IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 Crl.Rev.Pet.No. 131 of 2011() ----------------------------------- CRA.249/2009 of SESSIONS COURT, THIRUVANANTHAPURAM CMP.6026/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, THiRUVANANTHAPURAM .................... PETITIONERS/APPELLANTS/RESPONDENTS ---------------------------------------------------- 1. SREEPRAKASH, S/O.MOHANAPILLAI, LEKSHMI BHAVAN, T.C. 7/360, MARUTHANKUZHI, KANJIRAMPARA P.O., THIRUVANANTHAPURAM 2. SREENATH, S/O.MOHANAPILLAI, LEKSHMI BHAVAN, T.C. 7/360, MARUTHANKUZHI, KANJIRAMPARA P.O., THIRUVANANTHAPURAM BY ADV. SRI.PIRAPPANCODE V.S.SUDHEER RESPONDENT(S): RESPONDENTS/PETITIONER & STATE ----------------------------------------------------------------- 1. VIJAYALEKSHMI S @ SONI, D/O.SULOCHANA, LEKSHMI BHAVAN, T.C. 7/360, MARUTHANKUZHI, KANJIRAMPARA P.O., THIRUVANANTHAPURAM -695 011 NOW WORKINGAS BEAUTY ADVISOR & SKIN ANALYSES, STYLE PLUS PONDS COUNTER, NANTHANCODE, KOWDIAR, THIRUVANANTHAPURAM) 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM - 683 518. R1 BY ADVS. SRI.SUMAN CHAKRAVARTHY SRI.SURESH WILFRED SMT. SEENA S. FERNANDES SMT.K.R.RIJA R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs V.K.MOHANAN, J. - - - - - - - - - - - - - - - - - - - Crl. R.P. No.131 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of February, 2011. O R D E R The first respondent in C.M.P.No.6026/2007, which is a petition filed under Section 12 of the Protection of Women from Domestic Violence Act-2005 is the revision petitioner. The said petition is filed by none other than the sister of the revision petitioner. By order dated 19.03.2009, the court of Judicial First Class Magistrate–III, Thiruvananthapuram has granted reliefs in favour of the aggrieved person and against the respondents, including the revision petitioner. 2. Though an appeal was filed by the respondents therein, by judgment dated 01.06.2010 in Crl. Appeal No.249/2009, the Court of Sessions, Thiruvananthapuram, dismissed the appeal confirming the reliefs granted in favour of the aggrieved person under Sections 18, 19, 20 and 22 of the Act. It is against the above judgment of the courts below, the Crl. R.P. No.131/2011 2 respondents in the trial court and appellants before the Sessions court, preferred this revision petition. 3. I have heard Shri. Pirappancode V.Sudheer, learned counsel appearing for the revision petitioners as well as Shri.Suman Chakravarthy, learned counsel appearing for the respondents. 4. During the course of the arguments, the learned counsel for the revision petitioner submitted that, the challenge against the orders of the court below is being confined to with respect to the fourth direction issued by the learned Magistrate. By the fourth direction, the learned Magistrate directed the 1st revision petitioner/1st respondent to return 32 sovereigns of gold ornaments within 30 days and if the 1st respondent fails to return the gold ornaments, the complainant is entitle to realise the value of gold ornaments as on the date of its realization. In the light of the arguments advanced by both the counsel and in the light of the facts and circumstances involved in the case that has born out Crl. R.P. No.131/2011 3 from the judgments of the court below, the question to be considered is, whether the fourth direction issued by the trial court which confirmed by the appellate court is correct, legal and proper. 5. During the hearing of the revision petition, both the counsel took me through the deposition of PW1 and also RW2. PW1 is the aggrieved person and RW2 Smt.Sulochana is the mother of both the aggrieved person as well as the respondents who are the brothers of the aggrieved person. Though in the deposition of PW1, her claim is that the gold ornaments in question entrusted with the 1st respondent that RW1, the facts and circumstances involved in the case and evidence on record does not permit the court of law to accept such interested version of PW1. It is to be noted that, RW2/mother of the contesting parties was not made party in the proceedings for which there is also rival contention. Admittedly, the marriage of the aggrieved person was taken place on 11.07.2007 but the marital Crl. R.P. No.131/2011 4 relationship did not continue for more than two weeks. According to PW1, because of difference of opinion between herself and her husband, she came back to her parental home and entrusted the gold ornaments in question with the 1st respondent, the elder brother. There is no dispute that the gold ornaments in question were purchased in the name of the aggrieved person and also it is the admitted fact that the same was purchased on various occasions by using her own money. Even though there is dispute regarding the money for the purchase of gold ornaments, the same was purchased in the name of the aggrieved person. According to the mother, for the purpose of marriage of the aggrieved person, a bank loan was availed and this gold ornaments were purchased by using the said loan. But PW1 was of the opinion that, the same was purchased by her own money. However, the ornaments were purchased in the name of the aggrieved person. It is also relevant to note that at the time of marriage, the Crl. R.P. No.131/2011 5 father of the aggrieved person was not alive. In the light of the fourth direction issued by the learned Magistrate, the primary question ought to have been considered by the learned Magistrate is whether the gold ornaments were entrusted with the first respondent by the aggrieved person. But there is no admissible evidence to show that on 29.07.2007, the gold ornaments were entrusted with the 1st respondent/1st petitioner herein. Even according to RW2/ mother, the gold ornaments were entrusted with her, which version of RW2 is supported by documentary evidence such as Ext.D6 and D7 series. Admittedly, as evidenced by P6 series, the last purchase of gold ornaments was made on 07.07.2007 and till the entrustment of the gold ornaments either with RW2 or with RW1 as claimed by PW1/ the aggrieved person, there is no quarrel between the aggrieved person and the respondents and the mother/RW2. As a matter of fact, especially when there is no quarrel between the Crl. R.P. No.131/2011 6 aggrieved person and her mother/RW2, and in the absence of the father, aggrieved person/the daughter, naturally expected to have entrusted the gold ornaments with RW2/mother. The same fact is further reiterated by Ext.D6 and D7 series. However, there is no clear evidence regarding the entrustment of the gold ornaments with the 1st respondent/1st revision petitioner. Going by the judgment of the trial court, it can be seen that in paragraph 11, the learned Magistrate has observed that “In this circumstances, what can be inferred is that the gold ornaments came to the possession of RW2 from the custody of the first respondent”. On the basis of the above observation, the learned Magistrate further found in paragraph 12 that “It is already found that the gold ornaments came to the possession of RW2, mother from the custody of the first respondent. So the first respondent had not seriously challenged the quantity of gold ornaments entrusted with him”. Going by the evidence, which read over by Crl. R.P. No.131/2011 7 the counsel for the contesting parties and the available materials would show that, the gold ornaments were finally pledged by RW2, the mother of the contesting parties. Except the mere suggestion of PW1, there is no evidence to show that the gold ornaments were entrusted with RW1. As per the fourth direction, learned Magistrate directed the first respondent to return 32 sovereigns of gold ornaments to the aggrieved person. The value of 32 sovereigns of gold ornaments is very high and therefore according to me, in the absence of proper, reliable and acceptable evidence that, 32 sovereigns of gold ornaments were entrusted with the first respondent, the learned Magistrate ought not have issued such direction. The said direction is liable to be set aside and the same requires reconsideration by the trial court. In the result, this revision petition is disposed of, setting aside the fourth direction issued by the learned Magistrate which approved by the appellate court and Crl. R.P. No.131/2011 8 remanded the matter back for fresh consideration of the trial court and to take fresh decision. The parties are free to adduce evidence, if they are so advised and the learned Magistrate is directed to dispose the matter as expeditiously as possible, at any rate, within four (4) months from the date of receipt of copy of this order, which will be produced by the revision petitioner. It is made clear that the learned Magistrate, before proceeding to dispose the matter as directed above, shall ensure that, the respondents are complied with the fifth direction issued by the learned Magistrate. Sd/- (V.K.MOHANAN), Judge ss/. //True Copy// P.A to Judge