Kerala High Court
Saleem Naduthodi vs State Of Kerala on 8 April, 2025
Author: K.Babu
Bench: K. Babu
2025:KER:29866
Crl.R.P No.725 of 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
CRL.REV.PET NO. 725 OF 2023
AGAINST THE ORDER DATED 10.05.2023 IN RC NO.18 OF 2022 OF
CHIEF JUDICIAL MAGISTRATE COURT,MANJERI
REVISION PETITIONER:
SALEEM NADUTHODI,
AGED 60 YEARS,
S/O LATE AHAMMEDKUTTY,
NADUTHODI HOUSE,
PANAKKAD AMSOM, DESOM,
PATTARKKADAVU,
ERANAD TALUK,
MALAPPURAM DISTRICT,
PIN - 676122
BY ADVS.
MARTIN JOSE P
THOMAS P.KURUVILLA(K/420-B/2005)
M.A.MOHAMMED SIRAJ(K/1227/1999)
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM,
PIN - 682531
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Crl.R.P No.725 of 2023
2
2 P.V.ANVAR, 55 YEARS OF AGE,
S/O SHOWKATHALI HAJI (LATE),
PUTHENVEETTIL HOUSE,
ERANAD TALUK, PERAKAMANNA AMSOM,
OTHAI DESOM, ERANAD TALUK,
MALAPPURAM DISTRICT -676 122.
BY ADVS.
FIROZ K.M.
M.SHAJNA(K/1017/2006)
SRI.G.SUDHEER, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 08.04.2025, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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Crl.R.P No.725 of 2023
3
K.BABU, J.
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Crl.R.P No.725 of 2023
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Dated this the 8th day of April, 2025
ORDER
The order of a learned Magistrate accepting a report by the
Investigating agency under Section 173(2) Cr.PC and dropping the
proceedings is under challenge at the instance of the defacto
complainant.
2. The facts leading to the Criminal Revision Petition are as
follows:
2.1. The revision petitioner, a Non-Resident Indian working in
Abu Dhabi, on 17.02.2012, entered into an agreement with
respondent No.2, whereby the former invested a sum of Rs.50
Lakhs in an industrial unit named "K.E Stone Crusher" in the
Karnataka State. In 2011, the parties started negotiations. The
revision petitioner handed over Rs.40 Lakhs on 30.12.2011 to
respondent No.2 at his office at Manjeri. In February, 2012, the
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revision petitioner paid the balance amount of Rs.10 Lakhs and the
agreement referred to above was executed between them.
2.2. On 22.11.2017, the revision petitioner filed a complaint
before the Sub Inspector of Police, Manjeri Police Station, alleging
an offence punishable under Section 420 of the IPC against
respondent No.2. In the complaint, the revision petitioner alleged
that respondent No.2 deceived the revision petitioner after
dishonestly inducing him to invest in the business agreeing to
share profits, but failed to share any profit as promised. The Police
did not register an FIR based on the complaint dated 22.11.2017 filed
by the revision petitioner. After that, the revision petitioner filed
CMP No. 3391/2017 before the Chief Judicial Magistrate Court,
Manjeri on 20.12.2017. The learned Chief Judicial Magistrate
forwarded the complaint to the Police under Section 156(3) Cr.PC.
The Police registered FIR No.588/2017 of Manjeri Police Station.
2.3. The revision petitioner approached this Court filing
W.P(C) No.11213/2018, seeking to hand over the investigation to a
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different agency. This Court allowed the writ petition with a
direction to entrust the investigation to the Economic Offence Wing
of the CBCID. The revision petitioner filed Crl.MP No.909/2021
before the Chief Judicial Magistrate Court, Manjeri, seeking
monitoring of the Court in the investigation. In the petition, the
learned Chief Judicial Magistrate directed the Investigating Agency
to expedite the investigation. The learned Magistrate, however,
observed that the investigation was proceeding in the right
direction. The Court directed the Investigating Agency to file
reports regarding the progress of the investigation once in a
fortnight as per the order dated 11.08.2021.
2.4. The Investigating Officer filed various reports showing
the progress of the investigation. One of such report is Anx.I,
wherein the Investigating Officer reported that as the revision
petitioner specifically alleged that in the partnership agreement
dated 17.02.2012 entered into between the revision petitioner and
respondent No.2, the latter had misrepresented that he was the
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owner of the land where the crusher unit was functioning, there
was prima facie an element of cheating. However, the Investigating
Officer sought time to verify the genuineness of the allegation.
2.5. The Investigating agency, on 28.12.2020, submitted a final
report under the caption "refer charge" on the ground that the
dispute was purely of civil nature. The revision petitioner filed CMP
No.909/2021, raising objections to the final report (refer report)
submitted by the Investigating agency. The learned Chief Judicial
Magistrate, as per order dated 15.02.2022, returned the report to the
Investigating agency under Section 156(3) Cr.PC for further
investigation based on the relevant documents, including the
partnership agreement and the licence in the name of respondent
No.2.
2.6. The Investigating Officer conducted further investigation
and submitted a 'refer report' based on the conclusion that the
ingredients of the alleged offence have not been revealed. The
relevant portion of the report submitted by the Investigating Officer
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reads thus:
"The accused purchased a crusher at Maldot, Karaya
Village, Balthangadi Taluk, Dakshina Kannada District,
Karnataka State, from K Ibrahim S/o Abdullah, K.K. Pak
(H), Cherkala, Kasaragod as per the agreement dated
02.11.2011. While operating with other partners, who are
witnesses, on 17.02.2012, he entered into a joint venture
agreement with the complainant. At that time, the
business was running smoothly in terms of profit, and all
the partners received a profit share. Later, the partners,
including the complainant, could not receive any profit
share, as the business was at a loss, and no element of
cheating on the part of the complainant is elucidated in
this case. However, the fact is that the complainant had
paid Rs. 50 lakhs to the accused to become a partner in
the business, and the accused received the same. But,
the acts alleged do not reveal that the accused has
committed any offence. The complainant can take civil
action as per the law for realising the loss he suffered.
For the above reasons, I request that, considering this
case as civil in nature, an order accepting the final report
(173 Cr.PC) be passed."
2.7. The revision petitioner submitted an objection to the refer
report. The learned Chief Judicial Magistrate considered the
objection. After hearing both sides, the learned Magistrate held
that on a perusal of the report submitted by the Investigating
agency, there is nothing to disbelieve. With this conclusion, the
learned Magistrate accepted the refer charge. The learned
Magistrate also observed that the remedy of the revision
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petitioner/complainant is not exhausted forever as he can file a
private complaint in accordance with law.
3. I have heard the learned Senior Counsel for the petitioner,
the learned counsel for respondent No.2 and the learned Public
Prosecutor.
4. The learned Senior Counsel for the petitioner submitted
that the impugned order is not supported by reasons. The learned
Senior Counsel submitted that while deciding an issue, the Court is
bound to give reasons for its conclusion. It is submitted that the
hallmark of an order and exercise of judicial power by a judicial
forum is to disclose its reasons by itself. The learned Senior
Counsel further submitted that as the order is amenable to further
challenge before the higher forums, the impugned order is liable to
be set aside. The learned Senior Counsel relied on Victoria
Memorial Hall v. Howrah Ganatantrik Nagrik Samity [2010 (3) SCC
732] and State of Rajasthan v. Sohan Lal [2004 (5) SCC 573] to
support his contentions.
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5. The learned counsel for respondent No.2 submitted that at
the stage of considering a refer report under Section 173 Cr.PC, the
Court is not expected to pass a detailed order. The learned counsel
submitted that what is expected of the Court is that it had applied
its mind to the report submitted by the Investigating agency to
decide whether it is to be accepted. The learned counsel submitted
that the crux of the allegations levelled by the revision petitioner
was that in the partnership agreement, respondent No.2 made a
misrepresentation regarding the ownership of the land on which
the crusher unit was functioning, which was found to be untrue by
the Investigating agency. The learned counsel relied on Anx.A
agreement to substantiate this aspect. The learned counsel
submitted that no prejudice is caused to the revision petitioner by
accepting the refer report as he has further options to redress his
grievances, if any, by resorting to the provisions of law. The
learned counsel relied on Dharampal Satyapal Ltd. v. CCE [(2015) 8
SCC 519], Union of India v. Alok Kumar [(2010) 5 SCC 349], Subrata
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Choudhury v. State of Assam (2024 SCC OnLine SC 3126) and
Parameswaran Nair v. Surendran and Another [2009 (1) KHC 801] to
buttress his arguments.
6. The relevant portion of the impugned order reads thus:
"5. It is not doubt true that alleged transaction
was took place in the year 2012. The complaint filed in
the year 2017. Thereafter, two agencies took over the
investigation. Both of them had filed report. On going
through the report, there is no scintilla of element to
disbelieve the reports of CBCID, Economic Wing. So, the
refer charge is to be accepted in the interest of justice.
Before parting with this matter, it in apposite make a
mention that the remedy of the complaint is not
exhausted forever. The complaint can file private
complaint before the Court of Law and proceed with the
matter under the relevant provisions of Cr.PC. (sic)"
7. The conclusion of the Investigating Officer is that the
revision petitioner and respondent No.2 conducted a partnership
business based on the agreement dated 17.02.2012. Till they fell
apart, the parties had shared the profits from the business. Later,
the business culminated in loss. The conclusion of the Investigating
Officer, therefore, was that respondent No.2 had not committed the
offence of cheating as alleged. The Investigating Officer came to
the conclusion that the dispute was essentially of civil nature.
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8. Based on the complaint of the revision petitioner, Sub
Inspector of Police, Manjeri Police Station registered FIR
No.588/2017 alleging offence under Section 420 IPC. The initial
investigation was conducted by the Manjeri Police. In 2018, on the
application of the revision petitioner, this Court ordered the
transfer of the investigation to the Economic Offence Wing of the
CBCID. The CBCID registered Crime No.346/CB/MPM/2018. The
Dy.SP, Crime Branch, Malappuram submitted the final report on
28.12.2020, concluding that the ingredients of the offence under
Section 420 have not been revealed and the dispute was essentially
of civil nature.
9. The Chief Judicial Magistrate returned the report to the
Investigating agency for further investigation with a specific
direction to consider the agreement entered into between the
parties and the related documents. On 17.03.2022, the Dy.SP, Crime
Branch, Malappuram submitted the final report under Section 173(2)
Cr.PC with the finding that the ingredients of the offence have not
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been revealed.
10. When the report forwarded by the officer-in-charge of a
police station to the Magistrate under sub-section (2) of Section 173
comes up for consideration by the Magistrate, one of two different
situations may arise. The report may conclude that an offence
appears to have been committed by a particular person or persons,
and in such a case, the Magistrate may do one of three things: (1) he
may accept the report and take cognizance of the offence and issue
process or (2) he may disagree with the report and drop the
proceeding or (3) he may direct further investigation under sub-
section (3) of Section 156 and require the police to make a further
report. The report may, on the other hand state that, in the opinion
of the police, no offence appears to have been committed, and
where such a report has been made, the Magistrate again has the
option to adopt one of three courses: (1) he may accept the report
and drop the proceeding or (2) he may disagree with the report and
taking the view that there is sufficient ground for proceeding
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further, take cognizance of the offence and issue process or (3) he
may direct further investigation to be made by the police under
sub-section (3) of Section 156 {Vide: Bhagwant Singh v. Commr. of
Police [(1985) 2 SCC 537]}.
11. If the Magistrate accepts the report and drops the
proceedings after granting opportunity to the complainant, the
complainant can thereafter file a second complaint, and the same
will lie if there was a manifest error or manifest miscarriage of
justice in the previous order or there is any exceptional
circumstances like new facts which the complainant had no
knowledge of or with due diligence could not have brought forward
in the previous proceedings.
12. The learned counsel for respondent No.2 submitted that
the petitioner is entitled to file a second complaint if he can
convince that there is a manifest error or manifest miscarriage of
justice in the impugned order or if there are any new facts the
complainant could bring forward. Relying on Dharampal (supra),
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the learned counsel submitted that the ultimate test of the validity
of the order is the test of prejudice. The learned counsel submitted
that in the impugned order, the learned Magistrate highlighted that
the petitioner has the right to file a second complaint in accordance
with law. On a perusal of the impugned order, it cannot be
concluded that the learned Magistrate did not apply his mind in the
final report submitted by the Investigating agency. The Court below
has concluded that there are no elements to disbelieve the report
submitted by the Investigating agency.
13. Unless the order passed by the Magistrate is perverse, or
the view taken by the court is wholly unreasonable, or there is a
palpable misreading of records, the Revisional Court is not justified
in setting aside the order merely because another view is possible.
The whole purpose of the revisional jurisdiction is to preserve the
power in the court to do justice in accordance with the principles of
criminal jurisprudence. The revisional power of the court under
Sections 397 to 401 Cr.P.C is not to be equated with that of an
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appeal. Unless the finding of the court, whose decision is sought to
be revised, is shown to be perverse or untenable in law or is
grossly erroneous or glaringly unreasonable or where the judicial
discretion is exercised arbitrarily or capriciously, the courts may
not interfere with the decision in exercise of their revisional
jurisdiction.
14. Therefore, the findings of the Court below require no
interference in revisional jurisdiction. The petitioner is at liberty to
proceed in accordance with law, if he has any subsisting
grievances.
The Criminal Revision Petition stands disposed of.
Sd/-
K.BABU,
JUDGE
KAS
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APPENDIX OF CRL.REV.PET 725/2023
PETITIONER ANNEXURES
Annexure A A TRUE COPY OF THE AGREEMENT DTD 17-02-
2012 ENTERED INTO BETWEEN THE
PETITIONER AND THE 2ND RESPONDENT
Annexure B A COPY OF THE PETITION SUBMITTED BY THE
PETITIONER TO SRI. KODIYERI
BALAKRISHNAN, THE THEN STATE SECRETARY,
CPI (M) DTD 05-09-17
Annexure C A COPY OF THE COMPLAINT FILED BEFORE
THE 2ND RESPONDENT DTD 22-11-2017
Annexure D A COPY OF THE C M P NO 3391/17 BEFORE
THE CJM COURT, MANJERY DTD 20-12-17
Annexure E A COPY OF THE FIR IN CRIME NO. 588/17
OF MANJERI POLICE STATION DTD 21-12-17
Annexure F A TRUE COPY OF THE JUDGMENT IN WP(C)
NO. 11213/2018 DTD 13-11-2018
Annexure G A TRUE COPY OF THE ORDER IN RP NO.
1001/2018 DTD 05-12-2018
Annexure H A TRUE COPY OF THE ORDER DTD 11-08-2021
OF THE CJM
Annexure I A TRUE COPY OF THE INTERIM REPORT DTD
30-09-2021 SUBMITTED BY THE
INVESTIGATING OFFICER BEFORE THE CJM
COURT. MANJERI
Annexure J A TRUE COPY OF THE ORDER DTD 15-02-2022
PASSED BY THE CJM
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Annexure K A TRUE COPY OF THE REPORT SUBMITTED BY
THE INVESTIGATING OFFICER BEFORE THE
CJM, DTD 17-03-2022
Annexure L A TRUE COPY OF THE OBJECTION FILED BY
THE PETITIONER BEFORE THE CJM DTD 10-
05-2022
Annexure M A CERTIFIED COPY OF THE ORDER IN RC NO.
18/2022 OF THE FILES OF THE COURT OF
THE CHIEF JUDICIAL MAGISTRATE, MANJERI
DTD 10-05-2023
