BY AD v. P.THOMAS GEEVERGHESE

O R D E R This revision is at the instance of the sole accused in C.C.No.141 of 2019 on the file of Judicial First Class Magistrate Court, Kakkanad (Temporary) impugning Annexure-K order in CMP No.2784 of 2022 dated

29.05.2023 by which, his discharge petition was dismissed.

2. The petitioner/accused filed CMP No.2784 of 2022 under Section 245 of the Code of Criminal Procedure to discharge him from the offence alleged under Section 409 of the Indian Penal Code.

3. The allegation of the complainant was that, there was a partition suit pending between the complainant and her mother and brother. The petitioner/accused had purchased some property of her relatives, and later he became a regular visitor in her house. He obtained a general power of attorney from the complainant, by promising to look after her interests in the pending civil suit. But he misused that power of attorney, and transferred the property covered by the civil suit into the name of his relatives, Crl.R.P.No.1158 of 2023 3 without the knowledge and consent of the defacto complainant. He forged her signature in various documents and blank papers, which were subsequently used by him for filing a compromise in the civil suit, against her interest. Various amounts, due to her as per decree in the civil suit, were also appropriated by him, and thus, he committed criminal breach of trust.

4. Learned counsel for the petitioner would contend that, in S.C.No.964 of 2016 of Additional District and Sessions Court, Ernakulam, all these allegations including forgery and criminal breach of trust were raised by the complainant, but, at last, he was found not guilty, and was acquitted under Section 235(1) of Cr.P.C. So, according to him, a subsequent private complaint based on the same set of facts, without getting sanction from the State Government is not maintainable and so, he was liable to be discharged.

5. In the impugned order dated 29.05.2023, learned Magistrate has found that, the petitioner/accused misusing the power of attorney executed by the complainant Crl.R.P.No.1158 of 2023 4 transferred her property into the name of his wife and children, committing breach of trust in violation of the assurance that he would help her in conducting her civil cases protecting her interest in a proper manner. Moreover the compromise petition also was filed against her interest.

6. In S.C.No.964 of 2016, the point considered was whether the petitioner/accused had raped PW1. That point was found in his favour, and he was acquitted on

16.06.2018. It is the case of the petitioner that issuance of the power of attorney, forgery of the documents etc. were thoroughly discussed in the sessions case. Even then the petitioner was found not guilty and acquitted, and so, the complainant cannot re-agitate the same vide separate proceedings initiated on a private complaint. Acquittal of the petitioner in a rape case will not absolve him from an offence punishable under Section 409 of IPC, if he had committed criminal breach of trust. The execution of the power of attorney under threat or coercion, misuse of the power of attorney for executing documents etc. are matters to be proved through evidence. The mere fact that issuance Crl.R.P.No.1158 of 2023 5 of the power of attorney by the complainant was discussed in the criminal trial under Section 376 of IPC, is not a ground to find that, while acquitting him under Section 376 of IPC, the criminal breach of trust alleged by the complainant was also answered in his favour. Section 409 of IPC is a distinct offence based on separate set of facts, and trial has to be conducted to find out the veracity of the allegations made in the complaint.

7. Learned counsel for the petitioner is relying on Section 300 of Cr.P.C. to say that the petitioner is not liable to be tried again for the same offence, as he was acquitted of the same offence earlier. Section 300 of Cr.P.C. reads thus; “300. Person once convicted or acquitted not to be tried for same offence.- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section(1) of Crl.R.P.No.1158 of 2023 6 section 221, or for which he might have been convicted under sub-section (2) thereof. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first- mentioned Court is subordinate. (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code. Crl.R.P.No.1158 of 2023 7 Explanation.- The dismissal of a complaint, or the discharge of the accused,is not an acquittal for the purposes of this section.”

8. In S.C.No.964 of 2016, the petitioner was tried for an offence punishable under Section 376 of IPC. No charge was framed against him under Section 409 of IPC and he was not tried for that offence. So, it cannot be said that once he was tried and acquitted of the offence under Section 409 of IPC, and so, he is not liable to be tried again for the same offence.

9. Hence, Section 300 of Cr.P.C. has no application in this case, as the offence alleged under Section 409 of IPC was never tried along with Section 376 of IPC in S.C.No.964 of 2016, and there was no conviction or acquittal under Section 409 of IPC. The criminal trial under Section 376 of IPC, and acquittal of the petitioner thereunder, is not a bar for the complainant to file a complaint before the jurisdictional Magistrate, for an offence committed by the petitioner under Section 409 of IPC, if it is maintainable otherwise. After enquiry, learned Magistrate took Crl.R.P.No.1158 of 2023 8 cognizance of the offence under Section 409 of IPC, and before framing charge, the petitioner filed CMP No.2784 of 2022 for a discharge under Section 245 of Cr.P.C., which was dismissed by the learned Magistrate as per the impugned order.

10. For the reasons aforesaid, this Court finds no illegality or impropriety in the impugned order, and hence, it is only to be upheld. In the result, the criminal revision petition stands dismissed. Since the case is of the year 2019, there shall be a direction to the Judicial First Class Magistrate Court, Kakkanad (Temporary) to frame charge, within a period of fifteen days from the date of receipt of a copy of this order, and to dispose the case at the earliest, at any rate, within a period of three months from the date of framing the charge. Registry is directed to forward a copy of this order to the trial court forthwith. Sd/- SOPHY THOMAS JUDGE