IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 CRL.REV.PET.NO. 1096 OF 2001() ------------------------------------------------- CC.498/1996 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... REVN. PETITIONER(S) - DE FACTO COMPLAINANT: ----------------------------------------------------------------- A.C. JOSE, S/O.CHAKCO, AKKARAPATTY HOUSE, THRISSUR. BY ADV. SMT.DHANYA P.ASOKAN SRI.M.R.VENUGOPAL SMT.JEEJABAI SMT.DHANYA P.ASHOKAN RESPONDENT(S) - COMPLAINANT - ACCUSED: ------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PRAKASHAN, S/O.ANTHONY, VAZHAPPILLY VEEDU, VELUTHOOR, THRISSUR. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISYHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1096 of 2001 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of June, 2009 O R D E R -------------- Respondent No.2 remains absent though served. I heard learned counsel for petitioner and Public Prosecutor who appeared for respondent No.1 2. This revision is in challenge of the acquittal of respondent No.2 for offence punishable under Section 420 of the Indian Penal Code (for short, “the Code”), under Section 248(1) of the Code Criminal Procedure. Case is that respondent No.1 pledged M.O.1, a fake gold double chain making P.W.1 believe that it is pure gold and received Rs.7,000/- on 21.10.1995. Later it was revealed that it was not gold but is a silver chain plated with gold. Police after investigation charge-sheeted respondent No.2 for the offence punishable under Sec.420 of the Code. Prosecution examined P.Ws.1 to 9 and proved Exts.P1 to P8 and M.O.1. Learned magistrate observed that what is produced in court is not the chain which is stated to have been pledged with P.W.1 and accordingly acquitted respondent No.2. It is contended by learned counsel that the acquittal is not legal or proper. According to learned counsel M.O.1 is the chain which respondent No.2 had pledged with P.W.1. CRL. R.P. No.1096 of 2001 -: 2 :- 3. Learned magistrate observed in paragraph 9 of the judgment that though as per Exts.P2 and P6 weight of the chain allegedly pledged with P.W.1 is 34 gms. M.O.1 weighed only 24 gms. That discrepancy was not explained by the prosecution. A further observation is that records produced by the prosecution would show that the length of the chain is 33 cms. but M.O.1 is actually having a length of 66 cms. Learned magistrate observed that it is not shown that M.O.1 is the ornament which was pledged by respondent No.2 with P.W.1. 4. In Ext.P6, mahazar for seizure it is stated that the chain in question is a double chain having a length of 33 cms. and weight of 34 gsm. Exhibit P2, receipt and Ext.P5, mahazar for register also state the weight of chain as 34 gms. It is not clear how learned magistrate observed that weight of the chain as only 24 gms. 5. Learned magistrate then observed that the locket attached to the chain is not produced. P.W.1, Managing Partner of the firm has given evidence that respondent No.2 produced M.O.1 with a locket attached to it for pledging. Locket was of gold. But it is seen that the police had not seized the locket and produced the same in court. That however, did not affect the case of the prosecution. CRL. R.P. No.1096 of 2001 -: 3 :- 6. Then coming to the length of the chain allegedly pledged and seized by the police, Exts.P5 and P6 state the length of the chain as 33 cms. Learned magistrate observed that length of M.O. 1, chain is 66 cms. Counsel for petitioner explains that the chain pledged by respondent No.2 having a length of 33 cms. and produced in court is a “double chain” and that is why the length appeared to the learned magistrate as 66 cms. That explanation prima facie appears to be correct. Learned magistrate has acquitted respondent No.2 for the reason that it is not shown that M.O.1 is the chain he had pledged with P.W.1. The order of acquittal therefore is not legal or proper and is liable to be set aside. Revision therefore succeeds. The acquittal of respondent No.2 is set aside and case is remitted to the Court of Judicial First Class Magistrate-II, Thrissur for fresh disposal after considering the evidence on record untrammelled by any of the observations contained in this order. Parties shall appear in the trial court on 30.6.2009. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL. R.P. NO.1096 OF 2001 =================== O R D E R 3RD JUNE, 2009