Kadar, S/o Kunhalan v. The State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 27TH DAY OF MAY 2016/6TH JYAISHTA, 1938 Crl.Rev.Pet.No. 2511 of 2005 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN Crl.APPEAL NO.240/2003 of ADDITIONAL SESSIONS JUDGE FAST TRACK COURT NO.1 (ADHOC), MANJERI DATED 23-04-2005** **AGAINST THE JUDGMENT IN CC 140/2001 of JUDICIAL FIRST CLASS MAGISTRATE COURT,NILAMBUR DATED 20-06-2003** **REVISION PETITIONER(S/APPELLANBT/ACCUSED:** **---------------------------------------KADAR, S/O.KUNHALAN, CHERIPARAMBAN HOUSE, EDAKKARA AMSOM,, KUNIPPALA, MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** **RESPONDENT(S)/RESPONDENT/COMPLAINANT/STATE:** **-------------------------------------------** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **BY PUBLIC PROSECUTOR SMT. V.P. SATHI.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.2511 of 2005 ---------------------------------------------Dated this the 27[th] day of May, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment of conviction and sentence in Crl.appeal No.2402003 of Additional District and Sessions Judge, Fast Track Court No.1 (Adhoc), Manjeri. The charge sheet against the accused is in C.C.No.140/2001 of Judicial First Class Magistrate Court, Nilambur u/s.419 and 420 IPC. The charge against the accused is that on 9.2.2001 at about 6.30 p.m., the accused requested PW1 to lend 5,000/- by pretending as PW3₹ and thereafter he approached PW1 representing that he was deputed by PW3 and collected 5,000/-, thereby committed the₹ offence punishable u/s.419 and 420 IPC. On the basis of information, Edakkara Police registered a crime and after Crl.R.P. No.2511/2005 2 completing investigation, S.I. of Police, Edakkara laid charge before Judicial First Class Magistrate Court, Nilambur. 2. During trial, prosecution examined PW1 to PW6 and admitted Exts.P1 to P4 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Magistrate convicted the accused u/s.419 & 420 IPC and sentenced thereunder. Against that, he preferred Crl.Appeal No.240/2003 of Additional District and Sessions Judge, Fast Track Court-I (Adhoc), Manjeri, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that the accused preferred this revision petition. 3. Heard both sides and perused the documentary and oral evidence adduced in this case. I have also examined whether both courts below have considered the evidence adduced in this case and also rightly appreciated the evidence. Crl.R.P. No.2511/2005 3 While exercising the revisional jurisdiction, this Court can examine whether there is any misreading of evidence by the Courts below. In order to attract the offence of cheating, the prosecution has to prove that whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property or to any 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. It is the primary responsibility of the prosecution to prove the above ingredients beyond reasonable doubt. Then only the accused has to explain the essential circumstances highlighted against him. In order to ascertain the essential elements in the prosecution case, I have examined the oral evidence of PW1. His evidence shows that he is conducting provision shop and PW3, Mathukutty is conducting business in hill products. Both of them have Crl.R.P. No.2511/2005 4 financial transactions. One day evening accused telephoned him by representing as Mathukutty and demanded 5,000/-₹ and told that he would send a person to collect that amount. Again, at about 7 p.m., the accused approached him by representing that he was sent by Mathukutty to collect ₹5,000/- . So he had paid that amount to the accused. After 2 or 3 days again, he received a phone call from Mathukutty for a loan of 5,000/- and he told him that he would send a person₹ to collect the amount. Then he told Mathukutty that he had already borrowed 5,000/- two days back so the total loan₹ amount comes to 10,000/-. But, he categorically stated that₹ no such amount was received by him. So, PW1 and Mathukutty searched for the accused. But they could not trace out the accused. Thereafter identifying the personation, he filed Ext.P1 complaint to the police. Even though PW1 filed Ext.P1, no documentary evidence has been adduced by PW1 to prove the alleged transaction. PW2 deposed that the accused Crl.R.P. No.2511/2005 5 telephoned from her booth pretending as PW3 and demanded ₹5,000/-. She noticed the conversation between the accused and PW1. For that, Police prepared Ext.P2 mahazar and Ext.P3 is the kaichit. PW3 is the business man, who admitted that he never telephoned PW1 on that day. There was no money transaction between PW1 and PW3. The accused might have telephoned to PW1 in his tone. Analysing the evidence of PW1 to PW3, it is true that prosecution failed to produce any documentary evidence to prove the alleged transaction. 4. The Sub Inspector conducted investigation and laid charge. During investigation, he has not obtained any concrete evidence to prove the alleged transaction. 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. Explanation says that the offence is committed whether the Crl.R.P. No.2511/2005 6 individual personated is a real or imaginary person. Even though PW1 to PW3 were examined, no documentary or oral evidence has been adduced by the prosecution to show that the revision petitioner by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that he 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. A dishonest concealment of facts is a deception within the meaning of the Section. 5. On a perusal of the evidence, it is found that at the time of issuing amount, no receipt was obtained from PW1 as a documentary evidence to prove the delivery of the amount **Mahadeo Prasad** v. **State** given to the accused. Apex Court in **of Bengal** [AIR 1954 SC 724] held that the offence of Crl.R.P. No.2511/2005 7 cheating is established when the accused thereby induced that person to deliver any property or to do or to omit to do something which he would otherwise not have done or omitted. Analysing the evidence it is found that no oral or documentary evidence has been produced in the trial Court to prove the inducement or personation. 6. It is the fundamental principle of criminal jurisprudence that an accused is presumed to be innocent unless the prosecution proves the guilt of the accused beyond reasonable doubt. Therefore, in a criminal case, when personation and cheating are alleged, it is the primary responsibility of the prosecution to prove the ingredients beyond reasonable doubt that the accused received the amount from PW1 and he committed the offence with required mens rea. Therefore, it is presumed that no amount as alleged had been given to the accused. If prosecution fails to prove the allegation, a reasonable doubt arises in the mind of the Crl.R.P. No.2511/2005 8 Court and it can be presumed that prosecution utterly failed to prove the case. The Courts below failed to consider those aspects and convicted the accused. Therefore, the conviction and sentence passed by the trial Court u/s.419 & 420 IPC are set aside and the accused is acquitted and set at liberty. Crl.R.P. is allowed. **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.2511/2005 9