IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 Crl.Rev.Pet.No. 3584 of 2010() -------------------------------------------- (C.M.P.NO.4640/2008 OF JUDICIAL 1ST CLASS MAGISTRATE COURT-1, ALUVA) -------------------------------------- REVN. PETITIONER(S): REVISION PETITIONER/COMPLAINANT ------------------------------------------------------------------------------------------ SEBASTIAN, S/O.VARGHESE, PALAMITTAM, KARUMALOOR VILLAGE, PARAVUR TALUK. BY ADV. SRI.GEORGE SEBASTIAN RESPONDENT(S): ------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.REKHA C. NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.3584 OF 2010 ------------------------------------------------- Dated this the 3rd day of March, 2011. ORDER The complainant in a private complaint is the revision petitioner and his grievance is that by order dated 27-03-2010 in C.M.P.No.4640/2008 of the learned Magistrate of the Judicial First Class Magistrate Court-I, Aluva, dismissed the complaint under Section 203 of Cr.P.C. on a wrong understanding of the facts and circumstances of the case and without proper application of mind. 2. I have heard Sri. George Sebastian learned counsel appearing for the revision petitioner. 3. I have also carefully perused the order impugned. The allegation in the complaint is that on 30.11.2008 at about 11.00 a.m the accused Nos. 2 and 3 came to the shop in question which is in the possession of the complainant and caused damage to the Photostat machine, freezer and Almirah and also took away a sum of Rs.10,000/- and five blank cheque leaves without his knowledge and consent and thereby the accused three in numbers committed the offences punishable under Section 427 and Section 379 of IPC. Crl.R.P.NO.3584 OF 2010 2 4. The learned counsel for the revision petitioner submitted that the specific allegation of the complainant is that on the date of incident A2 and A3 came to the shop of the complainant at about 11.00 a.m on 30.11.2008 and committed the said offences. But the learned Magistrate came into an erroneous finding to the effect that if there is any damage to the articles which released to the complainant as per the kychit from the court, the complainant could have raised a complaint to the Amin or the execution court but no such complaint was registered. From the order itself it is stated that the Amin and others came to the shop of the complainant at 12 'o clock on 30.11.2008. So according to the learned counsel the Magistrate is under wrong impression that the incident was taken place when the Amin and party came to the shop for execution of the decree. Whereas according to the complainant the offence was committed at about 11.00 a.m on the same date at prior to the arrival of Amin of the court. It is also the submission of the learned counsel that all his witnesses cited in the complaint were not examined except the complainant as well as an other witnesses. 5. I have carefully considered the argument advanced by Crl.R.P.NO.3584 OF 2010 3 the learned counsel for the petitioner. On a perusal of the order of the learned Magistrate it appears that in the absence of any reference to the actual time of the alleged commission of the offence it is to be observed that the learned Magistrate of the opinion that the incident taken place at 12.00 noon when the Amin and others came to the shop of the complainant. But from paragraph 3 of the order while reciting the allegation, the learned Magistrate himself has indicated that the specific case of the complainant is that the incident was taken place on 11.00 a.m on 30.11.2008 and not at 12.00 noon on that day. Even though, the complainant has not witnessed to the incident, it cannot be said that no offence would lie. According to the learned Magistrate the witness in the sworn statement of the witness other than the complainant, had stated about the second accused and his overt act though there is no overt act against the first and third accused. But according to the counsel, the statement shown that A2 and other persons involved. If that be so, according to me it is a matter to be re-considered by the learned Magistrate and to pass a fresh orders in accordance with law. In the result, the revision petition is disposed of setting Crl.R.P.NO.3584 OF 2010 4 aside the order dated 27.03.2010 in C.M.P.No.4640/2008, of the court of Judicial First Class Magistrate-I, Aluva and the matter is remitted back to the same court for fresh consideration of the matter and for issuing appropriate order. As the complaint is pertained to the year 2008, the learned Magistrate is directed to comply with the direction as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this order, which will be produced by the revision petitioner. V.K.MOHANAN, JUDGE pm