Dismissed

M.D.Thomas v. Omana

Kerala HC17 Jul 2009Crl.Rev.Pet/616/2009

Case brief

AI extract

What is this about?

In a criminal revision petition, the Kerala High Court held that the petitioner is not entitled to immediate relief in the revision but may appear through counsel in the lower court until charge framing. The court directed that the petitioner retains the option to seek discharge under Section 245 of the Code.

What did the court decide?

The petitioner is permitted to appear through counsel until framing of charge and may seek discharge under Section 245 of the Code.

M.D.Thomas Vs Omana — Cheating and Forgery | 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 THOMAS P.JOSEPH

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FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931

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CRL.REV.PET.NO. 616 OF 2009()

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

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(AGAINST ORDER IN C.C. NO.1356 OF 2008, JUDICIAL FIRST CLASS MAGISTRATE, CHAVAKKAD)

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REVN. PETITIONER(S) - ACCUSED:

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

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M.D. THOMAS, MANAGER, SOUTH INDIA BANK LTD., VENKITENGU BRAHCN, THRISSUR.

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BY ADV. SRI.T.G.RAJENDRAN

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RESPONDENT(S) - RESPONDENTS - COMPLAINANT:

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

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1. OMANA, W/O. PUTHOOR KURIAKOSE, KAKKASSERY DESOM, ELAVALLY AMSOM, AHAVAKKAD TALUK.

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2. MRS.MARY, W/O. LATE CHIRIYNAKANDATH DEVASSY, ENAMAVU DESOM, VENKITANGU AMSOM, CHAVAKKAD TALUK, THRISSUR.

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3. JAISON, S/O. CHIRAYANKANDATH DEVASSY, RESIDING DO.

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4. JOHNSON, S/O. CHIRIYNAKANDATH DEVASSY, RESIDING DO.

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5. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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This revision is directed against order dated 15.11.2008 as per

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which learned Judicial First Class Magistrate, Chavakkad has taken cognizance against petitioner as well for offences punishable under Sections 463, 467 and 468 read with 34 of the Indian Penal Code (for short, “the IPC”). According to respondent No.1, her father had availed a locker facility in the South Indian Bank of which petitioner (accused No.4) is the Manager, for the purpose of keeping gold ornaments in safe custody and after death of her father on 25.7.2006 a nomination paper was forged by accused Nos.1 to 3 with the connivance and sharing common intention with the petitioner as if the nomination was made by the father before his death in the name of mother of respondent No.1. It is accordingly that petitioner was also sought to be impleaded for offences as above stated. It is seen from the order that on a prior occasion without conducting enquiry under Sec.202 of the Criminal Procedure Code (for short,”the Code”) learned magistrate “dismissed” the complaint under Sec.203 of the Code. That dismissal was challenged by respondent No.1 in this Court in Crl.R.P. No.116 of 2008. Learned counsel for petitioner submitted

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CRL. R.P. No.616 of 2009

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-: 2 :-

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that petitioner was not given notice of that proceeding. On 26.5.2008 this Court set aside the dismissal of the complaint one of the reasons being that under Sec.203 of the Code a dismissal is contemplated only after conducting enquiry under Sec.202 of the Code. While remitting the complaint to the court below it was directed that learned magistrate shall proceed in accordance with law. Later, enquiry was conducted under Sec.202 of the Code and as per the impugned order cognisance was taken as aforesaid. Petitioner states that on the materials on record there was no scope for taking cognisance against him and therefore requests this Court to interfere with the order to the extent it concerned him. Learned counsel for respondent No.1 submitted that there are sufficient materials available on record to take cognisance against petitioner also.

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At this stage it is not necessary to go into the question whether sufficient materials are produced by respondent No.1 as regards the alleged involvement of petitioner. Since offences under Secs.463, 467 and 468 of the IPC are attributed against petitioner and other accused persons learned magistrate has to follow the procedure for trial of warrant cases instituted otherwise than on police report. That means petitioner gets an opportunity to seek his discharge under

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CRL. R.P. No.616 of 2009

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-: 3 :-

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sub-sec.(1) or (2) of Sec.245 of the Code. It is open to the petitioner to avail that opportunity as stated therein. Learned counsel submits that in that case petitioner may be permitted to appear through counsel in the court below until the court decides to frame charge against petitioner. Having regard to the facts and circumstances of the case I find no reason to refuse that prayer.

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Resultantly, this revision petition fails. It is dismissed making it clear that it will be open to the petitioner to seek his discharge if circumstances warranted invoking sub-sec.(1) or (2) of Sec.245 of the Code. Petitioner is permitted to appear in the court below through counsel until framing of charge, if any.

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THOMAS P.JOSEPH, JUDGE.

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vsv

M.D.Thomas v. Omana

Case brief

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M.D.Thomas v. Omana

Case brief

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