Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 10TH DAY OF AUGUST 2023 / 19TH SRAVANA, 1945 CMP.NO.7079 OF 2022 IN CC NO.1210/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, VARKALA
REVISION PETITIONER/ PETITIONER/ 1ST ACCUSED : SUKESINI PILLAI, AGED 72 YEARS, D/O PONNAMMA, PRS VILLA, PARAKULAM, CHATHAMPARA DESOM, KARAVARAM VILLAGE, THIRUVANANTHAPURAM, PIN - 695 605 BY ADV M.R.SARIN RESPONDENTS/ STATE/ COMPLAINANT : 1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031 2 STATION HOUSE OFFICER, KADAKKAVOOR POLICE STATION, THIRUVANANTHAPURAM, PIN - 695 309 BY SRI.C.N PRABHAKARAN, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :
BECHU KURIAN THOMAS, J.
=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No.800 of 2023 =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 10th day of July, 2023
ORDER
Revision petitioner challenges the order dated 19.07.2023 in Crl.M.P.No.7079 of 2022 in C.C.No.1210 of 2016 on the files of the Judicial First Class Magistrate's Court-I, Varkala. By virtue of the aforesaid order, an application seeking discharge filed by the revision petitioner-first accused in the above mentioned case was dismissed.
2. According to the prosecution, the first accused introduced the
2nd respondent to the defacto complainant and promised to arrange a loan for setting up a hospital at Ernakulam. Thereafter, the accused collected an amount of Rs.15,00,000/- from the defacto complainant as processing fee and thereafter failed to provide the loan and thereby cheated the defacto complainant. It is also the prosecution case that the first accused had even promised to recover the money lost by the defacto complainant and for that purpose, requested him to pay further amounts apart from two mobile phones to another person and despite those payments and gifts, the defacto complainant was not repaid the money paid nor was the loan disbursed thereby the accused together committed the offences under Sections 406, 420 r/w Section 34 of the Indian Penal Code, 1860.
3. Sri.Sarin, the learned counsel for the revision petitioner
contended that the only role that could be attributed to the first accused is that she introduced the 2 nd accused to the defacto complainant based upon prior acquaintance. It was submitted that there was no transfer of money to the first accused for roping him as an accused in the alleged offences. According to the learned counsel, even if the entire prosecution allegations are assumed to be admitted for the sake of argument, still, no offence is made out against the first accused and therefore the materials on record do not warrant framing of charge against her.
4. Sri.C.N.Prabhakaran, the learned Public Prosecutor, opposed the
application and submitted that the case was taken cognizance in the year 2016 and that when the trial was about to commence, the revision petitioner filed the application for discharge. It was further pointed out that from the prosecution allegations, the revision petitioner is seen to be one of the prime accused who had introduced accused 2 and 3 to the defacto complainant and that the ingredients of cheating is certainly made out from the prosecution allegations and therefore, a discharge
ought not be allowed. It was also pointed out that the discharge application cannot be considered as if it is a mini trial and hence this criminal revision petition ought to be dismissed.
5. On a perusal of the final report dated 30.11.2016, it is noticed
that the prosecution alleges that the first accused had introduced the defacto complainant to the remaining accused with intention to cheat and promising to arrange a loan for the defacto complainant on paying an
amount of Rs.15,00,000/-as processing fee. After payment of the said processing fee, the loan was not provided and instead the first accused approached the defacto complainant again offering to recover the money lost and directed him to pay a further amount of Rs.1,00,000/- and gift two mobile phones to another person. From the prosecution allegations
and the materials collected, including the statement of witnesses, as seen from the witness memo, it is seen that specific allegations have been raised against the revision petitioner. Whether those allegations and the materials collected are sufficient or not is a matter which can be considered and appreciated only after trial. Prima facie, those materials make out a case against the first accused.
6. Though the learned counsel for the revision petitioner relied
upon the decision in N.Raghavender v. State of Andhra Pradesh, CBI [2021 SCC Online SC 1232] and contended that the ingredients of Section 420 IPC are not attracted, I am of the view that the said decision has no applicability to the instant case. Though the ingredients of the offence under Sector 420 IPC are required to be attracted, at the stage of framing of charge, the veracity or otherwise of the allegations cannot be
looked into. What is required is only to find out whether the materials collected by the prosecution can, if a trial is conducted prove the guilt of the accused for the offences alleged. Deception, fraudulent or dishonest inducement and intention to cheat are matters which are already alleged and stated in the final report against all the accused including the
petitioner. Whether those allegations are true or not and the materials collected can be relied upon or not are all matters to be considered at the stage of trial. Therefore, I do not find any perversity in the impugned
order requiring an interference by this Court.
Hence, there is no merit in this criminal revision petition and it is dismissed. Sd/- BECHU KURIAN THOMAS, JUDGE RKM