ORDER :

This petition is filed by accused no.1 challenging the judgment rendered by the appellate court in Crl.A.No.103/2009 dated 10.01.2011 dismissing the appeal and confirming of the judgment of conviction and order of sentence rendered by the trial court in C.C.No.445/2008 dated 20.07.2009 for the offence punishable under Section 420 of IPC. The accused no.1 has been sentenced to undergo rigorous imprisonment for a period of three years and sentenced to pay fine of Rs.3,000/- for the offence under Section 420 IPC. Accused no.2 Parameshi is acquitted for the offences under Section 420 of IPC, the same has been revealed in the operative portion of the judgment of conviction and order of sentence rendered by the trial court. In default to pay fine amount by accused no.1, he was to further suffer simple imprisonment for a period of six months.

2. The factual matrix of this petition is as under:

The complainant viz., Shivaraj is a permanent abode of Devanahalli village, Jevargi taluk, Gulbarga district had filed a complaint before the respondent-police alleging that he received a mobile call from the accused viz., Korachara Nagaraj @ Yeradethinahalli Naga about having gold in his possession. He asked the complainant to purchase the gold from him. The complainant intimated this fact to his close friend viz., Mallinath of the same village. Subsequently the complainant who came to Hadagali purchased two pieces of gold from accused for consideration of Rs.500/- and after purchase, this complainant and his friend Mallinath went to Jevargi to ascertain the originality of the two pieces of gold said to have been sold by the accused.

3. It is further stated that the accused intended to sell the remaining gold which he had in his possession. Again he insisted the complainant to purchase the remaining quantity of gold that was in his possession and also made him to believe the originality of the gold which was given by him to the complainant earlier. The complainant and his friend again came to Hadagali for purchase of the remaining gold which was in the custody of the accused. Accordingly on 24.05.2007, the complainant had purchased the gold from the accused weighing 950 grams of the gold pieces and in turn the complainant paid a consideration amount of Rs.1,20,000/- to the accused. Again the complainant had gone to the jewellery shop in Jevargi to ascertain the originality of the gold items said to have been purchased from the accused. Subsequently the complainant came to know the accused had sold him fake gold. Therefore he went to the respondent-police and filed a complaint. In pursuance of the complaint filed by the complainant, the case in Cr.No.31/2007 came to be registered against the accused for the offences under Section 420 of IPC.

4. Subsequently the investigating officer took up the case for investigation and thoroughly investigated the case by recording the statement of the witnesses and so also drew the spot mahazar and seizure mahazar and laid the charge sheet in C.C.No.30/2008 relating to the petitioner herein viz., Korachara Nagaraj @ Yeradethinahalli Naga. Subsequent to laying of charge sheet against the accused, the trial court has framed the charge against him for the offence under Section 420 IPC where the accused did not plead guilty, but claimed to be tried. Accordingly, plea of the accused was recorded separately. Subsequently the prosecution in order to substantiate the case against the accused, in all, examined PW-1 to PW-10 and also got marked Ex.P.1 to Ex.P.8. Ex.D.1, the contradictory statement of Siddanna Desai was also got marked. The fake gold was marked as M.O.1.

5. Subsequent to closure of the evidence, the statement of the accused was examined, wherein the accused had denied the incriminating evidence of the prosecution, but he did not come forward to adduce any defence evidence as contemplated under Section 233 of Cr.P.C.

6. Subsequently heard the arguments advanced by the prosecution and so also the defence