The court highlighted the importance of pursuing discharge motions appropriately within the criminal procedure framework.

ORDER

Petitioner who has been charge sheeted by Pallickathodu Police for an offence punishable under Section 420 IPC has preferred this revision petition impugning the order passed by the court below rejecting his prayer for discharge under Section

239 of the Code of Criminal Procedure .

2. It is contended by the learned counsel that the court below ought to have noticed that no offence under Section 420 IPC had been made out from the materials available before the court. According to the petitioner, the defacto complainant had agreed to purchase a stage carriage bearing Reg.No.KL-7/F-4006 on the strength of a written agreement. The vehicle belonged to one K.Vasu from whom petitioner's brother in law Thankappan had purchased the same. Sri.Thankappan had handed over the vehicle to the petitioner and authorised him to sell it to the defacto complainant. Accordingly, the agreement mentioned above was executed. The defacto complainant had paid a total sum of Rs.70,000/- on two occasions agreeing to pay the balance within 1½ months. But later the defacto complainant returned the vehicle saying that he may not be in a position to fulfill his obligation. But dispute arose when the defacto complainant demanded return of the entire money. It was at that stage that the defacto complainant had filed a private complaint before the court below alleging the offence punishable under Section 379 . The learned Magistrate forwarded the complaint to the Police under Section 156(3) of the Code.

3. The Police, after investigation, charge sheeted the petitioner for the offence under Section 420 IPC . It is contended that no offence much less an offence under is attracted even assuming that there was any breach of contract as alleged by the defacto complainant. The remedy of the defacto complainant lay before the competent civil court. It is also pointed out by the learned counsel that the defacto complainant had in fact filed O.S.258/99 before the Munsiff Court, Kanjirappally for mandatory injunction against the petitioner, the registered owner, the financier and yet another. The suit was dismissed by the learned Munsiff in 2001.

4. Learned counsel has also invited my attention to the charge framed by the court below on the same day when the application for discharge was dismissed by the court.

5. I do not propose to deal with the contentions raised by the petitioner any further. In my view, the petitioner has to raise all his contentions before the court below at the appropriate stage. Section 245 (1) of the Code will still enable the petitioner to get an order of discharge. It is made clear that I have not considered the merit of any of the contentions raised by petitioner. The court below shall dispose of the case, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. If the petitioner makes a motion to exempt him from personal appearance, the said plea shall be appropriately considered by the learned Magistrate in accordance with law.

Criminal R.P. is disposed of in the above terms.

(A.K.BASHEER, JUDGE)

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