IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 Crl.Rev.Pet.No. 1208 of 2011 ------------------------------------- CRA.83/2009 of ADDL. DISTRICT COURT (ADHOC-II), KOZHIKODE CC.79/2006 of JFCM (MARAD CASES), KOZHIKODE .................... REVISION PETITIONER/(APPELLANT/ACCUSED): SUNIL KUMAR, S/O.MADHAVAN, VALIYA PARAMBATH HOUSE, NEAR GANDHI ASHRAM, CIVIL STATION, KOZHIKODE. BY ADV. SMT.A.K.PREETHA SRI.C.ANIL KUMAR RESPONDENTS/(RESPONDENTS/COMPLAINANT & STATE): STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SR.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.Satheesachandran, J. ------------------------------------------- Crl.R.P.No.1208 of 2011 ------------------------------------------- Dated this the 12th day of August, 2011 ORDER The revision is by the accused convicted of the offence under Section 406 of Indian Penal Code concurrently by the two inferior courts. Negativing the plea of not guilty, on conviction of the accused, learned Magistrate has sentenced him to undergo simple imprisonment for one year and to pay a sum of `.5,000/- as fine with default term of simple imprisonment for one month. In appeal, affirming the conviction, learned Sessions Judge modified the sentence reducing the substantive term of imprisonment to six days, the period which he had already undergone, with direction to pay a sum of `.25,000/- as compensation with default term of simple imprisonment for six months. Feeling aggrieved, the accused has preferred this revision. 2. The gist of the prosecution case is that the petitioner/accused, misrepresenting that he is having the technical knowhow to enhance the number of channels that could be obtained from Television sets, collected 11 Television sets from a Hotel, namely, Sea Queen Hotel, Kozhikode, agreeing to effect the required changes in the sets CRRP 1208/2011 2 charging a sum of `.1,500/- per set. The accused is stated to have collected `.8,000/- in advance for carrying out the work executing Exhibit P2 receipt. However, committing breach of trust, on which he collected the Television sets from the Hotel, he disposed them to some persons at far off places. Later, on a complaint given by the Managing Director of the Hotel, namely, PW1, the crime was registered against the petitioner/accused under Section 406 of Indian Penal Code. Two among the Television sets entrusted to the accused were recovered from the purchasers, to whom they were stated to have sold, during the course of investigation, purportedly, on the basis of the disclosure statement elicited from the accused while he continued in custody. To the indictment on the prosecution case, for the offence under Section 406 of Indian Penal Code, the plea raised by the accused was one of not guilty, even disputing the entrustment of the Television sets to him from the Hotel. 3. On the side of the prosecution, PWs 1 to 8 were examined, P1 to P7 were exhibited, and the two Television sets recovered were identified as MOs 1 and 2. Denial of guilt raised as his plea was reiterated by the accused when he was questioned under Section 313 of Code of Criminal Procedure. No defence evidence was let in. On the materials placed, the learned trial Magistrate found that the indictment levelled against the accused has been proved and, CRRP 1208/2011 3 accordingly, he was convicted for the offence under Section 406 of Indian Penal Code, and sentenced as aforesaid. After re-appraisal of the evidence, in appeal, learned Sessions Judge affirmed the conviction, but, with the modification in the sentence as indicated. 4. Before me, learned counsel for the accused contended that there was no shred of legal evidence to inculpate the accused for the offence charged against him, and both the courts below have not only misappreciated the evidence, but overlooked that even the disclosure statement, which did not form part of the recovery mahazar, could not have been taken as a piece of legal evidence incriminating the accused. What the prosecution has let in in the case is only the interested testimonies of the Managing Director and those associated with the Hotel from where the Television sets are alleged to have been collected by the accused and there is no independent evidence to connect the accused with the offence imputed, is the further submission of the counsel. 5. Going through the judgments rendered by the courts below, I find whether the disclosure statement of the accused formed part of the recovery mahazar and also whether the recovery was effected satisfying the legal requirement necessary under Section 27 of the Indian Evidence Act has little significance in the case. The very foundation of the prosecution case for the offence indicted against the CRRP 1208/2011 4 accused under Section 406 of Indian Penal Code rests on Exhibit P2 receipt purported to have issued by the accused on receiving `.8,000/- as advance at the time when he is stated to have collected the Television sets from the Hotel. If there is legal evidence establishing that Exhibit P2 receipt was issued by the accused irrespective of his denial, then, the burden, no doubt, in the given facts of the case, shifts on the accused as to what happened to the Television sets collected by him from the Hotel. Both the courts below, on the materials tendered in the case, have come to the conclusion that Exhibit P2 was executed by the accused. No circumstance, whatsoever, has been brought to my notice by the learned counsel for the petitioner to conclude in what way the finding entered on the aforesaid aspect by the two inferior courts suffers from any infirmity. Exhibit P2 is proved by PW3, the Accountant of the Hotel. Collection of `.8,000/-, as spoken to by PW3, is corroborated by the evidence of other witnesses PWs 2 and 4. Learned Magistrate, who had the opportunity to watch the demeanour and deportment of the aforesaid witnesses, found their testimony reliable, trustworthy and convincing. After re-appraisal of the evidence, learned Sessions Judge has also approved the finding of the learned Magistrate that Exhibit P2 has been issued by the accused. Over and above the proof of Exhibit P2, which unmistakenly leads to the inference that the accused had collected the Television CRRP 1208/2011 5 sets and also `.8,000/-, thus sustaining the substratum of the prosecution case, there is evidence of PWs 5 and 6, the purchasers of Television sets. They have also supported the prosecution case that the Television sets were sold to them by the accused. Such being the case, conviction rendered against the accused for the offence under Section 406 of Indian Penal Code, as rightly held by the courts below, which is fully supported by the legal evidence, is not liable to be interfered with in exercise of the revisional jurisdiction. 6. So far as the sentence imposed, it is seen, the learned Sessions Judge, in appeal, has shown much leniency, that too without stating adequate reasons, to interfere with the sentence, reducing the substantive term of imprisonment imposed by the trial Magistrate. The flea bite sentence passed by the learned Sessions Judge, interfering with the sentence awarded by the learned Magistrate, in the given facts of the case, to say the least, was not proper. However, as there is no appeal by the State, the sentence so awarded, though this Court is competent to invoke the jurisdiction vested with an appellate court, has to rest as it is. Conviction and the sentence imposed against the accused, are not liable to be interfered with. Revision is dismissed. (S.S.Satheesachandran, Judge) tkv