## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL**
**WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2013/3RD ASWINA, 1935**
**Crl.Rev.Pet.No. 1773 of 2013 () --------------------------------**
**AGAINST THE ORDER IN CMP 2266/2013 of J.M.F.C., VADAKARA.**
**REVISION PETITIONER(S)/COMPLAINANT:**
**-----------------------------------**
**MANCHAYIL SOOPPY, S/O. ABDULLA, AGED 57 YEARS, MANCHAYIL HOUSE, P.O.PATHIHYARAKKARA, PATHIYARAKKARA AMSOM DESOM, VATAKARA TALUK, MANAGING PARTNER, APSARA GOLD SUPER MARKET, APSARA TOWER, MARKET ROAD, VATAKARA.**
**BY ADV. SRI.U.K.DEVIDAS**
**RESPONDENTS/ACCUSED:**
**--------------------**
**1. THASTHAKEER, AGED 35 YEARS, S/O. PARAPPIL HAMSA, NOOR MAHAL HOUSE, VATAKARA BEACH, VATAKARA AMSOM DESOM-673 101.**
**2. NOORJAHAN, W/O.PARAPPIL HAMSA, AGED 55 YEARS, NOOR MAHAL HOUSE, VATAKARA BEACH, VATAKARA AMSOM DESOM-673 101.**
**3. SATHAR, AGED 57 YEARS, SAFREENA MANZIL (H), KAVUMPURAM, BEACH ROAD, THAZHE ANGADI, VATAKARA AMSOM, DESOM-673 101.**
**4. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31.**
**R. BY ADV. SMT.P.K.PRIYA R. BY ADV. SMT.MONCY FRANCIS R4 BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN**
**THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 1773 of 2013 -----------------------------------------------------Dated this the 25[th] day of September, 2013**
## **ORDER**
The revision petitioner is the complainant in C.M.P.No. 2266/12 on the files of the Judicial First Class Magistrate's Court, Vatakara. The above complaint was filed under Sec.190(a) along with Sec.200 of the Code of Criminal Procedure alleging the commission of the offences punishable under Secs.260, 420, 475, 383 and 384 read with Sec.34 of the Indian Penal Code. It is the case of the complainant that he is the Managing Partner of Apsara Gold Super Market. On 20/6/08, the accused Nos.1 and 2 had purchased 198.170 grams of gold ornaments from the aforesaid jewellery shop. They purchased the gold ornaments, including a gold chain having 36.340 grams and
**Crl.R.P. No. 1773 of 2013** -: 2 :-
a locket having 3.520 grams. On 3/6/11, the accused Nos.1 and 2 approached the jewellery shop and they informed that they want to purchase new gold ornaments by exchanging the old one which they had purchased on 20/6/08. On account of previous acquaintance with the accused Nos.1 and 2, the Salesman sold a gold chain having weight of 36.130 grams and a locket having 2.060 grams without verifying the genuineness of the gold chain which was exchanged.
2. On the next day, the appraiser, after verification of the gold chain exchanged by A1 and A2, informed that, that was not the genuine gold and 3/4[th] parts of the same was copper and the rest part alone was gold. On verification of that chain, it was also found that the 'BIS' mark and the impression of '916' thereon were also forged. Hence the Salesman contacted both the accused and on 6/6/11, both the accused came to the shop and on showing the gold ornaments given by them, the 1[st] accused made sound and the 2[nd] accused demanded to go to the Police Station. Accordingly, the complainant, the accused Nos.1 and 2 and
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the Salesman went to the Police Station where from the 3[rd] accused intervened in the matter and the accused persons returned back the new gold chain and the gold chain was handed over to the accused. After that, the Station House Officer was informed that there was no complaint against the accused.
3. It is further alleged that subsequently all the accused hatched a conspiracy and they made complaint to the Chief Minister, the Director General of Police and the Superintendent of Police. Subsequently, on 28/10/11, the 3[rd] accused came to the jewellery shop and threatened the Security Guard that he would cause the shop to be closed, unless the value of the gold ornaments was not returned back within five days. Thus, the accused have committed the offences alleged against them.
4. The learned Magistrate posted the complaint for enquiry under Sec.202 of the Cr.P.C. and considered the question whether the allegation in the complaint constitutes the offences alleged against the accused.
5. Firstly, the learned Magistrate considered the
**Crl.R.P. No. 1773 of 2013** -: 4 :-
question whether the allegation constitutes the offence under Sec.260 of the Indian Penal Code. Sec.260 of the IPC relates to using of Government stamp as genuine knowing to be counterfeit. There is no allegation of using of Government stamp by the accused. Hence the learned Magistrate found that the allegations in the complaint do not constitute the offence under Sec.260 of the IPC. I find that there is no illegality or impropriety in the said finding.
6. Secondly, the learned Magistrate considered the question whether the allegations constitute the offences punishable under Secs.420, 472 and 475 of the IPC. Going by the complaint, it is admitted that the Salesman had called the accused Nos.1 and 2 and upon the request of the 1[st] accused, the complainant along with the accused had gone to the Police Station and from there the new gold chain which was sold to the accused Nos.1 and 2 was returned back by them to the complainant and instead, the exchanged gold ornament was given back to the accused Nos.1 and 2. Thus, indisputably, the spurious gold ornaments are not available in the hands of the complainant, and three years
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have been elapsed after the returning of that alleged spurious gold ornaments to the accused.
7. Going by the allegation, it could be seen that, a prima facie case against the accused can be made out only when it is proved that the gold ornaments which the accused exchanged were not gold; but made of copper only. Another contention is that the mark imprinted thereon was also forged. To prove that allegation also, the Material Object is inevitable. Thus, the offences can be proved by the chemical examination of the alleged spurious gold which is not in possession of the complainant. The specific case of the complainant is that 3/4[th] part of the gold ornaments were made of copper. Unless that allegation is proved, no offence can be made out against the accused. But the complainant admitted that, after mediation, he himself handed over the said disputed articles to the accused persons and the matter was settled and all these transactions were occurred in the year 2011. Now, this complaint is seen filed in 2012, after a long lapse of three years. In the above context, the learned Magistrate found
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that in the absence of the alleged spurious gold ornaments before the court, no purpose will be served by proceeding further with the case. I also concur with the findings of the learned Magistrate.
8. The learned counsel for the respondents submits that, after the alleged incident, the dispute between the accused and the complainant was settled and thereafter the accused proceeded against the complainant on the allegation that the complainant filed a false petition against them before the police. After examining the complaint, the learned Magistrate found that the allegations do not constitute the offences punishable under Secs.383 and 384 of the IPC. To attract those offences, there shall be an indication that the accused had intentionally put any person in fear of injury and thereby dishonestly induced that person to deliver any property or valuable security. But, there is no such allegation in the complaint. Therefore, the learned Magistrate found that the allegations in the complaint do not constitute the offences punishable under Secs.383 and 384 of the IPC and in the absence of Material Object which is
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admittedly handed over by the complainant himself to the accused, there is no ground to proceed against the accused after a long lapse of time. I find that there is no illegality or impropriety in the impugned order under challenge.
9. The learned counsel for the revision petitioner cited the decision reported in Aloshia Joseph v. Rev. Dr. Joseph Kollamparambil and Another (2009 (1) KHC 268) and pointed out that it is for the Magistrate to decide whether an investigation under Ssection 156(3) of the Cr.P.C. is to be ordered or an inquiry is to be conducted by himself following the procedures provided under Sec.202 of the Cr.P.C. Going by the citation, I am of the opinion that this decision does not render any aid or assistance to substantiate the contention of the revision petitioner. It is true that whether the investigation under Sec.156(3) of the Cr.P.C. is to be ordered or an inquiry is to be conducted by himself following the procedures provided under Sec.202 of the Cr.P.C. is left with the discretion of the Magistrate. If it is the discretionary jurisdiction, this Court is not inclined to compel the Magistrate to proceed with any of the two ways, unless any
**Crl.R.P. No. 1773 of 2013** -: 8 :- kind of illegality or impropriety or perversity is pointed out in the impugned order. But here there is no illegality or impropriety in the impugned order. Therefore, I reject the contention raised in the light of the above decision also.
This Criminal Revision Petition is devoid of merit and it
is dismissed.
Sd/-
## **(K. HARILAL, JUDGE)**
## **Nan/**
//true copy//
P.S. to Judge
