IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 Crl.Rev.Pet.No. 395 of 1996() ---------------------------------------- CRA.501/1994 of V ADDL.SESSIONS COURT, ERNAKULAM CC.144/1993 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER: /3RD RESPONDENT IN APPEAL/P.W.1 IN C.C. 144/93 ---------------------------- T.M.ABDUL MAJEED, ADOVCATE, FORT COCHIN. BY ADV. SRI.V.V.SURENDRAN RESPONDENTS: RESPONDENTS 1 & 2 IN APPEAL & PETITIONERS IN MP.2020/94. ----------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. HAMZA KOYA, S/O. ABDUL RAHMAN, CHAKKAMADAM DESOM, KALLARAKKAPARAMBU ROAD, MATTANCHERRY VILLAGE, (NOW IN VIYYUR CENTRAL JAIL). 3. P.K.DIVAKARAN, S/O. KANDANKUNJU, PULIPARAMBIL HOUSE, PERINJANAM KARA, PERINJANAM VILLAGE KODUNGALLUR TALUK. 4. THAMPI @ GOKULA KRISHNAN, S/O. VELAYUDHAN, KOHIPARAMBIL HOUSE, PERINJANAM KARA, PERINJANAM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.BHASI,AJAYAKUMAR.C.P. SRI.M.K.MURARI PUBLIC PROSECUTOR SRI.AMJETH ALI SRI.C.S.RAMANATHAN FOR R3,4 SRI.K.V.BHASI FOR R3,4 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/04/2008, ALONG WITH CRRP NO. 396 OF 1996 CRRP NO. 398 OF 1996 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.RP. NO.395/1996 ORDER ON CRL.MP. NO.1271/1996 IN CRL.RP. NO.395/1996. DISMISSED 04.04.2008 SD/- A.K.BASHEER, JUDGE /TRUE COPY/ P.A. TO JUDGE tss A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.Nos.395, 396 & 398 OF 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of April 2008 ORDER These three revision petitions are at the instance of PW1 who was the defacto complainant in crime No.100/91 of Mattancherry Police Station. The accused in that case namely, Hamsakoya, S/o Abdul Rahman had allegedly committed theft of gold ornaments weighing about 77 sovereigns and cash of Rs.10,000/- from the residence of PW1. 2. While convicting and sentencing the accused, the trial court had passed orders on four Criminal Miscellaneous Petitions filed by PWs1, 5, 6 and 11. In Crl.M.P.1540/93, PW1 had claimed that he was entitled to get the entire amount of Rs.25,000/- lying in the Saving Bank Account of the mother in law of the accused (PW10) in addition to the gold ornaments, ingot etc. released to him already. The trial court restricted the claim of the petitioner to Rs.10,000/-. In other words, the claim for Rs.15,000/- was rejected, since admittedly the cash of Rs.10,000/- only was stolen from the residence of PW1. The case of PW1 was that by melting Crl.R.P.Nos.395, 396 & 398 OF 1996 :: 2 :: of the gold ornaments and converting them into ingots, he had lost considerable quantity of gold apart from several precious stones and therefore he was entitled to get the entire amount of 25,000/- which was admittedly deposited by the accused from the sale proceeds of the stolen properties. But the learned Magistrate repelled the said contention in Crl.M.P.1650/94. 3. In his application, PW5 claimed that he was entitled to get Rs.5,000/- out of the amount in deposit. He claimed that he was an innocent purchaser of the gold ornaments and because of the recovery of the effected from him, he had sustained a loss to the tune of Rs.5000/-. 4. In C.M.P.2020/94 PW6 claimed that he was entitled to get Rs.11,000/- on the same plea that he was an innocent purchaser and he had sustained loss to that extent. The learned Magistrate dismissed the above two applications. 5. C.M.P.2258/94 was at the instance of PW11 who claimed return of the new gold ornaments allegedly purchased by the accused after the sale of the stolen ornaments. Anyhow, we are Crl.R.P.Nos.395, 396 & 398 OF 1996 :: 3 :: not concerned with this C.M.P. since the order passed by the learned Magistrate on this C.M.P. has not been challenged by the petitioner. 6. PW1 had challenged the order in C.M.P.1540/93 before the Sessions Court in Crl.A.361/94. Similarly, PW5 and 6 had also challenged the respective orders which went against them in Crl.A.Nos.500/94 and 501/94. These three appeals were disposed of by the learned Sessions Judge through a common judgment by which the appeal preferred by the revision petitioner/PW1 was dismissed. The two appeals preferred by PW5 and 6 were allowed and the trial court was directed to release Rs.4,000/- to PW5 and Rs.11,000/- to PW6. 7. Heard learned counsel for the revision petitioners and also the learned counsel for respondents 3 and 4. (PW5 and 6). 8. Having perused the impugned order passed by the appellate court, I am satisfied that the learned Sessions Judge was not justified in ordering release of Rs.4,000/- to PW5 and Rs.11,000/- to PW6. Crl.R.P.Nos.395, 396 & 398 OF 1996 :: 4 :: 9. In para 6 of the order, the learned Sessions Judge had noted that the balance amount of Rs.15,000/- now lying in the court was the sale proceeds of the gold ornaments stolen from the residence of PW1. But strangely the learned Judge went on to observe (without any reason) that the appellant was not entitled to get the same. It may be true that PWs5 and 6 had purchased the stolen ornaments from the accused. Their only defence was that they were innocent purchasers. In fact as rightly noticed by the trial court, PWs5 and 6 ought to have been arrayed as accused under Section 411 IPC. It is on record that PW1 had got back some of the ornaments stolen from his residence. Rest of the stolen property was returned to him in the form of ingot. Obviously, the total quantity received by PW1 was only 75 sovereigns. In short, the revision petitioner/PW1 had undoubtedly lost about 2 sovereigns of gold. Necessarily he might have incurred further loss by way of value of stones, etc. as contended by him. If in fact PW1 wanted to make ornaments out of the ingot, he might have incurred additional expense also. Crl.R.P.Nos.395, 396 & 398 OF 1996 :: 5 :: 10. It is brought to my notice that the State had preferred Crl.R.P.1069/96 against the order in Crl.A.501/94 in which the Sessions Court had directed the trial court to release Rs.11,000/- to PW6. The said revision petition was dismissed by this court by order dated June 8, 2005 primarily on the ground that the revision petitioner had failed to take steps to serve notice on the respondents. It is true that while dismissing the revision petition, it was also observed that there was no illegality or irregularity in the order impugned. But the said observation shall not stand in the way of PW1 since he was not a party in that case, nor was he heard. 11. Having regard to the entire facts and circumstances, I have no hesitation to hold that the reasoning of the learned Sessions Judge was not at all just or legal. 12. In the above facts and circumstances, the orders passed by the learned Sessions Judge in the three appeals are set aside. The claim made by PW1 in C.M.P. No.1540/1993 shall stand allowed. The court below shall release Rs.15,000/- to PW1 with Crl.R.P.Nos.395, 396 & 398 OF 1996 :: 6 :: the interest, if any accrued thereon forthwith. Criminal revision petitions are allowed. (A.K.BASHEER, JUDGE) jes Crl.R.P.Nos.395, 396 & 398 OF 1996 :: 7 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.Nos.395, 396 & 398 OF 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 4th April 2008