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V.K.Eldhose v. Poulose and Others

Kerala HC19 Jun 2008Crl.Rev.Pet/974/2008

Case brief

AI extract

What is this about?

A criminal revision petition challenging an order dismissing a private complaint alleging cheating under Sections 468 and 420 read with Section 34 IPC. The High Court quashed the order for non-compliance with mandatory procedure under the Criminal Procedure Code.

What did the court decide?

Set aside the impugned order dismissing the complaint and directed the magistrate to conduct an inquiry under Section 202 Cr.P.C. prior to dismissal.

V.K.Eldhose Vs Poulose and Others — Civil Procedure and Limitation | Kerala HC (2008)

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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

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THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930

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Crl.Rev.Pet.No. 974 of 2008(B)

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-----------------------------------------CMP.NO.1485/2007 OF JUDICIAL 1ST CLASS MAGISTRATE, KOTHAMANGALAM. ....................

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REVN. PETITIONER/ COMPLAINANT:

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----------------------------------------------------

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V.K.ELDHOSE, AGE 49, BUSINESS , S/O.KURIAKOSE, COSMOS ROAD COLOUR MECK, HOUSE NO.30/1088-B, KANIVAMPUZHA, KOCHI (KEERAMPARA VILLAGE, NADUKANI KARA, VELAMKUZHI HOUSE, NADUKANI KARA, KEERAMPARA VILLAGE).

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BY ADV. SRI.P.SOMACHUDAN NAIR.

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RESPONDENTS/ACCUSED & STATE:

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----------------------------------------------------

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1. POULOSE, AGE 65, S/O.IYPE, KALLARACKAL HOUSE, CHEMBANKUZHI KARA, NERIAMANGALAM VILLAGE, (MANJALLOOR VILLAGE, KAPPU KARA, KALLARACKAL HOUSE).

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2. ANNAKUTTY, WIFE OF POULOSE, RESIDING AT -DO-, -DO-.

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3. GEORGE, S/O.POULOSE RESIDING AT

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-DO-, -DO-.

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4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI -31.

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BY PUBLIC PROSECUTOR SRI. C.M. NAZAR, ADV. SRI.PEEYUS A.KOTTAM.

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/06/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.RAMKUMAR, J.

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======================================

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CRL.R.P. NO. 974 OF 2008

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======================================

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Dated this the 19th day of June 2008

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ORDER

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Petitioner, who is the complainant in a private complaint filed as CMP 1485/2007 on the file of the JFCM, Kothamangalam alleging commission of offences punishable under Sections 468 and 420 read with Section 34 IPC, challenges the order dated 10.9.2007 passed by the Magistrate dismissing the complaint under Section 203 Cr.P.C. after examination of the complainant under Section 200 Cr.P.C.

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The main grievance of the petitioner is that the second accused after agreeing to sell 14.5 cents of land belonging to her and in her possession by means of a written agreement cheated the complainant/petitioner by herself and her husband, first accused transferring the property to their son, the third accused.

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The learned Magistrate, after recording the sworn statement of the petitioner came to the conclusion that the dispute was essentially one of a civil nature and dismissed the complaint under section 203 Cr.P.C.

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CRRP 974/2008 2

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The dismissal of a complaint under Section 203 Cr.P.C. can be done only if the Magistrate is of the opinion that there is no sufficient ground for proceeding and that too only after considering the statements recorded under Section 200 Cr.P.C. and the result of an enquiry or investigation under Section 202 Cr.P.C. If after recording the sworn statement of the complainant, the Magistrate comes to the conclusion that there is no sufficient ground for proceeding, he cannot dismiss the complaint under Section 203 Cr.P.C., because in such an eventuality, he can only conduct an enquiry under Section 202 Cr.P.C. This is because the criterion for issuing process to the accused is the satisfaction of the Magistrate that there is sufficient ground for proceeding. For dismissal of a complaint under Section 203 Cr.P.C. also the criterion is the satisfaction of the Magistrate that there is no sufficient ground for proceeding. Hence, when the Magistrate postpones the issue of process and proceeds to Section 202 Cr.P.C, it can be inferred that he is of the opinion that at that stage there is no sufficient ground for proceeding. If after perusing the averments in the complaint and considering the sworn statement of the complainant recorded

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CRRP 974/2008 3

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under Section 200 Cr.P.C., the Magistrate is convinced that no offence has been made out and is desirous of immediately terminating the proceedings, he can then only reject the complaint. But if he wants to dismiss the complaint, he will have to conduct an enquiry under Section 202 Cr.P.C. and then proceed to dismiss the complaint under Section 203 Cr.P.C. For this sole reason the impugned order is unsustainable. Since the accused have no right to be heard at this stage, service of summons to the accused in this revision is dispensed with. The impugned order is accordingly set aside and the Magistrate is directed to conduct an enquiry under Section 202 Cr.P.C. and then proceed according to law.

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V.RAMKUMAR, JUDGE

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V.K.Eldhose v. Poulose and Others

Case brief

What is this about?

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V.K.Eldhose v. Poulose and Others

Case brief

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