IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 Crl.Rev.Pet.No. 1333 of 2010(B) ------------------------------------- (CRA.16/2007 of III ADDL.SESSIONS COURT, ERNAKULAM CC.1837/1998 of JUDL.MAGISTRATE OF FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR) .................... REVN. PETITIONER(S)/DEFACTO COMPLAINANT -------------------------------------------------------- P.R. SHAJI, S/O. RAGHAVAN NAIR, AGED 46 YEARS, SECRETARY-IN-CHARGE, VAZHAKKULAM GENERAL MARKETING AND PROCESSING CO-OPERATIVE SANGHAM NO. E.776, VAHAKKULAM, ERNAKULAM DISTRICT. BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK SRI.M.S.UNNIKRISHNAN (OASIS) RESPONDENT(S)/ACCUSED & COMPLAINANT ---------------------------------------------------- 1. RAMACHANDRAN, S/O. PRABHAKARAN NAIR, AGED 47 YEARS, GEETHA NIVAS, THURUTHUSSERI KARA. CHENGAMANADU VILLAGE. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.M.C.RATNAKARAN R2 BY PUBLIC PROSECUTOR SRI. V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.1333 of 2010 ------------------------------- Dated this the 20th day of September, 2010. O R D E R This revision petition is at the instance of a private party, challenging the order of acquittal recorded by the appellate court by its judgment dated 18.11.2008 in Crl.A.No.16/07 of the Court of III Addl. Sessions Judge, Ernakulam. 2. The allegation against the accused, who is the 1st respondent herein, is that he was the Secretary of Vazhakkulam General Marketing and Processing Co-operative Sangom. As per the resolution dated 12.4.1994 of the Administrative Samithi of the aforesaid Sangam it was decided to collect copra for support price from the farmers and forwarded the same to NAFED but the accused with an intention to have unlawful gain, made false entries showing the entry of purchase of 4800 kg. dried copra as per Bill Nos.8057 and 8058 on 28.7.1994, for an amount of Rs.1,13,270/- and made entries in the stock entries to that effect and he had also made corresponding entries in naalvazhi towards the expenditure in the adjustment column and thereby 2 Crl.R.P.No.1333 of 2010 misappropriated Rs.1,13,270/-. It is also the allegation that the accused made entries showing purchase of 2235 kg. of copra as per bill No.8039 dated 4.7.1994 and made entries and thereafter corrected the said bill showing purchase of 1,403 kg. of copra and thus the accused thereby misappropriated Rs.19,528.50, that being the price of 832 kg. of copra. It is also the allegation that on the very same day ie., on 4.7.1994, the accused made entires towards the expenditure in the naalvazhi book to the effect that 3923 kg. of dried copra was purchased for an amount of Rs.92,190.50/- and thereafter closed the bill No.8038 and made entires in the stock register showing lesser quantity of copra and thereby misappropriated Rs.1,99,974.42. So the accused falsified the accounts of the sangam and thereby committed criminal breach of trust with an intention to misappropriate the funds of the Sangam. 3. On the basis of the complaint at the instance of the defacto complainant, Crime No.46/98 was registered in Thadiyittaprambu Police station and after investigation, the police 3 Crl.R.P.No.1333 of 2010 filed a report alleging the offences against the accused u/s.408, 468 and 477(A) of IPC, upon which cognizance was taken and instituted C.C.No.1837/98 in the Court of Judicial First Class Magistrate-Perumbavoor. During the trial of the case, Pws.1 to 8 were examined from the side of the prosecution and Exts.P1 to P13 were also marked. From the side of the defence Dws.1 and 2 were examined and Exts.D1 to D2(j) documents were produced and marked. On the basis of the above materials and evidence, the trial occur found that the accused is guilty of the offences u/s.408 and 468 of IPC and sentenced him to undergo simple imprisonment for 1 ½ years and a fine of Rs.3,000/- and in default to undergo simple imprisonment for 3 months. The accused is also sentenced to undergo simple imprisonment for 1 ½ years u/s.477 A of IPC. It is ordered that the sentence shall run concurrently. 4. Challenging the above conviction and sentence, the accused/1st respondent herein preferred an appeal before the Sessions Court, Ernakulam, and by judgment dated 18.11.2008 4 Crl.R.P.No.1333 of 2010 in Crl.A.No.16/07, the Court of 2nd Addl. Sessions Judge, Ernakulam, acquitted the accused of all the charges, found him guilty by the trial court and allowed his appeal. It is the above order of acquittal challenged in this revision petition, at the instance of the defacto complainant. 5. I have heard the learned counsel for the revision petitioner and also I have gone through the judgments of the appellate court as well as the trial court. 6. The learned counsel for the revision petitioner vehemently submitted that, the trial court has already found guilt of the accused and on conviction, appropriate sentence were imposed against the accused but the lower appellate court without any reason and without properly appreciating the evidence and materials on record, interfered with the order of conviction and acquitted the accused. It is also the submission of the learned counsel that, the findings arrived on by the appellate court is contrary to the documentary evidence available on record. It is the specific submission of the learned counsel that, 5 Crl.R.P.No.1333 of 2010 Ext.P8(a) to P8(c) would prove the offences committed by the respondent/accused. It is also the submission of the learned counsel that, the appellate court has miserably failed to appreciate the evidence including the deposition of PW1 and the documentary evidence such as Ext.P1, P9 and P8 series, on record. Thus according to the learned counsel, the order of acquittal recorded by the trial court is liable to be interfered with and the respondent herein is liable to be punished. 7. I have carefully considered the arguments advanced by the learned counsel and perused the judgments of both the courts below. 8. At the outset, it has to be noted that against the order of acquittal, the prosecution agency has not filed any appeal or revision and the present revision petition is preferred by the defacto complainant. 9. The appellate court in its judgment, particularly in para 4, extracted the statement, submitted by the counsel who appeared for the appellant, wherein the difference between the dried copra 6 Crl.R.P.No.1333 of 2010 purchased from the farmers and given to NAFED. After considering the entire materials and evidence on record, the lower appellate court has found that, the persons in whose name the bills were written is not examined and if the so called persons were examined, that would have resulted in positive evidence. It is also relevant to note that Ext.P8 is the bill book and in bill No.8038 dated 4.7.1994, the bill intended for NAFED is missing. In para 15 of the appellate court judgment, the appellate court has held that the triplicate copies of Ext.P8(c) is not available and what is available is the society's copy and there the amount is shown as Rs.52,522.50/- and the quantity originally written is 2,235 kg. which is now seen corrected as 1,404 kg. and Rs.32,994/-. The appellate court has further held that, in words the writing is (Rupees Fifty two thousand five hundred twenty two and paise fifty only) and it is also the specific findings of the appellate court that there is nothing to show that the correction is in the hand writing of the Secretary. It is also the observation that, the former Secretary namely Sebastian is not seen 7 Crl.R.P.No.1333 of 2010 examined. It is also observed by the court below that there is an entry in the naalvazhi register and on such an entry in the naalvazhi, the next question considered by the appellate court is that, whether that amount is disbursed to any person. It is also found that, on the back of the purchase bill there is no endorsement of former Secretary. Regarding this aspect, the best evidence will be that of the said Sebastian, who was not examined. As per Ext.P1(b) bill, on 3.8.1994 the amount mentioned earlier is seen entered in the expenditure column. Thus the amount is seen as disbursed. After considering the above contentions, the appellate court has held that, again the person, who is competent to say that the said amount is not received or no actual sales took place as entered in the naalvazhi register, is the said Sebastian. After considering the materials and the evidence which referred above, the appellate court has also held that the account is maintained in a callus manner and there is no positive evidence regarding the forgery committed and that the alleged farmers whose names appeared in Ext.P8(c) and 8 Crl.R.P.No.1333 of 2010 Ext.P8(d) bills are not examined and in the absence of such materials, it is unsafe to conclude that the accused has misappropriated the amount and thus the investigation is not satisfactory regarding this aspect. The appellate court has further held that there is no evidence to show that in whose hand writing the entries are made in the books maintained connected with such transaction. Finally appreciating the entire evidence and the materials, the appellate court has held that the evidence regarding the hand writing of the Secretary and who was responsible and who misappropriated the amount, are not there and accordingly the appellate court held that, it will not be proper to come to a conclusion that the accused has committed the offence depending only on such a vague evidence. Accordingly the appellate court has found that, in the absence of cogent evidence and lack of proof, the accused is entitled to get benefit of doubt and accordingly the appellate court extended the benefit of doubt in favour of the accused. 10. On a close perusal of the judgment of the appellate 9 Crl.R.P.No.1333 of 2010 court and the way in which the evidence available on record were weighed by the appellate court, it can be seen that the evidence which relied on by the trial court to convict the accused has been re-appreciated by the appellate court and the benefit of doubt was given to the accused on the ground that, the persons whose names are appeared in the bills are not examined and the non- examination of the officials of the sangam. It is also the reasons assigned by the trial court that there is nothing in the book, to verify as to how the amounts are disbursed and how the vouchers are kept, which voucher they received and which would show that amounts are misappropriated. According to the court, on all these aspects, the prosecution is silent. It is under that particular background, the appellate court acquitted the accused giving the benefit of doubt. According to me, the above findings and observations, especially after the re-appreciation of the evidence on record as done by the appellate court and after assigning proper reasons, the order of the court below is not liable to be interfered with, while exercising the revisional 10 Crl.R.P.No.1333 of 2010 jurisdiction of this court, even if there is any minor mistake in appreciating the evidence or even if there is the possibility for taking another view regarding the evidence, as those are not grounds to interfere with the order of acquittal. In revision petition, that too at the instance of the defacto complainant, the revisional court has no jurisdiction again in re-appreciating the evidence. 11. It is also relevant to note, besides the contentions regarding the appreciation of evidence, nothing brought on record to show that there is any miscarriage of justice or any manifest error, while the appellate court came into its conclusion and giving benefit of doubt in favour of the accused and acquitting him. In the present revision petition, at the instance of the complainant or of any of the witnesses, unless this court is convinced that there is manifest error or miscarriage of justice, this court will not be justified in interfering with the order of acquittal. 12. The revision petitioner has also miserably failed to 11 Crl.R.P.No.1333 of 2010 establish any compelling circumstances or reasonable ground to interfere with an order of acquittal. In the light of the above facts and circumstances involved in the case and the discussions referred above, I am of the view that this revision petition is devoid of any merit and accordingly the same is dismissed. V.K.MOHANAN, Judge. ami/