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Madhya Pradesh High Court · body

2009 DIGILAW 868 (MP)

Makhan v. State of M. P.

2009-07-28

N.K.MODY

body2009
Judgment ( 1. ) Being aggrieved by the judgment dated 28.4.2009 passed by Sessions Judge, Indore in Cr. Appeal No. 189/2009 which is arising out of judgment dated 16/3/2009 passed by JMFC, Indore in Cr.case No. 15891/2007 whereby the conviction u/s 406 IPC and sentence to undergo 6 months RI with fine of Rs. 1,000.00 was confirmed, the present petition has been filed. ( 2. ) In short the case of prosecution was that complainant Dileep Joshi was registered owner of a dumper bearing No. GJ-7/U-5494 while registered owner of the dumper bearing registration No. GJ-7/5493 was owned by one Satish Dubey. Further case of prosecution was that road tax was to be deposited of the aforesaid two vehicles and for that purpose on 29.5.2008, a sum of Rs. 42,000/- was given by the complainant to the petitioner along with registration book. It was alleged that upon payment, neither registration book was returned nor receipt of payment of tax was given to the complainant. Upon the complaint, after investigation challan was filed. After framing of charges and also after recording of evidence the offence was found proved and petitioner was convicted for the offence as mentioned above. An appeal was preferred against that judgment which was dismissed by maintaining the sentence, hence this revision petition. ( 3. ) Learned counsel for the petitioner argued at length and submits that basic document is the registration book. The case of the petitioner right from the beginning was that complainant is not owner of the offending vehicle and no amount was paid to the petitioner at any point of time. It is submitted that inspite of that the prosecution has failed to produce any documentary evidence to show prima facie that the complainant was registered owner of the offending vehicles. It is submitted that petition be allowed and order of conviction be set aside. ( 4. ) Learned counsel for the State submits that after due appreciation of evidence both the Courts below have found the petitioner guilty for the aforesaid offence. It is submitted that revision jurisdiction of this Court is limited and no interference is called for in the concurrent finding recorded by Courts below. ( 5. ) From perusal of the record it appears that to prove the case prosecution has examined as many as 9 witnesses. Complainant Dileep Joshi was examined as PW-1. It is submitted that revision jurisdiction of this Court is limited and no interference is called for in the concurrent finding recorded by Courts below. ( 5. ) From perusal of the record it appears that to prove the case prosecution has examined as many as 9 witnesses. Complainant Dileep Joshi was examined as PW-1. In his cross-examination complainant has specifically stated that he is owner of the offending vehicle. Apart from this, I.O. S.N. Kaul was examined and in para-11 of the cross-examination it has come that it is true that no documentary evidence has been filed to demonstrate that Dileep Joshi complainant was owner of any of the dumper. No reason has been assigned by the prosecution that why documentary evidence could not be filed to show that complainant was owner of the vehicle in question. In the facts and circumstances it cannot be said that complainant was registered owner of the vehicle in question. In view of this, the petition filed by the petitioner is allowed and the impugned judgment passed by the learned Courts below whereby petitioner was convicted u/s 406 IPC is set aside and petitioner is acquitted. The fine amount, if any, deposited by the petitioner be refunded.