IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 268 of 2008()
1. V. MOIDU ALIAS PONNICHI MOIDU
... Petitioner
Vs
1. STATE REPRESENTED BY SI OF POLICE
... Respondent
2. STATE OF KERALA REP. BY THE
For Petitioner :SRI.P.K.JOSE
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :07/02/2008
O R D E R
V. RAMKUMAR , J.
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Crl.R.P. No. 268 of 2008
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Dated this the 7th day of February, 2008.
ORDER
The revision petitioner, who was the 1st accused in C.C. No.
29/2005 on the file of the Judicial First Class Magistrate-I,
Mananthavady for an offence punishable under Section 420 r/w
Section 34 IPC, challenges the conviction entered and the
sentence passed concurrently by the courts below for the
aforesaid offence. For the conviction under Section 420 IPC, he
was sentenced to undergo simple imprisonment for six months
and to pay a fine of Rs.2000/- and on default to pay the fine, to
suffer simple imprisonment for one month.
2. The case of the prosecution can be summarised as
follows:-
On 05.01.2005 at about 12 noon A1 and A2 in furtherance
of their common intention to cheat PW3, the de facto
complainant Sunilkumar, dishonestly induced PW3 and made him
deliver a sum of Rs.25,000/- after making a believe that gold
ornaments worth about 60 grams belonging to the 2nd accused
were being put in public auction by the North Malabar Gramin
CRL. R.P. NO. 268/2008 : 2:
Bank and those ornaments had to be taken back and that after
taking the ornaments from the bank it would be pledged in
Sakthi Finance run by PW3. After inducing PW3 to part with the
said amount of Rs.25,000/-, A1 handed over the same to A2
who walked straight to the bank. Subsequently, A1 pretending to
go in search of A2 went inside the bank and both A1 and A2
escaped though the rear exit of the bank.
3. Both the courts below acquitted the 2nd accused but
accepted the evidence adduced by the prosecution against the 1st
accused. The conviction recorded against the revision
petitioner/1st accused is after a careful evaluation of the oral and
documentary evidence in the case. This Court sitting in revision
will be loath to interfere with the said conviction which is
accordingly confirmed.
4. What now survives for consideration is the question
regarding the adequacy or otherwise of the sentence imposed on
the revision petitioner. It is true that he had induced PW3 to part
with a sum of Rs.25,000/- of which Rs.13,000/- had been
recovered and produced before the court as MO1 series. In the
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facts and circumstances of the case, I do not think that the
revision petitioner deserves penal servitude by way incarceration.
I am of the view that the interests of justice will be adequately
met by directing him to disgorge the ill- gotten gains of the
offence for which he can be directed to pay appropriate
compensation to PW3. Accordingly, the sentence imposed on the
revision petitioner/1st accused is set aside and instead for the
conviction under Section 420 IPC, he is sentenced to undergo
imprisonment till the rising of the court and to pay a sum of
Rs.15,000/- by way of compensation to PW3 under Section 357
(3) Cr.P.C. The petitioner shall deposit the compensation amount
within 45 days from today. In case he fails to deposit the
amount, he shall undergo simple imprisonment for two months
by way of default sentence.
In the result, this Revision is disposed of confirming the
conviction entered but modifying the sentence imposed on the
revision petitioner.
V. RAMKUMAR, JUDGE.
rv
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