The court emphasized the requirement to see a prima facie case for proceeding against the accused and highlighted the difference in language among the provisions of S.227, S.239, and S.245(1) of the Code of Criminal Procedure, 1973.

ORDER :

1. The petitioners are the first and the second accused in the case C.C.No.717/2011 pending in the Court of the Judicial First Class Magistrate-I, Thodupuzha.

2. The case is one instituted upon the complaint filed by the first respondent (hereinafter referred to also as ‘the complainant’). The offences alleged against the accused in the case are punishable under Ss.403, 409, 420, 468 and 120B I.P.C.

3. The petitioners shall be hereinafter referred to as the accused. The second accused is the daughter of the first accused. The first respondent, the complainant, is the brother of the first accused.

4. The complainant had executed a power of attorney in favour of the first accused authorising him to deal with his property. The first accused executed a sale deed in favour of the second accused in respect of the property owned by the complainant by using the power of attorney. The crux of the allegations in the complaint is that, in that sale deed, instead of affixing the thumb impression and the photograph of the complainant, the thumb impression and the photograph of another person were affixed and impersonation and forgery were committed. The other accused in the case are persons who had said to have assisted the petitioners in execution and registration of the sale deed in the above manner.

5. In the court below, the case had reached the stage of adducing evidence under S.244 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’). PW1 and PW2 were examined and Exts.P1 to P4 documents were marked on the side of the complainant.

6. The petitioners filed an application as Crl.M.P.No.7240/2015 before the trial court seeking discharge. As per the order dated 10.12.2015, the learned Magistrate dismissed the aforesaid application.

7. The first and the second accused have filed this Revision Petition challenging the legality and propriety of the aforesaid order passed by the learned Magistrate, dismissing the application filed by them for discharge.

8. Heard learned counsel for the petitioners and the first respondent and also the learned Public Prosecutor.

9. There are several grounds mentioned in the Revision Petition to challenge the legality and the propriety of the order passed by the learned Magistrate, dismissing the application for discharge filed by the petitioners. However, at the time of hearing, learned counsel for the petitioners has raised only one contention. Learned counsel has submitted that the first respondent had earlier filed a complaint against the petitioners in the Court of the Chief Judicial Magistrate, Thodupuzha and the complaint filed in the present case is on the same set of facts as contained in the previous complaint. Learned counsel for the petitioners has contended that a second complaint, on the same set of facts, is not maintainable in law. At the time of hearing of the revision petition, learned counsel for the petitioners has not raised any other factual or legal contentions.

10. It is well settled that there is no statutory bar in filing a second complaint on the same facts but it will be entertained only in exceptional circumstances. However, this principle is not attracted to the facts of the present case.

11. The allegation in the complaint in the present case is that, using the power of attorney executed in his favour by the complainant, the first accused executed a sale deed in the name of the second accused, who is his daughter, in respect of the property owned by the complainant. It is alleged that while executing and registering that document, instead of the photograph and the thumb impression of the complainant, the photograph and the thumb impression of another person were affixed in the sale deed.

12. However, admittedly, the allegation in the previous complaint filed by the first respondent in the Court of the Chief Judicial Magistrate is that, using the power of attorney executed by the complainant in his favour, the first accused executed a sale deed in favour of