Salimol Jacob v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 8TH DAY OF MARCH 2017/17TH PHALGUNA, 1938** **Crl.Rev.Pet.No. 1653 of 2003 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.495/2001 of ADDITIONAL SESSIONS COURT,KOTTAYAM DATED 20-05-2003** **AGAINST THE JUDGMENT IN CC 313/1997 of CHIEF JUDICIAL MAGISTRATE,KOTTAYAM DATED 30-10-2001** **REVISION PETITIONER(S)/APPELLANT/ACCUSED NO.1: --------------------------------------------SALIMOL JACOB, MARANPADATHU HOUSE, CHITTEDY KARA, MUNDAKAYAM VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM.** **BY ADV. SRI.V.N.SASIDHARAN** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **------------------------------------** **THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. DIVYA C. BALAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.1653 of 2003 ---------------------------------------------Dated this the 8[th] day of March, 2017 ## **ORDER** This revision petition is preferred by the 1[st] accused against the judgment in Crl.Appeal No.495/2001 of Additional Sessions Judge, Kottayam. The accused were charge sheeted in C.C. N0.313/1997 by the Chief Judicial Magistrate, Kottayam u/s.420 r/w.34 IPC and convicted 1[st] and 3[rd] accused u/s.420 r/w.34 IPC and sentenced to rigorous imprisonment for two years each and directed to pay compensation of 51,000/- each₹ to PW1 to PW9, 65,000/- each to PW2 and 70,000/- each to₹ ₹ Pws 3 and 4 u/s.357(3) Cr.P.C. Against that, the accused preferred the above criminal appeal before Additional Sessions Judge, Kottayam, where the learned Sessions Judge modified the sentence to simple imprisonment for six months confirming the compensation amount. Being aggrieved by that, Crl.R.P. No.1653/2003 2 the 1[st] accused preferred this revision petition. 2. The charge against the accused is that the accused with their common intention dishonestly induced Pws 1 to 5 and made them believe that they will arrange visa for getting employment abroad and during July 1996 to February 1997, they collected 51,000/- from PW1, 65,000/- from PW2,₹ ₹ ₹70,000/- from PW3 and 50,000/- each from PW4 and₹ PW5 and others. Accordingly, these persons were taken to Mumbai and stayed there for some day, subsequently, they were sent back to Kerala without giving any visa or money, thereby committed the offence. On the basis of information, Sub Inspector of Police, Kottayam East registered a crime and after completing investigation, laid charge in the Chief Judicial Magistrate, Kottayam. To prove the offence, prosecution examined PW1 to PW9 and marked Exts.P1 to P7. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They marked Exts.D1 and D2 as their documentary Crl.R.P. No.1653/2003 3 evidence. 3. The main argument advanced by the learned counsel appearing for the revision petitioner was that the revision petitioner did not receive any amount from PW1 to PW4 and no documentary evidence has been adduced by the prosecution to prove that point. No complaint was preferred by PW2 to PW5 for redressing their grievance at the same time, prosecution has a case that the 2[nd] and 3[rd] accused alone received money and therefore, the criminal liability cannot be fastened against the 1[st] accused alone. There is delay of one year in registering the case, which was not properly explained by the prosecution. In the circumstances, the accused is entitled to get benefit of doubt and relied on the decision of the Apex Court in _**Sukhram**_ v. _**State of Madhya Pradesh**_ [AIR 1998 SC 772] and _**State of West Bengal**_ v. _**Vindhu Lachmandas**_ . 4. The learned Public Prosecutor contended that Ext.P2 itself shows both mental and physical elements in Crl.R.P. No.1653/2003 4 committing the offence of cheating. The acquittal of A2 and A3 is not a ground to acquit the first accused in the light of Ext.P2. Even though the revision petitioner contended that several other were involved in the above persons transaction, no materials were produced in the trial Court to show the involvement of the other accused. Both courts below analysed the evidence and confirmed the conviction of the revision petitioner and no interference is necessary. 5. Apex Court in _**Rajappan**_ v. _**State of Kerala**_ [1986 CRI. ## L.J. 511] held as follows: “The object of revisional jurisdiction is to afford a paternal or supervisory power to correct miscarriage of justice arising from misconception of law, irregularity of procedure, lack of proper precautions, etc., which has resulted in some injury or undeserved hardship. To appeal is a statutory right. But that is not the case with revisional jurisdiction. In revisional jurisdiction, it is for the Court to interfere in exceptional cases where it seems that some real substantial injustice has been done. Violation of fundamental rules in the matter of appreciation of evidence resulting in miscarriage of justice is one of the instances where the High Court is justified in interfering for the purpose of revising the decision of a subordinate court in order to correct the injustice that has happened. If a particular fact is decided totally in the absence of evidence or misconstruing the evidence on record totally, the High Court may be justified in Crl.R.P. No.1653/2003 5 interfering. At the same time the mere possibility of another view on a particular point is no reason for interference.” The above decision shows that 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 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. 6. The contention advanced by the learned counsel for the revision petitioner is that the revision petitioner is Crl.R.P. No.1653/2003 6 innocent and that benefit has to be extended to her. The presumption of law is that a person is innocent, unless and until otherwise found convicted by a court of law. In this case, the allegation against the revision petitioner is that she promised to arrange visa for getting employment abroad and gave Ext.P2 assurance to Philomina, PW5. I have gone through Ext.P2 from which it is clear that on 19.8.1996, she issued a receipt in a stamped paper with assurance that she will make arrangement for getting the job abroad to one Subi Chacko, who is the daughter of PW5 and as advance he gave ₹15,000/- and assured to pay the balance amount of ₹ 35,000/- on the date of issuance of visa, but no visa was obtained as assured. This conduct of the revision petitioner shows her mental attitude for committing the aforesaid offence. She knew that she has no authority to arrange job abroad. PWs 1 to 5 are the real victims, who gave money to the revision petitioner. The evidence of PW1 shows that the revision petitioner represented herself as a Nurse in Dubai Crl.R.P. No.1653/2003 7 and she had few visa, which she got while returning from Gulf. For that, she demanded 51,000/-, another 5,000/-₹ ₹ for getting an early passport from Madras, PW1 paid ₹15,000/- as advance, her passport in July 1996 and the balance was paid in February 1997. The evidence of PW1 shows that she arranged money by pledging the property and residential house. Her evidence shows that the balance amount of 31,000/- was paid to the third accused and both₹ of them agreed to hand over visa in Mumbai. As assured by A1 to A3, along with 20 persons she went to Mumbai and the accused accompanied them. PW1 stayed in a hotel for three days, again shifted to another hotel for few days. Even after several days, there was no arrangement to give the visa, hence returned to the native place. This evidence was supported by PW2, PW4 and PW5. PW2 gave 70,000/- for₹ getting the job of A.C Mechanic. PW4 also paid first instalment of 30,000/-, his passport in January and the₹ balance amount on 13.2.1997. PW3 also gave 30,000/- on₹ Crl.R.P. No.1653/2003 8 24.8.1996 to the first accused. PW9, who was also another victim, deposed that he gave her passport and 15,000/- on₹ 19.8.1996 at the residence of A1 and A2, in respect of that the 1[st] accused executed Ext.P2 agreement. Ext.P2 was seized by the Police, which was attested by PW7. From the evidence of PW1 to PW5, it is clear that they gave money directly to A1 to A3, which was received by them. Subsequently, these persons shifted them to Mumbai. Therefore, they are competent to prove the alleged cheating by the accused. But, the court below extended benefit of doubt to the 2[nd] and 3[rd] accused and the conviction against the first accused was confirmed by the appellate Court. 7. What is seen from the evidence of PW9 as well as from Ext.P2 agreement and attending circumstances is that they had gone to Mumbai and stayed in city for few days awaiting visa. It is evident from PW1 to PW5 that A1 received amount from them, but no documents were submitted by them to prove the receipt of the amount. 9 Crl.R.P. No.1653/2003 Accepting the oral evidence of PW1 to PW4 and PW9 and the documentary evidence of Ext.P2, it is true that there is written evidence to prove the transaction with PW9. It appears that the evidence in Ext.P2 is believable. In the circumstances, the evidence of PW9 is also admissible. From the evidence of PW1 and PW2, it is seen that the revision petitioner offered job to them, but she knew that she cannot arrange visa for getting job abroad. Section 418 IPC says about cheating with knowledge that wrongful loss may ensue to a person whose interest, the offender is bound to protect and Section 420 IPC says about cheating and dishonestly inducing delivery of property. Therefore, it is clear that u/s.418 and 420 IPC, the guilty intention at the time of making the promise is a requirement and essential ingredient. Subsequently, failure to fulfill the promise by itself would not attract Section 418 and 420 IPC. The mens rea is one of the ingredients of the offence u/s.420, that means there must be intention to existence of fraudulent or Crl.R.P. No.1653/2003 10 dishonest intention at the time of making of the inducement. Apex Court in _**S.W. Palanitkar**_ v. _**State of Bihar**_ [2002 (1) SCC ## 241] held as follows: “It is clear from the allegations made in the complaint and the sworn statements that the appellant No.1 company entered into an agreement with the respondent No. 2 on certain terms and conditions. It is alleged that the appellant No. 7 went to Patna and contacted respondent No. 2 and induced him to enter into an agreement assuring him of huge profit. At the time of arriving at such an agreement, none of the other appellant either met the respondent No. 2 or induced him to enter into any agreement with a view to cheat him. The agreement was further renewed for a period of one year. It is not the case that there was no supply of goods at all as it has come on record that there was supply of 400 ton of fertilizer, may be it was far less than the required qnantity. The allegations made against the appellants other than the appellant No. 7 are very vague and bald. From the material that was placed before the Magistrate, even prima facie, it cannot be said that there was conspiracy of connivance between the other appellants and the appellants No. 7. If the appellants have committed breach of agreement, it is open to respondent No. 2 to seek redressal in a competent Court or forum to recover damages, if permissible in law in case he had sustained any loss. In order to constitute an offence of cheating, the intention to decive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. In the above decision, Apex Court relied on the decisions in _**Hridaya Ranjan Prasad Verma**_ v. _**State of Bihar**_ [2000 SCC (Crl) Crl.R.P. No.1653/2003 11 ## 733], _**Jaswantrai Manilal Akhanev**_ v. _**State of Bombay**_ [AIR 1956 ## SC 575] and _**Mahadeo Prasad**_ v. _**State of W.B**_ , [AIR 1954 SC 724]. In _**S.W. Palanitkar's case (supra)**_ held as follows: In G. V. Rao v. L.H.V. Prasad and others, (2000 (3) SCC 693), this Court in Para 7 has stated thus :-2000 AIR SCW 2600:AIR 2000 SC 2474:2000 Cri LJ 3487 "As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do on omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay (AIR 1956 SC 575) a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B. (AIR 1954 SC 724), that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered." ## The ingredients of the offence are discussed in the above ## decision as follows: The ingredients of an 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 Crl.R.P. No.1653/2003 12 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 of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. While determining the question of cheating, it has to be kept in mind the distinction between breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement, which may be considered by the Court from her subsequent conduct towards the victim. A mere breach of conduct cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, when the offence is said to have been committed. Therefore, it is the intention of the accused, which is the gist of the offence. It is clear from Ext.P2 that the revision petitioner has no legal authority to give a promise that she can send PW1 to PW4 and PW9 went abroad. No sanction has been Crl.R.P. No.1653/2003 13 given to her by the Dubai Government or any foreign Government. Therefore, from her conduct itself, it is clear that she had fraudulent or dishonest intention at the time of executing Ext.P2 contract and making such promise to them. Therefore, failure to keep the promise, subsequently revealed her equitable intention at the beginning in committing the offence. In the circumstances, the appellate Court extended doubt to A3. A2 is no more and therefore, the charge against him was abated and no circumstances are brought before me to extend the benefit of doubt to the revision petitioner. Therefore, the conviction u/s.420 is confirmed, even though the two decisions cited by the learned counsel for the revision petitioner are not applicable to the facts of the case. 8. A three Judge Bench of the Apex Court in _**Madanlal**_ v. _**State of Maharashtra**_ [AIR 1968 SC 1267] held that if the Court thinks that a lenient view can be taken in the facts of the case, it may impose a lighter sentence. In this Crl.R.P. No.1653/2003 14 case, the learned counsel for the revision petitioner submitted that the revision petitioner is a widow, aged 68 years. She is undergoing treatment for various ailments. In the above circumstances, the conviction u/s.420IPC is confirmed and the revision petitioner is sentenced to imprisonment till rising of Court and fine of 1 lakh, in₹ default of payment of fine, simple imprisonment for six months. If fine amount is realised, 20,000/- each will be₹ disbursed to PW1, PW2, PW3, PW4 and PW9. Crl. R.P. is disposed of as above. ## **P.D. RAJAN, JUDGE.** acd