Research › Search › Judgment

Kerala High Court · body

2006 DIGILAW 426 (KER)

M. K. Baby v. Shan Finance (P) Ltd.

2006-07-17

R.BASANT

body2006
Judgment :- The revision petitioner has come to this Court aggrieved by the order passed by the Magistrate under Section 240 Cr.P.C framing charges against him under Sections 406,418 & 420 r/w 34 I.P.C. He prayed before the learned Magistrate that he may be discharged under Section 239 Cr.P.C. The request was turned down and charges were directed to be framed against the petitioner. 2. Allegations have been raised against the petitioner, the 2nd accused in a complaint filed by the de facto complainant/a financier, who had entered into a hire purchase agreement with the 1st accused. The petitioner is the 2nd accused. The petitioner was a guarantor in the said hire purchase agreement. The 1st accused who allegedly availed the loan and entered into the hire purchase agreement with the petitioner as a guarantor allegedly, contrary to the stipulations in the hire purchase agreement had sold the vehicle to another person without the consent and knowledge of the de facto complainant, the financier. Thereby it is alleged that the 1st accused has committed the offences punishable under Sections 406, 418 & 420 I.P.C. The 1st accused does not challenge the order before me and it is only the petitioner-the 2nd accused who has come before this Court. He faces allegations under Sections 406, 415 and 420 r/w 34 I.P.C. 3. On a perusal of the impugned order and after hearing the submissions of the learned counsel for the petitioner and the learned Public Prosecutor, opportunity was given to the learned Public Prosecutor to take instructions and place before the Court the specific circumstance on the basis of which charge is sought to be framed against the petitioner-the 2nd accused. The learned Public Prosecutor wanted time to take instructions from the Investigator. The Investigator was also directed to be present before the Court. 4. The learned Public Prosecutor points out only two circumstances which according to him, would justify the framing of charge against the petitioner. They are (1) that the petitioner had signed as a guarantor and had undertaken to ensure that the stipulations in the agreement are complied with and (2) even after the petitioner came to know of the alleged culpable conduct of the 1st accused, he had not raised his little finger to prevent the act of the 1st accused or to reverse its effect. 5. 5. I must state that the reasons urged are totally insufficient to come to a conclusion that the petitioner must face a charge for the offences alleged against him. At the stage of Section 239/240 Cr.P.C., the court has to consider whether the charges levelled against the petitioner are groundless or not. I extract Section 239 below: "Section 239-When accused shall be discharged- If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing." Section 240 follows Section 239 and it reads as follows: "Section 240-Framing of charge.- (1) If, upon such consideration examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried." (emphasis supplied) The crucial question to be considered is whether the charge raised is groundless. If it is not groundless and the person is not entitled to be discharged under Section 239 charges deserve to be framed under Section 240 Cr.P.C. Of course, the language of Sections 239 and 240 may create some confusion as to whether there is another category of cases in which the charge cannot be said to be groundless yet there is no sufficient material to presume that the accused has committed the offence. The law does not contemplate any such third category of cases which does not fall within either Sections 239 or 240 Cr.P.C. The requirement under Section 239 Cr.P.C. has often been loosely referred to as a prima facie case. But that cannot be said to be a careful or precise use of the language. Under Section 239 Cr. The law does not contemplate any such third category of cases which does not fall within either Sections 239 or 240 Cr.P.C. The requirement under Section 239 Cr.P.C. has often been loosely referred to as a prima facie case. But that cannot be said to be a careful or precise use of the language. Under Section 239 Cr. P.C., the charges must be groundless to justify discharge and if the charges are not groundless and do not justify a prayer for discharge, it will have to be presumed under Section 240 Cr.P.C. that the accused has committed the offences alleged in the charge. 6. It is also trite by now that at the stage of Section 239/240, a Court is not expected to resort to the exercise of weighing the materials available in golden scales. If allegations even if accepted in toto, do not reveal or constitute a charge and there is no possibility or probability of conviction being entered, any court worth its salt will have to hold that the charge is groundless and consequently that there are no grounds for presuming that the accused has committed any offence. Meticulous evaluation of the acceptability of the materials or consideration of the probable defences is not necessary, but it will have to be shown that the charges are of substance and that it can at least be presumed that the indictee has committed an offence. 7. Coming to the facts of the case, the only allegation is that the petitioner was a guarantor to a hire purchase agreement. The fact that a person is a guarantor can only mean that he had undertaken to make payments and keep the financier free from loss if the principal debtor were not to comply with the stipulations of the agreement. Merely because the principal debtor/obligant commits culpable indiscretions and crimes later on, the guarantor cannot be multed with the responsibility for all such culpable indiscretions or criminal conduct. In this view of the matter the mere fact that the petitioner is a guarantor cannot persuade the court to assume and presume that the principal offender, assuming that he has committed an offence, has committed the same in collusion with the petitioner/guarantor or that both of them had shared any common intention. 8. In this view of the matter the mere fact that the petitioner is a guarantor cannot persuade the court to assume and presume that the principal offender, assuming that he has committed an offence, has committed the same in collusion with the petitioner/guarantor or that both of them had shared any common intention. 8. The response of the guarantor on coming to know of the culpable indiscretion of the offender/principal debtor is too unsatisfactory an indication to assume or presume common intention for the guarantor to commit the offence along with the principal debtor. There is not a semblance of material pointed out to me which can just the framing of charges against the petitioner. The inevitable conclusion is that the framing of charges is not justified and the same deserves to be quashed/set aside. The allegations even if accepted in toto, do not at all reveal any culpable act committed by the petitioner. To borrow the language of Section 239 Cr.P.C., the charge is found to be groundless. Consequently, borrowing the language of Section 240 Cr.P.C., there is no ground to presume that the accused has committed any offence. The impugned order does in these circumstances, warrants interference. The challenge in this revision petition hence succeeds. 9. In the result, this revision petition is allowed. The impugned order is set aside. The petitioner is held entitled to and is consequently discharged under Section 239 Cr.P.C.