IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 Crl.Rev.Pet.No. 2644 of 2009() ------------------------------ CC.413/2002 of JUDICIAL FIRST CLASS MAGISTRATE, PONNANI .................... REVN. PETITIONER/DEFACTO COMPLAINANT/PW1: -------------------------------------------- SIVASANKARAN P.T, S/O.P.T.KRISHNAN, EZHAVATHURUTHI VILLAGE, PONNAI, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS/STATE & ACCUSED: ------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PONNAI POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. K.V.VINOD, S/O.DR.SEKHARAN, DEVI VILAS, TALUK ROAD, PUTHIYARA, CALICUT. 3. V.JAYANANDAN, S/O.CHAATHU, VYSYAMKANDI (H), KACHERI AMSOM DESOM, EAST HILL, P.O.WEST HILL, KOZHIKODE. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2644 of 2009 --------------------------------------- Dated this 25th day of August 2009 ORDER This revision is in challenge of judgment of learned Judicial Magistrate of First Class, Ponnani in C.C.No.413 of 2002 acquitting respondent Nos.2 and 3 for the offence punishable under section 420 r/w section 34 of the Indian Penal Code. Respondent No.2 is an engineer by profession. Respondent No.3 is said to be a contractor who worked under him. Case of petitioner/defacto complainant is that on 01-03-1995 petitioner entrusted construction of his residential building to respondent No.2 and respondent No.3 was engaged as the contractor for the work. The work was not completed. While so, respondent Nos.2 and 3 made false measurement of the work already done showing higher measurement and received excess sum of Rs.Five Lakhs from him. To prove the case of prosecution, PWs.1 to 8 were examined and Exts.P1 to P21 were marked. Learned magistrate was not impressed by the contention raised by petitioner and found respondent Nos.2 and 3 not guilty. It is contended by learned counsel that the finding is not correct and that there is sufficient evidence on record to show that false measurement with the object of inducing the petitioner to pay the amount which was not due to respondent Nos. 2 and 3, was made by respondent Nos.2 and 3. 2. The whole dispute is regarding measurement of the work Crl.R.P.No.2644 of 2009 2 admittedly done by respondent Nos.2 and 3. PW.2, Assistant Executive Engineer is said to have inspected the site on the request of police and prepared Exts.P16 and 17, reports. He noticed difference in the measurement in his report as well as report prepared by respondent Nos.2 and 3. PW3 stated that he had measured the work as per the direction of petitioner. Learned magistrate observed that the plan and estimate of the building are not produced to find out whether there was any such difference in the work done with the measurement already noted by respondent Nos.2 and 3. The only evidence produced by the prosecution is that of PW2 and Exts.P16 and P17. Learned magistrate observed that it is not possible to say whether Exts.P16 and P17 represented the correct measurement as against the measurement taken by respondent Nos.2 and 3. It is also observed by learned magistrate after going through the measurement taken by respondent Nos.2 and 3 and Exts.P16 and P17 that the measurement taken by respondent Nos.2 and 3 contained more details and therefore it was not possible to say that the measurement taken by respondent Nos.2 and 3 are false. At any rate even it it is assumed that there was some mistake or deficiency in the measurement taken by respondent Nos.2 and 3, I am unable to say it was with a fraudulent or dishonest intention to deceive the petitioner. Every violation of a contract cannot amount to cheating. The function of the revisional court also requires Crl.R.P.No.2644 of 2009 3 to be born in mind. Revisional court cannot re-appreciate the evidence and come to its conclusion. Inference is required only if the finding is perverse or without any evidence. In this case, learned magistrate has stated cogent reasons for not accepting Ext.P16 and P17. I am unable, sitting in revision to say that the finding of the learned magistrate perverse or without evidence calling for interference in revision. There is no merit in this revision and accordingly it is dismissed. THOMAS P JOSEPH, JUDGE Sbna/