IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 Crl.Rev.Pet.No. 501 of 2001(B) ------------------------------------- JUDGMENT DTD 22.12.2000 IN CC.591/1996 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... REVN. PETITIONER/DEFACTO COMPLAINANT: ------------------------------------------------------ DANIEL, VENAPADATH HOUSE, PRESIDENT, THE MANGALATHU NADA, KSHEEROLPADAKA SAHAKRANA SANGHAM, E. 38.D. BY ADV. MR.K.SATHEESH KUMAR RESPONDENT(S)/COMPLAINANT & ACCUSED: ------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. LEELA, W/O. BABY, MARIYIL VEEDU, NELLADU KARA, MAZHUVANNOOR VILLAGE. ADV. MR.O.V.MANIPRASAD FOR R2 PUBLIC PROSECUTOR MR. C.S. HRITHWIK. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO.501 OF 2001 ---------------------------------------- Dated this the 18th day of June, 2009 ORDER This revision is in challenge of acquittal of respondent No.2 under Section 248 of the Code of Criminal Procedure (for short, “the Code”). She faced trial in the court below for offence punishable under Section 408 of the Indian Penal Code. Charge is that while respondent No.2 functioned as Secretary of a Co- operative Society (from 1.4.1992 to 27.9.1992) she misappropriated Rs.30,684.09/- by fabricating and altering entries in the day book, account book and receipt book and committed criminal breach of trust. Prosecution examined PWs 1 to 5 and marked Exts.P1 to P7. Respondent No.2 was questioned under Section 313 of the Code. She stated that the president of the Society(PW1) is looking into the day today affairs of the Society. He used to sign the registers after proper verification. All the accounts were verified by the governing body of the Society every month. She denied that she committed any offence as alleged. Learned magistrate after consideration of Crl.R.P.No.501/2001 2 evidence found that the relevant documents are not produced and that charge is not proved beyond reasonable now. Accordingly respondent No.2 was acquitted under Section 248 of the Code. That acquittal is under challenge in this revision. Learned counsel for petitioner contends that relevant documents had actually been produced in the trial court. According to learned counsel acquittal is not justified. Counsel for respondent No.2 pointed out that when PW2 was in the box, chief examination was adjourned for the specific purpose of getting relevant documents but those documents were not available for trial. Learned counsel contends that even the audit report said to be prepared by PW2 is not produced in court. 2. I find from the records that certain registers had actually been produced in the trial court but none of which were introduced in evidence. It is seen from the deposition of PW2 that his chief examination was adjourned on the request of learned Assistant Public Prosecutor as relevant records were necessary. It is not clear why even after that and even when PW2 was further examined, no attempt was made to prove the relevant account books and register as the case may be. Crl.R.P.No.501/2001 3 No explanation has given for that. What then is available is Ext.P4, a special report of audit prepared by PW2. PW2 admitted that without referring to the audit report as such, he is not able to pinpoint what exactly is the misappropriation. PW1, president of the Society has generally referred to the allegations and stated that he felt suspicious about the conduct of respondent No.2 during August 1992 but preferred the complaint (Ext.P1) only during 1995. PW1 explained the delay as the impression he had that the department will initiate necessary action. PW3 claimed to have taken charge as Secretary on 28.9.1992 and proved Ext.P2, acquittance register for 1992. She stated that Rs.113/- is seen deducted from salary of three persons during the month of August, 1992 but that is not mentioned in Ext.P3, passbook. Remittance was made only on 16.11.1992. In cross examination PW3 stated that all the entries in Ext.P2 are initialed by PW1, president (after proper verification). According to PW3, president and secretary together deal with financial matters of the Society. 3. Learned magistrate observed that the only document produced to prove alleged misappropriation is Crl.R.P.No.501/2001 4 Ext.P4, special report prepared by PW2 but even as per his version that is not sufficient to pinpoint the alleged misappropriation. Prosecution did not even produce the attendance register during the relevant time. Bye-law of the Society is not produced to prove what exactly was the responsibility of the Secretary whether she alone was dealing with the financial matters. Non-production of bye-law assumes importance in the light of evidence of PW3 that President and Secretary together were deal with financial matters of the Society and that President has signed all entries in Ext.P2, acquittance register. Learned magistrate was justified in observing that there is dearth of evidence to prove the alleged misappropriation. 4. Now the question is whether after 13 years of commencement of trial case has to be sent back to enable prosecution to produce relevant documents and prove the charge. Counsel for respondent No.2 submitted that allegation is related to the period from 1.4.1992 to 27.9.1992. It is also pointed out by learned counsel that though there is an allegation of respondent No.2 fabricating and altering entries in the registers concerned, there is no charge against respondent Crl.R.P.No.501/2001 5 No.2 for offence under Section 477A of the Indian Penal Code. 5. Respondent No.2 has been fighting in this case since the last 13 years. It was not the fault of her that relevant documents if any available were either not produced or not introduced in evidence. I do not think it necessary to remand the case to facilitate prosecution adduce evidence, in the circumstances. Revisional court need interfere only when there is gross injustice committed by the courts below on account of any violation of fundamental principles or provision of law. I do not find any such violation of law or principle affecting administration of justice warranting interference. Resultantly, this revision fails. It is dismissed. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.501/2001 6