IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 Crl.Rev.Pet.No. 414 of 2006() ----------------------------- C.C.NO.646/01 OF THE JMFC COURT, KODUNGALLUR. REVN. PETITIONER(S): DEFACTO COMPLAINANT ---------------------------------------- P.K.SOMASUNDARAN, AGED 60, S/O.KUNJAMMAL, THOTTUPURA HOUSE, POONKUNNAM, THRISSUR, MANAGING PARTNER, VIJAYA TRADING CO., NATTIKA VILLAGE-DESOM, NATTIKA.P.O, CHAVAKKAD TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): ACCUSED AND STATE OF KERALA ------------------------------------------ 1. C.K.SUBHASH CHANDRABOSE, S/O.KRISHNANKUTTY, CHORATTIL HOUSE, NATTIKA VILLAGE-DESOM, CHAVAKKAD TALUK. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. MAJAD ALI. ADV. SRI.T.H.ABDUL AZEEZ FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 414 of 2006 ------------------------------------------------- Dated this the 17th day of March, 2009 ORDER This revision petition is filed by the de facto complainant/ informant in a prosecution under Secs.408 and 420 IPC. 2. Cognizance was taken on the basis of a final report submitted by the police after due investigation of a crime. That crime, in turn, was registered on the basis of a private complaint filed by the petitioner and referred to the police by the learned Magistrate under Sec.156(3) Cr.P.C. The crux of the allegations is that the accused, who was employed as Bill Collector-cum-Cashier of M/s Vijaya Trading Company of which the petitioner herein is the Managing Partner, had misappropriated the amounts entrusted to him by creating false documents to make it appear that the amounts of the establishment have been disbursed to the customers. The Crl.R.P. No. 414 of 2006 -: 2 :- accused faced allegations initially under Secs.408 and 420 IPC. Later allegations were raised under Secs.468 and 471 IPC. Cognizance was taken on the basis of a final report submitted by the police after due investigation. 3. The accused denied the charges levelled against him and thereupon the prosecution examined P.Ws.1 to 11 and proved Exts.P1 to P60. 4. P.W.1 is the Manager of the establishment. P.W.2 is the Clerk employed in that establishment. P.W.4 – the petitioner herein, is the de facto complainant/Managing Partner of the firm. P.Ws.3, 5, 6, 7, 8 and 9 are the customers of the firm who had subscribed to the chitties run by the complainant firm. P.W.10 is the Investigating Officer and P.W.11 is the police officer who registered the F.I.R. on the basis of the complaint referred to the police under Sec.156(3) Cr.P.C. 5. The accused took up a defence of total denial. According to him, he had no responsibility for the financial transactions in the establishment. He was only a Bill Collector. He was not a Cashier. Amounts payable to the subscribers were Crl.R.P. No. 414 of 2006 -: 3 :- not entrusted to him. It is incorrect to allege that he has misappropriated the amounts belonging to the firm. He did not adduce any defence evidence. 6. The learned Magistrate, on an anxious consideration of all the relevant inputs, came to the conclusion that the accused is, at any rate, entitled to the benefit of doubt for the reason that the prosecution has not satisfactorily established the allegations against the accused. Accordingly the learned Magistrate proceeded to pass th impugned judgment of acquittal. 7. The revision petitioner claims to be aggrieved by the impugned order. According to the learned counsel for the petitioner, there is sufficient evidence to show that the accused who was the Clerk-cum-Cashier of the establishment had misappropriated the amounts entrusted to him for disbursal to the customers. He had produced false documents to make it appear that the amounts have been disbursed to the customers; whereas really the amounts were not so disbursed. 8. In support of the allegations, we have absolutely no materials to show that the accused was employed as a Cashier. Crl.R.P. No. 414 of 2006 -: 4 :- There is no evidence to show that the amounts were entrusted to him. There is no evidence to show that he accounted the amounts entrusted to him by claiming to have disbursed the amounts to the customers concerned. In these circumstances, it has got to be held that there is no satisfactory evidence to prove the entrustment of the amounts to the accused. Though there are indications to show that he was employed as a Bill Collector in the firm, there is nothing to show that he was employed as a Cashier or that any amount was entrusted to him. It is crucial to note that the prosecution has no case that the accused had collected amounts from the subscribers and had not accounted for the same. On the contrary, the contention is that the amounts entrusted by the firm to the accused for disbursal to customers have not been disbursed and false documents have been created to make it appear that such disbursement has taken place. Surprisingly, there is no acceptable evidence to show such entrustment of the amounts to the accused or that it was the accused who accounted the amounts as having been paid to the customers in question. Certain vouchers have been Crl.R.P. No. 414 of 2006 -: 5 :- relied on by the prosecution. The subscriber witnesses i.e., P.Ws.3 and 5 to 9 have sworn before court that some of the vouchers shown to them are not signed by them. But significantly there is nothing to show that such amounts were entrusted to the accused or that it was the accused who accounted such amounts as having been paid to the customers in question. The mere fact that these allegedly false vouchers are allegedly in the handwriting of the accused cannot lead to the ready inference that he forged them or that the amounts shown in such vouchers were entrusted to him by the firm and he misappropriated the same. 9. About the validity or genuineness of the signatures in the documents disputed by the customers, no satisfactory, cogent or scientific evidence is made available to show that such vouchers have not been signed by the subscribers concerned. 10. It is seen that reliance is placed on Ext.P12 – an alleged confession statement of the accused. The learned Magistrate did not place any reliance on the same. The accused disputes that document Ext.P12; but no evidence whatsoever has Crl.R.P. No. 414 of 2006 -: 6 :- been made available to show that it was the accused who wrote Ext.P12. 11. The learned Magistrate has considered the relevant aspects and has come to the conclusion that the prosecution has not succeeded in proving the offences alleged against the accused. 12. To sum up, there is no satisfactory and cogent data to satisfy the court that any amounts were entrusted by the complainant firm to the accused or that he had misappropriated the same by showing them as paid to the customers without actually making such payments. 13. In the nature of the materials available, the challenge against the judgment of acquittal raised in this revision petition can only be rejected. I do so. 14. This revision petition is accordingly dismissed. (R. BASANT, JUDGE) Nan/ Crl.R.P. No. 414 of 2006 -: 7 :-