MOHAMMED JIFRI AND ORS. Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioners are accused Nos. 7 &10 in Crime No. 32/2001 of the CBCID, Kasaragode. Originally the crime was registered by Manjeswaram Police as Crime No. 215/1999 for the offence punishable under Sections 457,511 and 380 of the Indian Penal Code. The crime was registered against unknown persons on the basis of the allegation that in between 8.09.1999 and 9.9.1999, somebody has made attempts to break open the door of Vijaya Bank and attempted to commit theft. The first information statement was given by the clerk who is working in that bank. Later, the case was transferred to CBCID for investigation and after investigation the respondent has submitted charge sheet against 10 accused persons alleging offence punishable under Section 411 read with Section 34 of the Indian Penal Code. In the final report the charge against petitioners and others is that knowing that the Demand draft (DD) leaves were thieved by some persons, mis -used the DD leaves and attempted to cheat the prosecution witnesses 16,14 and 17 and thereby committed the offence punishable under Section 411 read with Section 34 of the Indian Penal Code. This Criminal MC was filed under Section 482 of the Code of Criminal Procedure mainly on three grounds.

(2.) THE learned Counsel for the petitioner on the basis of the grounds raise it in this Criminal MC submits that, on the same set of facts another crime was registered by Detective Department CCS, Hyderabad, alleging the offences punishable under Sections 468, 471, 420 and 120B IPC as charge sheet No. 125 of 2000, against the petitioners and in that case, after trial the petitioners have been acquitted of the said offences alleged against them. Therefore, they are entitled to get the benefits under the principles of res judicata and estoppal. To fortify this point, the learned Counsel for the petitioner cited, 1981 KLT 372 Jayamohan v State of Kerala.

(3.) PER contra the learned Public Prosecutor submits that the transaction which constituting the offence in the instant case and the Crime No. 32 of 2001 registered at Hyderabad are entirely different and distinct. Secondly, the principles of estoppel and res judicata cannot be applied before the trial as the said plea relates to admissibility of evidence designed to upset a finding of fact recorded by a competent court on a previous trial. Therefore, these principles cannot be made available to the petitioner for making out a case under Section 482 of the Code of Criminal Procedure. Thirdly, the learned Government Pleader cited KLR : 1975 Supreme Court 160 and submits that to constitute an offence under Section 411 of the Indian Penal Code, the section does not prescribe as to by whom the act of theft should have been committed.