IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 CRL.A.No. 33 of 2002(A) ---------------------------------- CRL.A.NO.38/1999 OF V ADDL.SESSIONS COURT, ERNAKULAM. CC.NO.575/1996 OF CHIEF JUDICIAL MAGISTRATE, ERNAKULAM. .................... APPELLANT/DE-FACTO COMPLAINANT-P.W 3: ------------------------------------------------------------------- GEORGE JOSEPH, S/O. T.V. JOSEPH, MANAGING PARTNER, THALIYATH AND CYRILS JEWELLERY, THALIYATH HOUSE, CHURCH LANDING ROAD, ERNAKULAM. BY ADV. MR.KODOTH SREEDHARAN. RESPONDENTS/APPELLANT & RESPONDENTS-COMPLAINANT & ACCUSED: ------------------------------------------------------------------------------------------------------------- 1. C.B.I. REPRESENTED BY ITS PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. ESMAT RAHMANI, W/O. AZEEZULLAH ALIAS ZEYNELABDIN, NISARI TABRI, KHUSHNISCEN QARCHAK VARAMIN, KHEABAN MOHAMMEDABAD STREET, TEHRAN, NOW RESIDING AT DOOR NO.658, FIRST FLOOR, BHAI PARAMANAND COLONY, KINGS WAY CAMP, NEAR TAGORE PARK, WEST MUKHERJEE NAGAR, NEW DELHI. R1 BY ADV. MR.M.V.S.NAMBOOTHIRY,SC, C.B.I, R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.NO.33/2002-A: ORDER ON CRL.M.P. NO. 162/2002 IN CRL.A. NO.33/2002 DISMISSED 30/10/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.A. No. 33 of 200 2 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 30th day of October, 2009 JUDGMENT The appellant herein is the de facto complainant PW3 in C.C.No.575 of 1996 on the file of the Chief Judicial Magistrate's Court, Ernakulam. This appeal is directed against the judgment of Fifth Additional Sessions Judge, Ernakulam in Crl.A.No.38 of 1999 dated October 6, 2001 in so far as it relates to the orders to confiscate the gold ornaments, which are material objects in this case MOs.8, 9, 10 and 17 (series). 2. C.C.No.575 of 1996 was registered against two Afghan nationals, accused 1 and 2 under sections 380 and 420 read with section 34 IPC for having cheated the appellant and committed theft of Rs.3,366 grams of gold ornaments worth Rs.16,42, 608/- from his jewellery namely Thaliyath and Cyrils, M.G. Road, Cochin. Second accused is the third respondent herein. As the first accused was absconding, case against him was split up and the case was prosecuted against 3rd respondent herein. PWs.1 to 25 were examined and Exts.P1 toP33 and MOs.1 to 17 were marked before the trial Crl.A.33/02 2 court. On an appreciation of the evidence, the trial court found the 3rd respondent/2nd accused guilty of the offence punishable under sections 380 and 420 read with section 34 IPC, convicted her thereunder and sentenced her to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- under each count. Challenging the said conviction and sentence the 2nd respondent filed appeal as Crl.A.No.38 of 1999 before the Fifth Addl. Sessions Judge, Ernakulam, which was allowed by judgment dated October 6, 2001 acquitting the 2nd accused and confiscating MOs.8, 9, 10 and 17 (series). In this appeal de facto complainant PW3 challenges the said order of the lower appellate court in so far as it relates to the confiscation of the material objects. That apart, the trial court has ordered return of those gold ornaments to PW3. 3. The learned counsel for the appellant submits that the third respondent is an Afghan national and notice against her may be dispensed with. Therefore, notice to the 3rd respondent is dispensed with. I have heard learned Public Prosecutor and the learned standing counsel appearing for the C.B.I. They have no objection in returning the gold ornaments to the de facto complainant PW3 4. In the result, the appeal is allowed. The order of the Fifth Addl. Crl.A.33/02 3 Sessions Judge, Ernakulam in Crl.A.No.38 of 1999 confiscating MOs.8, 9, 10 and 17 (series) is set aside. Material objects MOs.8, 9, 10 and 17 (series) shall be returned to de facto complainant PW3 on undertaking. The final disposal of the material objects mentioned above shall be subject to the disposal of the case against the first accused. P.Q.BARKATH ALI, JUDGE. mn. Crl.A.33/02 4 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.A. No. 33 of 200 2 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= JUDGMENT 30th day of October, 2009