IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 639 of 2007() ----------------------------- CC.1032/2004 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... PETITIONER: DEFACTO COMPLAINANT: ------------------------------------------------------------ MUSTHAFA, S/O. ISMAIL, PERINGALA, KUNNATHUNAD. BY ADV. SRI.B.RAMAN PILLAI SRI.DELVIN JACOB MATHEWS SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.RAJU RADHAKRISHNAN RESPONDENTS: ACCUSED AND STATE: ------------------------------------------------------------ 1. N.E. VARGHESE, AGED 58, S/O. ITHAPPIRI, NAMMANRIYIL HOUSE, MORAKKALA, KUNNATHUNAD. 2. BABY VARGHESE, AGED 43, S/O. VARGHESE, PARAKKAYI HOUSE, CHITTANAD KARA, KUNNATHUNAD. 3. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.639 OF 2007 =========================== Dated this the 14th day of October,2008 ORDER De facto complainant in C.C.1032/2004 on the file of Judicial I Class Magistrate, Kolencherry filed this revision petition under section 397 read with section 401 of Code of Criminal Procedure challenging the order of acquittal passed by the learned Magistrate on 26.8.2006. Prosecution case was that respondents 1 and 2 were respectively the Secretary and Cashier of Kunnathunad Service Co-operative Bank and petitioner is the present President of the Co- operative Bank. It is the prosecution case that Pws.2, 3, and 5 deposited Rs.50,000/-, Rs.50,000/-, and Rs.80,000/- respectively evidenced by Exts.P3, P4 and P10 Fixed Deposit receipts with maturity value of Rs.1 lakh, Rs.1 lakh and Rs.90,833/- on the maturity day namely 3.5.1996, 3.5.1996 and 13.4.1996 and respondents 1 CRRP639/2007 2 and 2 falsified the records and misappropriated the amount and thereby committed offences under sections 403,408, 468 and 477A read with section 34 of Indian Penal Code. Police after investigation laid the charge. Respondents 1 and 2 pleaded not guilty. Prosecution examined 11 witnesses and marked 25 exhibits. On appreciating the evidence, learned Magistrate found that evidence insufficient to conclusively prove the guilt. It was found that circumstances narrated in the judgment creates a reasonable doubt on the veracity and truthfulness of the allegations raised against respondents 1 and 2 and therefore they are entitled to an order of acquittal. It is challenged in this revision. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that learned Magistrate did not properly analyse or appreciate the evidence and the view taken by the learned Magistrate is not a possible or reasonable CRRP639/2007 3 view and appreciation of evidence was perverse and therefore the order of acquittal is to be set aside. It was argued that evidence of Pws.2, 3 and 4 establish that they did not get back the amount deposited under Exts.P3, P4 and P10 receipts on the maturity of the deposits and when they approached the Bank on maturity of the deposits and it was revealed that the amounts were withdrawn at a time when the deposit receipts are with them PW8 on conducting the audit found that there was misappropriation and in such circumstances,learned Magistrate should not have acquitted the accused on flimsy grounds and the order of acquittal is to be set aside. 4. Exercising the revisional powers, this court is competent to interfere with an order of acquittal, provided appreciation of evidence was perverse or material evidence was overlooked or there was any flagrant violation of procedure resulting in miscarriage of justice or the view taken by the learned Magistrate on appreciation of CRRP639/2007 4 evidence was not a possible or reasonable view that could be taken. On the other hand, if on appreciating the evidence, the view taken by the learned Magistrate is a possible and reasonable and reasonable view and no material evidence was omitted to be appreciated or if there was no violation of the procedure resulting in miscarriage of justice, it is not for this court to reappreciate the evidence for interfering with the order of acquittal. 5. On going through the judgment of the learned Magistrate with the evidence which was elaborately read over by the learned counsel, I cannot agree with the argument of the learned counsel that there was misappropriation of evidence. Learned Magistrate has given cogent and valid reasons for finding that prosecution has not conclusively established the guilt. Though Pws.2 and 3 claim that on maturity of the amount they approached the bank on 3.5.1996 and then it was disclosed to them that amounts deposited by them CRRP639/2007 5 were already withdrawn, Ext.P2 complaint which was the first complaint with regard to the misappropriation of the amount was filed only on 3.5.1997. It will not be the case if in fact the amounts were not withdrawn by them, as rightly found by the learned Magistrate. Learned Magistrate also took note of the fact that Ext.P3 F.D receipt which was in possession of PW2 contained the signature of first accused as signature of first accused should not have been there if the defence case that the deposit receipt was produced and was encashed earlier is not true. Learned Magistrate also found that though it was during the period of PW4 the subsequent Secretary, amount covered under Ext.P3, P4 and P10 were again paid on 13.9.1997, 24.6.1997 and 30.1.1997, there is no signature of PW4 on the reverse side of Ext.P4. On going through the judgments I do not find any reason to hold that appreciation of evidence was perverse. In any case the view taken by the learned Magistrate is a possible and CRRP639/2007 6 reasonable view that could be taken. On the evidence on record and circumstances of the case finding of the learned Magistrate that prosecution failed to prove the offences charged against respondents 1 and 2 is legal and correct. In such circumstance, they are entitled to an order of acquittal. Criminal Revision Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006