C. Remesh v. Warvin School Managing Committee & Others

CRL.A.No.1226 OF 2005 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942** ## **CRL.A.No.1226 OF 2005** **AGAINST THE JUDGMENT IN CC 1246/2003 DATED 31-03-2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PALA** ## **APPELLANT/COMPLAINANT:** **C.REMESH, S/O. N. CHELLAPPAN PILLAI, MOHAN NIVAS, PADINJATTUMCHERI THEKKEMURIYIL, VAIKOM NADUVILA VILLAGE, KOTTAYAM DISTRICT.** **BY ADVS. SRI.K.GOPALAKRISHNA KURUP SHRI.S.MANU SMT.RASHMI RAMESH** ## **RESPONDENTS/ACCUSED:** - **1 DR.PAUL C.VARGHESE CHAIRMAN, WARVIN SCHOOL MANAGING COMMITTEE, CHERUKOTHU VEEDU, VAIPINPADY, VAIKOM** - **2 C.V. JOHN, CHERUKOTHU VEEDU, KULASEKHARAMANGALAM P.O., VAIKOM.** - **3 P.T. PUNNOOSE, PRINCIPAL, WARVIN SCHOOL, VAIKOM.** - **4 THE PRINCIPAL, I INDIRA GANDHI MEMORIAL PUBLIC SCHOOL, ELAMAKKARA, KOCHI.** CRL.A.No.1226 OF 2005 2 **5 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.P.S.VINOD R1 BY ADV. SRI.C.AJITH KUMAR KALLESSERIL R1 BY ADV. SRI.S.RADHAKRISHNAN R1-2 BY ADV. S.RADHAKRISHNAN R4 BY ADV. C.AJITH KUMAR R5 BY PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-122020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.1226 OF 2005 3 ## **JUDGMENT** ## **Dated this the 15th day of December 2020** The appellant is the complainant in C.C.No.1246/2003 on the file of the Judicial First Class Magistrate Court, Pala. It is a private complaint filed by the appellant against respondent Nos.1 to 4. It is reported that the 2[nd] respondent is no more. The above complaint was filed alleging offences punishable under Sections 420 and 465 r/w 34 IPC. 2. The case of the complainant is that the Warwin School, Vaikom is an educational institution, being functioned under the Cherukothu Warwin Trust, Kulasekharamangalam. The 1[st] accused is the chairman of the managing committee of the school, 3[rd] accused is the Principal of the school and the 2[nd] accused is the Secretary of the Cherukothu Trust. The 4[th] accused is the Principal of IGM Public School, Elamakkara. The complainant is the father of twin brothers, namely Vinay Remesh and Vijay Remesh, who were studying in the Warwin School for the period from 1992 till 25.8.1997. The case of the complainant is that accused Nos.1 to 3 by misrepresenting that the Warwin school had obtained recognition and affiliation from CBSE had induced the complainant to join his children in the Warwin School, during the educational CRL.A.No.1226 OF 2005 4 year 1992-93. During 1997-98 educational year, while the sons of the complainant were studying in 10[th] standard, the complainant and some of the other guardians of the pupils in the same standard, dissatisfied with the standard of teaching and other facilities of the school, made a complaint to the 3[rd] accused on 14.7.1997. Since no effective response was there from the 3[rd] accused, the complainant and the other guardians doubted whether the Warwin school is having recognition from CBSE. Therefore a lawyer notice was issued on 19.8.1997 to accused Nos.1 to 3 expressing their doubt and also complaining about the deficiency in the standard and facilities in the school to which a reply was sent on 26.8.1997 by accused Nos.1 to 3. Thereafter, the complainant and others convinced that the Warwin school is having no recognition from CBSC had decided to transfer their children from Warwin school to Bapooji Central School at Peruva, a school recognized by CBSE and for that purpose on 23.8.1997 they demanded the 3[rd] accused to issue Transfer Certificate and conduct certificate of their children. But according to the complainant, the 3[rd] accused had handed over the transfer certificate and conduct certificate of their children issued from IGM Public School with the signature of the 4[th] accused. According to the complainant and other guardians, CRL.A.No.1226 OF 2005 5 their children had not joined in the IGM Public School and till 25.8.1997 the children were studying in the Warwin School, Vaikom. The complainant and other guardians were not informed by the accused persons that their children were enrolled in the IGM Public School, while the children were actually studying in the Warwin School till 25.8.1997. According to the complainant, accused Nos.1 to 3 with dishonest intention to cheat the complainant and other guardians and thereby to make unlawful gain to the accused persons and unlawful loss to the guardians, directly and through prospectus of the school misrepresenting the complainant that the Warwin School is having recognition from the CBSE, when actually the school had not obtained secondary stage affiliation from the CBSE, had caused the complainant to join his two sons in the 9[th] standard in the educational year 1996-97 and also to join the children in the 10[th] standard in 1997-98 educational year and made complainant to pay about Rs.16,000/- during the said period under various heads towards the education of the children. It is also alleged that the accused committed the offence under Sections 420 and 465 IPC. 3. When the complaint was filed, the learned Magistrate recorded the sworn statement of the complainant. Thereafter, CRL.A.No.1226 OF 2005 6 the learned Magistrate took cognizance of the offence under Sections 420 and 465 r/w 34 IPC and issued summons to the accused. The accused appeared before the lower court. The complainant adduced evidence. Subsequently, charge was framed under Sections 420 and 465 r/w 34 IPC. Further evidence under Section 246 Cr.P.C was also adduced by the complainant. 4. After going through the evidence and the documents, the trial court found that the accused is not guilty under Sections 420 and 465 r/w 34 IPC. Aggrieved by the above acquittal order, this Criminal Appeal is filed by the complainant. 5. Heard the learned counsel for the appellant and the learned counsel appearing for the accused. I heard the learned Public Prosecutor also. 6. The learned counsel for the appellant submitted that the complainant adduced evidence to prove the offence under Sections 420 and 465 IPC. The counsel submitted that the intention of the accused to misrepresent the appellant is clear from the beginning. The counsel submitted that the accused forced the complainant to join their children in their school because of their promise that they will get the CBSE recognition to the school. The counsel submitted that actually the children CRL.A.No.1226 OF 2005 7 were admitted in another school and that was not even aware to the complainant. They came to know about the same only when a transfer certificate was issued from another school. That itself amounts to an offence under Section 420 IPC, the counsel for the complainant submitted. The counsel submitted that it is a clear case in which the ingredients of Sections 420 and 465 IPC is made out. The submission of the learned counsel for the complainant is that the lower court considered only the defence evidence. According to the counsel, the evidence adduced by the complainant is not considered on merits by the learned Magistrate before acquitting the accused. The counsel submitted that this is a fit case in which at least a remand is necessary to reconsider the entire evidence adduced by the complainant because the learned Magistrate has not considered the prosecution evidence properly. 7. The counsel for the accused submitted that this is an appeal against acquittal. The counsel submitted that the jurisdiction of this Court in an appeal against acquittal is very limited. The counsel also relied the judgment of the Apex Court in **Sushil Sethi and another v. State of Arunachal Pradesh and others [(2020)3 SCC 240]** . The counsel submitted that even if the entire case of the complainant are accepted in toto, CRL.A.No.1226 OF 2005 8 there is no fraudulent and dishonest intention on the part of the accused from the beginning of the transaction. If that is not there, the counsel submitted that the offence under Section 420 IPC is not made out. The counsel also submitted that there is absolutely no evidence to attract the offence under Section 465 IPC also. The counsel submitted that the trial court perfectly justified in acquitting the accused in this case. 8. The point for consideration in this case is whether the judgment dated 31.3.2005 in C.C.No.1246/2003 of the Judicial First Class Magistrate Court, Pala is justifiable or not. 9. The trial court after considering the entire oral and documentary evidence in this case concluded that no offence under Section 420 or under Section 465 IPC is made out in this case. The trial court considered the oral evidence in detail. The trial court relied Ext.P1(a), which is a portion of Ext.P1 in which it is only stated that the school authorities will get affiliation from CBSE. The relevant portion of the judgment which deals about the same is extracted hereunder: “17. Now the question to be considered is whether the children of the complainant were joined by the complainant in the 9[th] standard in Warwin school in the year 1996-97 due to the inducement of A1 to A3 by misrepresenting that the Warwin school was having CBSE affiliation for secondary education. I have already found that the available evidence will CRL.A.No.1226 OF 2005 9 only show that the representation made vide Ext.P1(a) is only to the effect that the school will obtain affiliation and recognition of CBSE in future. Admittedly, in the year 1996 the Warwin school, Vaikom was having no CBSE affiliation for secondary education and Exts.D1 to D7 and deposition of DW1, the present Principal of Warwin school proves that the school got CBSE affiliation for secondary education with effect from 1.4.98 only. 18. The learned counsel for the complainant would argue that the sons of the complainant continued their studies in the Warwin school on the bonafide believe that the school was having secondary school affiliation as represented by A1 to A3. It is already found that the facts that the sons of the complainant joined the 9[th] standard in Warwin school in the year 1996-97 and also that at that time the Warwin school was having no recognition for secondary education from CBSE are proved. But I have already found that the complainant had not adduced any substantial evidence to prove that there was any misrepresentation in the year 1996, by any of the accused persons to the effect that the Warwin school Vaikom was having CBSE recognition for secondary education, while his sons joined 9[th] standard in the school. 19. From the available evidence in this case which is discussed as above and considering the same in the light of the circumstances involved, the only conclusion that can be drawn is that the complainant had failed to prove it beyond doubt that A1 to A3 had made misrepresentation to the complainant that the Warwin school, Vaikom was having affiliation or recognition of CBSE for secondary education in the year 1992-93 or 1996-97. 20. The learned counsel for the accused argued that even if it is found that any misrepresentation to the effect that the Warwin school was having CBSE affiliation was made by the accused the same is not sufficient to attract the definition of cheating, in the absence of evidence of proof of dishonest or fraudulent intention for the alleged inducement. The learned counsel relying on the decision reported as J.John v. State of Kerala 1964 KLT 724 would argue that in order to constitute an offence of cheating u/s 420 IPC there should be clear and CRL.A.No.1226 OF 2005 10 convincing evidence of criminal intention of the accused, at the time of the commission of the offence. The learned counsel further argued that the representation of the accused persons even as it is alleged by the complainant is that, the Warwin School will obtain CBSE affiliation in future and admittedly in 1992 the school was having only upto 5[th] standard and the question of obtaining CBSE recognition would raise only when the 9[th] standard is started in 1996-97. The accused relies on Ext.D2 to D6 to convince the court that the school management was making all sorts of attempt to obtain CBSE recognition for the school at the right time and that due to some technical reasons the affiliation was obtained only with effect from 1.4.98. The above contention on the part of the accused seems to be sound and reliable and it can be concluded that the available evidence in this case is not sufficient enough to indicate that the accused persons even if they made any misrepresentation had been doing the same with any dishonest or fraudulent intention.” 10. I see no reason to interfere with the finding of fact by the trial court in an appeal against acquittal. The jurisdiction of this Court to entertain in an appeal against acquittal is very limited. If there are two views possible, this Court cannot interfere in an appeal against acquittal. As far as the offence under Section 465 IPC is concerned, the trial court considered that point also in detail in the impugned judgment and came to a definite conclusion that no ingredients of Section 465 IPC is made out in the facts and circumstances of this case. The relevant portion of the judgment is extracted hereunder: “32. Ext.P15 and P16 are purported to be made CRL.A.No.1226 OF 2005 11 and signed by the Principal of the IGM School and the documents bear the seal and signature of the principal of the school. The complainant has no case that the person who put signature in Ext.P15 and P16 as the Principal is not the Principal of the school or that the signatory is not having the authority for the same. In fact the complainant had impleaded the 4[th] accused in this case only as the signatory to the said documents. In the absence of proof or even allegation to the effect that Ext.P15 and P16 were made by persons other than the person by whom it is purported to have made, the documents will not come within the definition of false documents as defined u/s464 IPC. Hence the above point is answered against the complainant by holding that the complainant has failed to prove that the accused persons had made any false document as alleged by him.” 11. According to me, the trial court after considering the entire oral and documentary evidence acquitted the accused. I see no reason to interfere with the impugned judgment in an appeal against acquittal. Therefore, this Criminal Appeal is dismissed, confirming the judgment dated 31.3.2005 in C.C.No.1246/2003 of the Judicial First Class Magistrate Court, Pala. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **ab**