OUSEPH Vs. AUGUSTHY

JUDGEMENT

(1.) The revision petition is filed by the accused in C. C. No. 372 of 1974 on the file of the Judicial Magistrate of the I Class, Palai. The first petitioner, the third petitioner and the counter petitioner are brothers. The first counter petitioner is the complainant in C. C. No. 372 of 1974. The allegation in the complaint is that the first petitioner personating as the complainant executed on 17-2-1973 a sale deed in respect of a property belonging to the latter, in favour of the Ramapuram Panchayat represented by the 4th counter petitioner and received consideration thereof. The transaction, according to the complainant, was the result of joint consultation and concerted action by the revision petitioners with a view to cause wrongful loss to him, and gain to the revision petitioners. The Magistrate as per the order dated 30th January, 1975, discharged the accused under S.245(2) of the Code of Criminal Procedure. A revision petition was filed before the Sessions Court, Kottayam. The Sessions Judge while setting aside the. order of discharge directed further enquiry into the case. It is this order that is being challenged in this revision petition

(2.) It has come out that after the alleged execution of the sale deed another brother of the complainant filed C. C. 131 of 1973 against revision Petitioners 1, 3 and 4 alleging offences punishable under S.319 read with S.34 I.P.C. Evidence was recorded. The Court, however, held that no prima facie case was made out. The accused were thereupon discharged under S.253(1) of the Code of Criminal Procedure then in force. The present complainant Ouseph Augusthy though cited as a witness was not examined in that case. Subsequent to the discharge of the accused, the present complainant filed a petition before the District Superintendent of Police making the identical allegations. A case, Crime No. 91 of 1973, was registered on the basis of the petition After investigation a refer report was filed before the First Class Magistrate's Court, Palai On notice being given to the complainant, he tiled a complaint which was registered as P. E. 4 of 1973. Before issue of notice. Crl. M.P. 1136 of 1973 was filed for calling upon the first petitioner to appear in court for taking specimen of his signature and thumb impression. Notice was issued to the first petitioner. Aggrieved by the procedure followed, he filed Crl. R. P. 39 of 1974 before this court. This court quashed the order issued against the first petitioner for appearing in Court The 1st Class Magistrate thereafter held an enquiry under S.202 of the Code of Criminal Procedure and directed the first counter petitioner to produce all evidence. The case stood posted to 4-10-1974. The first counter petitioner was not present in Court His advocate represented in Court that he bad no evidence to adduce The court dismissed the complaint under S.203 of the Crl. P.C. on 4-10-1974. Ft is thereafter that C. C. 372 of 1974 was filed by the first counter petitioner and it was disposed of by discharging the accused.

(3.) The contention put forward on behalf of the petitioner is that the discharge of the petitioners does not preclude the complainant from filing and prosecuting a fresh complaint. According to him. he omitted to adduce evidence in the case in P. E. 4 of 1975 mainly because the 4th petitioner herein, i.e the Executive Officer of the Panchayat had not been made an accused in the complaint as sanction to prosecute him had not been obtained at the relevant time. It was argued that the discharge did not preclude the complainant from filing the complaint again making the 4th petitioner also an accused in this case. There is no case, however, that sanction has been subsequently obtained for the prosecution. The stand taken by the first counter petitioner now is that no sanction is required.