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2011 Supreme(Mad) 812
`2011 (1) LW(Crl) 589, 2011 (2) MWN(Cr) 250
High Court of Judicature at Madras
G.M. AKBAR ALI
M. Joy Varghese & Others
Versus
The State rep by Station House Officer Coimbatore DCB Police Station & Another
CRL.O.P.No.23246 of 2009 & M.P.Nos.1 & 2 of 2010
Decided on : 15-02-2011
For the Petitioners:Manjeri S. Sunderraj, Advocates.
For the Respondents:R1 - Hassan Mohammed Jinnah, Addl. Public Prosecutor, R2 - Karthik for M/s T.S. Gopalan & Co, Advocates.
Headnote:A. INDIAN PENAL CODE, 1860 - SECTION 406 & 420 & CRIMINAL PROCEDURE CODE, 1973 - SECTION 239 - Charge of accused entering Into agreement as to property already hypothecated to a bank - Contention of accused that under Section 239, court Is bound to consider police report and documents and after hearing parties Magistrate to consider charges against accused - Question whether the court can look into the defence materials while framing of the charge - HELD on the ground of justice, equity and fairness and also on the touch stone of Article 21 of the Constitution of India, to avoid the harassment of the accused having to face the trial for years, avoid waste of valuable time of the Court, even at the early stage of framing of charge or taking cognizance, if the accused is in a position to produce unimpeachable material of sterling quality to show that there is no prospect of conviction, the courts can look into such defence materials.
B. EVIDENCE - HELD, there is no scope for the accused to produce any evidence at the stage of framing of charge. However, in a proceeding taken therefrom under Section 482 Cr. P.C the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charges as framed could be maintained.
C. CHARGE - HELD, it is well settled that at the time of framing of charge, the learned Magistrate cannot conduct a roving enquiry.
Result: Crl. O.P. Partly allowed.
1. By consent, the matter is taken up for final hearing. The petition is filed seeking a direction to set aside the order in R.C.No.8/2009 dated 27.4.2009 on the file of the learned Principal Sessions Court, Coimbatore confirming the order dated 20.9.2008 in C.M.P.No.1814/2008 in C.C.No.27/2008 by the learned Judicial Magistrate No.II, Pollachi.
2. The petitioners are the accused in C.C.No.27 of 2008 on the file of the learned Judicial Magistrate No.II, Pollachi on a complaint given by the 2nd respondent for alleged offence under Secs.406 and 420 IPC. The District Crime Branch, Coimbatore has registered the case in Cr.No.57 of 2007 and after investigation, they have filed charge sheet.
3. The sum and substance of the charge sheet is as follows:
The 1st petitioner was the Managing Director of one Premier Footwear Products Pvt Ltd and was having a factory at Pollachi. The 2nd petitioner is the son-in-law of the 1st petitioner, 3rd petitioner is the Manager and the other petitioners are the Directors of the Company.
4. The petitioners have conjointly conspired in order to cheat the complainant, entered into criminal conspiracy and agreed to sell the machinery and the factory to the defacto-complainant without disclosing the fact that the machinery were already hypothecated with Canara Bank, SSI, Branch, Calicut,Kerala, as per the hypothecation agreement dated 23.4.2002. In pursuant to the above said conspiracy, the petitioners entered into a sale agreement on 29.11.2006 with deceitful intention and received a sum of Rs.25 lakhs as advance. The defacto-complainant had also incurred a further expenditure of Rs.25 lakhs in meeting out the other liabilities of the factory. When the said Canara Bank, Calicut had initiated proceedings over the hypothecation, the defacto-complainant came to know about the design of the petitioners and therefore, he lodged a complaint. However, objecting to the taking cognizance of the offence, the petitioners have filed an application before the learned Judicial Magistrate No.II, Pollachi in CMP No.1814 of 2008 for discharge under Sec.239 of Cr.P.C.
5. The learned J.M.II, Pollachi considered the application and passed final order dismissing the application, against which, the petitioners have filed a revision before the learned Principal Sessions Court, Coimbatore in Crl.R.P.No.8/2009. The learned Additional District and Sessions Judge, Coimbatore considered the revision and dismissed the same. Aggrieved by which, the petitioners are before this Court under Sec.482 Cr.P.C.
6. The grounds urged before this Court questioning the cognizance taken by the learned Judicial Magistrate are that the defacto-complainant was aware of the fact that the machinery were under hypothecation to the bank and therefore, there is no deception at the initial stage to attract the ingredients of either Sec.415 or 420 IPC. The another point which is urged before this Court is that the courts below have adopted a stand that at the time of hearing of discharge, the court can consider only the police report and documents sent with it and it cannot look into the documents produced by the accused. According to the petitioners, the advance amount was paid towards the discharge of the dues to the bank and the entire dues to the bank has already been paid by the accused.
7. Manjeri. S. Sunderraj, learned counsel for the petitioners would submit that before taking cognizance of offence, the Courts below ought to have seen whether there are enough materials to frame charges against the accused and the Court cannot act as the mouth piece of the prosecution without any effective role in considering the matter. The learned counsel further submitted that the Courts below have misconstrued the guidelines laid down in the various decisions that the court cannot look into the defence materials and cannot conduct a roving enquiry while framing charges. The learned counsel submitted that the petitioners have produced reliable materials w
