IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 Crl.L.P..No. 1161 of 2008() --------------------------- CC.562/2001 of J.M.F.C.-IV,KOZHIKODE .................... PETITIONER: COMPLAINANT: -------------------------------- PRAMODKUMAR SABU, S/O.LATE M.A.SABU, "SREE", JAWAHAR NAGAR COLONY, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): ACCUSED: ----------------------- 1. NANDIT KUMAR SABU, S/O.N.K.SABU, J.R.DISTRIBUTORS, THALI ROAD, KOZHIKODE. 2. M/S.POTENTIAL BUILDERS, REPRESENTED BY ITS MANAGING DIRECTOR, THAKKUR HOUSE, ASHOK NAGAR, CANDIMILINE EAST, BOMBAY. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R3 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.L.P.No. 1161 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2008 O R D E R This petition is for leave to prefer an appeal under Section 378(4) Cr.P.C. against a judgment of acquittal in a prosecution for offences punishable under Sections 418, 465, 467, 468 and 471 r/w. 34 I.P.C. 2. Altogether there are two accused persons. The first accused is related to the complainant. The second accused is a builder in Bombay. The complainant had entered into an agreement with the second respondent, the original of which agreement is Ext.P2. The complainant had allegedly paid instalments in pursuance of the stipulations of Ext.P2. Altogether he is alleged to have made seven instalments directly to the second respondent and the balance amount, it is alleged, were entrusted to the first accused. 3. When the complainant, by Ext.P1 notice, demanded transfer of the property in his favour, he was informed that as per documents executed by him before a Notary, transfer of the Crl.L.P.No. 1161 of 2008 2 property has been effected in favour of the first accused. Thereupon the petitioner complained that he has been cheated - in that the transfer of the property has been made in the name of the first accused. He alleged commission of the offence of forgery and use of forged documents as genuine. The contention is that the documents which facilitated transfer of the property in the name of the first accused and not in the name of the complainant were all forged documents. 4. The complaint was filed. Cognizance was taken. Pre- charge enquiry under Section 244 Cr.P.C. was conducted. Charges were framed under Section 245(1) Cr.P.C. Thereafter the complainant did not examine any other witness. The accused, it appears, take the stand that Ext.P2 agreement was executed between the complainant and the second accused. But it was their stand that transfer in the name of the first accused was effected on the basis of documents submitted by the complainant, who did not choose to adduce any further evidence. It appears that he was satisfied with the evidence of himself as PW1 and Ext.P1 notice issued and Ext.P2, the original agreement between himself and the second accused. Crl.L.P.No. 1161 of 2008 3 5. The learned Magistrate came to the conclusion that the oral evidence of PW1 and Exts.P1 and P2 were not sufficient to establish any offence alleged against the accused. Accordingly he proceeded to record the verdict of not guilty and acquittal in favour of the accused. 6. The learned counsel for the appellant/complainant submits that the appellant is aggrieved by the impugned judgment of acquittal. He wants to prefer a challenge against the said judgment of acquittal under Section 378(4) Cr.P.C. Consequently leave is sought under Section 378(4) Cr.P.C. to file such an appeal. 7. While considering the question of grant of leave the possibility of success – the bonafides of the challenge – in the appeal is of crucial and vital relevance. In the instant case, Ext.P2 agreement appears to be admitted. Even accepting the same as totally correct, valid and enforceable, all that turns out is that there was an agreement between PW1 and the second accused regarding sale of an item of property by the second accused in favour of the complainant. Admittedly that property was not transferred to the complainant. The accused took the stand that as per valid documents executed by PW1 transfer of the property was effected in the name of the first accused. Crl.L.P.No. 1161 of 2008 4 That is the very specific grievance of the complainant also. It is up to the complainant to show that the documents which facilitated transfer by the second accused in favour of the first accused and not in favour of the complainant were all forged. There is not a scintilla of evidence to show that such documents were forged. The burden in a criminal trial squarely rests on the shoulders of the complainant to prove his case. By examination of PW1 and by production of Exts.P1 and P2 there is absolutely nothing to show that the transfer by the second accused in the name of the first accused was effected on the basis of any forged documents or fraudulently. 8. It follows from the above discussion that the challenge raised is without any merit or even bonafides. I am in these circumstances not persuaded to agree that leave under Section 378(4) Cr.P.C. deserves to be granted. 9. This Leave Petition is accordingly dismissed. (R. BASANT) Judge tm