IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 Crl.Rev.Pet.No. 2891 of 2010 (B) ------------------------------ (CC.1496/2006 of JUDL.MAGISTRATE OF FIRST CLASS, KUNNAMKULAM) .................... REVN. PETITIONER: ------------------------------ VENKITESWARAN, S/O.NARAYANA SARMA, PERINGANDOOR HOUSE, PERINGADOOR,THRISSUR DISTRICT' BY ADV. SRI.M.R.DHANIL VS RESPONDENTS/ACCUSED/STATE ------------------------------------------------- 1. NANDAKUMAR @ KANNAN, S/O.RAMAN, PANDIYATH HOUSE, P.O. POTTOR, THRISSUR DISTRICT – 680 581. 2. MURALIDHARAN, S/O.RAMANESZHUTHACHAN, AMMANATH VEETTIL HOUSE, EDAKKULAM DESOM, THANGALLUR VILLAGE, THRISSUR DISTRICT 680 581 3. S.I.OF POLICE, PERAMANGALAM,THRISSUR, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-31 4. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR' HIGH COURT OF KERALA, ERNAKULAM-31 R2 BY ADV. SRI.C.A.ANOOP R3 & 4 BY PUBLIC PROSECUTOR, SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2891 of 2010 ------------------------------- Dated this the 15th day of October, 2010. O R D E R The defacto complainant in a prosecution for an offence punishable u/s.420 of IPC and S.3 r/w.17 of Kerala Money Lending Act, is the revision petitioner, as he is aggrieved by the order of acquittal recorded by the trial court as per its judgment dated 24.12.2009 in C.C.No.1496/06. 2. The case of the prosecution is that, PW1 availed a loan of Rs.60,000/- from the 1st accused. According to the prosecution, as a security for the said loan amount, as insisted by A1, the revision petitioner, namely, PW1 executed a sale deed in favour of the 2nd accused. It is also the case of the prosecution that, A1 represented before PW1 that in the event of repayment of the loan amount, the property would be reconveyed to the revision petitioner. But according to the prosecution, subsequently in gross violation of the assurance given to PW1, A2 alienated the property in favour of CW4 and thereby cheated 2 Crl. R.P.No.2891 of 2010 PW1. Thus according to the prosecution, the accused who are engaged in money lending business have committed the offence under S.3 r/w.17 of the Kerala Money Lending Act, 1958, also. On the said allegation, Crime No.529/05 happened to be registered in the Peramangalam Police Station, on receiving Ext.P1 petition from DIG, Thrissur. Thus the police undertook investigation in Crime No.529/05 and thereafter a report was filed based upon which cognizance was taken for the said offences in the Court of Judicial First Class Magistrate- Kunnamkulam and instituted C.C.No.1496/06. On the appearance of the accused, after hearing them and the APP, the court below framed a formal charge u/s.420 of IPC and S.3 r/w 17 of Kerala Money Lending Act, which when read over and explained to the accused, they pleaded not guilty, which necessitated further trial during which, Pws.1 to 8 were examined and Exts.P1 to P5 were marked from the side of the defence. The accused were questioned u/s.313 of Cr.P.C. When the incriminating circumstances and evidences put to them, they denied the same and took the defence of total denial. 3 Crl. R.P.No.2891 of 2010 Finally, the learned Magistrate after appreciating the evidence on record, came into a conclusion that absolutely there is no evidence in support of the prosecution case and no criminal liability can be fastened against the accused and accordingly found against the prosecution and the accused are acquitted. It is the above order of acquittal challenged in this revision petition. 3. I have heard Adv.Sri.M.R.Dhanil, the learned counsel appearing for the revision petitioner and also Adv.Sri.C.A.Anoop, the learned counsel appearing for the respondents 1 and 2 and also the learned Public Prosecutor for respondents 3 and 4. 4. The learned counsel for the revision petitioner submitted that, the findings of the trial court is not sustainable, since the same is against the materials and evidence on record. It is also the submission of the learned counsel that the court below has committed a wrong in finding that the oral evidence of Pws.1, 2 and 3 are not sufficient to prove the transaction. It is also the submission of the counsel that, even if the evidence of the witnesses viz., Pws.1 to 4 are not acceptable to the court, there 4 Crl. R.P.No.2891 of 2010 is no justification for not acting upon the evidence of the official witnesses, including the police and therefore the order of acquittal recorded by the court below is liable to be set aside. 5. The learned counsel for the respondents, supporting the findings of the court below submitted that, the prosecution has miserably failed to produce any documentary evidence regarding the alleged agreement and regarding the offer to reconvey property in question and therefore the findings of the court below is absolutely correct, legal and proper. 6. I have heard both the counsels for the revision petitioner as well as the respondents. I have also gone through the judgments of the court below. 7. At the very outset it has to be noted that though the case in the trial court was instituted upon a report filed by the police after investigation, the investigating agency has not filed any appeal or revision against the acquittal of the accused. As indicated earlier, the present revision petition is filed by one of the witnesses viz., the defacto complainant. 8. The specific case of the prosecution is that A1 borrowed 5 Crl. R.P.No.2891 of 2010 a sum of Rs.60,000/- from the revision petitioner and towards the said transaction, according to PW1 he had executed a sale deed in favour of A2 as insisted by A1 and subsequently, A2 without the consent and knowledge of PW1 and against the verbal agreement between PW1 and A1, sold the property to a third party viz., CW4. According to PW1, there was a specific undertaking as per the terms of the transaction that the property given as a security would be handed over to PW1 as and when the liability is cleared. The trial court after an elaborate consideration of the prosecution witnesses mainly, Pws.1 to 3 came into a conclusion that to prove the fact regarding the agreement or the undertaking of A1 and A2 for the reconvey of the property, absolutely there is no documentary evidence and the only evidence is that of Pws.1 to 3. The trial court further found that the prosecution has also not produced the so called sale deed which is allegedly executed by PW1 in the name of A2. It is also relevant in this juncture that, the specific plea set up by the accused is that, absolutely there is no transaction between PW1 and A1. The main plank of the prosecution case 6 Crl. R.P.No.2891 of 2010 that A1 borrowed money from PW1 and towards the security of that transaction, as insisted by A1, PW1 executed a sale deed in favour of A2. There is no evidence regarding the borrowal of Rs.60,000/- by A1 from PW1. When there is no evidence at all regarding the loan transaction between PW1 and A1, it can not be said that prosecution has succeeded in establishing the case against the accused, especially when there is no documentary evidence regarding the sale of the property as alleged and claimed by PW1. In the absence of cogent and satisfactory evidence regarding the above two aspects I find no illegality with the findings of the trial court and acquitting the accused. 9. The revision petitioner is miserably failed to establish that the trial court has committed any manifest error or violated any procedure or law. In the absence of any such grounds, this court will not be justified in interfering with an order of acquittal by exercising the revisional jurisdiction at the instance of a private party, even if he is the defacto complainant. So there is no sufficient ground to interfere with the order of acquittal, by exercising the revisional jurisdiction of this court. 7 Crl. R.P.No.2891 of 2010 10. It is also relevant to note that the trial court which got the opportunity to assess the evidence of the prosecution witnesses and to watch their demeanor, has came into a conclusion that they are not guilty and by such a finding, the presumption of innocence of the accused is reinforced. Though I have heard the counsel at length and repeatedly gone through the judgment of the trial court and considered the evidence and materials referred to by the court below, I find no compelling reason or substantial grounds to interfere with the order of acquittal. In the result, there is no merit in the revision petition and accordingly, the same is dismissed. V.K.MOHANAN, Judge. ami/