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 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 131 of 2011()

1. SREEPRAKASH, S/O.MOHANAPILLAI,
 ... Petitioner
2. SREENATH, S/O.MOHANAPILLAI,

 Vs

1. VIJAYALEKSHMI S @ SONI, D/O.SULOCHANA,
 ... Respondent

2. STATE OF KERALA, REPRESENTED BY THE

 For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR

 For Respondent :SRI.SUMAN CHAKRAVARTHY

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :11/02/2011

 O R D E R
 V.K.MOHANAN, J.
 - - - - - - - - - - - - - - - - - - -
 Crl. R.P. No.131 of 2011
 - - - - - - - - - - - - - - - - - - - - - - - - - -
 Dated this the 11th day of February, 2011.

 O R D E R

 The first respondent in C.M.P.No.6026/2007, which

is a petition filed under Section 12 of the Protection of

Women from Domestic Violence Act-2005 is the revision

petitioner. The said petition is filed by none other than

the sister of the revision petitioner. By order dated

19.03.2009, the court of Judicial First Class

Magistrate-III, Thiruvananthapuram has granted reliefs

in favour of the aggrieved person and against the

respondents, including the revision petitioner.

 2. Though an appeal was filed by the respondents

therein, by judgment dated 01.06.2010 in

Crl. Appeal No.249/2009, the Court of Sessions,

Thiruvananthapuram, dismissed the appeal confirming

the reliefs granted in favour of the aggrieved person

under Sections 18, 19, 20 and 22 of the Act. It is

against the above judgment of the courts below, the

Crl. R.P. No.131/2011
 2

respondents in the trial court and appellants before the

Sessions court, preferred this revision petition.

 3. I have heard Shri. Pirappancode V.Sudheer,

learned counsel appearing for the revision petitioners

as well as Shri.Suman Chakravarthy, learned counsel

appearing for the respondents.

 4. During the course of the arguments, the learned

counsel for the revision petitioner submitted that, the

challenge against the orders of the court below is being

confined to with respect to the fourth direction issued

by the learned Magistrate. By the fourth direction, the

learned Magistrate directed the 1st revision

petitioner/1st respondent to return 32 sovereigns of gold

ornaments within 30 days and if the 1st respondent fails

to return the gold ornaments, the complainant is entitle

to realise the value of gold ornaments as on the date of

its realization. In the light of the arguments advanced

by both the counsel and in the light of the facts and

circumstances involved in the case that has born out

Crl. R.P. No.131/2011
 3

from the judgments of the court below, the question to

be considered is, whether the fourth direction issued by

the trial court which confirmed by the appellate court is

correct, legal and proper.

 5. During the hearing of the revision petition, both

the counsel took me through the deposition of PW1 and

also RW2. PW1 is the aggrieved person and RW2

Smt.Sulochana is the mother of both the aggrieved

person as well as the respondents who are the brothers

of the aggrieved person. Though in the deposition of

PW1, her claim is that the gold ornaments in question

entrusted with the 1st respondent that RW1, the facts

and circumstances involved in the case and evidence on

record does not permit the court of law to accept such

interested version of PW1. It is to be noted that,

RW2/mother of the contesting parties was not made

party in the proceedings for which there is also rival

contention. Admittedly, the marriage of the aggrieved

person was taken place on 11.07.2007 but the marital

Crl. R.P. No.131/2011
 4

relationship did not continue for more than two weeks.

According to PW1, because of difference of opinion

between herself and her husband, she came back to her

parental home and entrusted the gold ornaments in

question with the 1st respondent, the elder brother.

There is no dispute that the gold ornaments in question

were purchased in the name of the aggrieved person

and also it is the admitted fact that the same was

purchased on various occasions by using her own

money. Even though there is dispute regarding the

money for the purchase of gold ornaments, the same

was purchased in the name of the aggrieved person.

According to the mother, for the purpose of marriage of

the aggrieved person, a bank loan was availed and this

gold ornaments were purchased by using the said loan.

But PW1 was of the opinion that, the same was

purchased by her own money. However, the ornaments

were purchased in the name of the aggrieved person. It

is also relevant to note that at the time of marriage, the

Crl. R.P. No.131/2011
 5

father of the aggrieved person was not alive. In the

light of the fourth direction issued by the learned

Magistrate, the primary question ought to have been

considered by the learned Magistrate is whether the

gold ornaments were entrusted with the first

respondent by the aggrieved person. But there is no

admissible evidence to show that on 29.07.2007, the

gold ornaments were entrusted with the 1st

respondent/1st petitioner herein. Even according to

RW2/ mother, the gold ornaments were entrusted with

her, which version of RW2 is supported by documentary

evidence such as Ext.D6 and D7 series. Admittedly, as

evidenced by P6 series, the last purchase of gold

ornaments was made on 07.07.2007 and till the

entrustment of the gold ornaments either with RW2 or

with RW1 as claimed by PW1/ the aggrieved person,

there is no quarrel between the aggrieved person and

the respondents and the mother/RW2. As a matter of

fact, especially when there is no quarrel between the

Crl. R.P. No.131/2011
 6

aggrieved person and her mother/RW2, and in the

absence of the father, aggrieved person/the daughter,

naturally expected to have entrusted the gold

ornaments with RW2/mother. The same fact is further

reiterated by Ext.D6 and D7 series. However, there is

no clear evidence regarding the entrustment of the gold

ornaments with the 1st respondent/1st revision

petitioner. Going by the judgment of the trial court, it

can be seen that in paragraph 11, the learned

Magistrate has observed that "In this circumstances,

what can be inferred is that the gold ornaments came to

the possession of RW2 from the custody of the first

respondent". On the basis of the above observation, the

learned Magistrate further found in paragraph 12 that

"It is already found that the gold ornaments came to the

possession of RW2, mother from the custody of the first

respondent. So the first respondent had not seriously

challenged the quantity of gold ornaments entrusted

with him". Going by the evidence, which read over by

Crl. R.P. No.131/2011
 7

the counsel for the contesting parties and the available

materials would show that, the gold ornaments were

finally pledged by RW2, the mother of the contesting

parties. Except the mere suggestion of PW1, there is no

evidence to show that the gold ornaments were

entrusted with RW1. As per the fourth direction,

learned Magistrate directed the first respondent to

return 32 sovereigns of gold ornaments to the

aggrieved person. The value of 32 sovereigns of gold

ornaments is very high and therefore according to me,

in the absence of proper, reliable and acceptable

evidence that, 32 sovereigns of gold ornaments were

entrusted with the first respondent, the learned

Magistrate ought not have issued such direction. The

said direction is liable to be set aside and the same

requires reconsideration by the trial court.

 In the result, this revision petition is disposed of,

setting aside the fourth direction issued by the learned

Magistrate which approved by the appellate court and

Crl. R.P. No.131/2011
 8

remanded the matter back for fresh consideration of the

trial court and to take fresh decision. The parties are

free to adduce evidence, if they are so advised and the

learned Magistrate is directed to dispose the matter as

expeditiously as possible, at any rate, within four (4)

months from the date of receipt of copy of this order,

which will be produced by the revision petitioner. It is

made clear that the learned Magistrate, before

proceeding to dispose the matter as directed above,

shall ensure that, the respondents are complied with

the fifth direction issued by the learned Magistrate.

 Sd/-
 (V.K.MOHANAN),
 Judge
ss/.

 //True Copy//

 P.A to Judge

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