IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 Crl.MC.No. 770 of 2011() ------------------------ CRRP.30/2008 of SESSIONS COURT, THRISSUR CC.715/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... PETITIONER(S): REVISION PETITIONERIIN CRL.RP./COMPLAINANT INCC: ------------------------------------------------------------------------------------------------------------- T.S.BALRAM, S/O.T.K.SITHARAMA IYYER, PARTNER OF M/S.KALYAN ARCADE, 25/247 ROUND WEST, THRISSUR. BY ADVS. SRI.P.B.KRISHNAN, SRI.R.SURAJ KUMAR, SMT.GEETHA P.MENON, SRI.N.AJITH, SRI.P.B.SUBRAMANYAN. RESPONDENT(S): RESPONDENTS IN CRL.RP./ACCUSED AND STATE: ------------------------------------------------------------------------------------------------------- 1. SRICHAND T.RAJPAL, MANAGER OF S.S.R.ENTERPRISES, RESIDING AT GANAPATH NIKETHAN, FLAT NO.1, 18TH RD.KHAR, WEST MUMBAI-400 001. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.770 of 2011 ==================================== Dated this the 17th day of March, 2011 O R D E R Acquittal of respondent No.1 in C.C. No.715 of 2004 of the court of learned Judicial First Class Magistrate-I, Thrissur is under challenge in this petition filed under Section 482 of the Code of Criminal Procedure (for short, “the Code”). That case arose on a complaint preferred by the petitioner and forwarded to the police for investigation under Sec.156(3) of the Code. In that complaint it was alleged that the first respondent committed offence punishable under Sections 420 of the IPC. Learned Magistrate after recording evidence found that the allegations are not correct and acquitted the first respondent. Petitioner preferred a revision before the learned Sessions Judge as Crl. R.P. No.30 of 2008 which ended in dismissal as per order dated 07.01.2011. Hence this petition under Sec.482 of the Code. Learned Senior Advocate contended that the findings entered by the courts below to acquit the first respondent are incorrect and that courts below did not take into account the fact that the findings are based on Ext.D6, reply notice allegedly sent by the petitioner which has been found CRL.M.C. No. 770 of 2011 -: 2 :- to be a concocted document in a proceeding before learned Chief Metropolitan Magistrate, Mumbai between the same parties. 2. Case is that the first respondent who is the proprietor of M/s.SSR Enterprises, Mumbai consigned ready-made garments to the petitioner as per order placed by the latter for Rs.31,387/-, petitioner paid the amount and on examining the consignment it was found that some of the garments were defective or of low quality. Thus first respondent is said to have cheated petitioner. Petitioner gave evidence as P.W.2 and his Manager was examined as P.W1. Documents were also marked on the side of petitioner and the first respondent. P.W.1, Manager stated that he does not know what all items were defective or sent back to the first respondent. He does not know whether any case was pending between petitioner and first respondent at Mumbai. P.W.2, petitioner admitted that a case was initiated by the first respondent against him in respect of the same matter at Mumbai. Exhibit D7 is the copy of complaint preferred by the first respondent. Exhibit D4 is the letter issued by the first respondent to petitioner and Ext.D5 is the notice issued to the petitioner. Petitioner is said to have given Ext.D6, reply where he is said to have made certain undertaking to pay the amount due CRL.M.C. No. 770 of 2011 -: 3 :- to the first respondent. It is the said notice which learned Senior Advocate contends was found to be concocted in the proceeding between the first respondent and petitioner before learned Chief Metropolitan Magistrate, Mumbai. 3. I find from the judgment/order of the court below that acquittal of the first respondent was not merely based on Ext.D6 but based on other circumstances as well. P.W1, the Manager of petitioner was not able to say which items were defective or of low quality and when the said items were sent back to the first respondent. P.W2, petitioner also does not know which all items were ordered to be supplied by the first respondent. He has not stated in the notice that the goods received were old. P.Ws3 and 4 are employees of petitioner. They have no definite case as to which are the damaged items supplied by the first respondent. P.Ws3 and 4 stated that they used to keep bills and in case of defective items the same will be returned to the sender within a week of the date of receipt. In the present case it is not disputed that goods were returned to the first respondent only after about six months of receipt of consignment. P.W4 stated that some items were found damaged. But evidence revealed that he was questioned by the police only after about four years of the alleged CRL.M.C. No. 770 of 2011 -: 4 :- incident. Courts below found that there is no reliable evidence whether any item of garment consigned by the first respondent and received by the petitioner was actually damaged and whether any damaged items were supplied by the first respondent. In the above circumstances courts below refused to accept the case of petitioner and acquitted the first respondent. Courts below also found that version of first respondent is more probable. 4. Now interference is called for under Sec.482 of the Code. It is not as if findings entered by the courts below are against evidence or not supported by any evidence so that gross injustice is caused to the petitioner and this Court is required to interfere under Sec.482 of the Code. On going through the order/judgment under challenge and hearing learned Senior Advocate I do not find reason to entertain this petition invoking power under Sec.482 of the Code. 5. Learned Senior Advocate submitted that on the impression that petitioner as P.W.2 has given false evidence learned Magistrate has initiated action under Sec.344(1) of the Code and a show cause notice has been issued to the petitioner to show cause why he shall not be summarily tried. Learned Senior CRL.M.C. No. 770 of 2011 -: 5 :- Advocate pointed out that proceeding in M.C.No.78 of 2007 is under challenge in this Court in Crl. M.C. No.851 of 2011. It is requested that dismissal of this petition shall not prejudice or affect contentions raised by petitioner in Crl. M.C. No.851 of 2010. Having regard to the circumstances stated it is directed that dismissal of this petition will not prejudice or affect contentions which petitioner has urged in Crl. M.C.No.851 of 2001 against initiation of proceeding under Section 344(1) of the Code. Criminal Miscellaneous Case is dismissed with the above observation and direction. THOMAS P. JOSEPH, JUDGE. vsv