@JUDGMENTTAG-ORDER
P.R. Shivakumar, J.@mdashThe Petitioners 1 to 4 in the Criminal Revision Case were prosecuted before the learned Judicial Magistrate No. 1,
Udumalpet in C.C. No. 386/2004 for alleged offences punishable under Sections 498-A I.P.C., 406 I.P.C. and Section 4 of the Dowry
Prohibition Act. The trial ended in a judgment of acquittal dated 14.03.2007 and the Petitioners herein were held not guilty of any one of the
offences with which they stood charged.
2. Aggrieved by and challenging the judgment of acquittal, the de-facto complainant, who was examined as P.W.1 in the trial court, preferred a
Revision u/s 397 Cr.P.C before the Sessions Court, Coimbatore in Crl. R.P. No. 78/2007. Along with the Revision Petition, she also filed a
miscellaneous petition in Crl. M.P. No. 363/2007 praying for an order permitting her to adduce additional evidence. She also produced six
documents along with the said miscellaneous petition purporting to be the documentary evidence in proof of which oral evidence was also
proposed to be adduced. The learned Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore, to whom the said Revision
Petition was made over, passed a common order on 29.05.2008, allowing the said miscellaneous petition, namely Crl. M.P. No. 363/2007
seeking permission to adduce additional evidence, setting aside the judgment of acquittal pronounced by the trial court and remanding the calendar
case No. 386/2004 to the trial court for fresh disposal, after taking additional evidence. The legality and propriety of the said common order dated
29.05.2008 is questioned by the present revision Petitioners (A1 to A4) invoking the powers of the Revision of this Court u/s 401 Code of
Criminal Procedure
3. The arguments advanced by Mr. R. John Sathyan, learned Counsel for the Petitioners, by Mr. K. Kalyanasundaram, learned Counsel for the
first Respondent/de-facto complainant and by Mr. I. Paul Nobel Devakumar, learned Government Advocate (Crl. Side) on behalf of the second
Respondent (police) were heard. The materials available on record were also perused.
4. Accused Nos. 1 to 4 in C.C. No. 386/2004 on the file of the learned Judicial Magistrate No. 1, Udumalpet are the Petitioners herein. The first
Petitioner is the husband of the first Respondent herein, the de-facto complainant, who was examined as P.W.1 in the trial court. Based on her
written complaint, marked as Ex.P1, a case was registered on the file of All Women Police Station, Udumalpet for alleged offences punishable
under Sections 498-A I.P.C, 406 I.P.C. and Section 4 of the Dowry Prohibition Act in Cr. No. 6/2004. The said case was registered against the
first Petitioner herein (A1) alone, since the entire allegations incorporated in the complaint had been made against him alone and there was no
whisper about any act on the part of the other Petitioners herein (A2 to A4), which would amount to a punishable offence.
5. The gist of the allegations found in the complaint, is, as follows:
At the time of marriage of the de-facto complainant (P.W.1) with the first Petitioner herein (A1), her parents gave her 27 sovereigns of gold jewels
and household articles as customary seers. After marriage, they lived in the joint family, of which the Petitioners 2 to 4 (A2 to A4) were also
members, for a short period and thereafter, the first Petitioner herein (A1) and his wife (P.W.1) set up a separate residence for them since there
arose some problems between the first Petitioner and his wife (P.W.1) on the one hand and the other Petitioners (A2 to A4) on the other hand.
Thereafter, the first Petitioner got the jewels of the de-facto complainant (P.W.1) weighing 27 sovereigns in the guise of pledging them for
purchasing a lorry. But the first Petitioner herein (A1), after pledging the said jewels, failed to purchase a lorry, which made the de-facto
complainant (P.W.1) to make a demand for the redemption of her jewels. At that juncture, the first Petitioner herein (A1) drove her to her parents''
house with a direction to get a sum of Rupees one lakh as dowry. Thereafter the de-facto complainant (P.W.1) preferred a complaint to the police
seeking their help to get back her jewels. During the enquiry conducted by the police, the first Petitioner herein (A1) undertook to redeem and give
back the jewels of P.W.1 to her within a period of seven months. After giving such undertaking before the police, the first Petitioner (A1) came to
the residence of P.W.1''s father and created problems by questioning her as to how dare she could lodge a complaint when he had directed her to
get a dowry of Rupees one lakh.
6. Based on the above said allegations, the de-facto complainant (P.W.1) had prayed for action being taken against her husband for making a
demand of dowry and also for his refusal to redeem and hand over her jewels. P.W.9 -Tmt. Manickam, Sub-Inspector of Police, All Women
Police Station, Udumalpet, conducted an investigation and at the conclusion, submitted a final report alleging commission of offences under
Sections 498-A I.P.C., 406 I.P.C. and Section 4 of the Dowry Prohibition Act on the part of the first Petitioner herein (A1) alone. The said final
report was taken on file by the learned Judicial Magistrate No. 1, Udumalpet as C.C. No. 386/2004 and necessary charges were framed against
the first Petitioner herein (A1). Since he pleaded not guilty, the case was tried.
7. During the course of the trial, after the completion of examination of the de-facto complainant as P.W.1 in chief and before her cross-
examination, a petition u/s 319 Code of Criminal Procedure was filed on behalf of the prosecution and the same was taken on file as Crl. M.P.
No. 5946/2005. After enquiry, the said petition was allowed and the Petitioners 2 to 4 herein were added and ranked as Accused Nos. 2 to 4 in
the above said calendar case. However, charges were framed against them for offences punishable under Sections 498-A IPC and 406 IPC alone
and no charge was framed against them u/s 4 of the Dowry Prohibition Act. In the trial that continued thereafter, totally nine witnesses including
P.W.1 (de-facto complainant) were examined as P. Ws.1 to 9 and three documents were marked as Ex.P1 to P3 on the side of prosecution.
8. After the recording of evidence on the side of the prosecution was over, the accused (Petitioners herein) were questioned u/s 313(1)(b) Cr.P.C
regarding the incriminating materials found in the evidence adduced on the side of the prosecution and they denied them as false. No witness was
examined on the side of the accused (Petitioners herein). However, two documents were marked as Exs.D1 and D2 on their side.
9. Evaluating the evidence brought on record before the trial court, the learned Judicial Magistrate No. 1, Udumalpet came to the conclusion that
none of the charges framed against the accused was proved and hence acquitted all the accused persons (Petitioners 1 to 4 herein) by a judgment
dated 14.03.2007. Under such circumstances alone, the first Respondent herein/de-facto complainant (P.W.1) preferred the above referred
Criminal Revision Petition No. 78/2007 before the Sessions Court, Coimbatore challenging the acquittal and the Criminal Miscellaneous Petition in
Crl. M.P. No. 363/2007 for reception of additional evidence.
10. The learned Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore, to whom the case was made over, after hearing,
allowed the criminal miscellaneous petition as well as the criminal revision petition, set aside the acquittal and remanded the case back to the trial
court for fresh disposal, after recording additional evidence sought to be adduced against the Petitioners herein by the de-facto complainant
(P.W.1) on behalf of the prosecution.
11. It is the contention of the learned Counsel for the Petitioners that the learned Additional District and Sessions Judge (Fast Track Court No. 3),
Coimbatore committed a gross error and irregularity in setting aside the judgment of acquittal without even considering whether the finding of the
trial court could be termed erroneous in the light of the evidence adduced before the trial court; that the learned Additional District and Sessions
Judge (Fast Track Court No. 3), Coimbatore committed an error in allowing the miscellaneous petition Crl. M.P. No. 363/2007 for adducing
additional evidence without the grounds for adducing additional evidence being established by the Petitioner therein/de-facto complainant; that even
if it is assumed that the permission for adducing additional evidence could be granted, that itself would not be enough to set aside the judgment of
acquittal; that the learned Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore himself ought to have recorded the
additional evidence or caused the additional evidence to be recorded by the trial court and then considered the sustainability of the judgment of
acquittal; that the failure to adopt such a procedure would vitiate the order of the learned Additional District and Sessions Judge (Fast Track Court
No. 3), Coimbatore and that the very procedure adopted by the first revision court is erroneous and against law.
12. This Court also heard the submissions made on behalf of the Respondents in reply to the above said contentions made by the learned Counsel
for the Petitioners and this Court paid its anxious considerations to the same.
13. Upon considering the submissions made on either side and after perusing the materials available on record, this Court is of the considered view
that the contentions raised on behalf of the Petitioners herein are bound to be countenanced and they cannot be brushed aside as having no
tenability. The learned Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore committed a couple of mistakes, which are
obvious. First of all, the learned Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore, failed to consider the
circumstances in which and the grounds on which additional evidence could be allowed to be adduced on the side of the prosecution in the
appellate or provisional stage. It is not the case of the first Respondent herein/de-facto complainant that even though she wanted the Investigating
Officer or the Assistant Public Prosecutor to produce in the trial the documents now sought to be produced as additional evidence, her request
was turned town or that the existence of the said documents was not known to her when the trial was in progress until the trial was over. On the
other hand, there are enough materials in the evidence adduced before the trial court which will go to show that the existence of the documents
now sought to be produced as the additional evidence, was known not only to the first Respondent herein/de-facto complainant, but also to the
prosecuting agency. Oral evidence regarding those documents have been adduced before the trial court. It is obvious that the sole purpose sought
to be achieved by the introduction of the additional evidence is to prove the charge of commission of an offence of criminal breach of trust
punishable u/s 406 IPC. The learned Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore very much relied on the
evidence adduced on the side of the prosecution to the effect that the jewels and other articles presented to the de-facto complainant (P.W.1) as
customary seers, were handed over to P.W.1 on 15.07.2005, that is after the institution of the criminal case on police report, that too on the
intervention of the Superintendent of Police pursuant to a petition presented on the Grievance Day. Out of six documents that are sought to be
introduced as additional documentary evidence, the first three documents are intended to show that the jewels and sreedhan articles of the de-facto
complainant (P.W.1) were recovered and handed over to her on 15.07.2005 based on the order of the Superintendent of Police directing the
Inspector of Police to do so. The said documents include a receipt for the complaint, news item in the media (Dhina Thanthi news paper dated
18.06.2005) to show that Grievance Day was held and a copy of a letter addressed by the de-facto complainant (P.W.1) to the Superintendent of
Police expressing gratitude for the help rendered for retrieving her jewels and Sreedhan articles. All those documents came into existence much
earlier than the date on which P.W.1''s evidence before the trial court was concluded and much before the other witnesses were examined.
14. It is also obvious from the order of the learned Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore that the apparent
discrepancies found in them were not noticed by the court of first revision. At one place, the learned Additional District and Sessions Judge (Fast
Track Court No. 3), Coimbatore has stated that the jewels and Sreedhan articles were handed over to the de-facto complainant (P.W.1) on
15.07.2005. But, two lines below the said observation, the learned Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore
has observed that in the thanks giving letter addressed to the Superintendent of Police, the date of retrieval of the jewels and handing over of the
same to the de-facto complainant (P.W.1) was noted as 15.06.2005.
15. The other three documents, which are sought to be produced as documents, are relating to the defense documents produced as Exs.D1 and
D2. It is pertinent to note that Exs.D1 and D2 were produced and marked during cross-examination of P.W.1 before the trial court. Thereafter,
there was more time during which the said documents could have been produced. No reason has been assigned for the failure to produce those
documents at the earliest opportunity. In addition to that, it cannot be said that the documents sought to be produced as additional evidence are of
such a nature that they would clinch the issue one way or the other. In fact, the facts sought to proved are not disputed. Sufficient evidence had
already been adduced touching those facts. In view of the admitted factual matrix regarding the pledging of jewels, their redemption and delivery of
those jewels and seer articles to the de-facto complainant (P.W.1), as rightly contended by the learned Counsel for the Petitioners herein, the
above said documents now sought to be introduced as additional evidence are not capable of affecting the decision made by the trial court in this
regard.
16. The de-facto complainant (P.W.1) has sought permission to adduce additional evidence in order to prove the charge u/s 406 I.P.C alone. It is
an admitted fact that the jewels of the de-facto complainant (P.W.1) were pledged with the bank for raising funds with her consent. It is not the
case of the de-facto complainant (P.W.1) that the amount borrowed by pledging the jewels was meant for her expenses and the same was used by
the accused persons for their purpose. The grievance of the de-facto complainant (P.W.1) is that the jewels were pledged with the bank for
purchasing a lorry in the name of her husband, namely the first Petitioner herein, but the fund thus raised was spent on the other expenses of the
joint family without purchasing a lorry. It is not her case that she was promised that the amount borrowed by pledging her jewels would be utilized
for purchasing a lorry for her or that in any way she would be given dominion over the said amount. It is also not her case that the amount
borrowed from the bank by pledging the jewels was to be held by the Petitioners herein in trust for her. On the other hand, the jewels were
admittedly handed over by the de-facto complainant (P.W.1) to the first Petitioner herein for raising funds for himself and he did so by pledging the
jewels with the bank. It is not the concern of the de-facto complainant (P.W.1) to monitor the spending of the amount raised by pledging the
jewels. Her right is limited to seek redemption of her jewels and entrustment of the same to her.
17. From the evidence available, it is clear that the jewels pledged by the first Petitioner herein with the consent of his wife, namely P.W.1, were
subsequently redeemed and handed over to her along with other Sreedhan articles belonging to her. There is absence of proof of either
misappropriation or criminal breach of trust on the part of any one of the Petitioners herein. There is also absence of allegation of cheating. Under
such circumstances, it is abundantly clear that the documents sought to be introduced as additional evidence, even if approved, shall not be enough
to show that the decision arrived at by the trial court is erroneous and unsustainable. It is not a case in which it can be said that the reception of
additional evidence has become necessary to avoid miscarriage of justice or abuse of process of law. Therefore, this Court comes to the
conclusion that the learned Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore has committed a grave error in law in
allowing Crl. M.P. No. 363/2007 and according permission to the de-facto complainant (P.W.1) to adduce additional evidence.
18. The learned Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore committed the second error in setting aside the
acquittal without even considering whether the finding of the trial court was defective or infirm. Even if it is assumed that Crl. M.P. No. 363/2007
seeking permission to adduce additional evidence could be allowed, that itself shall not be enough to set aside the judgment of acquittal
pronounced by the trial court. In such cases, either the provisional court conferred with the powers of a court of appeal by virtue of the provision
found in Section 399 Cr.P.C r/w Section 401 Code of Criminal Procedure itself shall record the additional evidence or direct recording of such
evidence by any court subordinate to it. Only after recording of such evidence by the court of revision or after receiving the report of the
subordinate court along with the evidence recorded on the direction of the court of revision, the court of revision can make a decision either to
interfere with or confirm the finding of the trial court in the light of the entire materials available on record, including the additional evidence
recorded in the manner indicated above. In this regard, the learned Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore
has failed to follow the said procedure and hence the order of the said court setting aside the acquittal is unsustainable in law.
19. If such a procedural flaw in the disposal of the criminal revision petition alone is found, it may be proper for this Court to set aside the order of
the learned judge of the first revision court and remit the criminal revision petition back to the said court to decide the same after strictly adhering to
the procedure prescribed for recording additional evidence at the stage of appeal or revision. The said course can be adopted, provided the
petition for reception of additional evidence can be allowed. We have already seen that the order of the learned Additional District and Sessions
Judge (Fast Track Court No. 3), Coimbatore allowing Crl. M.P. No. 363/2007 for reception of additional evidence cannot withstand the scrutiny
of this Court; that the said order is liable to be set aside and that the said petition for reception of additional evidence deserves to be dismissed.
Therefore remanding the criminal revision petition to the file of the Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore is
not warranted in this case.
20. Yet another aspect, a vital one in this case, requires to be highlighted. In Ex.P1-complaint, nothing has been mentioned about the Petitioners 2
to 4 herein. The same was the reason why police registered a First Information Report only against the first Petitioner herein. Even during the
investigation, no material capable of implicating Petitioners 2 to 4 herein (A2 to A4) could be collected by the Investigating Officer and hence a
charge-sheet was filed against the first Petitioner herein (A1) alone. Only when P.W.1 was in the witness box, the Petitioners 2 to 4 herein were
sought to be implicated by effecting improvements over the case projected under Ex.P1-complaint and the statement of P.W.1 recorded u/s
161(3) Code of Criminal Procedure By such an improvement over the complaint and the 161 statement of P.W.1, she has tried to implicate the
Petitioners 2 to 4 herein for the offences punishable under Sections 498-A and 406 IPC by stating that she came to know that the jewels were
pledged jointly by all the Petitioners herein and that when she questioned the propriety of the said act of the Petitioners, the Petitioners 2 to 4 (A2
to A4) also ill-treated her with cruelty even by brandishing her. The joint pledge of the jewels is falsified by the evidence adduced through the bank
official examined as P.W.8 on the side of the prosecution itself. Despite such an attempt made by the de-facto complainant (P.W.1) during the
course of the trial, the Petitioners herein were able to get acquitted of the offences with which they stood charged. The trial court, on proper
appreciation of evidence, came to the conclusion, which cannot be termed either defective or infirm, much less perverse, that none of the charges
framed against the Petitioners herein/accused persons was proved beyond reasonable doubt.
21. It is a settled proposition of law that the court hearing the revision in criminal cases should not venture to normally re-appraise the evidence
unless perversity of finding is pleaded and sought to be established. The court should also keep in mind the salutary principle of criminal
jurisprudence that every accused shall be presumed to be innocent unless he is proved to be guilty and that the general presumption of innocence
gets doubly strengthened by an order of acquittal; that strong grounds are needed to interfere with the order of acquittal; that in case the evidence
is capable of admitting two inferences of equal strength, one in favor of the accused and the other in favor of the prosecution, the former alone
should be preferred; that simply because other view is also possible and the court of the appeal/revision prefers such view, the order of acquittal
should not be interfered with and that in such cases, the acquittal should be confirmed. The said proposition of law has been laid down in
Chandrappa and Ors. v. State of Karnataka reported in (2007) CCR 465 (SC), which was also followed by this Court in The State rep. by the
Deputy Superintendent of Police, Udhagamandalam v. M. Asaithambi reported in (2009) 3 MLJ 882.
22. If the case on hand is considered in the light of the said celebrated principle of criminal jurisprudence, this Court has to come to the only
conclusion that the order of the learned Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore is unsustainable in law and
liable to be set aside; that the criminal revision petition No. 78/2007 on the file of the Additional District and Sessions Judge (Fast Track Court
No. 3), Coimbatore and Crl. M.P. No. 363/2007 deserve dismissal and that the acquittal of the Petitioners herein (A1 to A4) by the trial court
should be upheld.
23. For all the reasons stated above, this Court comes to the conclusion that the criminal revision case No. 1017/2008 should be allowed and the
common order of the learned Additional District and Sessions Judge (Fast Track Court No. 3), Coimbatore dated 29.05.2008 should be set aside
and consequently the acquittal of the Petitioners herein/accused 1 to 4 by the trial court should be upheld.
24. In the result, this criminal revision case is allowed. The common order of the learned Additional District and Sessions Judge (Fast Track Court
No. 3), Coimbatore dated 29.05.2008 made in Crl. R.P. No. 78 of 2007 and Crl. M.P. No. 363 of 2007 is set aside. The order of the trial court
dated 14.03.2007 made in C.C. No. 386 of 2004, acquitting the Petitioners herein (A1 to A4) is confirmed. Consequently, connected M.P. No.
1 of 2008 is closed.
