Vijayamohanan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 Crl.Rev.Pet.No. 3681 of 2010 ------------------------------------(CC.37/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II, HARIPAD) .................... REVN. PETITIONER(S): REV.PETITIONER/DEFACTO-COMPLAINANT -------------------------------- VIJAYAMOHANAN, S/O.MOHANAN PILLAI, AGED 50 YEARS, ELLIKKULATH HOUSE, CHERAVALLY, KAYAMKULAM. BY ADV. SMT.S.L.SYLAJA RESPONDENTS(S): ACCUSED AND STATE -------------------------- 1. SOMASEKHARAN S/O.RAMAN, VETTATHETHUVEEDU, CHERAVALLY MURI,KAYAMKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, . BY ADV. SRI.ROY CHACKO FOR R1 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND FOR R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN,J.** ## **---------------------------------------------------------Crl.R.P.No.3681 of 2010 --------------------------------------------------------Dated this the 15[th] day of March,2011** ## **O R D E R** Challenging the acquittal under Section 248(1) of Cr.P.C. recorded by the Judicial First Class Magistrate Court-II, Haripad in C.C.No.37 of 2006, which is a case instituted upon the report in Crime No.761 of 2003 of the Kayamkulam Police Station, the de facto complainant therein preferred this Criminal Revision Petition. 2. The prosecution case is that the de facto complainant is one of the legal heirs of late one Mohan Kumar, Principal, Mohan's Technical Institute, Kayamkulam and the said institution is functioning in 27 cents of land comprised in Sy.No.423/1 of Kayamkulam Village. According to the de facto complainant, the late father of the complainant Sri.Mohan Kumar was the lessee in the possession of above 27 cents and he had constructed a building in the said property and was conducting the above institution. According to the complainant, the father died on 29.2.2000 and thereafter, he is conducting the institution. It is the further case of the complainant ## **Crl.R.P.No.3681 of 2010** **:-2-:** that the accused obtained 12 cents of land in Sy.No.423/1 of Kayamkulam Village by virtue of Partition Deed No.2138/1972 dated 9.6.1972 of S.R.O., Kayamkulam and the accused gifted the above 12 cents to his brother Vijaya Kumar, by creating a gift deed No.3039/1972 dated 26.8.1972. According to the de facto complainant, while the above gift deed was in force, without disclosing the same, the accused fraudulently and dishonestly represented the father of the complainant that the accused is the absolute owner of the above 12 cents of land and thus, dishonestly induced the father of the complainant to purchase the above 12 cents of land for a sum of Rs.8,000/-. Thus, sale deed No.3527/1981 was executed on 5.10.1981 in favour of the complainant's father after receiving Rs.8000/- as consideration. According to the complainant, in the above sale deed itself, it was specifically stated that the property is not subjected to any encumbrance. Thus, according to the complainant, at the time of executing the sale deed in favour of the father of the de facto ## **Crl.R.P.No.3681 of 2010** **:-3-:** complainant, the accused has no ownership or right over the property. But, suppressing those facts, he made mis-representation before the father of the complainant and thereby, playing fraud on the father of the de facto complainant, the accused got unlawful enrichment and cheated the father of the complainant. After registration of Crime No.761 of 2003 of Kayamkulam Police Station, investigation was undertaken by the said Police and on completing the investigation, report was filed based upon which cognizance was taken by the Judicial First Class Magistrate, Kayamkulam and subsequently, the case was transferred to the court of the Judicial First Class Magistrate-II, Haripad wherein the case is renumbered as C.C.No.37 of 2006. 3. During the trial of the case, Pws.1 to 8 were examined and Exts.P1 to P10 were marked from the side of the prosecution. Though no witness was examined from the side of the defence, Ext.D1 portion of 161 statement of de facto complainant/PW4 was marked as defence exhibit. Ext.X1 was marked as court exhibit. ## **Crl.R.P.No.3681 of 2010** **:-4-:** The trial court, after elaborate consideration of the evidence and materials on record, came to a conclusion that the prosecution has miserably failed to prove the guilt of the accused beyond shadow of doubt and accordingly, acquitted the accused under Section 248 of Cr.P.C. It is the above acquittal challenged in this Crl.R.P. 4. I have heard Smt.S.L.Sylaja, learned counsel appearing for the revision petitioner and Sri.Roy Chacko, learned counsel appearing for the first respondent. 5. As there was delay in preferring the above Crl.R.P., the petitioner preferred a petition to condone the delay and when notice was ordered in that petition, the first respondent/accused appeared through Advocate Sri.Roy Chacko and thus, after hearing the petition for condonation of delay, the revision petition was numbered and thus, the Crl.R.P. came up for consideration in the presence of the above Advocates. 6. Learned counsel for the revision petitioner vehemently submitted that the learned Magistrate miserably failed in his ## **Crl.R.P.No.3681 of 2010** ## **:-5-:** conclusion that the prosecution has not established the case beyond shadow of reasonable doubt. The learned counsel pointed out that the father of the de facto complainant and the accused were close friends and based on the partition deed of the year 1972, the first respondent, who is the accused, got 12 cents of property, which he had gifted to his brother by a gift deed created in the year 1972, but without disclosing the said gift deed, the accused sold the property to the father of the de facto complainant during the year 1981 aftr making a false representation made before the father of the de facto complainant. Thus, according to the learned counsel, Section 420 of I.P.C. is attracted in this case. But, the learned Magistrate, without considering the above crucial and legal aspect and on wrong appreciation of evidence on record, came to a conclusion that the prosecution has not established the case. Therefore, according to the learned counsel, the order of the trial court is liable to be set aside and the first respondent/accused is liable to be convicted for the charges framed against him. ## **Crl.R.P.No.3681 of 2010** ## **:-6-:** 7. On the other hand, Mr.Roy Chacko, learned counsel appearing for the first respondent, after taking me through the relevant paragraphs of the impugned judgment, submitted that as rightly observed by the learned Magistrate, there are 20 years of delay in launching the complaint and in view of Ext.P9 judgment of the civil court, the learned Magistrate is fully justified in his finding that the prosecution has not established the case beyond reasonable doubt. In support of the above contention, learned counsel placed reliance upon the decisions reported in v. **Thankappan Nadar & Others Gopalakrishnan and another** [(2002)9 SCC 393]and **B.Suresh Yadav** v. **Sharifa Bee** (2008 Crl.L.J.431). 8. I have carefully considered the arguments advanced by the learned counsel for the petitioner as well as the first respondent and I have carefully perused the judgment impugned in this Crl.R.P. 9. At the outset it is to be noted that thought the prosecution ## **Crl.R.P.No.3681 of 2010** ## **:-7-:** was conducted by the Police, such prosecution agency has not chosen to prefer any appeal or revision against the acquittal of the accused in the present case and now the challenge against the acquittal is only at the instance of the de facto complainant/a private party. 10. Going by the judgments and arguments of the learned counsels, it is beyond dispute that the father of the de facto complainant/the purchaser and the accused are friends and the entire transaction was between the father of the de facto complainant and the accused. It is borne out from records that there was a civil suit preferred by the brother of the accused against himself and against the father of the de facto complainant with respect to the same property and the said suit was defended, though by preferring separate written statements, by engaging a common lawyer for the father of the de facto complainant as well as the accused. It is discernible from the judgment of the learned Magistrate that the father of revision petitioner/de facto ## **Crl.R.P.No.3681 of 2010** **:-8-:** complainant did not file any appeal against the judgment of the suit and no complaint was preferred against the accused during his life time. It goes without saying that the best person to say about the fraud, if any, played by the accused against the father of the de facto complainant is the father of the de facto complainant himself. It is also relevant to note that the revision petitioner has no direct knowledge regarding the transaction and he is having only hearsay knowledge about the entire transaction. As rightly pointed out by the learned Magistrate, in order to attract Section 420 of I.P.C., the prosecution has to prove with sufficient evidence that the accused had fraudulent and dishonest intention at the time of making the representation and creating sale deed. According to me, as rightly found by the trial court, the evidence and materials available on record are not sufficient to draw any such fraudulent intention from the part of the accused while executing the sale deed. So, the essential ingredients of Section 420 I.P.C. have not been established by the prosecution beyond reasonable doubt. ## **Crl.R.P.No.3681 of 2010** **:-9-:** 11. It is also relevant to note that the learned Magistrate has specifically observed that the F.I.statement was lodged after 20 years from the date of the alleged offence. There is no convincing explanation as to why this much time was taken to lodge the complaint if the allegations are true. After quoting the relevant portion of the deposition of PW4, that contained in paragraphs 15 and 16 of the trial court judgment, the learned Magistrate has categorically found that ' _non-explanation of more than 20 years of delay in launching a criminal prosecution against the accused is fatal to the prosecution case_ ' and in the light of the above facts and circumstances involved in the case, I am of the view that the revision petitioner has miserably failed to make out a case calling upon interference of this Court with the order of acquittal recorded by the trial court. As pointed out by the learned counsel for the respondents, particularly in view of the decision of the Apex Court ' s case reported in Thankappan Nadar (cited supra), the jurisdiction of the High court, while exercising the revisional jurisdiction at the ## **Crl.R.P.No.3681 of 2010** ## **:-10-:** instance of the private party against the order of acquittal, is very limited. It is also relevant to note that the Apex Court has held time and again that unless there are sufficient reasons and substantial grounds to interfere with the order of acquittal, the superior courts should not interfere with such acquittal and disturb the double presumption which is available in favour of the accused, who got acquittal. In the light of the above decisions and in view of the facts and discussions, I am of the view that there is no merit in the Crl.R.P. and accordingly, the same is dismissed. V.K.MOHANAN, Judge. MBS/ ## **Crl.R.P.No.3681 of 2010** **:-11-:**