Joseph Thekkudan s/o Simon v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 21[ST] DAY OF JANUARY 2022 / 1ST MAGHA, 1943** ## **CRL.REV.PET NO. 525 OF 2017** **AGAINST THE ORDER/JUDGMENT IN CC 71/2012 OF CHIEF JUDICIAL MAGISTRATE ,THRISSUR** **CRA 33/2016 OF IV ADDITIONAL SESSIONS COURT, THRISSUR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **JOSEPH THEKKUDAN S/O.SIMON, THEKKUDAN HOUSE, KURIACHIRA DHESOM, CHIYARAM VILLAGE, THRISSUR** **BY ADV SRI.M.R.SASITH** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED ITS BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM682031 2 ADDL. R2 IMPLEADED: ALPHONSA.V.L.WO LATE RAJU A.L. AINIKAL HOUSE,EAST FORT,LOURDPURAM.P.O.THRISSUR-5 IS IMPLEADED AS ADDL. 2ND RESPONDENT AS PER THE ORDER DATED 22.03.2018 IN CRL.M.A.NO.556/2018 IN CRL.R.P.No.525/2017 PP SANGEETHARAJ N.R** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15.12.2021,** **THE COURT ON 21.01.2022 DELIVERED THE FOLLOWING:** Crl.R.P.No.525/2017 2 ## **O R D E R** This Criminal Revision Petition has been filed against the conviction and sentence passed against the revision petitioner/accused in C.C.No.71/2012 on the files of the Chief Judicial Magistrate Court, Thrissur as per the judgment dated 15.01.2016 as confirmed in Crl.A.No.33/2016 on the file of IVth Additional Sessions Court, Thrissur. 2. Petitioner is the sole accused in crime No.221/2012 of Town East Police Station, Thrissur which was charged for the offences punishable under Sections 406 and 420 of the Indian Penal Code. 3. Prosecution case is that during 2009 the defacto complainant (PW1) was at loggerheads with her husband and was separated from him. While so, the revision petitioner/accused (hereinafter be referred as 'accused') approached her and offered her to render necessary legal aid and provided an accommodation in his institution in the name and style 'Niyama Sahayavedi' at High Road, Thrissur. She was also provided with a job in his institution. It is further alleged that on 17.08.2009 accused secured 16 sovereigns of gold ornaments stating that it has to be kept in the locker. He also Crl.R.P.No.525/2017 3 received Rs.33,400/-, which was in the fixed deposit of the daughter of PW1, namely Jiffy in Vilvattaom Co-operative Bank on a promise to repay the same and the amount was withdrawn from the bank on 13.08.2009. He also promised to pay interest at the rate of 12% to PW1. He paid some amount. But subsequently inspite of repeated demands of the gold and amount, accused did not pay the same and thereby committed the offence aforementioned. 4. PWs 1 to 7 were examined and Exts.P1 to P9 were marked from the side of prosecution. Accused got himself examined as DW1 and Exts.D1 to D7 were marked. Thereafter, on hearing both sides, the learned Magistrate found the accused guilty under Sections 406 and 420 IPC and he was convicted and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.3 lakhs for the offence under Section 406 IPC and to undergo rigorous imprisonment for three years and to pay fine of Rs.5 lakhs for the offence under Section 420 IPC, in default of payment of fine, to undergo imprisonment for six months each. Out of the fine amount, if realised, an amount of Rs.7 lakhs was directed to be paid as compensation to PW1 under Section 357(1) Cr.P.C. 5. Against the conviction and sentence, accused filed Crl.R.P.No.525/2017 4 Crl.A.No.33/2016 and the IV Additional Sessions Judge, Thrissur as per the judgment dated 09.12.2016 dismissed the appeal confirming the conviction and sentence passed against him. Aggrieved by the same, accused approaches this Court in Revision. 6. Notice was issued to the respondents. First respondent appeared through learned Public Prosecutor and the second respondent – the defacto complainant appeared in person. Lower court records were called for and both sides were heard. 7. According to the learned counsel for the revision petitioner, the entire facts alleged against the accused would give rise to a civil transaction and will not attract any criminal offence as alleged. The petitioner repaid the money with interest as borne out from Ext.D1 to D7 and evidence of DW1 and hence he has no dishonest intention from the inception which is necessary to attract the offence under Section 420 IPC. It is also his contention that only a breach of contract had occurred in between the parties and it will not attract any offence under Section 420 IPC. Learned counsel in this context placed reliance on Ajith Gopal Nambiar & Anr. v. Jacob Raju & Anr. [2016 (5) KHC 162] and International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) & Ors. v. Nimra Crl.R.P.No.525/2017 5 Cerglass Technics (P) Ltd and Anr. [(2016) 1 SCC 348] as well as Kanakam Thampi & Ors. v. State of Kerala & Anr. [2015 KHC 3690]. Learned counsel also placed reliance on Sanjiv Kumar v. State of Punjab [(2009) 16 SCC 487] to contend that the defence of the accused has to be tested on the thrust of probability. It is further contended that the defacto complainant has not entrusted any gold ornaments with the accused and only entrusted an amount of Rs.1,86,000/- the price of the gold ornaments on 17.08.2009 and also Rs.33,400/- on 24.09.2009. Total amount is Rs.2,19,400/- and the accused agreed to pay the amount at the rate of Rs.5,000/- per month as interest and also agreed to pay the amount on demand and hence it is purely a civil contract and he paid interest at the rate of Rs.5,000/- on every month till 03.01.2012. Without considering any of those aspects, the courts below mechanically convicted the accused on conjunctures and surmises and not based on the principles of guilt beyond doubt. 8. The 2[nd] respondent – defacto complaint appeared in person and fully supported the concurrent findings by the lower courts. 9. The learned Public Prosecutor also supports the conviction and sentence passed against the accused and according to him no Crl.R.P.No.525/2017 6 interference is called for by exercising the limited reivisional jurisdiction of this Court under Section 397 r/w. S.401 of the Code of Criminal Procedure, 1973 (in short, the Code'). 10. Section 397 of the Code empowers the High Court or any Sessions Judge to call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. Section 401 of the Code deals with the powers of revision of High Court which provides that High Court, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Sessions by Section 307. 11. It is relevant in this context to quote State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand & Ors. [(2004) 7 SCC 659]. In paragraph No.23 of the said judgment, Duli Chand v. Delhi Administration [(1975) 4 SCC 649] has been quoted, which reads as follows: “The High Court in revision was exercising supervisory jurisdiction of Crl.R.P.No.525/2017 7 a restricted nature and therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of facts reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse”. 12. In that case, High Court re-appreciated the whole evidence and confirmed the findings of the two courts below and hence it was not interfered by the Apex Court. 13. Paragraph No.22 of the above-said decision is relevant in this context to be extracted, which reads as follows: “The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 401 Cr.P.C. Section 401 Cr.P.C. is a provision enabling the High Court to exercise all powers of the Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, “for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior court.” It is for the above purpose, if necessary, the High Court or Sessions Crl.R.P.No.525/2017 8 Court can exercise all appellate powers. Section 401 Cr.P.C. conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 Cr.P.C., read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.” 14. The law in this field is well settled that the revisional powers of the High Court or that of the Sessions Court is limited to examine the correctness, legality or propriety of any finding of sentence or order or as to the regularity of any proceeding of the inferior courts and it is only for exercising that limited powers the High Court can exercise the appellate powers as contemplated under Section 401 Cr.P.C. 15. In Senthil v. State [2020 Cri.L.J.898 : 2020 KHC 2942] a learned Single Judge of Madras High Court held that while exercising the revisional powers under Section 397 r/w. 401 of the Code, the High Court is required to find out if there is illegality or impropriety in the findings of the trial court and the appellate court, warranting interference and it is not open to the High Courts to exercise the revisional power as a second appellate forum. 16. So, while sitting in revision, this Court is not expected to re-appreciate the evidence as in an appeal and this Court is guarded Crl.R.P.No.525/2017 9 to exercise self-restraint in a revision under Section 397 r/w. 401 IPC. So, bearing in mind the above principles, the contentions advanced by the learned counsel has to be analyzed. 17. In the present case, the trial court as well as the appellate court found concurrently against the revision petitioner with respect to offences under Sections 406 and 420 IPC. The defacto complainant was examined as PW1 and deposed about the transaction of obtaining her gold ornaments weighing 125.570 gms as well as amount of Rs.33,400/- by the accused. It has come out from her evidence that while she was prosecuting her case against her husband with whom she was at loggerheads the accused approached her and offered necessary legal aid and thereafter she started residing in a room of his building on a rent of Rs.1,000/-. While so the accused told her to be not safe in keeping gold ornaments and accordingly she decided to keep it in a locker of Urban Bank and while she was taking steps to put the gold ornaments in the locker accused obtained the form and destructed it and told her to keep it in the locker later and the ornaments were kept in her brief case in the office. Then accused told her to keep it in his mother's house and told her that it can be kept in a bank at Kuriachira where charge is Crl.R.P.No.525/2017 10 less and thereafter he took the gold ornaments and gave a receipt and that according to her is on 17.08.2009 undertaking to bring it on the next day. But it was not brought back. He also got released an amount of Rs.33,400/- which was in the fixed deposit in the name of her daughter and told her to return the gold ornaments and money after selling his property with 15% interest. But thereafter he failed to return the amount and gold and she informed the matter to PW2, her brother, and brother instructed her to file complaint. Exts.P1 to P3 documents were also produced from the side of the defacto complainant substantiating her contention of entrustment of gold ornaments and money with the accused. But during cross examination of PW1 accused was stoutly denying of having any transaction of gold and money by suggesting that accused has not obtained any gold and money from her which was stoutly denied by her. It is also suggested that when the transaction with respect to property at Sholayar could not be materialized the case was falsely filed against the accused and further that Ext.P1 document was got executed under coercion from the accused. All those suggestions were stoutly denied by her. PW2, the brother of PW1 also deposed in corroboration with PW1. But accused while being examined as DW1 Crl.R.P.No.525/2017 11 gave a different version that the defacto complainant sold her gold ornaments and entrusted Rs.1,86,000/- and including Rs.33,400/- in the bank and a total of amount of Rs.1,19,400/- was given to him on an agreement to give interest at the rate of Rs.5,000/- per month. It is also contended that from 02.01.2010 onwards for 24 months he has given Rs.5,000/- and Exts.D1 to D7 the alleged account books have been produced. Both the courts below did not accept Exts.D1 to D7 documents. So also accused put forward another contention that on 31.12.2011 he entrusted Rs.1 lakh with the defacto complainant. But there is not even a suggestion in that regard made to PW1 during her examination. So also as has been rightly found by the courts below there is no explanation whatsoever for not producing Exts.D1 to D7 during the examination of PW1 and confronting the same with her. So Exts.D1 to D7 and the evidence of DW1 regarding entrustment of Rs.1,86,000/- by the defacto complainant by sale of her gold ornaments and alleged payment of Rs.5,000/- per month by the accused towards interest etc. are only an afterthought. So finding in that regard made by the courts below are in accordance with the facts and circumstances and evidence adduced and I do not find any illegality and impropriety in the concurrent findings of fact by the Crl.R.P.No.525/2017 12 courts below. 18. First and foremost contention of the learned counsel for the appellant is that the transaction between the parties is purely civil in nature and the wrong committed by the accused is only a breach of contract and hence offence u/s.420 IPC will not lie. Though Ajith Gopal Nambiar's case (supra) was relied on, on going through the same it could be seen, that was a case in which transaction involved sale of some items of property of first respondent to the petitioners who are partners. It is also admitted that petitioners effected certain payments (i.e. Rs.4,80,000/- out of total value of Rs.6,60,086/-) and thereafter petitioners shutdown the business and placed board of another concern for evading balance payment. It is found in that case that there was no averment in the complaint that the petitioner had any intention to deceive the first respondent from the inception when the contract was entered into. So the fact situation of that case has no application to the case in hand because it is the specific case of the defacto complainant from the beginning that the accused obtained the gold ornaments from her, making her believe that, it will be kept in the locker and he did not actually kept the same in the locker and Ext.P1 would prove that accused admitted that the gold Crl.R.P.No.525/2017 13 ornaments of 125.570 gms entrusted on 17.8.2009 and money of Rs.33,400/- obtained from her was agreed to be returned. It is also stated that he could not repay the same within the agreed time. There is also an agreement to pay Rs.5,000/- inclusive of Rs.1,000/towards rent being paid her for residence in his premises. He further agreed to return the gold ornaments and money before 30.8.2010. PW1 categorically stated that the handwriting in Ext.P1 is that of him and Ext.P2 is the document issued by him while encashing Rs.33,400/- which was in the fixed deposit of the daughter of PW1. Ext.P3 is the list of gold ornaments given by the accused on 17.8.2009 to PW1. PW1 the defacto complainant clearly deposes about those documents, her evidence could not be successfully challenged during cross examination by the learned counsel for the accused. 19. But during evidence the accused put forward a different case of selling of gold ornaments by PW1 herself and entrustment of an amount of Rs.1,86,000/- by PW1. So the contention of the learned counsel for the accused that the dispute between the parties are in connection with a breach of contract and prosecution could not prove dishonest intention from the inception etc is not at all sustainable. Crl.R.P.No.525/2017 14 20. The learned counsel relied on the decision in International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) (supra) to contend that mere breach of contract cannot be given rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. But the fact of that case would go to show that the respondentcomplainant in that case was a private limited company engaged in the manufacturing and marketing of scientific devices and equipments and filed complaint against appellant in that case i.e. International Advanced Research Centre for Powder Metallurgy and New Materials (for short ‘ARCI’) and its officers alleging that the appellants have represented that ARCI possessed of technology for manufacture of extruded ceramic honeycombs which is used in manufacturing of catalytic converters which are used in automobiles for controlling emission. On that representation, the defacto complainant - respondent entered into an agreement dated 18.06.1999 with ARCI for transfer of technology for the manufacturing process of extruded ceramic honeycombs inclusive of transfer of extrusion die fabrication technology which is an integral part of the manufacturing process for a consideration of rupees ten Crl.R.P.No.525/2017 15 lakhs in instalments exclusive of royalty amount on the sales which would have been generated on the basis of products manufactured and marketed by the respondent on the basis of technology. So the above facts itself would go to show that the transaction between the parties are based on an agreement with reciprocal conditions to be complied with. So it was in that context that it was held that mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. So the fact situation of the above case has no application to the case in hand. 21. So also the learned counsel for the accused relied on the decision in Kanakam Thampi's case which is also in connection with an oral agreement of sale between the parties and some exchange of money. It was in that context it was held that mere failure to keep a promise subsequently cannot be presumed as an act leading to cheating. But in the present case the defacto complainant is a hapless woman who had been in an estranged relationship with her husband and making use of that situation the accused managed to obtain her gold ornaments on an undertaking to keep it in the locker and actually did not put the same in the locker and subsequently Crl.R.P.No.525/2017 16 failed to return the same on demand. He also managed to repose her confidence by offering to give legal aid in prosecuting the case against her husband and made her occupy a portion of his building on a monthly rent of Rs.1,000/- and during that course told her that it is not safe to keep the gold ornaments there and guided her to keep the same in the locker and ultimately he himself obtained the same under the guise of putting in a locker and subsequently misappropriated the same. 22. Before the courts below a contention seen to have been advanced to the effect that Sections 406 and 420 IPC will not go together. No such argument has been advanced before this Court. Govindan Nair v. State of Kerala [1968 KHC 199 : I.L.R. 1968 (1) Ker. 6] has been quoted by the appellate court to support the proposition that both Sections will lie together. Here it has come out in evidence that accused got the gold ornaments from PW1 under the guise that it would be kept in the locker but misappropriated the same and failed to return it back. So the evidence adduced in the case clearly establishes dishonest misappropriation as well as cheating and dishonestly inducing the defacto complainant to deliver her gold ornaments and subsequent disposal of the same by the accused Crl.R.P.No.525/2017 17 without her knowledge. The act alleged to have been committed by the accused proves the dishonest intention at the inception. So I do not find any illegality or impropriety in the concurrent findings made by the courts below. 23. In this case, the gold ornaments proved to have been obtained by the accused is 125.570 gms. and further an amount of Rs.33,400/-. So taking that fact into account, I am of the view that sentence of rigorous imprisonment for two years and to pay fine of Rs.3 lakhs for the offence under Section 406 IPC and the sentence to undergo rigorous imprisonment for three years and to pay fine of Rs.5 lakhs for the offence under Section 420 IPC are on higher side. So evaluating the facts and circumstances, I find it just and proper to modify the sentence and reduce the same as follows: 24. Appellant is sentenced to undergo imprisonment for six months and to pay a fine of Rs.2,00,000/- (Rupees two lakhs only), in default, to undergo imprisonment for three months for the offence under Section 406 IPC and to undergo imprisonment for six months and to pay fine of Rs.4,00,000/- (Rupees four lakhs only), in default, to undergo imprisonment for six months for the offence punishable under Section 420 IPC. Substantive sentences shall run concurrently. Crl.R.P.No.525/2017 18 Fine amount, if realised, shall be paid as compensation for the loss sustained to the defacto complainant under Section 357(1)(b) Cr.P.C. In the result, Criminal Revision Petition partly allowed confirming the conviction and modifying the sentence. **Sd/-** **M.R.ANITHA** shg **JUDGE**