IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2891 of 2010()
1. VENKITESWARAN, S/O.NARAYANA SARMA,
... Petitioner
2. MURALIDHARAN, S/O.RAMANESZHUTHACHAN,
3. S.I.OF POLICE, PERAMANGALAM,THRISSUR,
4. STATE OF KERALA
Vs
1. NANDAKUMAR @ KANNAN AND OTHERS
... Respondent
For Petitioner :SRI.M.R.DHANIL
For Respondent :SRI.C.A.ANOOP
The Hon'ble MR. Justice V.K.MOHANAN
Dated :15/10/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2891 of 2010
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Dated this the 15thday of October, 2010.
O R D E R
The defacto complainant in a prosecution for an offence
punishable u/s.420 of IPC and S.3 r/w.17 of Kerala Money
Lending Act, is the revision petitioner, as he is aggrieved by the
order of acquittal recorded by the trial court as per its judgment
dated 24.12.2009 in C.C.No.1496/06.
2. The case of the prosecution is that, PW1 availed a loan
of Rs.60,000/- from the 1st accused. According to the
prosecution, as a security for the said loan amount, as insisted
by A1, the revision petitioner, namely, PW1 executed a sale deed
in favour of the 2nd accused. It is also the case of the prosecution
that, A1 represented before PW1 that in the event of repayment
of the loan amount, the property would be reconveyed to the
revision petitioner. But according to the prosecution,
subsequently in gross violation of the assurance given to PW1,
A2 alienated the property in favour of CW4 and thereby cheated
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PW1. Thus according to the prosecution, the accused who are
engaged in money lending business have committed the offence
under S.3 r/w.17 of the Kerala Money Lending Act, 1958, also.
On the said allegation, Crime No.529/05 happened to be
registered in the Peramangalam Police Station, on receiving
Ext.P1 petition from DIG, Thrissur. Thus the police undertook
investigation in Crime No.529/05 and thereafter a report was
filed based upon which cognizance was taken for the said
offences in the Court of Judicial First Class Magistrate-
Kunnamkulam and instituted C.C.No.1496/06. On the
appearance of the accused, after hearing them and the APP, the
court below framed a formal charge u/s.420 of IPC and S.3 r/w
17 of Kerala Money Lending Act, which when read over and
explained to the accused, they pleaded not guilty, which
necessitated further trial during which, Pws.1 to 8 were
examined and Exts.P1 to P5 were marked from the side of the
defence. The accused were questioned u/s.313 of Cr.P.C.
When the incriminating circumstances and evidences put to
them, they denied the same and took the defence of total denial.
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Finally, the learned Magistrate after appreciating the evidence
on record, came into a conclusion that absolutely there is no
evidence in support of the prosecution case and no criminal
liability can be fastened against the accused and accordingly
found against the prosecution and the accused are acquitted. It
is the above order of acquittal challenged in this revision
petition.
3. I have heard Adv.Sri.M.R.Dhanil, the learned counsel
appearing for the revision petitioner and also Adv.Sri.C.A.Anoop,
the learned counsel appearing for the respondents 1 and 2 and
also the learned Public Prosecutor for respondents 3 and 4.
4. The learned counsel for the revision petitioner submitted
that, the findings of the trial court is not sustainable, since the
same is against the materials and evidence on record. It is also
the submission of the learned counsel that the court below has
committed a wrong in finding that the oral evidence of Pws.1, 2
and 3 are not sufficient to prove the transaction. It is also the
submission of the counsel that, even if the evidence of the
witnesses viz., Pws.1 to 4 are not acceptable to the court, there
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is no justification for not acting upon the evidence of the official
witnesses, including the police and therefore the order of
acquittal recorded by the court below is liable to be set aside.
5. The learned counsel for the respondents, supporting the
findings of the court below submitted that, the prosecution has
miserably failed to produce any documentary evidence
regarding the alleged agreement and regarding the offer to
reconvey property in question and therefore the findings of the
court below is absolutely correct, legal and proper.
6. I have heard both the counsels for the revision petitioner
as well as the respondents. I have also gone through the
judgments of the court below.
7. At the very outset it has to be noted that though the case
in the trial court was instituted upon a report filed by the police
after investigation, the investigating agency has not filed any
appeal or revision against the acquittal of the accused. As
indicated earlier, the present revision petition is filed by one of
the witnesses viz., the defacto complainant.
8. The specific case of the prosecution is that A1 borrowed
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a sum of Rs.60,000/- from the revision petitioner and towards
the said transaction, according to PW1 he had executed a sale
deed in favour of A2 as insisted by A1 and subsequently, A2
without the consent and knowledge of PW1 and against the
verbal agreement between PW1 and A1, sold the property to a
third party viz., CW4. According to PW1, there was a specific
undertaking as per the terms of the transaction that the property
given as a security would be handed over to PW1 as and when
the liability is cleared. The trial court after an elaborate
consideration of the prosecution witnesses mainly, Pws.1 to 3
came into a conclusion that to prove the fact regarding the
agreement or the undertaking of A1 and A2 for the reconvey of
the property, absolutely there is no documentary evidence and
the only evidence is that of Pws.1 to 3. The trial court further
found that the prosecution has also not produced the so called
sale deed which is allegedly executed by PW1 in the name of
A2. It is also relevant in this juncture that, the specific plea set
up by the accused is that, absolutely there is no transaction
between PW1 and A1. The main plank of the prosecution case
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that A1 borrowed money from PW1 and towards the security of
that transaction, as insisted by A1, PW1 executed a sale deed in
favour of A2. There is no evidence regarding the borrowal of
Rs.60,000/- by A1 from PW1. When there is no evidence at all
regarding the loan transaction between PW1 and A1, it can not
be said that prosecution has succeeded in establishing the case
against the accused, especially when there is no documentary
evidence regarding the sale of the property as alleged and
claimed by PW1. In the absence of cogent and satisfactory
evidence regarding the above two aspects I find no illegality with
the findings of the trial court and acquitting the accused.
9. The revision petitioner is miserably failed to establish
that the trial court has committed any manifest error or violated
any procedure or law. In the absence of any such grounds, this
court will not be justified in interfering with an order of acquittal
by exercising the revisional jurisdiction at the instance of a
private party, even if he is the defacto complainant. So there is
no sufficient ground to interfere with the order of acquittal, by
exercising the revisional jurisdiction of this court.
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10. It is also relevant to note that the trial court which got
the opportunity to assess the evidence of the prosecution
witnesses and to watch their demeanor, has came into a
conclusion that they are not guilty and by such a finding, the
presumption of innocence of the accused is reinforced. Though
I have heard the counsel at length and repeatedly gone through
the judgment of the trial court and considered the evidence and
materials referred to by the court below, I find no compelling
reason or substantial grounds to interfere with the order of
acquittal.
In the result, there is no merit in the revision petition and
accordingly, the same is dismissed.
V.K.MOHANAN,
Judge.
ami/