IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 Crl.Rev.Pet.No. 1729 of 2004 -------- ------------------------------ ( CC.323/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, DEVICOLAM) .................... REVN. PETITIONER/PROSECUTION WITNESS NO.1: ----------------------------------------------------------------------- KUNJUMON JOSEPH, AGED 52 YEARS, S/O. JOSEPH, TALLIAR TEA ESTATE, TALLIAR POST, PIN 685 614, IDUKKI DISTRICT. BY ADV. SRI.P.K.IBRAHIM SMT.K.P.AMBIKA RESPONDENTS/ COMPLAINANT/ACCUSED ------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. BHASI S/O. IYPE, MANAGING DIRECTOR, TALLIAR TEA COMPANY, TALLIAR 3. NARAYANAN S/O. ANANTHASIVAN, DOOR NO.43, 8TH CROSS ROAD, BHARATHY PARK, COIMBATORE. R1 BY PUBLIC PROSECUTOR SIR.HRITHWIK. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 1729 of 2004 A --------------------------------------------- Dated this the 28th day of January, 2010 O R D E R This revision petition is directed against the judgment dated 31.3.2004 in CC No.323/2001 of the court of the Judicial First Class Magistrate, Devikulam. By the impugned judgment, the learned Magistrate acquitted the accused under Section 248(1) of Cr.P.C. Aggrieved by the above order of acquittal, the de facto complainant/CW1 preferred this revision petition. 2. CW1 preferred a complaint before the trial court alleging offences under Section 405,418,427 read with Section 34 I.P.C. and also claiming that he had sustained the loss of Rs.38,000/-. The said complaint was transmitted to the Marayoor Police Station for investigation under Section 156(3) of the Cr.P.C. Thus, on completing the investigation, CW8 filed a final report. Pursuant to the processes, the accused appeared and a formal charge was framed and read Crl.R.P.NO.1729 of 2004 :-2-: over to them and they pleaded not guilty which resulted further trial of the case. During the trial, PWs.1 to 7 were examined and Exts.P1 to P6 were marked. On the basis of the evidence available on record, the incriminating circumstances, which emerged during the trial, put to the accused under Section 313 of Cr.P.C., and they denied the same. After hearing the matter, the trial court found that the accused are not guilty of the offence alleged against them. Accordingly, they were acquitted under Section 248 (1) of the Cr.P.C. 3. The main allegation of the de facto complainant viz., CW1 is that he was an employee of the Talliar Tea company and he took a policy for Rs.25,000/- in the scheme of Employees Group Insurance and he had to remit the monthly instalment at the rate of Rs.110.80. According to the allegation, the accused, who are the employees of estate, recovered the premium amount from the salary of the de facto complainant, but the entire amounts were not Crl.R.P.NO.1729 of 2004 :-3-: deposited in the account connected with the policy. 4. From the discussion of evidence available on record as contained in the impugned judgment, it appears that the prosecution has miserably failed to establish the entire recovery from the salary of PW1. It is also brought on record that the first accused joined the company as the Manager on 15.4.1998 and resigned on 31.12.2000. During that period, no premium was collected. According to the allegation of the prosecution, some amount was collected from the salary of PW1 and it is not remitted in the concerned LIC office as per the direction. But, in order to substantiate the allegation, though certain documents were recovered from the Talliar Tea Estate, the same were not produced, though the court has issued repeated processes for producing the documents. Instead of that, an affidavit was filed by the Manager of Talliar Tea Estate stating that no such document was sent in his office. In the absence of any materials, the trial court found that the prosecution Crl.R.P.NO.1729 of 2004 :-4-: miserably failed to prove the entrustment and misappropriation. It is relevant to note that in order to prove the offence of misappropriation, it is the primary duty of the prosecution to prove that the property or the amount was certainly entrusted with the accused. In the absence of valid evidence to prove the entrustment, it cannot be said that the prosecution has succeeded in establishing the allegation, especially the ingredients of the offence alleged against the accused. Therefore, the finding arrived on by the court below on perusal of records and materials on record appears to be correct and nothing brought out to the notice of this Court to take different finding deviating from the conclusion of the trial court. Therefore, there is no merit in the revision petition and no case is made out so as to interfere with the order of acquittal passed by the trial court under Section 248(1) of the Cr.P.C. Crl.R.P.NO.1729 of 2004 :-5-: In the result, this revision petition fails and accordingly, the same is dismissed. sd/- V.K.Mohanan, Judge MBS/ -true copy- P.S.TO JUDGE. Crl.R.P.NO.1729 of 2004 :-6-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 ------------------------------------ -------- O R D E R Crl.R.P.NO.1729 of 2004 :-7-: DATED: -10-2009