Dismissed

P.v.Saju v. Sulochana

Kerala HC20 Oct 2009Crl.Rev.Pet/157/2008

Case brief

AI extract

What is this about?

Kerala High Court dismissed a criminal revision petition challenging the dismissal of applications for discharge under Section 245 Cr.P.C. The court held that prima facie materials disclosed offences under Sections 420 IPC and 138 NI Act, so discharge was not warranted.

What did the court decide?

Revision petition dismissed with direction to lower court to proceed on day-to-day basis and dispose within three months.

P.v.Saju Vs Sulochana — Cheque Dishonour | Kerala HC (2009)

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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 P.S.GOPINATHAN

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TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931

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Crl.Rev.Pet.No. 157 of 2008()

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---------------------------------------CMP.482/07 & CMP.2089/07 IN CC.340/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, ERNAKULAM

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REVN. PETITIONERS/PETITIONERS/ACCUSED 1 AND 2

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

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1. P.V. SAJU, PADINJAREMATTATHIL HOUSE, BRAHMAMANGALAM P.O., THALAYOLAPARAMBU, KOTTAYAM.

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2. JEENA GOPAL, W/O. SAJU, PADINJAREMATTATHIL HOUSE, BRAHMAMANGALAM P.O., THALAYOLAPARAMBU, KOTTAYAM.

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BY ADV. MR.P.C.HARIDAS

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RESPONDENTS/RESPONDENTS/COMPLAINANT

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

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1. P.N. SULOCHANA, W/O. MURALEEDHARAN, KUNNUPARAMBIL HOUSE, KULATTIKARA P.O., ERNAKULAM DISTRICT.

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

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R1 BY ADV. MR.K.N.CHANDRABABU R2 BY PUBLIC PROSECUTOR MR.RITHWIK.

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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rs.

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P.S.GOPINATHAN, J.

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= = = = = = = = == = = Crl.R.P.No.157 of 2008.

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

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Dated this the 20^th day of October, 2009.

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O R D E R

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Revision petitioners are accused Nos.1 and 2 in CC.No.340/2003 on the file of the Judicial Magistrate of the First Class-I, Ernakulam. They along with another (3^rd accused) were prosecuted by the first respondent alleging offences under Sec.406, 420 r/w. 34 IPC. The learned Magistrate took cognizance for offence under Sec.420 IPC and issued process. Responding the process, the revision petitioners and the 3^rd accused entered appearance. After furnishing copy of the complaint and the relevant records, evidence was recorded under Sec.244 of the Crl.P.C. As part of the evidence, Pws.1 to 3 were examined and Exts.P1 to P10 were marked. At that time the revision petitioners filed CMP.No.482/2007 seeking an order to discharge them

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under Sec.245. The 3^rd accused also filed CMP.No.2089/2007 seeking for very same relief. The

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Crl.R.P.No.157 of 2008.

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-: 2 :-

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learned Magistrate by a common order dated 9.7.2007, which is impugned, arrived a finding that offence under Sec.420 r/w. 34 IPC and Section 138 of the Negotiable Instruments Act was disclosed. Consequently, both the petitions were dismissed.

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Assailing the legality, correctness and propriety of the above order, this revision petition was filed. I am told that the 3^rd accused preferred a revision before the Sessions Judge which was also dismissed.

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The learned counsel for the revision petitioner, counsel for the first respondent and the Public Prosecutor were heard. On going through the evidence of Pws.1 to 3 and Exts.P1 to P10, it appears that the evidence of Pw1 discloses a dishonest inducement to part with huge amount by making believe the first respondent that they would give attractive interest for the deposits and those deposits were accepted during the period from 1994 to 2003 and that when the first respondent demanded back the amount in

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Crl.R.P.No.157 of 2008.

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-: 3 :-

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2003, Ext.P2 cheque was issued. When it was presented for collection it was returned dishonoured with insufficiency of funds as evidenced by Ext.P3 memo. Though a notice demanding discharge of liability, copy of which is Ext.P4 was sent, the liability was not discharged. It is not now disputed by the learned counsel for the revision petitioners that offence under Sec.138 of the Negotiable Instruments Act is disclosed against the first revision petitioner, he being the drawer of cheque and there is statutory compliance of the mandatory procedures before filing the complaint, which filed within the stipulated time. But his contention is that no offence under Sec.420 is disclosed against both the revision petitioners and no offence under Sec.138 is disclosed against the 2^nd revision petitioner.

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Though it is not mentioned in the impugned order that offence under Sec.138 is disclosed, it is yet to be known as to against whom offence under Section 138 of N.I.Act is prima facie found. It could be ascertained only

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Crl.R.P.No.157 of 2008.

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-: 4 :-

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after framing charge. From the evidence of Pw1 which is not at all challenged in cross-examination, there is material to show that there was dishonest inducement to canvas the deposit on promise of attractive interest. The intention at the time when the first respondent was induced to part with money etc. are all matters of evidence. In the above circumstance, it is too early at this stage to come to a conclusion that offence under Sec.420 is not disclosed. As argued by the learned counsel for the first respondent and the Public Prosecutor, prima facie there is materials to send the revision petitioners to face trial for offence under Sec.420. Hence the revision petitioners are not entitled to be discharged at this stage. I find no good reason to interfere with the order impugned. There is no error, illegality or impropriety in the order impugned. The revision petition is devoid of merit. Accordingly it is dismissed.

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Crl.R.P.No.157 of 2008.

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-: 5 :-

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The lower court shall dispose the case untrammeled by the observations made in this order or in the impugned order. The learned Magistrate shall also proceed the case on day-to-day basis and dispose it within three months from the date of receipt of this order.

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P.S.GOPINATHAN, JUDGE.

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Kvs/-

P.v.Saju v. Sulochana

Case brief

What is this about?

What did the court decide?

P.v.Saju v. Sulochana

Case brief

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