IMPORTANT POINT
The court upheld the framing of charges against the accused, emphasizing that only a prima facie opinion is required at this stage, without delving into the evidentiary details.

ORDER :

C.S. DIAS, J.

The revision petitioner is the accused in CC No.29 of 2023 on the file of the Special Additional Chief Judicial Magistrate (for the trial of criminal cases against sitting and former MPs/MLAs of the State), Ernakulam, registered against him, for allegedly committing the offences punishable under Secs 406,417 and 420 of the Indian Penal Code. The first respondent is the State and the second respondent is the de-facto complainant.

2. The revision petitioner is aggrieved by the order dated 20.3.2024 framing the charge against him for the above-mentioned offences.

3. The second respondent had filed the complaint, inter alia, contending that the revision petitioner had borrowed Rs.2/-crore from him in the year 2010, but only repaid Rs.25/-Lakh. Subsequently, the revision petitioner and the second respondent entered into an agreement on 19.11.2013, whereby the revision petitioner agreed to repay Rs.3.25/-crore to the second respondent in instalments. He issued post dated cheques towards the repayment. He also created a charge over his property having an extent of 40.15 Ares of land in Aymanam Village in favour of the second respondent. However, the cheques got dishonoured and the second respondent learnt the property was already offered as security in favour of the Kottayam Co-operative Agricultural and Rural Development Bank. Thus, the revision petitioner has cheated the second respondent and committed the offences under Secs.406, 417, 418, 420 and 423 of the Indian Penal Code.

4. The complaint was initially filed before the Judicial Magistrate of the First Class-VIII, Ernakulam. The learned Magistrate took cognizance of the offences under Secs.406, 417 and 420 of the Indian Penal Code and the case was numbered as CC No.118/2021. Subsequently, the case was made over to the Special Court because the revision petitioner is a sitting MLA of the Kerala Legislative Assembly. The complaint was renumbered as CC No.29/2023. At that juncture, the revision petitioner filed Crl.M.C No.2755/2021 before this Court to quash the complaint. Nonetheless, by order dated 17.3.2023, this Court dismissed the said application. Even though the revision petitioner challenged the order before the Hon’ble Supreme Court by filing SLP(Crl) No.5592/2021, the Special Leave Petition was also dismissed. Consequently, the petitioner appeared before the Special Court and got himself enlarged on bail. The Special Court posted the case for pre-charge evidence under Sec.244 of the Code of Criminal Procedure. The second respondent and his witness were examined and the parties were heard. Nevertheless, the court below, by a one line order, has framed the charge. The said order is illegal, irregular and improper. Hence, the revision petition.

5. Heard; Sri.Deepu Thankan, the learned counsel appearing for the revision petitioner, Sri.C.S Hrithwik, the learned Public Prosecutor and Sri.V Sethunath, the learned counsel appearing for the second respondent.

6. The learned counsel for the revision petitioner vehemently argued that the court below has not applied its mind before framing the impugned charge. A reading of the impugned order would establish that the learned Magistrate has not given any reason to arrive at a conclusion to frame the charge against the revision petitioner. The revision petitioner had raised several contentions at the time of hearing, but none of the contentions were adverted to in the impugned order. The revision petitioner may be granted an opportunity to file an application for discharge because he was not given such an opportunity. The impugned order is patently wrong, irregular and improper. Hence, the revision petition may be allowed.

7. The learned Public Prosecutor and the learned counsel for the second respondent stoutly resisted the revision petition. They submitted that there is no merit in the contentions raised by the revision petitioner. In fact, the revision petitioner had raised the very same grounds in Crl M.C No.2