The lack of due diligence by the complainant fails to substantiate allegations of cheating or criminal breach of trust under IPC, validating the Trial Court's acquittal.

ORDER

The defacto complainant in C.C.No.134 of 2010 on the files of the Chief Judicial Magistrate Court, Pathanamthitta, has filed this revision petition aggrieved by the acquittal of the accused in the aforesaid case by the Trial Court vide the judgment rendered on 25.07.2013. The allegation against the accused in the aforesaid case was that he sold 1 acre and 16¹/ cents of land to the defacto

4 complainant without disclosing the encumbrance and liability of the aforesaid property with the Ayroor Service Co-operative Bank, and thereby cheated the defacto complainant. In connection with the aforesaid complaint, the Sub Inspector or Police, Koippuram, laid the Final Report alleging the commission of offences under Sections 420 and 406 IPC .

2. Before the Trial Court, prosecution examined five witnesses as PWs 1 to 5, and brought on record six documents as Exts.P1 to P6. From the part of the accused, 11 documents were marked as Exts.D1 to D11. The Trial Court, after evaluating the aforesaid evidence, found that none of the offences alleged against the accused are attracted in the facts and circumstances of the case. Accordingly, the accused was acquitted. It is aggrieved by the aforesaid verdict of the Trial Court that the defacto complainant has filed this revision petition.

3. Heard the learned counsel for the revision petitioner, the learned counsel for the 2^nd respondent and the learned Public Prosecutor representing the State of Kerala.

4. As regards the offence under Section 406 IPC , the Trial Court observed in the impugned judgment that, to constitute the offence of criminal breach of trust, there must be an entrustment of property and its misappropriation. Adverting to the evidence on record, the Trial Court held that the prosecution failed to prove both the above ingredients to constitute the offence of criminal breach of trust envisaged under the aforesaid section. As regards the other allegation pertaining to cheating, the Trial Court, after analysing the evidence of PW1 and also the other records, including Ext.P5, which was a letter dated 05.03.2010 of the Ayroor Service Co-operative Bank, held that the liability incurred with the aforesaid Bank by pledging the property, which was sold to the defacto complainant, was already there in the encumbrance certificate. The court below also observed that the above aspect has been admitted by PW1 during the course of evidence. The contention of the defacto complainant that there was some discrepancy in the survey number with regard to the above encumbrance certificate, has been rejected by the Trial Court by saying that the defacto complainant ought to have confirmed the above aspect. Accordingly, the Trial Court held in the impugned judgment that the failure to apply due diligence on the part of PW1 in ascertaining the correct aspects pertaining to the above liability, cannot be taken as a reason to fasten the petitioner with the offence of cheating. The Trial Court further observed that, at the most, a case of breach of contract would be constituted in connection with the transaction between the complainant and the accused. There is absolutely no reason to interfere with the aforesaid findings of the Trial Court, in exercise of the revisional powers of this Court. It is well settled that even a wrong order passed by the court below cannot be interfered with in revision unless it is shown that the aforesaid order is so perverse and totally against the established principles of law. As far as the present case is concerned, there is no such contingency warranting the interference of this Court in exercise of its revisional powers. Therefore, the relief sought for by the petitioner in this revision, cannot be allowed.

Resultantly, the revision petition stands dismissed.