JUDGMENT

Reva Khetrapal, J.— By way of this revision petition, the petitioner seeks setting aside and reversal of the order of acquittal dated 28.3.2002 passed by the learned Addl. Sessions Judge Shri D.C. Anand in Cri. Appeal No.7/2002 arising out of FIR No.295/98, under Sections 381/411 IPC, Police Station Vivek Vihar, Delhi and prays for condonation of delay in filing the petition by way of an application under Section 5 of the Limitation Act, being Cri. Misc.1137/2002.

2. First, the application for condonation of delay. There appears to be a delay of 101 days in the filing of this petition, which is sought to be justified by the petitioner on the ground that the State having refused to file an appeal against the order of acquittal, the petitioner/complainant had to seek the requisite permission from the State for impugning the order of acquittal passed by the learned Addl. Sessions Judge and the State’s permission to file this petition was received by the petitioner on 9.10.2002, that is, after more than five months (about 158 days) and the petition was filed two days thereafter. The aforesaid explanation, in my view, justifies the delay in filing the petition, which is accordingly condoned.

3. Adverting to the material facts necessary for deciding the present revision petition, the case of the prosecution is that accused/respondent No.2 herein was challaned to face trial on the allegation that on 9.10.1998 at about 5:35 p.m. at D-50, Vivek Vihar, Delhi, as an employee of the petitioner (Maya Ram Sharma) he had committed theft of brass articles valued at Rs.35,000. The prosecution, in support of its case, examined six prosecution witnesses viz. PW1 ASI Sudesh Chand, PW2 Maya Ram Sharma (petitioner herein), PW3 Ct. K.P. Mohan, PW4 Ct. Ashok Kumar, PW5 Rakesh Raviranjan and PW6 SI Shriniwas Rajora.

4. PW1 ASI Sudesh Chand proved the FIR dated 9.10.1998 (Ex.PW1A), PW2 Maya Ram Sharma (petitioner herein) testified about the material particulars of the case, to which I shall presently advert in detail. Suffice it to note at this stage that the testimony of this witness has gone unchallenged and un-controverted, despite the respondent No.2 having moved three applications under Section 311 Cr.P.C. for cross-examining the said witness (two of which were allowed, while the third was rejected). The next witness, PW3 Ct. K.P. Mohan is stated to be the witness in whose presence the alleged recovery of some of the brass articles was made, and he has testified about the manner in which the said recovery was affected from the accused/respondent No.2. PW4 Ashok Kumar has testified about the employment of the accused/respondent No.2 with the complainant and the respondent No.2/accused having the charge of the store during the period when PW-2 Maya Ram Sharma (the petitioner herein) was not well. PW5 is also a co-worker of the respondent No.2 and has testified on similar lines as PW4. PW6 SI Sriniwas Rajora is the Investigating Officer of the case, who has testified about the manner in which he conducted the investigation. The testimonies of PW3 to PW5 have also gone unchallenged and uncontroverted.

5. The statement of the accused/respondent No.2 was recorded under Section 281 Cr.P.C. but the accused did not lead any defence evidence.

6. After hearing the arguments, the respondent No.2/accused was held guilty under Section 381 IPC by the learned Additional Chief Metropolitan Magistrate, Delhi and sentenced to undergo rigorous imprisonment for two years with a fine of Rs.1,000, in default of payment of fine to further undergo rigorous imprisonment for 15 days.

7. The respondent No.2/accused having preferred an appeal against the aforesaid judgment of the learned ACMM, the same was finally heard and disposed of by the learned Additional Sessions Judge vide the impugned judgment dated 28.3.2002. The learned Additional Sessions Judge set aside the judgment of conviction for the offence punishable under Section 381 IPC as well as the sentence aw