The Kerala High Court while allowing the petition said that a speaking order would have to be passed by the Court which considers and rejects an application for discharge under Section 239 of CrPC.
A Single Bench of Justice Justice N Nagaresh passed this order while hearing a petition filed by Nimmy Mathew.
The petitioner, who is the 1st accused in case pending trial on the files of the Chief Judicial Magistrate’s Court, Alappuzha, is aggrieved by the order dated 25.08.2023.
The Station House Officer, Alappuzha registered Crime against the petitioner for offences punishable under Sections 201, 406, 420, 468 and 471 read with Section 34 IPC.
The prosecution alleged that the revision petitioner was the cashier of Kavitha ITC from 21.04.2014 to 03.03.2016. The 2nd accused is the petitioner’s husband who was working as Office Assistant in the Company. Both the husband and wife together, in furtherance of their common intention to cheat the Company, misappropriated an amount of ₹37,02,753/- and destroyed the receipt books for the relevant period.
They have also made alterations and corrections in the cash book. On these premises, the petitioner and her husband were alleged to have committed offences punishable under Sections 201, 406, 420, 468 and 471 read with Section 34 IPC.
On receipt of a report from the Police, the petitioner filed an application under Section 239 of the Code of Criminal Procedure seeking discharge. The Chief Judicial Magistrate considering the application of the petitioner passed the order dated 25.08.2023 rejecting the application for discharge.
The counsel for the petitioner would submit that the impugned order dated 25.08.2023 of the Chief Judicial Magistrate is devoid of any reason.
The counsel for the petitioner further submitted that even though marshalling of evidence is not contemplated at the stage of Section 239 of the Code of Criminal procedure, the order of the Chief Judicial Magistrate should disclose the availability of prima facie materials to constitute the offence alleged by the prosecution. The impugned order does not disclose any such material. The impugned order is therefore liable to be set aside.
The Public Prosecutor entered and resisted the revision petition. The Public Prosecutor submitted that this is a case where a husband and wife have cheated their own employer. The wife was working as Cashier and her husband was acting as an Office Assistant. Both of them swindled lakhs of rupees. It is on the basis of a complaint received from the employer that the proceedings were initiated.
The report submitted by the police after a proper investigation would disclose prima facie material pointing towards the guilt of the petitioner. A mini trial is not warranted at the stage of discharge petition. The order of the Chief Judicial Magistrate is not liable to be interfered with on all or any of the grounds urged by the revision petitioner, argued the Public Prosecutor.
The Court noted that,
The specific allegation is that the petitioner along with the 2nd accused, who is her husband, were working in a private Company, swindling huge amounts of money. The police have investigated the matter and submitted a report.
When the petitioner urged before the Chief Judicial Magistrate that the complaint and the police report do not disclose any offence and that the petitioner is entitled to discharge, the Chief Judicial Magistrate has disposed of the Section 239 application as per order dated 25.08.2023.
“The Apex Court has held in the judgment in Ghulam Hassan Beigh (supra) that the material which is required to be evaluated by the court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Considering the case on hand in the background of the judgment of the Apex Court, I am of the view that the impugned order does not disclose reasons for rejection. In view of the above, the order dated 25.08.2023 is liable to be set aside”, the Court observed while allowing the petition.
“The order dated 25.08.2023 in case of the Court of the Chief Judicial Magistrate, Alappuzha is therefore set aside. The Chief Judicial Magistrate, Alappuzha is directed to reconsider the application submitted by the petitioner and pass a speaking order thereon. This shall be done within a period of one month. It is made clear that I have not pronounced anything on the merit of the eligibility of the petitioner for discharge”, the Court ordered.