Shibu Daniel v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR`** ``` MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945 ``` ## **`CRL.REV.PET NO. 205 OF 2020`** ``` CRIME NO.583/2006 OF CHENGANNOOR POLICE STATION, ALAPPUZHA ``` ``` FROM ORDER DATED 19.11.2019 IN CRL.M.P. NO.3838 OF 2018 IN CC 479/2007 OF ``` ## **`JUDICIAL MAGISTRATE OF FIRST CLASS ,THIRUVALLA`** ## **`REVISION PETITIONER/PETITIONER/ACCUSED NO.2:`** ``` SHIBU DANIEL AGED 45 YEARS S/O. DANIEL, CHAKKUMOOTTIL HOUSE, CHENNITHALA VILLAGE, MAVELIKKARA BY ADVS. JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P. ``` ## **`RESPONDENTS/COUNTER PETITIONER/COMPLAINANT/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2DETECTIVE INSPECTOR, CBCID, PATHANAMTHITTA, PIN-689 645 ADV.SMT.SEENA C. -GP ``` ## **`THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION`** ``` ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.Rev.Pet. No.205 of 2020 2 ## **ORDER** Dated this the 04[th ] day of December, 2023 The 2[nd] accused in C.C. No.479/2007 on the files of Judicial Magistrate of the First Class, Thiruvalla, is the petitioner. There are four accused in C.C. No.479/2007. The offences alleged are punishable under Section 419, 468, 471, 473 and 423 read with Section 34 of the Indian Penal Code, 1860. 2. The petitioner on receipt of summons entered appearance before the Judicial Magistrate of the First Class, Thiruvalla and filed Crl.M.P. No.3838/2018 under Section 239 of the Code. The learned Magistrate dismissed that petition as per the order dated 19.11.2019. Challenging correctness, legality and propriety of the said order, this revision under Section 397 read with Section 401 of the Code has been preferred. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 4. In the final report pursuant to which C.C. No.479/2007 was instituted, the allegations are as follows: Accused Nos.1, 3 and 4 in furtherance of their common intention of appropriating money due as per the certificate issued in favour of CW1, Sri.Gopalakrishnan Nair, Crl.Rev.Pet. No.205 of 2020 3 created a forged document. Thereby, the address of the 3[rd] accused was shown as the address of Sri.Gopalakrishnan Nair. The 1[st] accused with the help of the petitioner, who is the 2[nd] accused, fraudulently collected composite service form sent by post from the office of the United Trust of India to Sri.Gopalakrishnan Nair. By manipulating those documents claims were made in the name of the 3[rd] accused and thereby Rs.65,240/- due to Sri.Gopalakrishnan Nair was illegally collected. It is alleged that thereby the accused together had committed the offences including cheating. 5. The petitioner contended before the court below that from the final report and the documents submitted along with the same, there is no material to prove complicity of the petitioner in the offences alleged and therefore he was entitled to be discharged. It was contended that he had no connection with any of the offences alleged in the final report and that the prosecution did not proposes any evidence to prove his complicity with the offences. The court below considered the said contentions and rejected the plea for discharge as per the following order: “This is a petition filed by the 2[nd] accused in C.C. No.479/07 for discharging him u/s 239 Cr.P.C. Crl.Rev.Pet. No.205 of 2020 4 Heard and perused the documents. Prima facie case is made out against the accused. Therefore, discharging the accused without giving an opportunity to the defacto complainant/the prosecution will be the denial of justice. Therefore, this petition is dismissed.” 6. The learned counsel for the petitioner would submit that only overtact of the petitioner stated in the charge is that the composite service form sent to Sri.Gopalakrishnan Nair by post was garnered by the 1[st] accused with the aid of the petitioner who was the Postman of Chengannur Post Office. It is submitted that other than such a role nothing has been stated in the final report, that is to say, that he is a party to the alleged forgery, submission of forged document to receive money due to Sri.Gopalakrishnan Nair. Urging that, even if the evidence proposed through witness Nos.15, 16 and 17 in its entirety is believed, the same will not establish any role of the petitioner and in the alleged offences, and there is absolutely no reason for try the petitioner. 7. It is seen that in Annexure A petition such contentions were raised, but the court below did not delve into any of the said contentions. Holding that the discharge of the petitioner could have been the effect of denial of an Crl.Rev.Pet. No.205 of 2020 5 opportunity to the defacto complainant/the prosecution, the petition was dismissed. A Magistrate considering an application for discharge is expected to consider the materials before him and take a decision after considering such materials, in the light of the provisions of Section 239 of the Code. 8. The learned counsel for the petitioner placed reliance on **Vishnu Kumar Shukla and Another v. State of Uttar Pradesh and Another (2023 SCC OnLine SC 1582)** to contend that only if there is grave suspicion that the accused has committed the offence, the court can frame a charge against him. It is also pointed out that the question, whether or not there is a grave suspicion, shall be decided on the basis of the materials placed before the court. The consideration shall be to decide the materials are sufficient to make out a prima facie case that the accused has committed the offence. 9. 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 Crl.Rev.Pet. No.205 of 2020 6 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 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. 10. In **Vijayan P. v. State of Kerala and another** Crl.Rev.Pet. No.205 of 2020 7 **[(2010) 2 SCC 398]** the Apex Court held that the judge who considers a question where a charge is liable to be 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 the ingredients necessary of the offences alleged. 11. After having conspectus of the aforesaid incidents, the Apex Court in **Vishnu Kumar Shukla** laid down the following principles: - “10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made Crl.Rev.Pet. No.205 of 2020 8 out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. 3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” Crl.Rev.Pet. No.205 of 2020 9 12. The materials placed on record before the learned Magistrate have to be considered in the light of the aforesaid principles of law in order to decide whether a grave suspicion that the petitioner had committed the offence is made out. The precise allegation against the petitioner is that he aided the 1[st] accused to get the composite service forms sent from the UTI addressed to Sri.Gopalakrishnan Nair. Only on getting those documents, 1[st] accused could create false documents in connivance with accused Nos.3 and 4. It is seen that the address of the 3[rd] accused was falsified to be the address of Sri.Gopalakrishnan Nair and making use of such fake address, the money due under the certificates issued from the UTI in favour of Sri.Gopalakrishnan Nair was received by the 3[rd] accused. In the act of creating false document, submission of false documents in the Bank and thereby to receive the money due to Sri.Gopalakrishnan Nair in a fraudulent way, the complicity of accused Nos.1, 3 and 4 is specifically stated and materials in order to prove those allegations are produced along with the final report. The question is whether there are materials to implicated the petitioner with such offences. 13. Witness Nos.15 and 16 were the colleagues of the petitioner. The statements given by the CWs15 and 16 to the Crl.Rev.Pet. No.205 of 2020 10 Investigating Officer under Section 161 of the Code are Annexure D and E. Similar are the said statements. The statement of CW15 reads as follows: 2006 കാലഘട്ടത്തിൽഞാൻ ചെ ങ്ങന്നൂർ പ ോസ്‌റ്റോഫീസിൽ പ ോസറ്റമാനായി ജ ോലിന . നോക്കിയിരുന്നു ഈസമയത്തുഷിബുഡാനിയേലുംഈപ ോസ ഓഫീസിലെ പ ോസറ്റമാനായിരുന്നു. ഞങ്ങൾ രണ്ടു പേ രും രണ്ടു ബീറ്റിലായിരുന്നു ജ ോലിന നോക്കിയിരുന്നത്. ഷിബുവിനെ തിരക്കി മിക്കപ്പോഴും ചെ ങ്ങന്നൂരിൽ ഷെ യർ ബിസിനസ് നടത്തുന്ന ശെ ൽവരാജൻ എന്നയാൾ പ ോസ ഓഫീസിൽ വന ഞാൻ കണ്ടിട്ടുണ. മിക്കദിവസങ്ങളിലുംലെ റ് ുംമറ്റുംഷിബുശെ ൽവരാജിന് കൊടുക്കുന്നത് ഞാൻ കണ്ടിട്ടുണ. അവർ തമ്മിലുള്ള മറ്റു . ബന്ധങ്ങളളൊന്നും എനിക്കറിയത്തില്ല ഈനിൽക്കുന്നആളായിരുന്നു (പ്രതിയെ ചൂണ്ടി കാണിച്ചുക കൊണ ) ഷിബുവിനെ കാണാൻ . വന്നിരുന്നത് 14. CW17 is cited to produce documents to prove that the petitioner worked as the postman in the Chengannur Post Office during the relevant period. Even if, the aforesaid evidence is believed fully what could be proved is that the petitioner delivered postal articles addressed to Sri.Gopalakrishnan Nair to the 1[st] accused. Unless the 1[st] accused received those postal articles, he with the aid of accused Nos.3 and 4 could not have committed the alleged Crl.Rev.Pet. No.205 of 2020 11 offences. But that cannot be extended to impute knowledge to the petitioner that the said documents would be forged and money due to Sri.Gopalakrishnan Nair would be collected by other accused. From the evidence proposed by the prosecution it may be able to draw a presumption that the petitioner had connived with other in committing the offences. But, from the aforesaid materials, complicity of the petitioner in commission of the offences alleged by the prosecution cannot be proved. A mere presumption as distinguished from a grave presumption is not enough to from a charge against on accused. In such circumstances, I am of the view that the charge alleged against the petitioner would only be groundless and therefore the petitioner is entitled for a discharge. The court below went wrong in dismissing the petition, that too in a haphazard manner. Accordingly, this revision petition is allowed. The impugned order is set aside. Crl.M.P. No.3838/2018 stands allowed. The petitioner-the 2[nd] accused in C.C. No.479/2007 is discharged. Sd/- **P.G.AJITHKUMAR JUDGE** SMF Crl.Rev.Pet. No.205 of 2020 12 ## **`APPENDIX OF CRL.REV.PET 205/2020`** ``` PETITIONER ANNEXURES ANNEXURE-ACERTIFIED COPY OF FIR IN CRIME NO 583 OF 2006 OF CHENGANNUR POLICE STATION ANNEXURE-A(1)CERTIFIED COPY OF FIS IN CRIME NO 583 OF 2006 OF CHENGANNUR POLICE STATION ANNEXURE-BCERTIFIED COPY OF FIR IN CRIME NO 629/2006 OF THIRUVALLA POLICE STATION ANNEXURE-CCERTIFIED COPY OF FINAL REPORT IN CRIME NO.245/CR/EOW1/KLM/08 (CRIME NO 629/06 OF THIRUVALLA POLICE STATION) ANNEXURE-DCERTIFIED COPY OF THE STATEMENT GIVEN BY CW15 (SUJITH) ANNEXURE-D(1)CERTIFIED COPY OF THE STATEMENT GIVEN BY CW16 (K.P.NARAYAN) ANNEXURE-ETRUE COPY OF CRL.M.P.NO.3838 OF 2018 IN CC NO.479/2007 ANNEXURE-FCERTIFIED COPY OF ORDER DATED 19.11.2019 IN CRL.M.P.NO.3838 OF 2018 ```