THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CRL.R.C.No.2172 OF 2018
JUDGMENT:
This criminal revision case is filed by the petitioner-A-3 to set aside the order dated 20.07.2018 in Crl.M.P.No.835 of 2018 in C.C.No.678 of 2018, on the file of the XV Additional Judge-cum-XIX Additional Chief Metropolitan Magistrate, Secunderabad, wherein the said petition filed by the petitioner- A-3 under Section 239 Cr.P.C., seeking discharge, was dismissed.
2. Heard learned counsel for the petitioner-A-3 and learned Assistant Public Prosecutor for the respondent-State.
3. Petitioner-A-3 along with two others (A-1 & A-2) is facing prosecution for the offences punishable under Sections 420 and 468 IPC. The prosecution case is that A-1 to A-3 are friends. The de facto complainant and her husband are relatives of A-2 and he requested them to join the chit being run by A-1 and A-2, and A-3 mediated for the same. A-2 in connivance with A-1 and A-3 in order to cheat the de facto complainant and her husband obtained a cheque bearing 2 No.008873 dated 18.11.2012 for an amount of Rs.25,000/-. A-1 misused the cheque and inserted digit '9' before Rs.25,000/- and written in favour of Sri Ch.Laxminarayana for realization with an intention to cheat the de facto complainant and her husband by committing forgery in order to get wrongful gain. The said Ch.Laxminarayana presented the cheque unknowingly that it is a forged cheque. Based on the complaint of the de facto complainant, the police registered a case in Cr.No.67 of 2013 and took up investigation. After due investigation, the police filed charge sheet against A-1 to A-3 and the same was taken cognizance by the learned Magistrate for the offences under Sections 448 and 506 IPC in C.C.No.678 of 2018.
4. The petitioner-A-3 filed a petition before the learned Magistrate to discharge him from the alleged offences on the ground that there is no prima facie material to frame charges against him; that there are no proper allegations to connect him with any of the alleged offences and he is not concerned with the alleged chit transactions and basing on the confession of co-accused, he has been falsely implicated in the case. 3 The prosecution filed counter in the petition filed by A-3 stating that the de facto complainant and her husband joined the chit maintained by A-1 and A-2 through the mediation of petitioner- A-3 and the investigation revealed his involvement in commission of the alleged offence; that the petitioner had earlier approached this court by filing quash petition and the same was dismissed; and that there is sufficient material to prima facie frame charges against petitioner-A-3 and the prosecution prayed to dismiss the petition.
5. After hearing both the learned counsel and upon perusing the material on record, the trial court dismissed the application stating that the material on record discloses prima facie case against the petitioner-A-3 and there are no reasonable grounds to allow the application. Aggrieved thereby, the present revision is filed by petitioner-A-3.
6. Learned counsel for the petitioner submits that there is no prima facie sufficient material to frame charges against the petitioner-A-3 and he has been implicated false in the case basing on the confession of A-1 and A-2 and the petitioner is no way 4 concerned with the alleged transaction of forging the cheque and he is also not connected with the alleged cheating. The learned counsel, therefore, prayed to allow the revision.
7. Learned Assistant Public Prosecutor submits to decide the revision on merits.
8. Thus, after hearing the submissions of the both the learned counsel and after perusing the material on record, the question that arises for consideration is - whether the impugned order is liable to be set aside and the petitioner is entitled to be discharged from the offences under Sections 420 and 468 IPC?
9. The material on record would discloses that the de facto complainant and her husband joined the chit being run by A-1 an A-2 for which A-3 mediated for the same. The husband of the de facto complainant handed over cheque dated 18.11.2012 for Rs.25,000/- to A-2 towards payment of instalment of the chit. Later, A-2 and A-3 in connivance with A-1 and petitioner-A-3 misused the cheque by prefixing the digit '9' before Rs.25,000/- and made it as Rs.9,25,000/- and wrote the name of 5 Sri Ch.Laxminarayana and also the words column of amount on the cheque. The said cheque was presented and on knowing the same, the banker of de facto complainant informed her and the same was returned dishonoured. In the statements of the de facto complainant and her husband, no where the name of the petitioner- A-3 is mentioned about his role in the alleged transactions. It is only basing on the confession of A-2, the name of A-3 was included in the charge sheet. Interestingly, the confessional statement is contrary to the oral statements of the de facto complainant and her husband. In the statement recorded under Section 161 Cr.P.C., they have stated that A-1 and A-2 colluded with Ch.Laxminarayana and forged the cheque for Rs.9,25,000/- and misused the same for illegal gain and thereby cheated them by using the cheque. Whereas the allegations in the charge sheet disclose that nothing is mainly alleged against the petitioner-A-3 and it is specifically mentioned that Ch.Laxminarayana, who is cited as A-2 in the F.I.R, had presented the same in the bank for realization unaware of the forgery made by A-1 to A-3 and on his request, the name was deleted at the time of filing of charge sheet. 6
10. On considering the entire material on record, there are no allegations against petitoner-A-3 that with any fraudulent or dishonest intention, he induced the de facto complainant or her husband to deliver any property and the essential ingredients of Section 419 IPC are missing from the contents of the charge sheet and other material on record. It appears that only on the confession made by A-2, the name of petitoner-A-3 was included as accused in the alleged offence, without there being any sufficient material to constitute the alleged offences. On a consideration of the allegations in the charge sheet, the record of the case and the documents submitted thereto, it appears that there are no grounds for presuming that the accused had committed the alleged offences and there is no sufficient material to frame the charges and to proceed against the petitioner-A-3.
11. For the foregoing reasons, I am of the opinion that the court below erred in not considering the entire material on record before proceeding to frame the alleged charge against the petitioner-A-3 without there being any sufficient material and the ingredients of the offence did not exist so as to proceed against A-3 for framing 7 the alleged charges under Sections 420 and 468 IPC. Since the trial court has committed palpable error and to prevent the abuse of process of the court, the impugned order is liable to be set aside and the petitioner is rightly entitled to be discharged under Section 239 Cr.P.C., for the offences alleged.
12. In the result, the criminal revision case is allowed. The order dated 20.07.2017 in Crl.M.P.No.835 of 2018 in C.C.No.678 of 2018, on the file of the XV Additional Judge-cum- XIX Additional Chief Metropolitan Magistrate, Secunderabad, is hereby set aside.
13. Pending miscellaneous petitions, if any, stand closed.
_______________________ A.SANTHOSH REDDY, J 19.09.2022 Lrkm