K. Padmanabhan v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945** **CRL.REV.PET NO. 732 OF 2011** **AGAINST THE ORDER/JUDGMENT CRA 261/2009 OF DISTRICT COURT &** **SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD CC 402/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDRUG REVISION PETITIONER/S:** K.PADMANABHAN, AGED 47 YEARS S/O.A.C.NARAYANAN, RESIDING AT THOKKANAM MOTTA,, PANAYAL VILLAGE, KASARGOD DISTRICT. BY ADV SMT.T.SUDHAMANI ## **RESPONDENT/S:** THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. SMT. PUSHPALATHA M.K. SR.PP THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.REV.PET NO. 732 OF 2011 2 (Dated this the 13[th] day of October, 2023) ## **ORDER** The revision petition is filed questioning the legality and correctness of the judgment in Criminal Appeal No.261/2009 of the Court of Sessions, Kasargod (Appellate Court), confirming the conviction and sentence in C.C.No.402/2005 passed by the Court of the Judicial First Class Magistrate-II, Hosdurg (Trial Court), holding the revision petitioner guilty for the offence under Section 420 of the Indian Penal Code (in short, 'IPC'). The revision petitioner was the 1[st] accused before the Trial Court. ## The prosecution case 2. The prosecution case is that the 1[st] accused had pledged spurious gold ornaments in the Syndicate Bank, Pallikkara Branch in collusion with the 2[nd] accused – the appraiser of the bank -, making the Bank believe that the ornaments were made of gold. The accused received an amount of Rs.13,500/- as loan from the bank and, CRL.REV.PET NO. 732 OF 2011 3 thereby, they committed the above offence. 3. On receipt of summons from the Trial Court, the 1[st] accused entered appearance and pleaded not guilty to the accusation read over to him. The 2[nd] accused absconded and the case against him was split up. In the trial, the prosecution examined PWs 1 to 14 and marked Exts.P1 to P20 and MO 1 to MO 5. The 1[st] accused denied the incriminating circumstances appearing against him in the questioning under Section 313 of the Code of Criminal Procedure (in short, 'Code') ## Trial Court Judgment 4. The Trial Court, after appreciating the materials placed on record, found the 1[st] accused guilty and convicted him for the offence under Section 420 of the IPC and sentenced him to undergo simple imprisonment for a period of one year and pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for a further period of three months. The case against the 2[nd] accused CRL.REV.PET NO. 732 OF 2011 4 was re-filed as C.C.No.661/2009. 5. Aggrieved by the said judgment, the 1[st] accused filed Criminal Appeal No.261/2009 before the Appellate Court. ## Appellate Court judgment 6. The Appellate Court, after re-appreciating the materials on record, by the impugned judgment, confirmed the conviction and sentence passed by the Trial Court. 7. Aggrieved by the concurrent judgments; the revision petition is filed. 8. The revision petition was admitted on 10.03.2011 and the execution of the sentence was suspended on the same day. 9. The revision petition came up for hearing on 19.09.2023 and this Court had called for the lower court records. Again when the revision petition came up for CRL.REV.PET NO. 732 OF 2011 5 hearing on 06.10.2023, there was no representation for the revision petitioner. As the revision petition is of the year 2011, this Court following the law laid down in **Muruganandam K. and others vs. State** [2021 (5) KHC 363] appointed Sri.S.K.Adithyan as the Amicus Curiae to assist this Court in disposing of the revision petition. 10. Heard; the learned Amicus Curiae and Smt.Pushpalatha, the learned Public Prosecutor appearing for the respondent. 11. The learned Amicus Curiae argued that the courts below have concurrently gone wrong in finding the revision petitioner guilty for the offence under Section 420 of the IPC. He contended that there was a specific defence raised by the revision petitioner before the Trial Court that since the weight of the articles covered by MOs 1 and 3 were different from what is reflected in the pledge registers, the benefit of doubt should be granted to the accused. He also contended CRL.REV.PET NO. 732 OF 2011 6 that since there were two accused in the crime, the prosecution ought to have included the offence under Section 120B of the IPC. Therefore, the prosecution has to fail. He submitted that the revision petition is to be allowed. 12. The learned Public prosecutor defended the impugned judgments and countered the submissions of the learned Amicus Curiae. She submitted that this Court may not interfere with the findings of the fact findings courts in a revision petition. She prayed that the revision petition be dismissed. 13. Is there any illegality, impropriety or irregularity in the judgments of the courts below ? 14. The prosecution case is that PW1, the Manager of Syndicate Bank, Pallikara Branch had lodged Ext.P1 complaint, on 31.01.2002, alleging that the the 1[st] accused had availed gold loans from the Bank on 16.01.1999 and 22.11.2000 for Rs.3,500/- and CRL.REV.PET NO. 732 OF 2011 7 Rs.10,000/-, respectively. The loans were availed by pledging ornaments alleged to be made of gold. The 2[nd] accused – the appraiser of the Bank – had verified and ascertained the gold ornaments. The Bank officials, on verification, found the gold to be spurious. The 1[st] accused had availed the loan in collusion with the 2[nd] accused. The 1[st] accused had with a dishonest intention induced the Bank to pay the loan amounts to cheat the Bank. The accused had knowledge that the ornaments were made of spurious gold. 15. In the trial, the prosecution examined PWs 1 to 14. The Head Constable (CW.11) had seized the ornaments pledged by the 1[st] accused with the Bank as per Ext.P12 seizure mahazar. Ext.P12 shows that the 1[st] accused had pledged five items of ornaments in two transactions. 16. In the first transaction bearing no.JL 24/1999, two ornaments, namely a chain weighing 11.600 gms and a ring weighing 1.7800 gms were pledged. In the second transaction, bearing no.JL 674/2000, three CRL.REV.PET NO. 732 OF 2011 8 chains weighing 15.500 gms, 16.900 gms and 11.300 gms were pledged. 17. PW3, a gold smith, on verification found the ornaments to be spurious. The Investigating Officer sent the gold ornaments for expert opinion. The Regional Chemical Examiner, Kozhikode by Ext.P20 report certified that the ornaments were made of copper and silver, and was only coated with gold. 18. Ext.P13 - certified copy of the seizure mahazar proves that the 2[nd] accused is an accused in seven other crimes. Exts.P7 and P8 were the applications submitted by the 1[st] accused, seeking for loans on the basis of gold security. 19. The principal defence of the 1[st] accused was that the weight of the ornaments recorded in the pledge registers was different from the weight shown in seizure mahazar and the chemical analysis report. Therefore, the Bank has committed manipulation and the 1[st] accused is entitled to the benefit of doubt, in view of the lacuna in the prosecution case. CRL.REV.PET NO. 732 OF 2011 9 20. The courts below, after appreciating the materials placed on record have concurrently concluded that the 1[st] accused has committed the offence punishable under Section 420 of the IPC. 21. The learned Amicus Curiae submitted that the courts below have gone wrong since the weight of the ornaments in Exts.P6 to P8 pledge registers varies with the weight in Exts.P12 and P20, therefore, the prosecution case has to fail. 22. I disagree with the above submission because the specific case of the prosecution is that the 1[st] accused in collusion with the 2[nd] accused, an appraiser of the bank, had pledged spurious ornaments with the bank with the dishonest intention to induce the bank to disburse loans to the 1[st] accused. 23. Admittedly, the 2[nd] accused was the appraiser of the bank. It is on the strength of the certification made by the 2[nd] accused that the Bank accepted the ornaments CRL.REV.PET NO. 732 OF 2011 10 as security assuming the ornaments are made of gold and also as mentioned by the 1[st] accused in Exts.P7 and P8 applications. However, subsequently, when the 1[st] accused failed to redeem the mortgaged ornaments, the bank officials turned suspicious about the action of the 1[st] accused and, thereby, lodged Ext.P1 complaint with the Police. Notwithstanding the opinion of the goldsmith, the investigating officer send MOs 1 to 5 to the Regional Chemical Examiner, who by Ext.P20 report, has certified that the ornaments were made with copper and silver, and was only covered by gold. Thus, it is proved beyond any semblance of doubt that the 1[st] accused had pledged copper and silver ornaments by fraudulently claiming to be gold and received the loan amounts, with the false certification made by the 2[nd] accused, who was entrusted with the responsibility to weigh and certify the ornaments that were pledged. Unfortunately, the 2[nd] accused in collusion with the 1[st] accused has also cheated the Bank, which is a clear case of the fence eating the crops. Hence, I completely endorse and CRL.REV.PET NO. 732 OF 2011 11 confirm the findings of the courts below in above regard. 24. Now coming to the next contention that the prosecution will not lie under Section 420 of the IPC, without there being a charge under Section 120 B of the IPC. I am afraid that the said submission is totally untenable because the same was not raised at the trial stage. 25. Section 464 of the Code prohibits a contention of the above nature being raised for the first time in a revision petition. 26. Exts.P1 to P20 and MOs 1 to 5 corroborated with the oral testimonies of PWs 1 to 15 undoubtedly substantiates that the revision petitioner/1[st] accused has committed the above offence. 27. On an analysis of the materials placed on record, I am of the definite view that there is no error, illegality or impropriety in the impugned judgments of the courts below warranting the exercise of the CRL.REV.PET NO. 732 OF 2011 12 revisional powers of this Court. Therefore, I confirm the conviction and sentence passed by the courts below against the revision petitioner. The revision petition is devoid of any merit and is only liable to be dismissed. Resultantly, the revision petition is dismissed confirming the concurrent judgments of the courts below. The Registry is directed to forward a copy of this order to the Trial Court for further proceedings. This Court placed on record its appreciation for the valuable assistance rendered by the learned Amicus Curiae. Sd/- **C.S.DIAS JUDGE** rkc/13.11.23