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Judgment
V.K. Mohanan, J.—The petitioners are the accused in C.C. No. 276 of 2010 of the court of Judicial First Class Magistrate-I, Perinthalmanna. The grievance of the petitioners is that, though they have filed Crl. M.P. No. 502 of 2011 in the above calender case u/s 239 of Cr. P.C., seeking their discharge from the above case, the learned Magistrate by his order dated 7.12.2012 in Crl. M.P. No. 502 of 2011 in C.C. No. 276 of 2010, dismissed the above petition declining discharge.
The facts which lead to the filing of the present revision petition are as follows : The first respondent herein preferred a private complaint before the court below which was forwarded to the police for investigation u/s 156(3) of Cr. P.C., on the basis of which Crime No. 632 of 2008 was registered in the Perinthalmanna police station against the revision petitioner/accused for the offences punishable u/s 420, 465, 471, 506(ii) r/w 34 of IPC. The allegation against the petitioners is that one Abdulkalam Azad of Coimbatore, introduced the petitioners to the first respondent and accordingly the petitioners contacted the first respondent''s business establishment by name ''Maharani Gold Souk'' at Pulamanthole, during the month of December, 2006, and stated to him that the petitioners received information that, ''Imam Razi Muslim Education Charitable Trust'' was looking for suitable purchaser who is willing to takeover the Kamaliya Medical College owned by the said Trust and the petitioners requested the first respondent to introduce the petitioners to one Kanthapuram A.P. Aboobacker Musaliar, who is controlling the properties of the above trust. It is the further case of the respondent that the petitioners/accused have informed the first respondent that they have made an arrangement for funds from the Thrissur Branch of the Indian Overseas Bank for payment to the Trust and as requested by the petitioners, the first respondent along with the petitioners/accused and one Moideen of Kalikavu met the said Aboobacker Musaliar during the month of January, 2007, and through mediators it was agreed that the Medical College will be transferred to the petitioners/accused, after settling the existing liability and on paying a sum of Rs. 26 crores. It is the further case of the respondent that the petitioners/accused promised to make him the member of the Trust, if he pays a sum of Rs. 1 crore to the accused and on negotiation, the amount was reduced and fixed as Rs. 50 lakhs and accordingly on the basis of the understanding and the representation of the petitioners, the first respondent initially paid a cheque for an amount of Rs. 9 lakhs and subsequently, replaced it with the demand draft dated 27.2.2007 for the said amount and again Rs. 1 lakh was paid in cash. According to the respondent, the demand draft drawn in favour of the petitioners were encashed by them and at the instance of the petitioners, an amount of Rs. 10 lakhs was handed over to the respondent on 28.4.2007 and another sum of Rs. 20 lakhs on 15.5.2007 and Rs. 6.5. lakhs on 10.6.2007 and handed over two cheques of Rs. 2.5 lakhs and Rs. 1 lakh on 10.6.2007. Thus, according to the respondent, altogether a sum of Rs. 46.5 lakhs has paid to the petitioners on the understanding that after transferring of the Medical College in the name of the petitioners, the petitioners will make the first respondent a member of the Trust. But, contrary to the understanding, the petitioners did not make any effort to effect the same and the transfer of the Medical College in their name by paying an amount of Rs. 26 crores as agreed by them, for making the first respondent as a member of the Trust. It is the further case of the respondent that, when he demanded back the money, the said demand was refused and the petitioners/accused threatened him. It is also the case of the first respondent that, by committing forgery of cheque bearing No. 291422, entrusted with the petitioners, they had corrected the amount of Rs. 1 lakh entered by the first respondent as Rs. 9 lakhs and had presented the said cheque for encashment and got it dishonoured.
On the basis of the above complaint and on registering the crime, the police undertook the investigation and finally laid a report against the accused for the offences punishable u/s 420, 465, 471, 506(ii) r/w 34 of IPC. The court below took the cognizance upon the above report and instituted C.C. No. 276 of 2010. It is against the above case, the petitioners herein preferred an application u/s 239 of Cr. P.C., seeking their discharge from the above case. But the learned Magistrate declined the request by the impugned order, which is under challenge in this revision petition.
I have heard Adv. Sri. V.G. Arun learned counsel for the revision petitioners and I have perused the order impugned.
Learned counsel for the revision petitioners after taking me through Annexure VII agreement, submitted that in Annexure VII agreement, the respondent/defacto complainant is a party, which is dated 21.3.2007, but the case of the 1st respondent is that, the petitioners demanded and obtained demand draft from the first respondent on 27.2.2007, which itself is improbable and impossible. Thus, according to the counsel for the revision petitioners, it is unbelievable that the 1st respondent gave the demand draft on 27.2.2007, even prior to the date of agreement which is came into existence only on 21.3.2007. So on the basis of the above factual input, counsel submits that the case of the respondent/defacto complainant is improbable and unbelievable. It is the further contention of the learned counsel for the respondent that, the allegation in the complaint and the findings in the final report are patently false and improbable. According to the petitioners, it was the 1st respondent/defacto complainant who volunteered to act as mediators for effecting the transfer of the Medical College in question in the name of the petitioners, claiming that he had personal acquaintance with Mr. A.P. Aboobacker Musaliar. According to the counsel for the petitioners, the first respondent had demanded the percentage of sale consideration as brokerage and he had further received large amount from the petitioners in anticipation of the same, and the sale was not taken place due to certain differences within the ''Imam Razi Muslim Education Charitable Trust'' and therefore the petitioners demanded the first respondent to return the amounts and thus the two cheques mentioned earlier were given by the first respondent towards the discharge of the said liability of the 1st respondent, and thus the counsel submits that there is no material or evidence to proceed against the petitioners and thus they are entitled to get a discharge from the case but the court below erroneously dismissed the above petition.
I have carefully considered the arguments advanced by the counsel for the petitioners. I have perused the order of the court below and other materials produced along with the revision petition.
In the light of the arguments advanced by the counsel for the petitioner and in the light of the facts and circumstances of the case and in the light of the impugned order, the question to be considered is whether the trial court is justified in dismissing the petition for discharge filed u/s 239 of Cr. P.C. by the petitioners/ accused.
In the light of the arguments advanced by the counsel for the petitioners and in the light of the admitted facts and materials on record, it is beyond dispute that the petitioners and the first respondent/defacto complainant are not strangers. The petitioners have also admitted the transaction with the defacto complainant. It is also the case of the defacto complainant that, the petitioners had encashed the demand draft dated 27.2.2007 entrusted with them and also had produced the cheques bearing various dates for various amounts. The factum of encashment of demand draft is not disputed by the petitioners. According to the petitioners, the two cheques, dated 28.8.2007 respectively for the amounts of Rs. 2.5 lakhs and Rs. 9 lakhs, drawn by the first respondent which presented for encashment, were dishonoured. The version of the petitioners/accused is that the cheque which was given to them by the defacto complainant, was towards the discharge of the liabilities due to the petitioners connected with the transaction of purchase and transfer of the above mentioned Medical College. On the other hand, the case of the defacto complainant is that he was cheated and obtained several lakhs of rupees by the petitioners and they have committed the offence punishable under sections 420, 465, 471, 506(ii) r/w 34 of IPC It is relevant to note that the learned Magistrate after considering claim of the petitioners and the written objection and the evidence and materials on record found that, on a casual perusal of the complaint and other documents produced along with the final report would show the prima facie commission of offences punishable u/s 420, 465, 468, 471, 506(ii) r/w 34 of IPC. As rightly observed by the learned Magistrate, the question of discharge of the accused in warrant case instituted upon a police report arise only if the learned Magistrate considers that the charges against the accused are groundless. In the present case, the above referred materials and the facts and circumstances, according to me, justify the findings of the learned Magistrate and the decision to dismiss the petition for discharge. As I indicated earlier, the parties to the dispute are not strangers and there were frequent transactions between the parties, though their versions are different. These are all matters to be considered on the basis of the evidence to be adduced during the trial. Annexure VII agreement, referred to by the learned counsel for the petitioner and the fact that the demand draft was drawn on 27.2.2007 and that the same was encashed by the petitioners, are to be considered during the trial of the case on the basis of the further evidence yet to be adduced and to consider the contentions of the petitioners. As I indicated earlier, the subject matter of the entire dispute is with respect to the sale and transfer of the ownership of the said Medical College. Both the petitioners as well as the respondents are given divergent version regarding their role in the said transaction. Therefore, it is upto the court to decide which version is correct and whether the materials on record and the evidence yet to be adduced are sufficient to convict the accused during the time of the trial.
At this stage, as rightly pointed out by the learned Magistrate, the inquiry is to the effect that whether the materials are sufficient to proceed against the accused and at this stage, no inquiry is warranted as to whether the materials on record are sufficient to convict the accused. According to me, the facts and circumstances involved in the case, and the materials on record justify the findings of the learned Magistrate that there are materials to hold that charge is not groundless. According to me, considering the nature of the transaction connected with the offence alleged, particularly considering the version of the petitioners with respect to the transaction in question, I am of the view that, the materials produced are sufficient to presume that the petitioners/accused have committed the offences alleged against them and atleast the said materials and the alleged transaction are enough to create strong suspicion about the existence of facts constituting the offence as alleged above and therefore the learned Magistrate is justified in refusing the discharge as prayed for, especially in the light of the decision of the Honourable Apex Court reported in Sheoraj Singh Ahlawat and Others Vs. State of U.P. and Another, .
In the result, I find no reason to interfere with the order impugned in this revision petition and accordingly upholding the order of the learned Magistrate, this revision petition is dismissed.