BALAN, S/O KUNHAN; RAJAN, S/O KUNHAN v CIRCLE INSPECTOR OF POLICE, VALANCHERRY; STATE REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 15TH DAY OF JULY 2016/24TH ASHADHA, 1938** **CRL.REV.PET.NO. 3010 OF 2003 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.79/2002 OF SESSIONS COURT, MANJERI DATED 25-08-2003** **AGAINST THE JUDGMENT IN CC NO.62/1996 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, TIRUR DATED 10-04-2002** **------------------** **REVISION PETITIONER(S)/APPELLANTS/ACCUSED :** - **----------------------------------------** **1. BALAN, S/O KUNHAN, PARAMMAL HOUSE, IRIMBILIYAM AMSOM DESOM, (VALANCHERRY POLICE STATION LIMITS)** **2. RAJAN, S/O KUNHAN, RESIDING DO.** ## **BY ADV. SRI.K.SHIBILI NAHA** **RESPONDENT(S)/RESPONDENT/COMPLAINANT :** - **-----------------------------------** **1. CIRCLE INSPECTOR OF POLICE, VALANCHERRY.** **2. STATE REP; BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SMT.M.G.LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. R.P. No.3010 of 2003 ---------------------------------Dated this the 15[th] day of July, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.79 of 2002 of the Sessions Judge, Manjeri. They were charge sheeted in C.C. No.62 of 1996 by the Judicial First Class Magistrate Court, Tirur under Sec.420 read with Sec.34 of the Indian Penal Code and convicted the accused under Sec.420 read with Sec.34 of the Indian Penal Code and sentenced to undergo simple imprisonment for six months each and fine of Rs.5,000/- (Rupees five thousand only) each, in default, simple imprisonment for two months. Against that, they preferred the above Criminal Appeal where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, they preferred this revision petition. 2. The charge against the accused is that on 24.07.1993 and 21.10.1993, the accused agreed to arrange Visa for job in Saudi Arabia to PW1, PW3, PW4 Crl. R.P. No.3010 of 2003 2 and PW11 and induced them to pay Rs.40,000/- by PW1 and Rs.42,000/- by others. Subsequently they failed to arrange job at Saudi Arabia and thereby cheated them. On the basis of the information given by PW1, the Circle Inspector, Valancherry registered a crime. After completing investigation, he laid charge before the Judicial First Class Magistrate Court, Tirur. During trial, prosecution examined PW1 to PW13 and marked Exts.P1 to P15 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning them but, they did not adduce any defence evidence. 3. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of Crl. R.P. No.3010 of 2003 3 evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interfering with the above power. 4. Learned counsel appearing for the revision petitioners contended that the courts below failed to appreciate the evidence highlighted by the accused in the correct perspective. No deceptive element was proved at the beginning of the transaction and it was not mentioned in the complaint. The trial court found that fake Visa was issued by the petitioners. But such a contention was also not found in Ext.P1. Therefore, the above illegality is to be rectified invoking revisional jurisdiction. 5. Learned Public Prosecutor contended that sufficient opportunity was given in the trial court to substantiate the defence contention. But no documentary evidence has been produced in the trial court to show Crl. R.P. No.3010 of 2003 4 that proper job Visa was given to the victims when they arrived at Saudi Arabia. Moreover, the revision petitioners have no legal authority to provide any job abroad, hence mens rea with physical action attracting cheating is proved and there is no illegality in the finding of the court below. ## 6. In this context it is better to refer Secs.415, 418 and 420 IPC which read as follows: Sec.415. Cheating- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Sec.418. Cheating with knowledge that wrongful loss may ensure to person whose interest offender is bound to protect.- Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Crl. R.P. No.3010 of 2003 5 Sec.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. It is clear from the above sections that cheating is defined under Section 415 IPC, the Section 418 says about cheating with knowledge that wrongful loss may ensue to a person whose interest the offender is bound to protect and Section 420 explains cheating and dishonestly inducing delivery of property. In order to attract offence under Sections 418 and 420 IPC the guilty intention at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfil the promise by itself would not attract the provisions of Sections 415 and 420 IPC. Therefore, mens rea is one of the essential ingredient of the offence which must be shown to exist at the time of making of the inducement. Crl. R.P. No.3010 of 2003 6 In this context, it is better to examine whether the prosecution has proved any of the ingredients of the offence against the accused. 7. The oral evidence of PW1 shows that the 1[st] revision petitioner was working abroad, he promised to arrange Visa and he demanded PW1 to pay Rs.42,000/-. His medical check up was conducted at Trivandrum. Subsequently, 1[st] revision petitioner informed that Visa was ready and accordingly PW1 and other accused proceeded to Trivandrum Airport and from there, they flew to Saudi Arabia. The 1[st] revision petitioner did not turn up in the Airport at Saudi Arabia as promised earlier. In his absence, one Pakisthani national came there and collected their passports and took them in a car and stayed with him for about 15 days. After 15 days, the 1[st] revision petitioner came there and promised to arrange job Visa, but he did not turn up thereafter. With the help of some other people, ultimately they returned to their home land. The evidence of PW1 shows that the accused, with the intention of deceiving PW1, dishonestly Crl. R.P. No.3010 of 2003 7 induced him to deliver Rs.42,000/- to him and promised to arrange job at Saudi Arabia. Subsequently, he omitted to arrange Visa and intentionally deceived PW1. The other witnesses PW2 to PW5 also gave a similar version. Analysing the oral evidence of PW1, it is found that PW2 to PW5 gave Rs.42,000/- to the 2[nd] revision petitioner and they took medical check up from Thiruvananthapuram and they went to Saudi Arabia. Subsequently they were received by a Pakisthani. Analysing the oral evidence of PW2 to PW5, it is true that their evidence is supporting the oral testimony of PW1. Ext.P1 is the First Information Statement given to the Police. Ext.P2 is the copy of the passport and Ext.P3 is the letter which was proved through PW2. The travel ticket of PW2 was marked as Ext.P4. Copy of the Visa of PW2 was marked as Ext.P5. Ext.P7 is the copy of the passport of PW3. Ext.P8 is the copy of the ticket of PW4. Ext.P9 is the copy of the passport of PW4. PW7 prepared Ext.P10 seizure mahazar. PW8 prepared Ext.P11 seizure Mahazar. Exts.P3, P14 and P15 were marked through PW13. PW12 translated Crl. R.P. No.3010 of 2003 8 Ext.P5, the copy of the Visa. Analysing the above documentary evidence, it is clear that the revision petitioners failed to arrange Visa as agreed and the accused dishonestly induced PW1, PW3, PW4 and PW11 and directed them to deliver Rs.42,000/- and Rs.40,000/for arranging Visa, they retained that amount with them and omitted to arrange Visa as agreed. This amounts to cheating as defined under Sec.415 IPC. ## 8. Apex Court in **Ramjas** v. **State of U.P.** [(1970) 2 SCC (cri) 516] explained the ingredients of Sec.415 in which it is held as follows: “The ingredients required to constitute the offence of cheating are (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived, and (iii) in cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property” ## 9. In another decision **Medchl Chemicals &** ## **Pharma (P) Ltd** v. **Biological E. Ltd. And others** Crl. R.P. No.3010 of 2003 9 ## [ (2000) 3 SCC 269] the apex court held as follows: “10. The ingredients required to constitute an offence under Section 415 have been lucidly dealt with by this Court in the case of Ram Jas v. State of U.P [(1970) 2 SCC 740 wherein this Court observed as below: “The ingredients required to constitute the offence of cheating are- (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.” **==> picture [198 x 7] intentionally omitted <==** ## 10. Apex Court in **Ajay Mitra** v. **State of M.P.** **And others** [AIR 2003 SC 1069] held that it is the primary responsibility of the prosecution to prove the ingredient of the offence of cheating. The word 'dishonestly' has been defined u/s.24 of IPC as a deliberate intention to cause wrongful gain or wrongful loss. When there are material to show that the accused had dishonestly induced at the time of parting with Crl. R.P. No.3010 of 2003 10 money, then that evidence is sufficient to attract the alleged offence. In normal course, mere promise to return the money itself does not amounts to cheating. The dishonest intention from the beginning has been stated by PW1 to PW5 through both oral and documentary evidence. It is clear that dishonest intention has been stated and subsequently at the time of adducing evidence they had proved the ingredient of deception. Apex Court in **S.W.Planitkar and Others** v. **State of Bihar and Another [2002 (1) Supreme Court Cases 241]** held that it must be proved that the accused had dishonest intention right from the beginning to attract an offence u/s.420 IPC. When accused thereby induces the persons derived to deliver any property or to do or omit to do something which would otherwise have done or omitted to do something it amounts to cheating. 11. The decision in **Ajay Mitra** v. **State of M.P. And others** [AIR 2003 SC 1069] is purely applicable in this case. It reads thus: ## Crl. R.P. No.3010 of 2003 11 “Where the charge against the accused is under S.420 in that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods then a case of cheating would be established.” The courts below rightly convicted the accused u/s.420 r/w.34 IPC. I do not find any illegality or irregularity in the finding of the courts below. The learned counsel for the revision petitioners submitted that the incident had happened twenty years back. Now they have returned from Gulf and are leading a good family life. Considering the nature of offence and the circumstances under which it was committed, the sentence is modified as follows: Crl. R.P. No.3010 of 2003 12 The revision petitioners are sentenced to imprisonment for two months each and fine of Rs.10,000/each u/s.420 IPC, in default simple imprisonment for six months. Sd/- **P.D. RAJAN, JUDGE** NS/acd/20/05/2016 / True Copy / P.A. To Judge