicial Magistrate Court, Manjeri, seeking monitoring of the Court in the investigation. In the petition, the learned Chief Judicial Magistrate directed the Investigating Agency to expedite the investigation. The learned Magistrate, however, observed that the investigation was proceeding in the right direction. The Court directed the Investigating Agency to file reports regarding the progress of the investigation once in a fortnight as per the order dated 11.08.2021. 2.4. The Investigating Officer filed various reports showing the progress of the investigation. One of such report is Anx.I, wherein the Investigating Officer reported that as the revision petitioner specifically alleged that in the partnership agreement dated 17.02.2012 entered into between the revision petitioner and respondent No.2, the latter had misrepresented that he was the 6 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:29866 Crl.R.P No.725 of 2023 owner of the land where the crusher unit was functioning, there was prima facie an element of cheating. However, the Investigating Officer sought time to verify the genuineness of the allegation. 2.5. The Investigating agency, on 28.12.2020, submitted a final report under the caption “refer charge” on the ground that the dispute was purely of civil nature. The revision petitioner filed CMP No.909/2021, raising objections to the final report (refer report) submitted by the Investigating agency. The learned Chief Judicial Magistrate, as per order dated 15.02.2022, returned the report to the Investigating agency under Section 156(3) Cr.PC for further investigation based on the relevant documents, including the partnership agreement and the licence in the name of respondent No.2. 2.6. The Investigating Officer conducted further investigation and submitted a 'refer report' based on the conclusion that the ingredients of the alleged offence have not been revealed. The relevant portion of the report submitted by the Investigating Officer 2025:KER:29866 7 **==> picture [58 x 58] intentionally omitted <==** Crl.R.P No.725 of 2023 ## reads thus: “The accused purchased a crusher at Maldot, Karaya Village, Balthangadi Taluk, Dakshina Kannada District, Karnataka State, from K Ibrahim S/o Abdullah, K.K. Pak (H), Cherkala, Kasaragod as per the agreement dated 02.11.2011. While operating with other partners, who are witnesses, on 17.02.2012, he entered into a joint venture agreement with the complainant. At that time, the business was running smoothly in terms of profit, and all the partners received a profit share. Later, the partners, including the complainant, could not receive any profit share, as the business was at a loss, and no element of cheating on the part of the complainant is elucidated in this case. However, the fact is that the complainant had paid Rs. 50 lakhs to the accused to become a partner in the business, and the accused received the same. But, the acts alleged do not reveal that the accused has committed any offence. The complainant can take civil action as per the law for realising the loss he suffered. For the above reasons, I request that, considering this case as civil in nature, an order accepting the final report (173 Cr.PC) be passed.” 2.7. The revision petitioner submitted an objection to the refer report. The learned Chief Judicial Magistrate considered the objection. After hearing both sides, the learned Magistrate held that on a perusal of the report submitted by the Investigating agency, there is nothing to disbelieve. With this conclusion, the learned Magistrate accepted the refer charge. The learned Magistrate also observed that the remedy of the revision 8 **==> picture [58 x 58] intentionally omitted <==** **==> picture [102 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> 2025:KER:29866<br>**----- End of picture text -----**<br> Crl.R.P No.725 of 2023 petitioner/complainant is not exhausted forever as he can file a private complaint in accordance with law. 3. I have heard the learned Senior Counsel for the petitioner, the learned counsel for respondent No.2 and the learned Public Prosecutor. 4. The learned Senior Counsel for the petitioner submitted that the impugned order is not supported by reasons. The learned Senior Counsel submitted that while deciding an issue, the Court is bound to give reasons for its conclusion. It is submitted that the hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself. The learned Senior Counsel further submitted that as the order is amenable to further challenge before the higher forums, the impugned order is liable to be set aside. The learned Senior Counsel relied on Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity [2010 (3) SCC 732] and State of Rajasthan v. Sohan Lal [2004 (5) SCC 573] to support his contentions. 9 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:29866 Crl.R.P No.725 of 2023 5. The learned counsel for respondent No.2 submitted that at the stage of considering a refer report under Section 173 Cr.PC, the Court is not expected to pass a detailed order. The learned counsel submitted that what is expected of the Court is that it had applied its mind to the report submitted by the Investigating agency to decide whether it is to be accepted. The learned counsel submitted that the crux of the allegations levelled by the revision petitioner was that in the partnership agreement, respondent No.2 made a misrepresentation regarding the ownership of the land on which the crusher unit was functioning, which was found to be untrue by the Investigating agency. The learned counsel relied on Anx.A agreement to substantiate this aspect. The learned counsel submitted that no prejudice is caused to the revision petitioner by accepting the refer report as he has further options to redress his grievances, if any, by resorting to the provisions of law. The learned counsel relied on Dharampal Satyapal Ltd. v. CCE [(2015) 8 SCC 519], Union of India v. Alok Kumar [(2010) 5 SCC 349], Subrata 2025:KER:29866 10 **==> picture [58 x 58] intentionally omitted <==** Crl.R.P No.725 of 2023 Choudhury v. State of Assam (2024 SCC OnLine SC 3126) and Parameswaran Nair v. Surendran and Another [2009 (1) KHC 801] to buttress his arguments. ## 6. The relevant portion of the impugned order reads thus: “5. It is not doubt true that alleged transaction was took place in the year 2012. The complaint filed in the year 2017. Thereafter, two agencies took over the investigation. Both of them had filed report. On going through the report, there is no scintilla of element to disbelieve the reports of CBCID, Economic Wing. So, the refer charge is to be accepted in the interest of justice. Before parting with this matter, it in apposite make a mention that the remedy of the complaint is not exhausted forever. The complaint can file private complaint before the Court of Law and proceed with the matter under the relevant provisions of Cr.PC. (sic)” 7. The conclusion of the Investigating Officer is that the revision petitioner and respondent No.2 conducted a partnership business based on the agreement dated 17.02.2012. Till they fell apart, the parties had shared the profits from the business. Later, the business culminated in loss. The conclusion of the Investigating Officer, therefore, was that respondent No.2 had not committed the offence of cheating as alleged. The Investigating Officer came to the conclusion that the dispute was essentially of civil nature. 2025:KER:29866 11 **==> picture [58 x 58] intentionally omitted <==** Crl.R.P No.725 of 2023 8. Based on the complaint of the revision petitioner, Sub Inspector of Police, Manjeri Police Station registered FIR No.588/2017 alleging offence under Section 420 IPC. The initial investigation was conducted by the Manjeri Police. In 2018, on the application of the revision petitioner, this Court ordered the transfer of the investigation to the Economic Offence Wing of the CBCID. The CBCID registered Crime No.346/CB/MPM/2018. The Dy.SP, Crime Branch, Malappuram submitted the final report on 28.12.2020, concluding that the ingredients of the offence under Section 420 have not been revealed and the dispute was essentially of civil nature. 9. The Chief Judicial Magistrate returned the report to the Investigating agency for further investigation with a specific direction to consider the agreement entered into between the parties and the related documents. On 17.03.2022, the Dy.SP, Crime Branch, Malappuram submitted the final report under Section 173(2) Cr.PC with the finding that the ingredients of the offence have not 12 **==> picture [58 x 58] intentionally omitted <==** **==> picture [102 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> 2025:KER:29866<br>**----- End of picture text -----**<br> Crl.R.P No.725 of 2023 been revealed. 10. When the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons, and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under subsection (3) of Section 156 and require the police to make a further report. The report may, on the other hand state that, in the opinion of the police, no offence appears to have been committed, and where such a report has been made, the Magistrate again has the option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding 13 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:29866 Crl.R.P No.725 of 2023 further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156 {Vide: Bhagwant Singh v. Commr. of Police [(1985) 2 SCC 537] }. 11. If the Magistrate accepts the report and drops the proceedings after granting opportunity to the complainant, the complainant can thereafter file a second complaint, and the same will lie if there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with due diligence could not have brought forward in the previous proceedings. 12. The learned counsel for respondent No.2 submitted that the petitioner is entitled to file a second complaint if he can convince that there is a manifest error or manifest miscarriage of justice in the impugned order or if there are any new facts the complainant could bring forward. Relying on Dharampal (supra) , Crl.R.P No.725 of 2023 14 **==> picture [58 x 58] intentionally omitted <==** **==> picture [102 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> 2025:KER:29866<br>**----- End of picture text -----**<br> the learned counsel submitted that the ultimate test of the validity of the order is the test of prejudice. The learned counsel submitted that in the impugned order, the learned Magistrate highlighted that the petitioner has the right to file a second complaint in accordance with law. On a perusal of the impugned order, it cannot be concluded that the learned Magistrate did not apply his mind in the final report submitted by the Investigating agency. The Court below has concluded that there are no elements to disbelieve the report submitted by the Investigating agency. 13. Unless the order passed by the Magistrate is perverse, or the view taken by the court is wholly unreasonable, or there is a palpable misreading of records, the Revisional Court is not justified in setting aside the order merely because another view is possible. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an 2025:KER:29866 15 **==> picture [58 x 58] intentionally omitted <==** Crl.R.P No.725 of 2023 appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction. 14. Therefore, the findings of the Court below require no interference in revisional jurisdiction. The petitioner is at liberty to proceed in accordance with law, if he has any subsisting grievances. The Criminal Revision Petition stands disposed of. Sd/K.BABU, JUDGE KAS 2025:KER:29866 16 **==> picture [58 x 58] intentionally omitted <==** Crl.R.P No.725 of 2023 ## **APPENDIX OF CRL.REV.PET 725/2023** **PETITIONER ANNEXURES** **Annexure A A TRUE COPY OF THE AGREEMENT DTD 17-022012 ENTERED INTO BETWEEN THE PETITIONER AND THE 2ND RESPONDENT** - **Annexure B** **A COPY OF THE PETITION SUBMITTED BY THE PETITIONER TO SRI. KODIYERI BALAKRISHNAN, THE THEN STATE SECRETARY, CPI (M) DTD 05-09-17** - **Annexure C A COPY OF THE COMPLAINT FILED BEFORE THE 2ND RESPONDENT DTD 22-11-2017** - **Annexure D A COPY OF THE C M P NO 3391/17 BEFORE THE CJM COURT, MANJERY DTD 20-12-17** - **Annexure E A COPY OF THE FIR IN CRIME NO. 588/17 OF MANJERI POLICE STATION DTD 21-12-17** - **Annexure F A TRUE COPY OF THE JUDGMENT IN WP(C) NO. 11213/2018 DTD 13-11-2018** - **Annexure G A TRUE COPY OF THE ORDER IN RP NO. 1001/2018 DTD 05-12-2018** - **Annexure H A TRUE COPY OF THE ORDER DTD 11-08-2021 OF THE CJM** - **Annexure I A TRUE COPY OF THE INTERIM REPORT DTD 30-09-2021 SUBMITTED BY THE INVESTIGATING OFFICER BEFORE THE CJM COURT. MANJERI** **Annexure J A TRUE COPY OF THE ORDER DTD 15-02-2022 PASSED BY THE CJM** 2025:KER:29866 17 **==> picture [58 x 58] intentionally omitted <==** ## Crl.R.P No.725 of 2023 **Annexure K** **A TRUE COPY OF THE REPORT SUBMITTED BY THE INVESTIGATING OFFICER BEFORE THE CJM, DTD 17-03-2022** **Annexure L A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE CJM DTD 1005-2022** **Annexure M A CERTIFIED COPY OF THE ORDER IN RC NO. 18/2022 OF THE FILES OF THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, MANJERI DTD 10-05-2023**