JUDGMENT This revision is preferred by the two accused of whom the first applicant was convicted under section 420 IPC and the second applicant under section 420 read with 120-B IPC and sentenced to undergo S.L for six months and fine of Rs.4,000/- each, in default to suffer S.L for 2 months. The prosecution case is that the second applicant has pledged some gold article with first applicant; that on 29.2.1988 one Panchram who is a co-accused took the second applicant to the house of the complainant and requested the complainant to purchase the gold article; that the complainant agreed to pay Rs. 7,000/- to the second applicant promising that after disposal of the gold article he would withheld the amount of Rs. 7,000/- paid by him together with his commission and pay the balance amount, if any, to the second applicant. It is further stated that when the complainant has taken that gold article to PW 2 who is a Gold Smith it was revealed that the said article is one of brass but not of gold. One of the six persons who were prosecuted including Panchram the others were acquitted by the trial Court and the applicants herein were convicted and sentenced as stated above. The learned counsel for the applicants challenged the conviction and sentence on the ground that the FIR was lodged three days later and the second objection is that Ex. P-2 seizure memo was not proved beyond doubt by the prosecution. The learned counsel argued that in the absence of proof of Ex. P-2 seizure memo, there is no proof that the same material which was seized from PW 1 was produced before PW 2. In support of that submission the learned counsel relied upon the evidence of PW 6 the Investigating Officer who stated that the article which is the subject matter of the charge in this case was not kept in a sealed cover and it was taken by him to PW 2. The learned counsel for the applicant contended that in the absence of proof of identity between the article said to have been seized from the complainant and the article produced by PW 6 before PW 2, the charge of cheating cannot be said to have been proved. The learned counsel for the applicant contended that in the absence of proof of identity between the article said to have been seized from the complainant and the article produced by PW 6 before PW 2, the charge of cheating cannot be said to have been proved. It is also elicited from PW 2, the Gold Smith in his cross-examination that he has not kept any record evidencing that the material produced before him by PW 6 was examined by him and that he had expressed his opinion that it is only brass and not gold. In the absence of proof of seizure under Ex. P-2 and in the absence of proof of identity of the article seized from the complainant and the article produced before, PW 2, I hold that there is no clinching material to hold that the applicants In prosecution of their conspiracy have cheated PW 1 by dishonestly inducing the complainant to deliver the property. However, the fact that PW 1 has advanced Rs. 7,000/- to the second applicant is not disputed and irrespective of whether the applicants are found guilty or not PW 1 should not be deprived of the money advanced by him. It is not as if PW I was also a party to the conspiracy and the evidence is that after disposing of the gold ornament he promised to retain the amount of Rs. 7,000/- together with his commission. While setting aside the sentence of imprisonment, I direct that the amount of fine paid by the applicant 1 and 2 shall be paid to PW 1. If the properly which is the subject matter of this case is in the custody of the trial Court that article shall be returned to the second applicant. The revision is allowed subject to the above directions.