Abdul Azeez v. State

1 Crl.R.P. No.51 of 2011 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 CRL.REV.PET NO. 51 OF 2011 ``` ``` AGAINST THE ORDER/JUDGMENT CRA 107/2008 OF ADDITIONAL SESSIONS COURT (ADHOC-I), KASARAGOD ``` ``` CC 761/2006 OF CHIEF JUDICIAL MAGISTRATE ,KASARAGOD ``` ## **`REVISION PETITIONER/S:`** ``` ABDUL AZEEZ S/O.MUHAMMED HAJI, RESIDING AT PATLA, PATLA VILLAGE,, MADHUR, KASARAGOD DISTRICT. BY ADV RESHMA E. ``` ## **`RESPONDENT/S:`** ``` STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` Smt Seetha S, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Crl.R.P. No.51 of 2011 ## **C. S. DIAS, J.** **------------------------Crl.R.P. No.51 of 2011 ------------------------Dated this the 15[th] day of November, 2023** ## **ORDER** The revision petition is filed challenging the legality and propriety of the judgment in Crl.A No.107/2008 of the Court of Session, (Additional Sessions Court (Adhoc-I)), Kasargod (Appellate Court), confirming the judgment in CC No.761/2006 of the Court of the Chief Judicial Magistrate, Kasargod (Trial Court), holding the revision petitioner guilty and convicting and sentencing him for the offence under Sec.420 of the Indian Penal Code ( for short, ‘IPC’). 3 Crl.R.P. No.51 of 2011 The revision petitioner was the first accused in the original case, i.e., C.C No.303/1999, which was split up against him and subsequently re-filed as CC No.761/2006. ## **Prosecution case in brief** 2. The prosecution case is that, the revision petitioner/ the first accused had entered into Ext P2 agreement for sale with the defacto complainant (PW1) to purchase a bus bearing registration No.KLN 5182 for Rs.1,70,000/- and, thereafter, the first accused sold the vehicle to a third party for a higher price, but refused to pay PW1 the agreed sale consideration. Thus, the first accused cheated PW1 and committed the offences of Secs. 420, 506(i) read with Sec.34 of the IPC. 4 Crl.R.P. No.51 of 2011 3. The Police after investigation, laid the final report as against three accused and CC No.303/1999 was registered. As the revision petitioner absconded, the case against him was split up and the court below proceeded with the trial against accused 2 and 3. The records reveal that the accused 2 and 3 were acquitted by judgment dated 21.10.2003. 4. Subsequently, the revision petitioner appeared and the case was re-filed against him as CC No.761/2006, wherein he was the sole accused (hereinafter referred to as ‘accused’). The accused denied the substance of accusation read over to him. 5. In the trial, the prosecution examined PWs 1 to 5 and marked Exts.P1 to P6 in evidence. The 5 Crl.R.P. No.51 of 2011 accused denied the incriminating circumstances appearing against him in the questioning under Section 313 of the Code of Criminal Procedure ( in short, Code). ## **Trial Court judgment** 6. The Trial Court, after analysing the materials on record, found the accused guilty and convicted him for the offence under Sec.420 of the IPC, but acquitted him of the offence under Sec.506(i) of the IPC. The accused was sentenced to undergo rigorous imprisonment for a period of three years and pay a fine of Rs.10,000/-, and in default to undergo rigorous imprisonment for a further period of six months. And, if the fine amount was realised, the same to be paid as compensation to PW1 under Sec.357(1) (b) of the Code. 6 Crl.R.P. No.51 of 2011 7. Aggrieved by the said judgment, the accused preferred Crl.A No.107/2008 before the Appellate Court. ## **Appellate Court judgment** 8. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment, dismissed the appeal by confirming the conviction and sentence passed by the Trial Court. 9. It is challenging the concurrent judgments of the courts below; the present revision petition is filed. 10. Heard; Smt.Anna Soni, the learned counsel who argued on behalf of Smt.Reshma.E, the learned counsel appearing for the revision petitioner and Smt.Seetha.S, the learned Public Prosecutor appearing for the respondent/State. 7 Crl.R.P. No.51 of 2011 11. The learned counsel for the revision petitioner vehemently argued that the courts below have concurrently gone wrong in concluding that the accused is guilty for the offence under Sec.420 of the IPC. The prosecution has miserably failed to establish that the accused had a dishonest intention at the time of the execution of Ext P2 agreement. She argued that it is imperative for the prosecution to prove that there was mens rea on the part of the accused to cheat and defraud the defecto-complainant right from the inception of the contract. She also submitted that there was nothing on record to corroborate that PW1 was the owner of the vehicle. Exts P2 and P3 were only the photostat copies of the agreements, which were only marked but were not admitted in evidence. The prosecution also failed to 8 Crl.R.P. No.51 of 2011 examine the admitted registered owner and financier of the vehicle. Moreover, there was no material on record to establish that the revision petitioner was given possession of the vehicle or that he sold the vehicle to a third party. Finally, she contended that, even assuming the prosecution case is correct, a mere breach of contract cannot attract the penal consequence under Sec.420 of the IPC. The prosecution has failed to prove the case beyond reasonable doubt and, therefore, the accused is entitled to the benefit of doubt. The learned counsel relied on the decisions of the Hon’ble Supreme Court in **State of Kerala vs. A.Pareed Pillai and another** [AIR 1973 SC 326 **], Anil Kumar Bose vs. State of Bihar** [AIR 1974 SC 1560] **, Hridaya Ranjan Prasad Verma and others vs. State of Bihar and another** [AIR 2000 9 Crl.R.P. No.51 of 2011 SC 2341] **, N.Devindrappa vs. State of Karnataka** [AIR 2007 SC 1741] **, Vesa Holdings P.Ltd and another vs.State of Kerala and others** [2015 KHC 4224] **and Vijay Kumar Ghai and others vs. State of West Bengal and others** [2022 Livelaw (SC) 305] to reinforce her submissions that a mere breach of contract cannot give rise to criminal prosecution for cheating and the prosecution should prima facie establish that there was intention on the part of the accused to cheat the complainant. Hence, the revision petition may be allowed by setting aside the judgments of the courts below. 12. The learned Public Prosecutor, on the contrary, submitted that this Court may not interfere with the concurrent findings of the courts below. She argued that 10 Crl.R.P. No.51 of 2011 it is well settled that merely because another view is possible, this Court may not substitute the findings of the fact finding Courts in a revision petition. There is no illegality or perversity in the impugned judgment. Hence, the revision petition may be dismissed. 13. Is there or any illegality, irregularity impropriety in the impugned judgments of the courts below. 14. The prosecution case is that, PW1 had purchased the above bus from one Ismail in the year 1996, by exchanging his Mahindra Jeep as per Ext P3 agreement. The bus had a liability of Rs.1,00,000/- with Guru Raghavendra Finance Company (Finance Company), Uppala. As PW1 was unable to pay the 11 Crl.R.P. No.51 of 2011 monthly installments, he entered into Ext.P2 agreement with the accused on 15.10.1997, whereby the accused agreed to purchase the bus for Rs.1,70,000/- . The original accused 2 and 3 were the attestors in Ext P2 agreement. The accused paid Rs.1000/- as advance sale consideration to PW1 and agreed to pay Rs.70,000/- to PW1 on 1.11.1997 and pay the balance amount of Rs.1,00,000/- to the Fiance Company. 15. On the basis of the above assurance, PW1 handed over the bus to the accused. Even though PW1 had approached the accused to collect Rs.70,000/- he refused to pay the amount. Immediately, PW1 lodged Ext.P4 FIR with the Police. In the investigation conducted the Police it was learnt that the accused had 12 Crl.R.P. No.51 of 2011 sold the bus to one Sahib in Mysore. The bus could not be traced. 16. To prove the prosecution case, the accused examined PW1/defacto complainant, PWs 2 and 3 the witnesses to the transaction between PW1 and the accused, PW4 and PW5 – the Police Officers who prepared Ext.P4 FIR and conducted the investigation. 17. PW1 testified that the accused had received the bus from him promising to pay Rs.1,70,000/-. However, the accused only paid Rs.1,000/- and refused to pay the balance amount. PWs 2 and 3 deposed that they witnessed the execution of Ext.P2 agreement. 18. Indisputably, PW1 was not the registered owner of the bus. The bus belonged to one Ismail, who has not 13 Crl.R.P. No.51 of 2011 been examined in the case. It is also established that the bus was hypothecated with a finance company, but no official of the finance company was examined. 19. Admittedly, Exts.P2 and P3 agreements are only the photostat copies of the agreements. There is no cogent explanation put forth by the prosecution for the non-production of the original agreements. 20. In **PRS Hospitals, Thiruvananthapuram and another v. P.Anil Kumar** [2021 KHC 1 ], a Division Bench of this Court has succinctly laid down the law that mere marking of a document will not make it admissible in evidence. It is held that there are four stages under the Indian Evidence Act before accepting a document in evidence, namely, (i)marking of the 14 Crl.R.P. No.51 of 2011 document, (ii) admissibility of the document, (iii) proof of content of the document, and (iv) evaluation of the document. It is only after the fourth stage is completed, a Court admits the document in evidence. 21. It was without looking into the elementary aspect, that the courts below acted upon Exts.P2 and P3 agreements and rendered the finding regarding the transaction. The impugned judgments are erroneous on the sole ground. ## 22. Now, coming to the next crucial aspect. ## 23. Section 420 of the IPC reads thus: **"420. Cheating and dishonestly inducing delivery of property** .—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. " 15 Crl.R.P. No.51 of 2011 24. Interpreting the above provision, the Hon’ble Supreme Court has in **Pareed Pillai** (supra) held that, to hold a person guilty of an offence of cheating it has to be shown that the accused had a dishonest intention at the time of making the promise. Such dishonest intention cannot be inferred from the mere fact that the accused did not subsequently fulfill the promise. 25. The above view has been reiterated in **Anil Kumar Bose** (supra) by further adding that the prosecution must establish beyond reasonable doubt, that there is _mens rea_ on the part of the accused to cheat the complainant. The very same principle has been reiterated in the subsequent decisions relied on by the learned counsel for the revision petitioner. 16 Crl.R.P. No.51 of 2011 26. On a consideration of materials placed on record, particularly the oral testimony of PWs 1, 4 and 5, the defacto complainant, the Police Officer who registered Ext P4 FIR and the investigating officer who filed the final report, it can be gathered that the prosecution has failed to prove that the accused had a dishonest intention to cheat PW1 at the time of the execution of the alleged Ext P2 agreement. 27. PW1 has only testified that the accused had entered into Ext P2 agreement and took possession of his vehicle, but failed to pay the consideration. He has not deposed that the accused had a dishonest intention to cheat him at the time of executing Ext P2 agreement, which is imperative. In the absence of such material and the prosecution failing to establish beyond 17 Crl.R.P. No.51 of 2011 reasonable doubt the ingredients under Sec.420 of the IPC, I am of the view that the accused is entitled to the benefit of doubt. 28. On a conspectus of the materials placed on record and the law on the point, I am of the definite view that the courts below have misread the records and erroneously concluded that the accused is guilty of the offence. Thus, I hold that there is impropriety and illegality in the impugned judgments of the courts below warranting interference by this Court by setting aside the impugned judgments of the courts below. In the result, (i) The revision petition is allowed. 18 Crl.R.P. No.51 of 2011 (ii) The judgments in Crl.A No.107/2008 and in CC No.761/2006 of the courts below are set aside. (iii) The accused/revision petitioner is found not guilty of the offence and is consequently acquitted and set at liberty. (iv) The bail bond executed by the accused and his witnesses shall stand discharged. sd/- sks/15.11.23 C.S.DIAS, JUDGE