IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Crl.Rev.Pet.No. 2682 of 2005() ---------------------------------- C.C. NO. 680/2000 of JUDICIAL FIRST CLASS MAGISTRATE, ADIMALY. REVN. PETITIONER: DEFACTO COMPLAINANT: --------------------------------------------------- P.V. JOHNY, PUTHENPURACKAL HOUSE, THOKKUPARA P.O., CHITHIRAPURAM (VIA), IDUKKI DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS: ACCUSED & STATE: ----------------------------------------- 1. GEORGE THOMAS @ ROY, S/O. THOMAS, PUNNAKKATTIL VEEDU, KALKOONTHAL VILLAGE, MANJAPPARA KARA, UDUMBANCHOLA TALUK. 2. STATE OF KERALA - S.I. OF POLICE VELLATHOOVAL, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. C.M. NAZER, PUBLIC PROSECUTOR SRI. C.M. TOMY for R1. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== Crl.R.P. No. 2682 of 2005 ========================== Dated this the 21st day of August, 2008. ORDER The revision petitioner is the de facto complainant in C.C. No. 680 of 2000 on the file of the Judicial First Class Magistrate, Adimaly. The 1st respondent/accused was charge sheeted by the Sub Inspector of Police, Vellathooval for offences punishable under Sections 406 and 420 IPC. 2. The case of the prosecution can be summarised as follows:- The revision petitioner examined as PW1 was the registered owner of a bus bearing registration No. KL.7/M. 2540, which was purchased by him on 16.04.1996 as per Ext.P5 agreement from one Shaji of Arakaparambil House examined as DW1. The purchase was before the bus was registered with the R.T.O. The accused who is the sister's son of the wife of the de facto complainant and who had got experience in operating bus service, was entrusted with the full management of the bus. The de facto complainant used to make occasional verification of CRL.R.P. NO. 2682/2005 : 2: account pertaining to the collections and expenses of the bus. The accused was also the conductor of the bus which was at the relevant time holding a permit on the Nedumkandom- Thodupuzha route. The bus was running at a loss and PW1 decided to sell the bus. Sensing this, on 24.07.2000, the accused dishonestly and fraudulently sold the bus to PW5, T.J. Johny. On the same day, the accused approached the de facto complainant with the criminal intention of deceiving him and agreed to purchase the bus for Rs.5 lakhs on credit and undertaking to discharge the liability on or before 24.07.2001. Incorporating the above terms and conditions, Ext.P2 agreement dated 24.07.2000 was executed on stamp paper purchased on 22.07.2000 in the name of the accused and in the presence of PWs 2 and 4 and CW3 who figured as the attestors to the same. Thereafter, the accused with the dishonest intention of cheating PW1 procured the Registration Certificate and Insurance Certificate of the bus under the pretext of raising finance. Thereafter, on 25.07.2000, the registration certificate of the bus was also dishonestly transferred in the name of PW5 without the CRL.R.P. NO. 2682/2005 : 3: knowledge or consent of the de facto complainant and without effecting any payment to the de facto complainant. The accused has thereby committed offences punishable under Sections 406 and 420 IPC. On the side of the prosecution, 6 witnesses were examined as PWs 1 to 6 and 9 documents were got marked. On the side of the accused, 2 witnesses were examined as DWs 1 and 2 and Ext.D1 was got marked. 3. The learned Magistrate, after trial, as per judgment dated 10.08.2005 acquitted the accused under Section 248(1) Cr.P.C of the offences punishable under Sections 406 and 420 IPC. Hence this revision. 4. I heard the learned counsel appearing for the revision petitioner as well as the learned counsel appearing for the 1st respondent/accused. 5. One of the main reasons given by the court below for recording the order of acquittal is that Ext.P2, which is a notarised Photostat copy of the original, could not be looked into to accept the case of the prosecution. According to the revision petitioner, if that document is looked into, it will clearly show the CRL.R.P. NO. 2682/2005 : 4: fraudulent conduct of the accused in selling the bus without the knowledge or consent of the accused to PW5. It is in evidence that the original of Ext.P2 was produced by the de facto complainant in another private complaint filed by him and pending trial as C.C. No. 500 of 2003 before the very same court. The said fact was deposed by the revision petitioner when examined as PW1. It is true that as contended by the learned counsel for the 1st respondent/accused Ext.P2 was marked subject to the objection of the accused. But the objection of the accused was that it was a false document. He had denied the execution of the same. But, he had admitted his signature on the 1st page of Ext.P2 agreement. That apart, the original of Ext.P2 was available to the very same court in C.C. No. 500 of 2003, which was a private complaint instituted by the de facto complainant/revision petitioner. Ext.P2 is a notarised photocopy of the original. When the original document itself was before the court in C.C. No. 500 of 2003, it was not possible for the prosecution to produce the original in the present case. Since Ext.P2 is a copy made from the original by mechanical process, it CRL.R.P. NO. 2682/2005 : 5: will answer the description of secondary evidence under Section 63(2) of the Evidence Act. Section 65 of the Evidence Act enumerates the cases in which the secondary evidence relating to documents may be given. 6. Clause (c) of Section 65 of the Evidence Act reads as follows:- “When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.” 7. The original of Ext.P2 is admittedly before the very same court in C.C. No. 500 of 2003. So it is neither destroyed or lost. Then the further question is whether the prosecution could have produced it in a reasonable time. When the original was pending consideration before the very same court in C.C. No. 500 of 2003, it cannot be said that the prosecution could have produced the said original in the present case in a reasonable time. Hence, the foundation for reception of secondary evidence as provided under Clause (c) of Section 65 of the Evidence Act had been laid by the prosecution entitling the prosecution to request the court CRL.R.P. NO. 2682/2005 : 6: to accept the secondary evidence in the form of Ext.P2. Hence, the finding of the court below blaming the prosecution for not producing the original of Ext.P2 before the court below cannot be sustained. The further view taken by the court below that the notary attested true photostat copy was inadmissible as secondary evidence, also cannot be accepted. When the prosecution had adduced evidence constituting the foundation for reception of secondary evidence within the meaning of Section 65(c) of the Evidence Act, the prosecution cannot be faulted producing secondary evidence in the form of Ext.P2. 8. The learned counsel for the 1st respondent/accused submitted that even if Ext.P2 were to be looked into, that would not advance the case of the prosecution. That is a matter primarily for the trial court to consider. Without considering the impact of Ext.P2, the court below was straightaway coming to the conclusion that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. On the facts and circumstances of the case, I am of the view that the matter requires to be considered afresh by the court below which shall CRL.R.P. NO. 2682/2005 : 7: also consider the impact of Ext.P2. The impugned judgment is accordingly set aside and the matter is remitted to the trial court for fresh consideration. Parties shall appear before the court below without any further notice on 15.09.2008. This Crl.R.P. is disposed of as above. Dated this the 21st day of August, 2008. V. RAMKUMAR, JUDGE. rv CRL.R.P. NO. 2682/2005 : 8: