A.G.GOPALAKRISHNAN NAIR vs STATE OF KERALA

The revision petitioner herein is the second accused in C.C.No.169 of 2002 of the Chief Judicial Magistrate''s Court, Pathanamthitta. He and

the first accused faced prosecution in the court below under Sections 408 and 409 IPC on the allegation that in their capacity respectively as the

Secretary and the Chairman of the Pathanamthitta Co-Operative Rubber Marketing Society, they sold 70 cents of property belonging to the

Society to a third person for a very lesser amount of consideration when the property would have actually fetched Rs.25,000/- per cent in the

open market. Thus, the prosecution would allege that by such a sale unauthorisedly made without the consent of the higher authorities, they caused

wrongful loss to the Society. The police registered the crime on the basis of the copy of a letter sent by the Joint Registrar of Co-Operative

Societies to the District Superintendent of Police, Pathanamthitta. The said copy was forwarded from the office of the District Superintendent of

Police to the Station House Officer. After investigation, the police submitted final report in Court against the two accused.

They appeared before the learned Magistrate, and pleaded not guilty to the charge framed against them. The prosecution examined eight

witnesses, and proved Exts.P1 to P7 documents in the trial court. Both the accused denied the incriminating circumstances, when examined under

Section 313 Cr.P.C. They did not adduce any oral evidence in defence, but Ext.D1 was marked. On an appreciation of the evidence, the learned

Magistrate found both the accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for one year each, and to pay fine

of Rs.10,000/- each under Sections 408 and 409 IPC.

Aggrieved by the judgment of conviction dated 31.10.2003, the accused approached the Court of Session, Pathanamthitta with Crl.Appeal

No.415 of 2003. In appeal, the learned Additional Sessions Judge, Adhoc-III, Pathanamthitta found the first accused not guilty, and accordingly

he was acquitted in appeal. But the conviction against the second accused was confirmed, and the sentence was also confirmed by the appellate

court. Now the second accused has come up in revision before this Court, challenging the legality and propriety of the conviction and sentence.

On hearing both sides, and on a perusal of the entire materials, I find that this is in fact a prosecution built without any basis. The very FIR in this

case does not have a solid and legal foundation. The Ext.P7 FIR shows that it was registered on the basis of the copy of a letter written by the

Joint Registrar of Co-operative Societies to the District Superintendent of Police, Pathanamthitta. Such a letter, written in the form of complaint, is

not seen proved by anybody. What is produced in Court along with the FIR is only a photocopy of the said letter. It is not known where the

original letter is, or what happened to it. When the very complaint forming the basis of the FIR is not produced in Court in original, and even not

proved by the competent person, the Court cannot attach any value to the said FIR.

There is yet another legal infirmity affecting the prosecution case. The whole issue in this prosecution is concerning a sale deed executed by the

revision petitioner, and the then Secretary of the Society in favour of a third party. The purchaser was examined as PW1. The extent of property

sold is 70 cents. The evidence of PW1 is that he purchased the property for a consideration of Rs.15,250/- per cent. When asked by the learned

Assistant Public Prosecutor whether the property would have valued at Rs.25,000/- per cent at that time, he answered that the actual market value

was only about Rs.7,000/-, however, he paid Rs.15,250/- per cent.

Consideration in a sale transaction is a matter between the seller and the purchaser. The seller sold the property for a particular consideration,

and the purchaser accepted it, and purchased the property for the market value offered. There cannot be anything illegal or suspicious about such a

sale. Anyway, the prosecution would allege that the property would have actually fetched a consideration of Rs.25,000/- per cent, but the accused

sold it for a lesser price with the dishonest intention of helping the purchaser, or with the dishonest intention of causing unlawful benefit to him. In

such a prosecution on such an allegation, the basic requirement is that the sale deed must be produced in Court and proved. The second

requirement is that the prosecution must also prove the actual or probable market value, the property would have fetched at the relevant time.

It is pertinent to note that the prosecution did not care to produce the original or the certified copy of the said sale deed. The whole prosecution

is based on the sale made by the accused in favour of PW1. When that sale deed is not produced in Court or proved in Court, the prosecution

built on such an allegation must necessarily collapse. PW3 is the Village Officer examined to prove the probable market value. Ext.P2 is the report

or certificate issued by him, by which he assessed Rs.25,000/- per cent as the market value. It is not known how he actually assessed the market

value. He has no case that he had seen the sale deed. He fairly conceded during cross-examination that he had not examined any the document of

comparable sale. The proper way to prove the market value of a property is not to examine a Village Officer. Market value, actual or probable,

must be proved by producing the documents of comparable sale, and proving such transactions including the consideration agreed and paid. Thus,

I find that the police brought the present prosecution without the basic requirements to be satisfied and proved, on the given allegations. I fail to

understand how the accused happened to be convicted by the trial court and the appellate court, and how the prosecution could proceed without

any legal and factual basis.

In the result, this revision petition is allowed. The revision petitioner herein is found not guilty of the offences under Sections 408 and 409 IPC,

and he is acquitted of those offences in revision. Accordingly, the conviction and the sentence against him in C.C.No.169 of 2002 of the Chief

Judicial Magistrate''s Court, Pathanamthitta, confirmed in appeal by the Court of Session, Pathanamthitta in Crl.Appeal No.415 of 2003 will stand

set aside, and the revision petitioner will stand released from prosecution.