IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 Crl.Rev.Pet.No. 2400 of 2009(D) ------------------------------ CRA.298/2007 of I ADDL. SESSIONS COURT, THRISSUR CC.1328/2001 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR ................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------------------------- SHAJU,AGED 33, S/O.OOUSEPH, ALOOR HOUSE, VILVATTOM VILLAGE, NEAR VILVATTOM CHURCH, THRISSUR. BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------------------------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE,OLLUR, THRISSUR. PUBLIC PROSECUTOR SMT. REKHA C NAYAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K. MOHANAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Crl.R.P. No. 2400 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of June, 2011 ORDER The sole accused in a prosecution for the offence under Section 420 IPC is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him. 2. The prosecution case is that on 31.7.1999 at about 1.12 pm the accused with an intention of cheating, pledged fake gold chain weighing about 21.800 gms in Manappuram Benefit Fund where CW1 was working as a Manager and thereby the accused obtained Rs.5,600/-(rupees five thousand six hundred only) unlawfully and thus the accused has committed offence under Section 420 of IPC. 3. The Ollur police registered crime No.452/99 for the offence under Section 420, on the basis of Ext.P4 complaint filed by CW1. After investigation report, was filed in the court of Judicial First Class Magistrate III, Thrissur, on the basis on which cognizance was taken for reference under Section 420 of IPC and Crl.R.P.No. 2400 of 2009 : 2 : instituted C.C.1328/2001. On the appearance of the accused a formal charge was framed which was read over and explained to him and he denied all the charges and pleaded not guilty. Accordingly, the prosecution adduced evidence consists of oral testimony of PW1 to PW4 and documentary evidence such as Ext.P1 to P6. MO1, fake gold chain is marked as material object. No evidence either oral or documentary was adduced from the side of defence. The trial court finally found that the accused is guilty of offence charged against him and accordingly he is convicted under Section 420 of IPC and consequently the trial court sentenced the revision petitioner to undergo rigorous imprisonment for one year and also to pay a fine of Rs.10,000/- and in default he is directed to undergo rigorous imprisonment for three months. 4. However, an appeal was filed by the accused challenging his conviction and sentence by judgment dated 29.5.2009 in Crl.A.No.298/2007 in the court of the 1st Additional Sessions Judge, Thrissur dismissed the appeal confirming the conviction and sentence. It is the above conviction and sentence and Crl.R.P.No. 2400 of 2009 : 3 : judgments of the courts below are challenged in this revision petition. 5. I have heard Sri. V.Rajendran, learned counsel appearing for the petitioner and also the learned Public Prosecutor. 6. Counsel for the petitioner vehemently submitted that the prosecution has miserably failed to establish essential ingredients of Section 420 IPC by adducing cogent convincing evidence. According to the learned counsel there is no satisfactory evidence to show that the petitioner is the person who entrusted the MO1 with PW3. It is also the contention of the learned counsel that there is no iota of the evidence to show that MO1 is a fake ornament. Therefore, according to the learned counsel the conviction is bad and liable to be set aside. 7. The learned Public Prosecutor, supporting the findings and the conviction recorded by the court below, submitted that the evidence of the prosecution witnesses are sufficient to show that it is the accused who entrusted the MO1 with PW3 and there is no challenge that the MO1 is original gold. Therefore, according to the Crl.R.P.No. 2400 of 2009 : 4 : learned Public Prosecutor no interference is warranted. 8. I have carefully considered the arguments advanced by the learned counsel as well as the learned Public Prosecutor and I have also perused the judgments of trial court and appellate court and carefully examined the materials of the documents. 9. According to the prosecution the incident had taken place at about 1.12 pm on 31.7.99, the date on which the accused allegedly pledged MO1 with PW3 as directed by CW1. The crime was registered only on 18.10.99. There is no explanation as to why the delay caused in lodging the complaint. In a case alleging offence under Section 420 IPC, it is the bounden duty of the prosecution to prove all the essential ingredients of the Section by adducing cogent and satisfactory evidence. In the present case the crux of the of the prosecution allegation is that with the intention to cheat PW3 or CW1, the accused entrusted with them MO1 representing that the same is a gold chain and believing him, PW3 released the amount in favour of the accused. But absolutely there is no evidence to show that the ornament alleged to have entrusted with PW3 is the one Crl.R.P.No. 2400 of 2009 : 5 : which is marked as MO1 and MO1 is a fake ornament. In this juncture it is relevant to note that CW1 who allegedly directed PW3 to take the material from the accused has not examined. After the alleged date of occurance there is more than two months delay in registering the crime. There is no evidence to show that whatever received by PW3 is kept in safe custody and that MO1 is the ornament that received from the accused. So the prosecution has to explain the delay and to further show that the ornament which allegedly entrusted with PW3 on 31.7.99, was in safe custody and nobody has any access for the same. There is no such evidence to that effect. 10. It is also pertinent to note that the crux of prosecution is that with the intention to cheat PW3 or CW1, the accused entrusted with them MO1 fake ornament misrepresenting that it is a gold ornament and thereby received a sum of Rs.5600/-, but actually the ornament which entrusted with PW3 is not a gold ornament. But absolutely there is no evidence to show that either MO1 is a fake ornament or the material which allegedly entrusted with PW3 by the Crl.R.P.No. 2400 of 2009 : 6 : accused is a fake one. There is no scientific evidence to show that MO1 is a fake one. No witness is examined to establish that MO1 is a fake ornament. So in order to attract Section 420, in the present case there is no substantial evidence to show that MO1 is a fake ornament and there is no link evidence to show that MO1 is the ornament or thing which entrusted with PW3 at 1.15 pm on 31.7.99. 11. As correctly pointed out by counsel for the petitioner, the reason given by learned Sessions Judge to dismiss the appeal as there was no challenge against the prosecution case that MO1 is a fake one, is not sustainable. The cross examination of PW4, the investigating officer shows that the accused/defence has very much challenged the prosecution case by putting definite questions to PW4. Therefore, the reason given by the learned Sessions Judge to dismiss the appeal is also not sustainable. 12. In the light of the above discussions and the materials referred to above, I am of the view that the prosecution has miserably failed to establish the essential ingredients of Section 420 IPC and there is no cogent and satisfactory evidence to show that Crl.R.P.No. 2400 of 2009 : 7 : MO1 is the material which entrusted with PW3 allegedly by the accused on 31.7.99 and further MO1 is a fake ornament. Therefore, the revision petitioner is entitled to get the benefit of doubt and consequently the findings of the trial court as well as appellate court and the conviction and sentence imposed against the revision petitioner are liable to be set aside and I do so. In the result the revision petition is allowed. The judgment dated 16.3.2007 of Judicial First Class Magistrate III, Thrissur and the judgment dated 29.5.2009 of Court of I Additional Sessions Judge, Thrissur as well as the conviction and sentence imposed on the revision petitioner are set aside and he is acquitted of all the charges levelled against him. The bail bond if any executed on the petitioner is cancelled and he is set at liberty. sd/- (V.K. MOHANAN, JUDGE) kp