T.G. Alexander v. George Alexander and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933** **Crl.Rev.Pet.No. 800 of 2011()** **-----------------------------** **AGAINST THE ORDER DATED 04/02/2011 IN CRMP 10308/2010 IN CC.1115/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA** **....................** ## **REVN. PETITIONER/PETITIONER/ACCUSED NO.3:** **---------------------------------------------------------------------** **T.G.ALEXANDER, S/O.GEORGE, THOTTUMUKATHU HOUSE, PNRA.P8, PRIYADARSHINI JUNCTION, PANGUM MOODU, THIRUVANANTHAPURAM.** **BY ADV. SRI.V.PHILIP MATHEWS** ## **RESPONDENT(S)/DEFACT COMPLAINANT & STATE:** **---------------------------------------------------------------------------** **1. GEORGE ALEXANDER, PRINCILI HOUSE, AASRAM VILLAGE, KOLLAM, THIRUVALLA.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SMT.REKHA C. NAIR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/09/2011, ALONG WITH CRRP NO. 801 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **VK** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.R.P.NOS.800 & 801 OF 2011 ----------------------------------Dated this the 6[th] day of September, 2011** ## **O R D E R** The common revision petitioner in the aforesaid revisions is one among the accused in two cases, numbered as C.C.Nos.1115/1999 and 1129/1999, both pending on the file of the Judicial First Class Magistrate Court, Thiruvalla. He is ranked as accused No.3 (A3) in both cases. Since the questions covered in both the revisions are identical though arising from separate orders passed in the aforesaid two cases, after being heard together, they are disposed under this common order. 2. The above numbered cases, C.C.Nos.1115/1999 and 1129/1999 arose from separate police reports, in which, the petitioner with some others are arrayed as accused for offences punishable under Sections 403, 406, 409, 420 and 120B of the Indian Penal Code. The cases arose on separate complaints filed by persons, who had invested money in a firm, in which, the **Crl.R.P.NOS.800 & 801/2011** **2** 1[st] accused was the managing partner, some of the other accused, including the present revision petitioners, stated to be partners, and the other accused, officials connected in the operation of the firm. Pursuant to criminal conspiracy, they have cheated and defrauded the persons, who have invested the funds in the firm, was the crux of the cases to proceed against them for the offences referred to above. 3. Petitioner and another accused (A4) moved petitions jointly in the two cases, and produced some documents seeking their discharge under Section 239 of the Code of Criminal Procedure, for short, the ‘Code’. They were not partners of the firm and the imputations made against them as to cheating, defrauding etc. of the de facto complainant in the respective case is baseless, was their case. The learned Magistrate was not impressed by the pleas raised for discharge, and accordingly, the petitions filed seeking that relief in both cases were dismissed. As against those orders, one of the applicants, the present petitioner alone, has come with these two revisions. **Crl.R.P.NOS.800 & 801/2011** **3** 4. I heard the learned counsel for the petitioner and also the learned Public Prosecutor. There is no prima facie case against the petitioner and he has been wrongly implicated in the case imputing him to be a partner of the firm, which he was not, is the submission of the counsel. When documents produced by him would show that he is/was not a partner of a firm, there is no bar in looking into those documents at the hearing of the discharge petition, is the further submission of the counsel. Reliance is placed on **Harshendra Kumar v. Rebatilata Koley (2011 (1) KLT 732 (SC))** to contend that where the documents placed by the accused on the face of it show that the accusations cannot stand the criminal proceedings can be quashed. The learned counsel also relied on **M.A.A.Annamalai v. State of Karnataka and another ((2010) 8 SCC 524)** to contend that if the materials show that the appellant has no role in the business operation of the firm as a partner or otherwise he cannot be compelled to face the criminal trial. It is further submitted that the persons who had invested funds in the firm **Crl.R.P.NOS.800 & 801/2011** **4** involved in the case have received payments from the official liquidator, who has taken over the affairs of the firm. So much so, in reversal of the order of the learned Magistrate the application moved by the petitioner for discharge has to be granted, is the submission of the counsel. 5. Going through the orders of the learned Magistrate impugned in the respective revisions, I find no merit in the submissions made by the learned counsel for the revision petitioners. At the stage of an enquiry under Section 239 of the Code, the accused has no right to produce any materials to disprove the prosecution case. At that stage, the Magistrate has to consider only the report and the materials produced with such report and, if necessary, to examine the accused, extending an opportunity of hearing to the prosecutor and also the accused, to form an opinion whether a prima facie case has been made out to proceed against the accused for the trial of the offence imputed or whether the imputations are groundless. If only the charges are shown to the groundless on the materials produced, then **Crl.R.P.NOS.800 & 801/2011** **5** alone, the accused can sustain the plea of discharge. The decisions relied by the counsel, both of them, have no application over the enquiry or the opinion to be formed by the Magistrate under Section 239 of the Code. In both cases, quashing of the criminal prosecution under Section 482 of the Code was considered. Scrutiny of other materials including those produced by the person proceeded against in the criminal proceedings when such proceedings are impeached under Section 482 of the Code as an abuse of process of the court or otherwise to secure the ends of justice, is entirely different from an enquiry under Section 239 of the Code. At that stage the defence of the accused is not a matter to be looked into but only whether the materials on record, upon consideration show that a prima facie case has been made out to frame a charge against him, to proceed with the trial. The accused has no right to produce any material to disprove the prosecution case, nor set up any defence at the stage of the hearing under Section 239 of the Code. In **State of Orissa v. Debendra Nath Padhi ((2005) 1 SCC 568)** , the Apex Court interpreting the words **Crl.R.P.NOS.800 & 801/2011** **6** “hearing the submissions of the accused” in Section 227 of the Code, which relates to sessions trial, has held that only means the hearing the submissions of the accused on the record of the case filed by the prosecution and documents submitted therewith. Under Section 239 of the Code also, the same principle applies that the opportunity extended for hearing to the accused should be confined to the material on record produced by the prosecution, if at all he has got a case that the charge against him is groundless, and such a challenge cannot be canvassed producing documents on his side at that stage. So much so, the learned Magistrate was fully justified in holding that the documents produced by him to show that he was not a partner cannot be given any consideration at the stage of framing charge. The other circumstance canvassed by the counsel as to repayments made by the official liquidator, who is stated to have taken over the affairs of the firm, has also no impact over the question whether the accused has to face trial on the charges imputed as it has to be determined on the materials produced in the case by the Magistrate. **Crl.R.P.NOS.800 & 801/2011** **7** 6. The learned counsel pointing out that the accused is a resident at a far away place from the court before which the cases are pending urged for granting him personal exemption from appearing before that court during the trial of the cases. No doubt, that is a matter to be considered by the Magistrate if an application is moved seeking exemption by the petitioner/accused as covered under Section 205 of the Code. If any application is moved by the petitioner/accused seeking exemption of his personal attendance, permitting him to appear through his counsel, the learned Magistrate shall pass appropriate orders taking note that exemption from personal appearance is to be denied only if it is of opinion that in the interest of justice he should be present through out the course of trial or there are some other good reason in the facts of the case to direct his presence throughout the course of the trial. The discretion to grant exemption vested with the Magistrate has to be exercised in a judicial manner, keeping in view the circumstances of the case and no doubt, taking into **Crl.R.P.NOS.800 & 801/2011 8** consideration the reasons set out to claim such exemption. As indicated earlier, if an application is filed by the petitioner, the learned Magistrate shall consider the application on its merit taking note of the observations made above. Revisions are devoid of any merit, and are dismissed. **S.S.SATHEESACHANDRAN JUDGE** prp # **Crl.R.P.NOS.800 & 801/2011 9**