IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 1910 of 2006() ------------------------------ CC.69/2004 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... REVN. PETITIONER(S): DEFACTO COMPLAINANT: ----------------------------------------- ARAKKAL KRISHNAN, S/O. PARAGODAN, MARATHAYYIL HOUSE, POST VALLIKKUNNU, MALAPPURAM. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): ACCUSED & STATE: ------------------------------- 1. MURALEEDHARAN, S/O. VELAYUDHAN, KIZHAKKEDATH METHAL, VALLIKKUNNU NORTH, KADALUNDI NAGARAM. 2. A. PRADEEP. KUMAR, S/O. VELAYUDHAN, ARAKKAL NIVAS, VALLIKKUNNU NORTH, KADALUNDI NAGARAM. 3. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.SEENA.R SRI.S.RAJEEV FOR R1&2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2011, THE COURT ON 09/12/2011 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------------------ Crl.R.P.No.1910 of 2006 ------------------------------------- Dated this the 9th day of December, 2011 O R D E R The revision is directed against the acquittal of the accused in CC.No. 69/2004 on the file of the chief judicial magistrate, Kozhikkode. The defacto complainant in the above case being aggrieved by the order of acquittal has preferred this revision. 2. Admittedly, the defacto complainant and the accused are close relatives and they were partners of a firm by name ' Spaceage System and Services'. The 1st accused was the manging partner and the defacto complainant and the 2nd accused partners of the firm which was constituted on 26.12.1994. The crux of the case set up by the complainant against the accused is that after the 2nd accused ceased to be a partner of the firm, on his retirement, the managing partner, the 1st accused, with that accused (A2) fraudulently carried out transactions in the bank account of the firm and thereby a sum of more than `.25,00,000/- of the firm was defrauded by them. Alleging various offences including there under Sections 418 and 420 r/w. Section 34 of the Penal Code the defacto Crl.R.P.No.1910 of 2011 2 complainant presented a complaint before the magistrate and that was referred for investigation and report to the police under Section 156(3) of the Code of Cr.P.C. After investigation the police laid the charge against the accused for the offences punishable under Sections 418 and 420 r/w section 34 of the Penal Code. Prosecution examined PWs.1 to 4 and got Exts.P1 and P2 to prove its case to bring whom the indictment levelled against the accused, who had pleaded not guilty to the charges. On the materials placed by the prosecution, the learned magistrate found that no offence has been brought to against the accused, and the order impugned was passed acquitting them of the offences charged. Propriety and correctness of that order is assailed by the defacto complainant/revision petitioner contending that the prosecution of the case was conducted in a most haphazard manner without even examining the material witness, the bank manager, who was shown as a witness even in his complaint and also in the report filed by the police and also exhibiting in evidence relevant records tendered with the report filed under Section 173(2) of the Code. Some annexures with copies of bank statement collected by the defacto complainant are produced in the revision with a petition seeking for its Crl.R.P.No.1910 of 2011 3 consideration to examine the challenges raised against the order of acquittal, and thus persuede this court to set aside such order and remit the case for fresh disposal after taking into consideration the documentary materials referred to above, and examining the material witness, the bank manager. There is no scope for interfering with the order of acquittal rendered in favour of the accused as there is no infirmity whatsoever the decision taken by the court below and further the complaint, Ext.P1, on which crime was registered and also the evidence of the defacto complainant as PW1 itself would show that the prosecution against the accused is bereft of any merit or value, is the submission of the counsel for the accused. It is further submitted that though the complainant had alleged there was a reconstitution of the firm after retirement of one of the accused from the erstwhile firm, no material whatsoever was produced and in fact when complainant was examined as PW1 not even any transaction with respect to those aspects was stated before the court is the further submission of the counsel inviting my attention to the evidence of the complainant recorded in the case. At any rate, as revisional jurisdiction is primarily intended to avoid miscarriage of justice, to correct any serious infirmity Crl.R.P.No.1910 of 2011 4 committed by an inferior court and its exercisable only where failure of justice is shown to have been caused by such infirmity, the learned counsel for the accused contended that there is no merit in the challenges canvassed to impeach the order of acquittal passed by the court which does not suffer from any error at all. 3. I have perused the records of the case with reference to the submissions made by the counsel on both sides. True, the complainant has produced some documents, but, admittedly photocopies and not originals when he filed a complaint before the magistrate. Such documents were also tendered with the report filed by the investigating agency under Section 170(3) of the Code. Even such documents were not exhibited in evidence is canvassed by the complainant as a serious lacuna and in fact total lapse on the part of the prosecutor in conducting the prosecution of the case. However, looking into the complaint and also the records of the case it is seen the definite case set up by the complainant was that the erstwhile firm in which the 2nd accused continued as a partner had only one bank account and that was in Andra Bank. On retiring of the 2nd accused from the firm that bank account was suspended and later without his Crl.R.P.No.1910 of 2011 5 knowledge that bank account was renewed by the managing partner (1st accused) with the 2nd accused and a sum more `.25,00,000/- of the firm was defrauded by them was his case to prosecute the accused for the offences imputed. Not even a scrap of paper was produced by the complainant to show that the bank account of the firm operated in Andra Bank was suspended at any point of time after the retirement of the 2nd accused from the firm. What has been produced by him was only an agreement entered into by all the three partners recognizing, the retirement of the 2nd accused as a partner from the firm and was entire liabilities being taken over by the managing partner, the first accused. Going through that document, a copy which has been produced in the revision petition by the complainant, that the complainant all along was an absentee or a sleeping partner. Whatever that be, to sustain the allegation imputed against the accused that there was wrongful and illegal banking transactions of the firm in Andra Bank after retirement of the 2nd accused as a partner of the firm, collusively and fraudulently by the managing partner, 1st accused and 2nd accused together, it was vital to produce the record showing the suspension of the banking operations with the above bank on retirement of the 2nd accused Crl.R.P.No.1910 of 2011 6 from the firm. In the context, it is also appropriate to note that the complainant has not even disclosed whether the firm in which he continued as a partner with the accused was a registered firm or not. To show that the 2nd accused ceased be a partner of the firm what has been tendered is only a photocopy of the dissolution deed. Whether that deed was acted upon or not was also very crucial over and above, materials showing that some fraudulent activities were carried out by the managing partner 1st accused with the 2nd accused after cessation of the later as a partner of the firm. Glancing through the evidence of PW1, the complainant, it appears, he had leveled serious imputations against the other partners of the erstwhile firm for the reason he was not a signatory to any of the transactions with the bank. Where he has admitted that banking transaction could be carried out by two partners joining together his non participation in the transactions with the bank would not indicate that the dealings made by the other partners were fraudulent. On the photocopy of the deed produced by him regarding the retirement of the 2nd accused as a partner of the firm, that alone, the case advanced by him imputing serious offences against the other partners as to having carried out Crl.R.P.No.1910 of 2011 7 banking transactions of the firm fraudulently could not have been accepted where there was no material in the case to sustain the charges imputed against the accused. The order of acquittal passed by the court below is only to be treated as proper, valid and correct. There is no merit in the revision, and it is dismissed. (S.S.SATHEESACHANDRAN) JUDGE pm