IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.Rev.Pet.No. 520 of 2000() ----------------------------- CC.541/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER/DEFACTOR COMPLAINANT: --------------------- MUHAMMED, S/O. ABUBACKER, APURATH VEETTIL, THOPPUMPADY, KOCHI. BY ADV. SRI.T.O.XAVIER RESPONDENT(S): --------------- 1. SURESH, S/O.PURUSHOTHAMAN, H.NO.XIV/1444, ODAMBILLIPARAMBIL, KARUVELIPADY DESOM, THOPPUMPADY VILLAGE. 2. NAZAR, S/O. ABUBECKER, MANAPURATH VEETTIL, VII/1223, KAPPALANDIMUKKU DESOM, MATTANCHERRY VILLAGE. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.PEEYUS A.KOTTAM FOR R2 BY PUBLIC PROSECUTOR SRI. JAYASURAYA FOR R3. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01 / 07/ 2009 , THE COURT ON 01/07/2009 PASSED THE FOLLOWING: K. HEMA, J. --------------------------------------------------- Crl.R.P. No. 520 of 2000 --------------------------------------------------- Dated this the 1st day of July, 2009. ORDER This revision is filed against the order of acquittal of the accused, who are respondents 1 and 2. They were charge- sheeted for offence under Section 379 and 34 of IPC and tried by Judicial Magistrate of First Class-II, Kochi for the said offences. After taking evidence, they were acquitted by the learned Magistrate and hence this revision by de facto complainant, PW1. 2. According to prosecution, the accused 1 and 2, in furtherance of common intention, committed theft of a Kinetic Honda scooter belonging to PW1 on 8.6.1998 at about 4 p.m. from the porch of the house. PWs 1 to 6 were examined and Exts.P1 to P5 and MO1 were marked on the side of the prosecution. The accused did not adduce any evidence. 3. The trial court found on the basis of the evidence adduced by PW1 that the stolen property, namely, Kinetic Honda Scooter, belonged to the 2nd accused as well. It was held that the 2nd accused is a co-owner of the scooter on the basis of the [Crl.R.P.520/2000] 2 evidence given by PW1 himself and the admissions made by him. According to the accused, the scooter belonged to Sunitha Trading Company of which PW1 and 2nd accused, who are brothers, are partners along with their mother. The trial court also found that the scooter was attached as per the order of Tahsildar of Kochi for realisation of sales tax dues from Sunitha Trading Company. 4. PW1 was given notice by the Court to produce the same, since interim custody was given to him by the court. But he failed to produce the same on the ground that the scooter was in the custody of the Deputy Tahsildar on account of the attachment of the scooter, which belonged to Sunitha Trading Company. The Court below also noted that copy of the mahazar prepared for attachment of the scooter also showed that the scooter belonged to Sunitha Trading Company. According to the accused, first accused was asked to take the scooter from the house of PW1, who is none other than the brother of 2nd accused, since both of them had equal rights over the scooter and accordingly first accused went to the house of PW1 and took the key from PW1's wife and took the scooter. The trial court relied [Crl.R.P.520/2000] 3 upon the evidence of PWs 2 and 3 who stated that they saw the first accused going upstairs in the house of PW1 and coming out in support of the defence version. PW1 admitted that his wife was aware of certain relevant facts about theft but she was not cited as a witness. 5. On the basis of the above facts, the trial court found that the scooter belonged to 2nd accused as well and there was no dishonest removal of the scooter from the custody or possession of PW1 and hence, no theft was involved in this case. According to the revision petitioner, the removal of scooter by first accused which was revealed from the evidence of PWs and 3 was sufficient to conclude that there was theft. It is also argued that the registration certificate stood in the name of PW1 and hence offence of theft is committed by the accused. But the court below erred in entering a finding that there was no theft, it is submitted. 6. On hearing both sides and on going through the records and the impugned judgment, I find that the relevant findings entered by the trial court are based on the evidence and materials on record. I could not find any perversity in those [Crl.R.P.520/2000] 4 findings which is supported by materials on record. PW1 cannot claim exclusive possession over alleged stolen scooter in the light of his own evidence. 7. As the trial court found, PW1 in cross-examination admitted that, in the R.C. Book ,the 2nd accused signed as the owner and hence it was held that 2nd accused is also having ownership over the scooter along with PW1 and their mother and the scooter belonged to Sunitha Trading Company, which is under attachment as per the order of the Tahsildar. In the light of such evidence, trial court was only right in acquitting the accused and I find absolutely no ground to interfere with the finding or the order of acquittal. 8. Learned counsel for revision petitioner also argued that the trial court directing went wrong in registration of MC against PW1 and sureties on the ground that the scooter was not produced by them though direction was issued for production. PW1 was not in a position to produce the scooter as it was in possession of Tahsildar as per the order of attachment, it is argued. But, the revision petitioner has not challenged the said order in this revision. No ground is raised in the revision memo [Crl.R.P.520/2000] 5 relating to this. The only order challenged in the revision is the order of acquittal and hence I find no reason to interfere with the direction issued for registration of M.C. However, petitioner is at liberty to challenge the proceedings, if any, initiated against PW1 for non-production of scooter. But, in the absence of any challenge, I am not inclined to interfere with such order in this revision. This is specially since, no ground was raised calling upon this Court to set aside the order directing registration of MC against PW1 or the sureties. In the result, petition is dismissed. Sd/- K. HEMA, JUDGE. Krs. [Crl.R.P.520/2000] 6 K. HEMA, J. --------------------------------------------------- Crl.R.P. No. 520 of 2000 --------------------------------------------------- Dated this the 1st day of July, 2009. ORDER