Allowed

D.Shankappa Alva v. State of Kerala

Kerala HC7 Aug 2007Crl.Rev.Pet/2162/2007

Case brief

AI extract

What is this about?

A criminal revision petition against an order framing charges in a cheating and forgery case. The single judge set aside the charge-framing order, directing the lower court to reconsider the matter de novo in accordance with the law on prima facie cases.

What did the court decide?

The order of 16-9-2006 framing charges is set aside; the lower court is directed to pass orders in accordance with law.

D.Shankappa Alva Vs State of Kerala — Cheating and Forgery | Kerala HC (2007)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 7TH AUGUST 2007 / 16TH SRAVANA 1929 Crl.Rev.Pet.No. 2162 of 2007() -----------------------------CC.272/2001 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD ....................

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REVN. PETITIONER: ACCUSED 1,3,4 & 5

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D.SHANKAPPA ALVA, AGED 62 YEARS, S/O KORAGAPPA ALVA, DERAMBALLA HOSAMANE HOUSE, KULOOR VILLAGE, KASARAGOD.

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D.KRISHNA SHETTY, S/O BANTU SHETTY, AGED 60 YEARS, NEAR MAHALINGESHWARA TEMPLE, KUNJATHUR VILLAGE.

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SMT. SULOCHANA, AGED 50 YEARS, W/O D.SHANKAPPA ALVA, DERAMBALLA HOSAMANE HOUSE, KULOOR VILLAGE, KASARAGOD.

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BABU BHANDARY, S/O AITHAPPA, BHANDARY, AGED 80 YEARS, KUNJATHUR VILLAGE, KASARAGOD TALUK.

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BY ADV. SRI.K.JAJU BABU

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RESPONDENTS: STATE & COMPLAINANT

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.

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CHITHRAVATHY, W/O RAMANNA SHETTY, AGED ABOUT 55 YEARS, MAJIBAIL VILLAGE, KASARAGOD TALUK.

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BY PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR SRI.T.G.RAJENDRAN

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/08/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.RAMKUMAR, J.

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................................................. Crl.R.P. No. 2162 of 2007

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................................................ Dated: 07-08-2007

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O R D E R

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Revision petitioners are accused Nos. 1, 3, 4 and 5 in a protest complaint filed by the 2^nd respondent herein (Chithravathi) alleging offences punishable under Sections 420, 465, 467, 468 and 471 read with Sec. 34 I.P.C.

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The admitted facts are the following:-

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The first petitioner is the brother-in-law of the complainant and 3^rd petitioner is her sister. The petitioners were the auction purchasers of the 5^th Group Arrack Shops of Kumbla Excise Range during the year 1994-95. At the time of the auction, the petitioners herein produced solvency certificate of the properties jointly in the possession of the complainant and the 3^rd petitioner.

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The auction was confirmed in the name of the 3^rd petitioner and the complainant. The complainant alleged in the complaint filed before the Chief Judl. Magistrate, Kasaragod on 8-9-1997 that she did not take part in the auction relating to the arrack shop as she was permanently settled in Mumbai for the past so many years and therefore, she had not given any consent or power-of-

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Crl.R.P. 2162 -:2:-

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attorney authorising any of the petitioners or others to represent her. The complainant alleged that the first petitioner and others with the common intention of causing wrongful loss to her jointly bid the above arrack shop and conducted the business in the year 1994-95 in the name of the petitioners and the complainant. She further alleged that she came to know about the facts only when she received the notice from the Welfare Fund Inspector, Kannur stating that the petitioners and other accused are in arrears to the Welfare Fund amount. According to the complainant the petitioners had forged her signature and created documents for getting the auction confirmed in their names and thereby cheated the complainant by making her a party in the auction by using forged documents. The said complaint filed before the Chief judicial Magistrate, Kasaragod which was forwarded to the Manjeswar police which registered Crime No. 279 of 1997. After investigation the police filed a refer report before the C.J.M. Court stating that the dispute was essentially one of a civil nature. Thereupon the 2^nd respondent filed the present protest complaint which was registered as C.C. 272 of 2001. After receipt of notice the petitioners herein appeared and filed a petition for discharge and

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Crl.R.P. 2162 -:3:-

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pleaded for a discharge before the Chief Judicial Magistrate. In the protest complaint registered as C.C.272 of 2001 the Assistant Excise Commissioner was examined as P.W.3. His examination in chief itself was that the complainant Chithravathi was one of the licensees in respect of the shops in 5^th group and that she had jointly executed the agreement also before the Assistant Excise Commissioner on 1-4-1995. He further deposed that the parties had affixed their signature in the license agreement. In the light of the above testimony by the Assistant commissioner the revision petitioner did not even cross-examine him as the said evidence was wholly in their favour. However, the learned Chief Judicial Magistrate by the impugned order framed charge against the accused including the revision petitioners as well.

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It is well settled that for framing a charge against the accused the court has to find out whether there exists a prima facie case. It appears that the learned Chief Judicial magistrate has not addressed himself to the requirement of law while framing charge against the accused. It is only if the court is satisfied that there is prima facie case in proceeding against the accused can the court frame charge. The salutary principles of

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Crl.R.P. 2162 -:4:-

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law do not appear to have been borne in mind by the court below while framing the charge. Accordingly the order dated 16-9-2006 framing charge against the revision petitioners is set aside and that court is directed to consider the matter afresh and pass orders in accordance with law and bearing in mind the principles of law governing the matter.

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This revision is allowed as above.

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V. RAMKUMAR, JUDGE.

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ani/-

D.Shankappa Alva v. State of Kerala

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D.Shankappa Alva v. State of Kerala

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