IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 Crl.Rev.Pet.No. 980 of 2009() ----------------------------- CC.439/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER(S): DE-FACTO COMPLAINANT ----------------------------------------- E.N.ASHOKKUMAR, S/O.NARAYANAN, ERANEZHATH HOUSE, P.O.VALAPPAD, THRISSUR DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. VALSALA, W/O.BALAKRISHNAN, 56 YEARS, VELAMBATH HOUSE, PERUMBADAP DESOM, EDATHIRITHY VILLAGE, THRISSUR DISTRICT. 2. BALAKRISHNAN, S/O.BALAKRISHNAN, 60 YEARS, VELAMBATH HOUSE, PERUMBADAP DESOM, EDATHIRITHY VILLAGE, THRISSUR DISTRICT. 3. ABDULKARIM, S/O.KUNJUMUHAMMED, 60 YEARS, THAVALAPPAN HOUSE, KOOLIMUTTOM DESOM, KAIPAMANGALAM VILLAGE. 4. HAFSA, W/O.ABULKARIM, 31 YEARS, PUTHIYA VEETTIL HOUSE, KATTOOR VILLAGE. 5. THE STATE OF KERALA (SUB INSPECTOR OF POLICE, VALAPPAD POLICE STATION, CRIME NO.360/06) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R5 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.980 of 2009 -------------------------------------- Dated this the 26th day of May, 2009. ORDER Public Prosecutor takes notice for respondent No.5. 2. This revision at the instance of PW2, the defacto complainant is directed against the acquittal of respondent Nos.1 to 4 for offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code, under Section 248(1) of the Code of Criminal Procedure. Learned counsel for petitioner contends that acquittal of respondent Nos.1 to 4 is not legal or proper. Public Prosecutor who appeared for respondent No.5 would say that the acquittal is legal and proper and required no interference. 3. Case of the petitioner is that he owned a total of 26 ¼ cents with building out of which 1.410 cents with portion of the building in it was sold to respondent No.1. While so, respondent Nos.1 and 2 impressed upon the petitioner that if the entire 26 ¼ cents with building is sold, they will get a handsome price. Petitioner agreed to that suggestion. Respondent Nos.1 and 2 brought respondent No.3 as the willing purchaser and on 11.8.2005 there was an agreement executed between petitioner and respondent Nos.1 and 3. Pursuant to that agreement, respondent No.3 gave Rupees five lakhs as advance out of which petitioner took Rupees four lakhs as his share, the balance going to respondent No.1. Later, respondent No.3 gave another Rupees ten Crl.R.P.No.980/2009 2 lakhs out of which petitioner got Rupees eight lakhs and the balance amount went to respondent No.1. Petitioner was ready and willing to execute the sale deed. As instructed by respondent No.1 he executed sale deed in respect of his portion of the land and building in favour of respondent No.3. But, respondent No.1 failed to execute sale deed in respect of the 1.410 cents and portion of the building belonging to her. Respondents 1 and 2 resiled from the agreement. There was an understanding between the petitioner and respondent Nos.1 and 2 that after sale of the entire property they will together purchase another plot of land. Believing such representation petitioner entered on the agreement with one Ibrahim to purchase his land and gave Rs.3 lakhs as advance to said Ibrahim. Complaint is that respondent Nos.1 to 4 colluded and cheated the petitioner. 4. In the court below prosecution examined the petitioner as PW2. PW1 is the Investigating Officer. Exts.P1 to P6 were marked. Ext.D1 is the encumbrance certificate produced by respondent Nos.1 to 4. Learned magistrate after consideration of the evidence found that no offence as alleged is made out and what is involved is only a civil dispute. 5. It is admitted by counsel for petitioner that a civil suit is pending. If aggrieved, remedy of the petitioner is to seek appropriate relief in that suit. Elements of the offence of cheating are not made out. Every breach of contract cannot amount to the offence of cheating. I have gone through the judgment under challenge and find that there is no illegality, irregularity or Crl.R.P.No.980/2009 3 impropriety committed by the learned magistrate. Interference in revision with an order of acquittal at the instance of the defacto complainant is called for only when there is violation of some fundamental principles of law resulting in gross miscarriage of justice. No such situation arises in the facts of this case. Revision Petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks