IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 Crl.Rev.Pet.No. 268 of 2008() ----------------------------- CRA.231/2006 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA CC.29/2005 of JUDL.FIRST CLASS MAGISTRATE-I, MANANTHAVADY .................... REVN. PETITIONER: APPELLANT/1ST ACCUSED ---------------------------------------------------- V. MOIDU ALIAS PONNICHI MOIDU AGED 46 YEARS, S/O.ALI, VAZHAYIL VEEDU MANGODU, VELLAMUNDA P.O., WAYANAD DISTRICT. BY ADV. SRI.P.K.JOSE RESPONDENTS: RESPONDENT/COMPLAINANT -------------------------------------------------- 1. STATE REPRESENTED BY SI OF POLICE VELLAMUNDA POLICE STATION (CRIME 10/2005) VELLAMUNDA P.O., WAYANAD DISTRICT. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-31. BY ADV. SRI. K.S. SIVAKUMAR, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== Crl.R.P. No. 268 of 2008 ========================== Dated this the 7th day of February, 2008. ORDER The revision petitioner, who was the 1st accused in C.C. No. 29/2005 on the file of the Judicial First Class Magistrate-I, Mananthavady for an offence punishable under Section 420 r/w Section 34 IPC, challenges the conviction entered and the sentence passed concurrently by the courts below for the aforesaid offence. For the conviction under Section 420 IPC, he was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.2000/- and on default to pay the fine, to suffer simple imprisonment for one month. 2. The case of the prosecution can be summarised as follows:- On 05.01.2005 at about 12 noon A1 and A2 in furtherance of their common intention to cheat PW3, the de facto complainant Sunilkumar, dishonestly induced PW3 and made him deliver a sum of Rs.25,000/- after making a believe that gold ornaments worth about 60 grams belonging to the 2nd accused were being put in public auction by the North Malabar Gramin CRL. R.P. NO. 268/2008 : 2: Bank and those ornaments had to be taken back and that after taking the ornaments from the bank it would be pledged in Sakthi Finance run by PW3. After inducing PW3 to part with the said amount of Rs.25,000/-, A1 handed over the same to A2 who walked straight to the bank. Subsequently, A1 pretending to go in search of A2 went inside the bank and both A1 and A2 escaped though the rear exit of the bank. 3. Both the courts below acquitted the 2nd accused but accepted the evidence adduced by the prosecution against the 1st accused. The conviction recorded against the revision petitioner/1st accused is after a careful evaluation of the oral and documentary evidence in the case. This Court sitting in revision will be loath to interfere with the said conviction which is accordingly confirmed. 4. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed on the revision petitioner. It is true that he had induced PW3 to part with a sum of Rs.25,000/- of which Rs.13,000/- had been recovered and produced before the court as MO1 series. In the CRL. R.P. NO. 268/2008 : 3: facts and circumstances of the case, I do not think that the revision petitioner deserves penal servitude by way incarceration. I am of the view that the interests of justice will be adequately met by directing him to disgorge the ill- gotten gains of the offence for which he can be directed to pay appropriate compensation to PW3. Accordingly, the sentence imposed on the revision petitioner/1st accused is set aside and instead for the conviction under Section 420 IPC, he is sentenced to undergo imprisonment till the rising of the court and to pay a sum of Rs.15,000/- by way of compensation to PW3 under Section 357 (3) Cr.P.C. The petitioner shall deposit the compensation amount within 45 days from today. In case he fails to deposit the amount, he shall undergo simple imprisonment for two months by way of default sentence. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. V. RAMKUMAR, JUDGE. rv CRL. R.P. NO. 268/2008 : 4: