SADANANDAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Appeal against acquittal under Section 378 of the Code of Criminal Procedure (in short, "Cr.P.C.") filed by the complainant, whose complaint alleging an offence under Section 392 of the Indian Penal Code (in short, "IPC") was tried by the trial court and convicted the accused for an offence under Section 427 IPC. Feeling aggrieved by that conviction, the accused persons approached the learned Sessions Judge, Ernakulam in Crl.Appeal No. 528 of 2001. Learned Sessions Judge allowed the appeal finding that the charge in the case and the offence for which the accused persons were convicted cannot be treated as major and minor offences. It is settled by a Division Bench decision of this Court in Thomachan v. State of Kerala,1978 KHC 91 that where two offences involve different elements and different questions of facts, one offence cannot be said to be minor to the other. By no stretch of reasoning, it can be said that the offence under Section 427 IPC is either cognate of or a minor offence of the one under Section 392 IPC. Therefore, the learned Additional Sessions Judge rightly acquitted the accused for the said offence.

(2.) Some dates are relevant in this case. The complaint was filed by PW1 on 20.01.1997. Thereafter, the learned Magistrate took cognizance. The trial judgment was on 30.06.2001. The accused persons filed an appeal before the learned Sessions Judge, Ernakulam on 28.07.2001. Feeling aggrieved by the acquittal of the accused for the offence under Section 392 IPC, the complainant approached this Court with a leave petition on 02.11.2001. Leave was granted on 20.02.2003. Pending this appeal, the learned Sessions Judge disposed of the criminal appeal on 29.07.2004. From the above facts, it is evident that the complaint with an allegation of offence under Section 392 IPC after trial ended in conviction for an offence under Section 427 IPC. Both the parties were aggrieved by the above approach of the trial court. Now what is surviving for consideration in this appeal is whether the acquittal of the accused for the offence under Section 392 IPC is legal and proper.

(3.) Facts, in brief, borne out from the complaint are as follows: