IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1096 of 2001()
1. A.C.JOSE
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SMT.DHANYA P.ASOKAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/06/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.1096 of 2001
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Dated this the 3rd day of June, 2009
O R D E R
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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
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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
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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.
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CRL. R.P. NO.1096 OF 2001
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O R D E R
3RD JUNE, 2009
