Accused 3 to 5 in C.C.No.660/2008 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram have challenged the common order passed in CMP.Nos.728/2012, 729/2012 and 727/2012 dismissing the application filed for discharge by filing this revision. 2. The case of the prosecution in nutshell was that accused 1 to 4 are the Directors of the Company by name M/s.Jay Info Systems Pvt. Ltd. The 5th accused is the General Manager and 6th accused is the authorised signatory of the Company and they have induced the defacto complainant and others to part with huge amounts on the promise of providing employment in their concern and provided employment for some period and paid salary, but thereafter they did not pay any salary or return the amount obtained and thereby all of them have committed the offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code.
3. The case was originated on the basis of a private complaint filed by the defacto complainant against six accused persons making the above allegations and the case was forwarded to the police for investigation by the learned Magistrate under Section 156(3) of the Code of Criminal Procedure and a crime was originally registered by the Medical College Police, Thiruvananthapuram as Crime No.68/2003 and thereafter the case was taken over by the Crime Branch CBCID, SIG-1, Thiruvannathapuram, where it was re registered as CBCID Crime 82/CR/SI/03 and after investigation, final report was filed and the case was taken on file as C.C.No.660/2008 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. The petitioners were arrayed as accused 3 to 5. They filed a petition before this Court for quashing the proceedings as Crl.M.C.No.3759/2009, which was dismissed by this Court by a common order along with Crl.M.C.Nos.3758/2009 and 3760/2009 leaving open the right of the petitioners to move for discharge under Section 239 of the Code. Accordingly, the petitioners filed CMP.Nos.728/2012, 729/2012 and 727/2012 respectively for that purpose and the learned Additional Chief Judicial Magistrate by the impugned common order dismissed the petitions, which is being challenged by the revision petitioners by filing this revision.
4. Heard the counsel for the revision petitioners and the Public Public Prosecutor.
5. The counsel for the revision petitioners submitted that there is nothing on record to show that the present petitioners are the Directors of the Company. No evidence was collected to prove their connection with the Company of which accused 1 and 2 are the Directors. Even in the complaint or in the statement given by the witnesses, nothing was mentioned about their involvement in the commission of the crime. So there is no material collected against them either to prove their direct involvement in making inducement and collecting the amount as the Directors and no evidence has been collected to connect them with the day to day affairs of the concern as well. Even assuming that the entire case of the prosecution is admitted that they were present in the office along with accused 1 and 2, that alone is sufficient to attract the offence against them. So, the lower court was not justified in dismissing the applications.
6. On the other hand, the Public Prosecutor submitted that it is a matter for evidence to be considered and some of the witnesses have deposed that at the time when the amount was paid, these persons were present in the office.
7. It is an admitted fact that the first accused was conducting the concern by name M/s.Jay Info System registered under the Companies Act and he was acting as the Managing Director of that concern. It is also seen from the materials collected by the investigating agency that on the basis of some advertisement made by the first accused, applications are called for, for providing employment in the above said Company and interviews were conducted and first accused had received amounts from several persons including the defacto complainant and provided some employment to them. But salary was not paid after some time and that prompted the complainant to file the complaint before criminal court. It is also seen from the documents collected that accused 1 and 2 alone are the Directors of the Company. Admittedly, accused 3 and 4 are the daughters of accused 1 and 2 and 5th accused is the husband of the third accused. The allegations in the complaint was that accused 3 and 4 are also the Directors of the Company and 5th accused is the General Manager of the Company. But the investigating agency could not collect any material to establish this fact. Further, even going by the allegations in the statement given by some witnesses, they have only stated that the present petitioners were also present at the time when they paid the amount to the first accused. It may be mentioned here that unless there is evidence to show that all these persons shared the common intention as either Directors of the Company or employees of the Company or otherwise induced any of the parties to part with the amount, it cannot be said that they have committed the offence punishable under Sections 406 or 420 of the Indian Penal Code sharing the common intention of the other accused persons. Mere presence of these persons in the concern of their father and father-in-law alone is not sufficient to infer that they have got any involvement in the commission of the crime. Some of the witnesses who have been questioned only stated that at the time when they entrusted the money to the first accused, these petitioners were also present there. So mere presence of the accused without any involvement in the transaction is not sufficient to attract the ingredients of the offence alleged as against them. So under the circumstances even assuming that the entire prosecution case is admitted in the absence of any materials collected by the investigating agency to connect these persons in the day to day administration of the Company or their involvement in inducing the persons, who alleged to have been cheated by the Company, it cannot be said that they shared the common intention of other accused persons and committed the offence. No such material has been collected by the investigating officer so as to rope in the present petitioners for the offences said to have been committed by the first accused as Managing Director of the Company. So, under the circumstances, the court below was not justified in dismissing the application for discharge. Since even the entire allegation of the prosecution on the basis of the material produced is accepted, there is nothing to show that these persons have any connection with the day to day administration of the Company or they have participated in the inducement and collection of the amount from any of the witnesses questioned or persons said to have been cheated so as to attract the offences punishable under Sections 406 or 420 of the Indian Penal Code as against the petitioners. No material has been collected by the investigating officer to prove that the amount so collected has been transferred to the accounts of any of these petitioners as well. The material collected was that amount was transferred to the joint account maintained by accused 1 and 2 and not with any of the accounts of the present petitioners. So under the circumstances, it cannot be said that the materials collected are sufficient to form a prima facie opinion to frame charge against the present petitioners for the offences under Sections 420 or 406 read with Section 34 of the Indian Penal Code and they are entitled to get discharge. Proceeding with the case as against the revision petitioners will only amount to an abuse of process of court. So, the petitioners are entitled to get the benefit of discharge and they are discharged. So the revision petition is allowed and the order of the lower court dismissing CMP.Nos.728/2012,729/2012 and 727/2012 in C.C.No.660/2008 are set aside and the petitions are allowed and the revision petitioners, who are accused 3 to 5 are stand discharged. Considering the fact that the case is of the year 2008, the court below is directed to expedite the disposal of the case.
Office is directed to communicate this order to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE cl /true copy/ P.S to Judge