VIJAYAMOHANAN Vs. SOMASEKHARAN

JUDGEMENT

(1.) Challenging the acquittal under S.248(1) of CrPC recorded by the Judicial First Class Magistrate Court - II, Haripad in CC 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 29/02/2000 and thereafter, he is conducting the institution. It is the further case of the complainant 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 09/06/1972 of SRO, Kayamkulam and the accused gifted the above 12 cents to his brother Vijaya Kumar, by creating a gift deed No. 3039/1972 dated 26/08/1972. 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 05/10/1981 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 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 CC 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, D1 portion of 161 statement of de facto complainant / PW 4 was marked as defence exhibit. Ext. X1 was marked as Court exhibit. 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 S.248 of CrPC. It is the above acquittal challenged in this Crl. RP.