Binu Cheriyan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946** **CRL.A NO. 942 OF 2006** **AGAINST THE JUDGMENT DATED 08/05/2006 IN SC NO.286 OF 2004 OF SESSIONS COURT, MANJERI.** **APPELLANT/ACCUSED:** **BINU CHERIYAN, S/O.P.M.CHERIYAN, PRAYAMKUDI VEEDU, PEMPAKADA, MEMURI VILLAGE, MUVVATTUPUZHA.** **BY ADV SRI.T.K.AJITH KUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, NILAMBUR, BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.SANAL P.RAJ, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON** **29.07.2024, THE COURT ON 01.08.2024 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No. 942 of 2006 ## **C.S.SUDHA, J.** **--------------------------------------------Crl.Appeal No. 942 of 2006 --------------------------------------------Dated this the 1st day of August 2024** ## **J U D G M E N T** This is an appeal under Section 374(2) of Cr.P.C. filed by the accused/appellant against the judgment dated 08/05/2006 in S.C.No.286/2004 on the file of the Court of Session, Manjeri. 2. The prosecution case is that on 19/07/2001, the accused pretending to be one John Mathew, an officer in the Indian Army, introduced himself so by showing a fabricated and forged identity card, the copy of which is Ext.P5, to PW1 the Branch Manager, Nedungadi Bank, Nilambur Branch and the latter believing the words of the former, opened savings bank (SB) account No.3034 in the name of the accused. Exts.P6 and 3 Crl.Appeal No. 942 of 2006 P7 are the SB account opening form and specimen signature card given by the accused. The accused was issued a cheque book when the account was opened. Thereafter on 20/07/2001, the accused presented Ext.P1, a forged demand draft of the Bank of India, Nemom Branch for an amount of ₹1,25,000/-. The demand draft was produced and used as genuine by which he dishonestly induced PW1 to part with a sum of ₹95,000/-. Hence, the accused is alleged to have committed the offences punishable under Sections 419, 420, 468 and 471 IPC. 3. When the accused appeared before the trial court, he was furnished with the copies of all the relevant records. A charge under the aforesaid Sections was framed, read over and explained to the accused to which he pleaded not guilty. PW1 to PW5 were examined and Exts.P1 to P22 were marked on the side of the prosecution. 4. After the close of the evidence of the prosecution, the 4 Crl.Appeal No. 942 of 2006 accused was questioned under Section 313(1)(b) Cr.P.C. He denied all those circumstances and maintained his innocence. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was called upon to enter on his defence and adduce evidence in support thereof. No oral evidence was adduced by the accused. Ext.D1 was marked on his side. 5. The trial court on a consideration of the oral and documentary evidence and after hearing both sides, found the accused guilty of the offences alleged against him. He has been sentenced to rigorous imprisonment for 3 years and to a fine of ₹5,000/- for the offence punishable under Section 419 IPC and in default to undergo imprisonment for 6 months; to rigorous imprisonment for 7 years and to a fine of 50,000/- for the offence punishable under Section 420 IPC; imprisonment for 7 years and to a fine of ₹50,000/- under Section 468 IPC; imprisonment for 7 5 Crl.Appeal No. 942 of 2006 years and fine of ₹25,000/- for the offence punishable under Section 471 IPC. In default of payment of fine for the sentences awarded under Section 420, 468 and 471, to imprisonment for 3 years each. The substantive sentences have been directed to run concurrently. 6. The only point that arises for consideration in this appeal is whether there is any infirmity, illegality or perversity in the findings of the trial court calling for an interference by this Court. 7. Heard both sides. 8. It was submitted by the learned counsel for the accused/appellant that all the offences alleged against the accused are triable by a Judicial Magistrate of the First Class. However, the case was tried by the Sessions Court, which is an irregular and illegal procedure, causing serious prejudice to the accused as he lost a right of appeal before the Court of Session and a further 6 Crl.Appeal No. 942 of 2006 revision before this Court. In support of this argument, reference was made to the dictum in **Sudir v. State of Madhya Pradesh, AIR 2001 SC 826** : **2001 KHC 166** and **Vinay Tyagi v. Irshad** . **Ali @ Deepak, (2013) 5 SCC 762** ## 8.1. Section 26 Cr.P.C. reads – _“26. Courts by which offences are triable – Subject to the other provisions of this Code, -_ _(a) any offence under the Indian Penal Code_ _- (45 of 1860) may be tried by_ _(i) the High Court, or_ _(ii) the Court of Session, or_ _(iii) any other Court by which such offence is_ _shown in the First Schedule to be triable;”_ (Emphasis supplied) Therefore, 26 (a) (ii) makes it clear that a sessions Court is competent to try any offence under the IPC. Section 228 Cr.P.C. reads thus - _“ 228. Framing of charge.—(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the_ 7 Crl.Appeal No. 942 of 2006 _accused has committed an offence which—_ _(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report;_ _(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused._ _(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”_ (Emphasis supplied) 8.2. The word used in Clause (a) to sub-section (1) is 'may'. The dictum in **Sudir** ( _Supra_ ) relied on by the learned counsel for the appellant/accused itself makes the position clear. In the said 8 Crl.Appeal No. 942 of 2006 case it has been held that the Sessions Court has the power to try any offence under the IPC and that it is not necessary that the offence should be one exclusively triable by a Court of Sessions. This power of the Sessions Court can be discerned from a reading of Section 26 of the Code. When it is realised that the Sessions Judge has the power to try any offence under the IPC and when a case involving offence not exclusively triable by such court is committed to the Court of Sessions, the Sessions Judge has to exercise a discretion regarding the case which he has to continue for trial in his court and the case which he has to transfer to the Chief Judicial Magistrate. The employment of the word 'may' in Clause (a) of sub-section (1) to Section 228 and the word 'shall' at the latter part of Clause (a) unmistakably indicates that when the offence is not triable exclusively by the Sessions Court, it is not mandatory that he should order transfer of the case to the Chief Judicial Magistrate after framing a charge. In situations where it 9 Crl.Appeal No. 942 of 2006 is advisable for him to try such offence in his court, there is no legal obligation to transfer the case to the Chief Judicial Magistrate. Therefore, the argument to the contrary, is only liable to be rejected. 9. The prosecution relies on the testimony of PW1, the Manger, Nedungadi Bank; PW2, the accountant and PW3, the clerk to prove the case. The law was set in motion by PW1 giving Ext.P9 complaint to the police. In Ext.P9 submitted before the then Sub Inspector of Police, Nilambur, PW1 has stated that on 19/07/2001 the accused came to his office at about 11:00 a.m. and introduced himself as a captain of the Indian Army and represented that he was working at MRC, Wellington, Conoor, Nilgiris. He requested for opening an SB account. The accused produced his identity card in support of his representations. PW1 believing his words and the identity card produced opened SB account no.3034. The accused made an initial deposit of 10 Crl.Appeal No. 942 of 2006 ₹1,000/-. The accused left the office of PW1 after receiving the passbook. On 20/07/2001, the accused again approached PW1 and presented a demand draft of ₹1,25,000/- purported to have been issued by the Bank of India, Nemom Branch on their Malappuram Branch. As the instrument produced seemed to be in order and being a demand draft issued by a nationalized bank, PW1 credited the amount to SB account no.3034 of the accused. The accused stating that part of the amount was required to be given for the purchase of a property, withdrew an amount of ₹95,000/- using one of the cheque leafs out of the cheque book issued to him. The accused left the bank on receipt to the amount. The demand draft was sent on 20/07/2001 for collection to the Nedungadi Bank, Malappuram branch. On receipt of the demand draft at the Malappuram branch, the accountant of the said branch contacted PW1 over the phone and informed him that there was no branch for the Bank of India at Malappuram. 11 Crl.Appeal No. 942 of 2006 Thereupon, the Manjeri branch of the Bank of India was contacted over phone and enquiries made regarding the draft. It was revealed that Bank of India did not have a branch at Nemom, Thiruvananthapuram. This established that the draft presented by the accused was a forged one. PW1 tried to contact the account holder in the telephone numbers given by the accused. However, all the numbers turned out to be fake. According to PW1, the accused had played a fraud on the bank by making fraudulent misrepresentations with the intention to cheat the bank and to misappropriate the funds of the bank. 9.1. Based on Ext.P9 complaint, Ext.P15 FIR was registered. PW1 when examined stands by the case narrated in Ext.P9. He is ably supported by PW2 and PW3 also. PW1 certainly ought to have been more careful. But he seems to have been carried away/taken in by the words of the accused whom he seem to have _bona fidely_ believed to be an officer of the Indian 12 Crl.Appeal No. 942 of 2006 Army. Believing the words of the accused, PW1 acted on the identity card produced by the accused. Ext.P5 is the copy of the identity card that had been shown by the accused to PW1. On the basis of the representations made by the accused and believing the identity card shown to PW1, savings bank account was opened in the name of the accused and a cheque book issued. Ext.P2 is one of the cheque leafs issued to the accused. After opening the account, Ext.P1 demand draft was produced before PW1. The amount in Ext.P1 was credited to the account of the accused and the accused using Ext.P2 cheque withdrew an amount of ₹95,000/-. PW1 to PW3 identified the accused in the box. 9.2. It is true that the said witnesses had no prior acquaintance with the accused. But this is not a case where the witnesses had only a fleeting glance of the accused. PW1 to PW3 did get opportunity to interact with the accused and hence had 13 Crl.Appeal No. 942 of 2006 sufficient opportunity to note his features. Nothing has been brought out to disbelieve the testimony of PW1 to PW3. John Mathew is a fictitious person. The name of the accused is Binu Cheriyan. Section 416 IPC dealing with the offence of cheating by personation says that a person is said to cheat by personation if he cheats by pretending to be some other person or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. The Explanation to the Section says that the offence is committed whether the individual personated is a real or imaginary person. Therefore, it is clear that the offence under Section 416 IPC punishable under Section 419 IPC has been made out against the accused. 10. By presenting Ext.P5 demand draft which is also a forged and fabricated document, the accused induced PW1 to part with the money of the bank. To hold a person guilty of cheating 14 Crl.Appeal No. 942 of 2006 as defined under Section 415 IPC, it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise with an intention to retain the property. In other words, Section 415 IPC requires deception of any person, (a) inducing that person to : (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property, or (b) intentionally inducing that person 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, anybody's mind, reputation or property. ( **Hira Lal Hari Lal Bhagwati v. C.B.I., 2003 SCC (CRI) 1121)** 10.1. It is true that neither Ext.P5 demand draft nor the other documents presented by the accused were sent by the police for examination by an handwriting expert for the purpose of comparing it with his admitted signatures. But here is a case where PW1 to PW3 deposed that the account opening form and 15 Crl.Appeal No. 942 of 2006 other connected documents were filled up and prepared by the accused in their presence. The next day the accused himself presented Ext.P5 demand draft and using Ext.P2 cheque, withdrew the amount. There is direct evidence relating to the acts of the accused and hence it is not necessary for obtaining expert evidence, which is only opinion evidence. Therefore the evidence on record clearly makes out a case of the offence of cheating under Section 415 IPC punishable under Section 420 IPC. 11. Now coming to the offences under Sections 468 and 471 IPC. As per Section 468 IPC, any person commits forgery for the purpose of cheating when he intends that the document be used for the purpose of cheating. Section 471 says that whoever fraudulently or dishonestly uses any document as genuine, which he knows or has reason to believe to be a forged document, is also liable to be punished. The evidence makes it clear that the 16 Crl.Appeal No. 942 of 2006 accused had forged documents for the purpose of cheating the bank and that he had used such documents as genuine which he knew to be forged. Therefore the offences under Section 468 and Section 471 IPC are also clearly made out. In these circumstances, I do not find any infirmity, illegality or perversity in the findings of the trial court. Hence the appeal is liable to be dismissed and I do so. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **C.S.SUDHA JUDGE** Jms