Madras High Court
Thilagam vs State Of Tamil Nady Rep. By on 28 February, 2025
Crl.R.C.(MD)Nos.1356 and 1384 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 10.02.2025
Pronounced on : 28.02.2025
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)Nos.1356 and 1384 of 2024
Thilagam ... Petitioner in
Crl.R.C.(MD)No.
1356 of 2024
Lakhsmanan ... Petitioner in
Crl.R.C.(MD)No.
1384 of 2024
Vs.
State of Tamil Nady rep. by
The Inspector of Police,
Soolakarai Police Station,
Virudhunagar District.
(Crime No.280 of 2016) ... Respondent in both
the petitions
Common Prayer : These Criminal Revision Petitions filed under Sections
438 r/w 442 B.N.S.S., to call for the records pertaining to the order dated
12.07.2024 made in Cr.M.P.Nos.43 of 2018 and 6279 of 2017 in C.C.No.
190 of 2017 on the file of the learned Judicial Magistrate No.2,
Virudhunagar and set aside the same by allowing the above Revision
Petitions.
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Crl.R.C.(MD)Nos.1356 and 1384 of 2024
(in both the petitions)
For Petitioner : Mr.S.Ramasamy
For Respondent : Mr.B.Thanga Aravindh
Government Advocate (Crl. Side)
COMMON ORDER
These Criminal Revisions are directed against the orders passed in
Cr.M.P.No.43 of 2018 and Cr.M.P.No.6279 of 2017 in C.C.No.190 of
2017 dated 12.07.2024 on the file of the Court of Judicial Magistrate
No.2, Virudhunagar, dismissing the petitions seeking discharge filed under
Section 239 of the Code of Criminal Procedure.
2. The petitioner in Crl.R.C.(MD)No.1356 of 2024 (hereinafter
called as ‘fifth accused’) is the fifth accused and the petitioner in Crl.R.C.
(MD)No.1384 of 2024 (hereinafter called as ‘first accused’) is the first
accused in C.C.No.190 of 2017 for the offences under Sections 406, 420,
3. On the basis of the complaint given by one Rajendran, FIR came
to be registered in Crime No.280 of 2016 on the file of the respondent
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Crl.R.C.(MD)Nos.1356 and 1384 of 2024
police and after completing the investigation, charge sheet came to be filed
and the case was taken on file in C.C.No.190 of 2017 for the alleged
offences under Sections 406, 420, 294(b), 506(1) and 34 IPC against six
accused including the petitioners herein and is pending on the file of the
Judicial Magistrate No.2, Virudhunagar.
4. The case of the prosecution is that one Murugan had introduced
the accused for the purpose of getting job to one Kumar Deepu/son-in-law
of the defacto complainant at Hong Kong and in pursuance of the same,
the defacto complainant met the first accused, second accused Dheepa and
third accused Venkadasalapathi on 05.07.2016 in the house of the first
accused at Door No.613, VOC Nagar, Soolakkarai Medu, that the above
said accused have induced the defacto complainant that they will get job
for his son-in-law at Hong Kong for monthly salary of Rs.1,10,000/- and
for that purpose, the defacto complainant has to pay Rs.5 lakhs and also
directed to pay Rs.50,000/- for entering into an agreement, that the second
accused had sent a message to the defacto complainant’s son-in-law to
send part amount of Rs.75,000/- by remitting the same in the savings
account of the fifth accused and accordingly, the defacto complainant and
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his son-in-law deposited sum of Rs.75,000/- in the account of the fifth
accused, that they have also induced the witnesses to deposit a sum of
Rs.2,55,000/- in the account of the fourth accused and accordingly,
witnesses deposited the amount of Rs.2,55,000/- in the account of the
fourth accused, that the accused have stated that appointment order was
ready and they can get the appointment order by making balance payment
and accordingly, witnesses had paid Rs.1,70,000/- in cash to the first
accused, that the defacto complainant’s son-in-law was sent to Hong Kong
on 21.07.2016 and after landing, he came to know that he was sent only by
tourist visa and not on work permit and hence, he returned from Hong
Kong and met the accused and demanded the repayment of the amount,
that the accused gave an undertaking to return the amount but
subsequently, the amount was not paid, that when the witnesses had
demanded the repayment, they were abused and criminally intimidated and
that therefore, the defacto complainant was forced to lodge a complaint
before the respondent police.
5. The first accused in his discharge petition has taken a stand that
an enquiry was conducted in pursuance of the complaint sent to the
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Superintendent of Police on 05.10.2016, for which, the seventh accused
had undertaken to repay the entire amount, that the first accused was
noway connected with the case, that the defacto complainant’s son-in-law
had deposited the amount in favour of the accused 5 and 6, that the defacto
complainant’s son-in-law had also paid Rs.50,000/- twice to the seventh
accused, that the accused 5 to 7 have received totally Rs.4,30,000/- from
the defacto complainant’s son-in-law, that the first accused has not
received any amount either from the defacto complainant or his son-in-
law, that the first accused, after introducing the proposed job seekers to the
accused 5 to 7, who are running Vista Travel Consultants, used to get
commission for the same, that since the seventh accused has not complied
with his own undertaking, the first accused lodged a complaint before the
Superintendent of Police, that without taking any action, they have taken
the wife and children of the first accused to the Police Station and coerced
the second accused to execute a promissory note for Rs.50,000/-, that the
fourth accused shown in the FIR has been deleted in the charge sheet and
that since there is absolutely no materials to proceed against the first
accused, he has to be discharged from the above case.
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6. The case of the fifth accused in her discharge petition is that the
only allegation as against the fifth accused is that a sum of Rs.75,000/-
was credited in her account at the instance of the second accused, that the
fifth accused has never worked in Vista Travel Consultants, that no
witnesses has spoken about the involvement of the fifth accused in the job
racketing case, that no witnesses has stated that the fifth accused was also
available along with other accused and that since there are absolutely no
materials to proceed against the fifth accused, she has to be discharged
from the above case.
7. The respondent has filed a counter statement to the discharge
petition filed by the first accused, wherein, it has been stated that the
defacto complainant and other witnesses in their statement under Section
161(3) Cr.P.C. have clearly stated about the direct involvement of the first
accused in the prosecution case and also identified the first accused, that
all the 161 statements and confession statement of the first accused clearly
made out a prima facie case, that the Court can come to a decision about
the involvement of the accused only after examination of the witnesses
and that since there are sufficient materials available and as prima facie
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case is made out, the Court can very well frame charges against the first
accused.
8. The prosecution has filed a counter objections to the discharge
petition filed by the fifth accused, wherein, it has been stated that as per
the prosecution case, the fifth accused had shared common intention with
the other accused to commit cheating by making fraudulent representation,
that the accused 1 and 3 had directed the LWs to pay a sum of
Rs.5,50,000/- for getting job at Hong Kong, that the accused 1 to 3 have
received a sum of Rs.50,000/- as advance, that the second accused has sent
an e-mail message directing him to deposit a sum of Rs.75,000/- in the
bank account of the fifth accused, that the witness Vinoth-Bank Manager
of State Bank of India, Kulasekaran Branch was examined and in his
statement under Section 161 Cr.P.C., he had stated that sum of Rs.48,500/-
and Rs.26,500/- came to be credited on 11.07.2016 in the bank account of
the fifth accused and the said Manager has also given certificate to the said
effect, that all the accused are closely related, that the prosecution has
produced necessary materials to show that money was transferred from the
account of the witnesses to the account of the fifth accused and that
therefore, the petition is liable to be dismissed.
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9. The learned Judicial Magistrate, after conducting enquiry, has
passed separate orders dated 12.07.2024 dismissing both the petitions.
Challenging the said orders, the present revisions came to be filed.
10. Regarding the accused 1 and 5, as rightly contended by the
learned Government Advocate (Criminal Side), there are specific
allegations/charges levelled against them but whether the same are true or
not cannot be gone into, in the present proceedings and the same can only
be decided at the trial. At this juncture, it is necessary to refer the
judgment of the Hon’ble Supreme Court in State by the Inspector of
Police, Chennai Vs. S.Selvi and another reported in (2018) 13 SCC 455,
“7. It is well settled by this Court in catena of
judgments including the cases of Union of India v. Prafulla
Kumar Samal (1979) 3 SCC 4, Dilawar Balu Kurane v.
State of Maharashtra (2002) 2 SCC 135, Sajjan Kumar v.
CBI (2010) 9 SCC 368, State v. A.Arun Kumar (2015) 2
SCC 417, Sonu Gupta v. Deepak Gupta (2015) 3 SCC 424,
State of Orissa v. Debendra Nath Padhi (2003) 2 SCC 711,
Niranjan Singh Karan Singh Punjabi vs. Jitendra Bhimraj
Bijjayya (1990) 4 SCC 76 and Superintendent &
Remembrancer of Legal Affairs, West Bangal v. Anil
Kumar Bhunja (1979) 4 SCC 274 that the Judge while
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considering the question of framing charge under Section
227 of the Code in sessions cases (which is akin to Section
239 CrPC pertaining to warrant cases) has the undoubted
power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused has been made out; where the material
placed before the court discloses grave suspicion against
the accused which has not been properly explained, the
court will be fully justified in framing the charge; by and
large if two views are equally possible and the Judge is
satisfied that the evidence produced before him while
giving rise to some suspicion but not grave suspicion
against the accused, he will be fully within his rights to
discharge the accused. The Judge cannot act merely as a
post office or a mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the total effect
of the statements and the documents produced before the
court, any basic infirmities appearing in the case and so
on. This however does not mean that the Judge should
make a roving enquiry into the pros and cons of the mater
and weigh the materials as if he was conducting a trial”
11. It is settled law that at the stage of framing charge, the Court has
to prima facie consider whether there is sufficient ground for proceeding
against the accused and the Court is not required to appreciate evidence to
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conclude whether the materials produced are sufficient or not for
convicting the accused.
12. It is also settled law that while considering an application
seeking discharge from a case, the Court is not expected to go deep of the
probative value of the material on record, but on the other hand, the Court
has to form a presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged, and for that purpose, the
Court cannot conduct a roving enquiry into the pros and cons of the matter
and weigh the evidence as if it is a main trial.
13. It is pertinent to note that the Courts while dealing with the
application for discharge, are required only to see whether a prima facie is
made out against the accused and detailed enquiry is not required at this
stage. It is necessary to refer the judgment of the Hon’ble Supreme Court
in State through Deputy Superintendent of Police Vs. R.Soundirarasu
and others reported in 2022 LiveLaw (SC) 741, wherein, the case of State
of Karnataka Lokayukta, Police Station Bengaluru Vs. M.R.Hiremath
reported in (2019) 7 SCC 515 and the decision in State of Tamil Nadu
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Vs.N.Suresh Rajan reported in (2014) 11 SCC 709, were referred,
wherein, it has been specifically held that at the stage of considering an
application for discharge, the court must proceed on the assumption that
the material which has been brought on the record by the prosecution is
true and evaluate the material in order to determine whether the facts
emerging from the material, taken on its face value, disclose the existence
of the ingredients necessary to constitute the offence and that what needs
to be considered is whether there is a ground for presuming that the
offence has been committed and not whether a ground for convicting the
accused has been made out.
14. It is pertinent to note that the present case is a job racketing. The
defacto complainant in his complaint as well as in his statement would say
that he met the first accused along with his wife/second accused and his
relative third accused in the house of the first accused and at that time,
they have informed that they will get job for the defacto complainant’s
son-in-law at Hong Kong for monthly salary of Rs.1,10,000/- and for that,
the defacto complainant has to pay Rs.5 lakhs. It is further case of the
prosecution that the second accused, who is the wife of the first accused,
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had sent a SMS to the defacto complainant’s son-in-law asking him to
send part amount of Rs.75,000/- to the account of the fifth accused and
subsequently, informed to deposit Rs.2,55,000/- in the account of the
fourth accused and after the said deposits, the defacto complainant and his
son-in-law had paid Rs.1,70,000/- in cash to the first accused.
15. The learned Government Advocate (Criminal Side) appearing
for the respondent would submit that the Bank Manager of State Bank of
India, Kulasekaran Branch where the fifth accused is having bank account
was examined and he has given a statement under Section 161 Cr.P.C.
stating that sum of Rs.48,500/- and Rs.26,500/- came to be credited in the
bank account of the fifth accused.
16. It is pertinent to note that the second accused is the wife of the
first accused, that the third accused is the close relative of the second
accused, that the fourth accused is the wife of the sixth accused and that
the fifth accused is the mother of the fourth accused. According to the
prosecution, all the accused are closely related and they have totally
received Rs.5 lakhs.
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17. As rightly contended by the learned Government Advocate
(Criminal Side), witnesses have given statement that sum of Rs.75,000/-
was credited in the bank account of the fifth accused and that
Rs.1,70,000/- in cash was handed over to the first accused.
18. Considering the records available, as rightly observed by the
learned Judicial Magistrate, there existed prima facie materials to frame
charges against the petitioners and that therefore, the impugned order
dismissing the discharge petitions cannot be found fault with. Hence, this
Court concludes that the revisions are devoid of merit and the same are
liable to be dismissed.
19. In the result, these Criminal Revision Petitions are dismissed.
No costs.
28.02.2025
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
To
1. The Judicial Magistrate No.2,
Virudhunagar.
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Crl.R.C.(MD)Nos.1356 and 1384 of 2024
K.MURALI SHANKAR,J.
csm
2.The Inspector of Police,
Soolakarai Police Station,
Virudhunagar District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Pre-Delivery Common Order made in
Crl.R.C.(MD)Nos.1356 and 1384 of 2024
Dated : 28.02.2025
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