Stephen vs State

M. Sathyanarayanan, J.

The petitioner is arrayed as third accused in C.C. No.224 of 2002 on the file of the Court of Judicial Magistrate No. 1, Tiruchirappalli, who is the revision petitioner. He along with his father and mother were prosecuted for the commission of the offences under Sections 417, 419, 420, 468, 471 and 506(ii) I.P.C. The trial Court, vide, Judgment dated 25.08.2006, had acquitted accused 1 and 2 and also acquitted this petitioner/third accused for the commission of offences under Sections 419, 420, 468, 471 and 506(ii) I.P.C., but convicted him for the commission of offence under Section 417 I.P.C. and imposed him with the sentence of rigorous imprisonment for three months and a fine of Rs.100/- with default sentence of simple imprisonment for two weeks. The third accused, aggrieved by the said conviction and sentence recorded by the trial Court, preferred appeal in C.A. No.147 of 2006, on the file of the Court of Additional District and Sessions Judge, Fast Track Court No.II, Tiruchirappalli. The lower appellate Court, vide impugned Judgment, dated 27.08.2008, has confirmed the conviction and sentence awarded by the trial Court and dismissed the appeal. Challenging the legality of the same, the third accused has filed this Criminal Revision Case.

2.1. It is the case of the prosecution that the accused were running a shop in Door Nos. 10 and 11 in Belarmine Complex and one Arumugam (P.W.1) - de facto complainant was selling fruits in front of their shop. All the accused have induced P.W.1/de facto complainant that he can go and get employed in a foreign country and earn more money and for that purpose they asked him to bring a sum of Rs.1,55,000/-. P.W.1, believing the said representation, has paid the said amount in instalments and he was also issued with appointment order, marked as Ex.P.7. However, later on, he came to know that it is a fake one and he has approached the accused very many times to get the refund of amount and he did not fructify and therefore he lodged a complaint on the file of Palakkarai Police Station and accused were summoned and the de facto complainant/P.W.1 has given a letter, marked as Ex.D.2, wherein it has been stated that P.W.1 has already received a sum of Rs. 10,000/- and on the date of execution of Ex.D.2, he has also received a sum of Rs.25,000/- and the revision petitioner/third accused through one Sylvia took arrangements to send P.W.1 for a job in abroad and for that purpose a sum of Rs.1,55,000/- has been given.

2.2. It is the further case of the prosecution that however the accused did not pay the remaining amount and hence the petitioner has filed a complaint under Sections 156(3) read with 200 Cr.P.C. praying for appropriate action and the Court of Judicial Magistrate No.I, Tiruchirappalli, vide endorsement, dated 11.10.2001, has directed the Inspector of Police, Fort Police Station, to investigate the case and file a final report and accordingly, F.I.R. in Crime No. 711 of 2001 was registered by Fort Police Station against all the accused for the commission of offences under Sections 420, 417, 342, 506(ii) and 416 I.P.C.

2.3. P.W.8 was the Inspector of Police, Fort Police Station and on receipt of the order from the said Court, he registered the F.I.R. marked as Ex.P.11 and took up the investigation and he examined P.W.1 and recorded his statement and also recorded the statements of other witnesses and after completion of investigation, has filed the charge sheet on 17.04.2002 to the Court of Judicial Magistrate No.I, Tiruchirappalli charging the accused for the commission of offences under Sections 417, 419, 420, 468, 471 and 506(ii) I.P.C.

2.4. The Court of Judicial Magistrate No.I, Tiruchirappalli, on taking the charge sheet on file, issued summons to the accused and on their appearance, they were furnished copies of documents under Section 207 Cr.P.C. and framed the charges against them and questioned them and they pleaded not guilty to the charges framed against them and prayed for trial of the case.

2.5. The prosecution in order to sustain their case, has examined P.W.1 to P.W.8 and marked Exs.P.1 to P.12.

2.6. All the accused were questioned under Section 313(1) (b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circumstances made out against them in the evidence tendered by the prosecution and they denied it as false.

2.7. On behalf of the accused, Exs.D.1 to D.4 were marked and no oral evidence was let in.

2.8. The trial Court on appreciation of oral and documentary evidence, has acquitted accused 1 and 2 and convicted this petitioner/third accused for the commission of offence under Section 417 I.P.C. alone and acquitted him for the other offences and the appeal preferred by him before the lower appellate Court has also ended in dismissal and hence this revision.

Mr.N.Mohideen Basha, learned Counsel appearing for the revision petitioner/third accused made the following sub missions:

(i) P.W.1 in the course of his evidence has admitted that earlier he lodged a complaint on the file of Palakkarai Police Station and the said complaint has been totally burked by P.W.1 as well as by the respondent/Investigating Agency and the present complaint/First Information Report may be on the same set of facts and therefore the present prosecution is wholly unsustainable and it amounts to double jeopardy.

(ii) Even according to P.W.1 only on behalf of Sylviya, the accused had received the amount and admittedly no prosecution has been initiated against the said Sylviya and it is also fatal to the case of the prosecution.

(iii) The trial Court having acquitted accused 1 and 2, ought to have acquitted the revision petitioner/third accused also as he is also on the similar footing with that of the other accused and the said vital aspect has been completely overlooked by the Courts below.

(iv) Alternatively it is submitted by the learned counsel appearing for the revision petitioner that considering the fact that the petitioner/third accused is hailing from a very poor family and considering his family circumstances, the conviction and sentence awarded by the trial Court, as confirmed by the lower appellate Court, may be modified.

Per contra, Mrs.S.Prabha, learned Government Advocate (Criminal side) would contend that it is case of job-racketing and a poor man like P.W.1, who was giving a huge sum of Rs.1,55,000/-, which was collected in instalments and receipt of the said amount was also acknowledged by the de facto complainant/P.W.1 in the form of Ex.D.2, and the trial Court having found that the money received by other accused was given only through revision petitioner/third accused, has rightly reached the conclusion, acquitting the other accused, but accepting the version of prosecution, has convicted this petitioner/third accused only for the commission of offence under Section 417 I.P.C. and the said findings also came to be confirmed by the lower appellate Court and since the findings holding the revision petitioner/third accused as guilty are concurrent in nature, this Court on exercise of its revisional jurisdiction, may not interfere with the same and prayed for dismissal of this revision.

This Court has carefully considered the rival submissions made by the learned Counsel for the revision petitioner/third accused as well as the learned Government Advocate (Criminal Side) for the respondent and also perused the impugned Judgments passed by the Courts below as well as original records.

No doubt, P.W.1 has earlier lodged a complaint on the file of Palakkarai Police Station, based on which, the accused were summoned and Ex.D.2 came into existence, wherein P.W.1 has stated that the third accused has received a sum of Rs.1,55,000/- for the purpose of sending him abroad through Sylviya and he was adopting dilatory tactics and from him he has received a sum of Rs. 10,000/- and on the date of enquiry he has also received a sum of Rs.25,000/-. It is very pertinent to point out, at this juncture, that the said document came to be marked on behalf of the revision petitioner/third accused and therefore the truth and vires of the same cannot be doubted. It is a vehement and forcible submission of the learned counsel appearing for the revision petitioner/third accused that the earlier complaint given by P.W.1/de facto complainant to Palakkarai Police Station has been burked. But the fact remains that no steps have been taken on behalf of the revision petitioner/ third accused to summon the case records relating to the other case and the Investigating Officer, namely, P.W.8 was not even cross-examined on that aspect. However as per Ex.D.2, the fact remains that the revision petitioner/third accused had received a sum of Rs.1,55,000/- for making arrangements through Sylviya to get a job in abroad for P.W.1/de facto complainant.

A feeble attempt was made by the learned counsel appearing for the revision petitioner/third accused by stating that the F.I.R. came to be lodged very belatedly and delay has not been explained at all. In the considered opinion of this Court, the said submission lacks merit for the reason that after the complaint given to Palakkarai Police Station, a sum of Rs.25,000/- was returned by the revision petitioner/third accused as evidenced under Ex.D.2 and since no further steps were taken in this regard, P.W.1/de facto complainant has filed the private complaint under Sections 156(3) read with 200 Cr.P.C. on the file of the Court of Judicial Magistrate No.I, Tiruchirappalli and on the basis of the endorsement made by the said Magistrate, the F.I.R. in the present case came to be registered. This Court has also gone through the testimonies of P.W. 1/de facto complainant and P.W.8, Investigating Officer and no questions have been put as to the reason for belatedly lodging of the complaint. It is a settled position of law that only an unexplained delay is fatal to the case of the prosecution and as pointed out, neither of the witnesses have been questioned as to the delay with regard to lodging of the F.I.R. and any questions were put, it would have been possible for the said witnesses to explain the reasons for delay. But, unfortunately, no such questions were put to them and therefore it cannot be considered that the delay in lodging F.I.R. is fatal to the case of the prosecution.

A perusal of the exhibits would disclose that a fake appointment order was also given to P.W.1/de facto complainant under Ex.P.7. But the fact remains that P.W.1/de facto complainant was not sent to abroad as promised and the prosecution has established beyond any reasonable doubt that it was the revision petitioner/third accused, who received the said sum may be on behalf of Sylviya to send P.W.1/de facto complainant abroad, but he failed to do so. Thus, the act of the revision petitioner/third accused would amount to deception from inception and it is also established through fake appointment order, marked as Ex.P.7.

This Court has carefully gone through the materials, especially, the impugned Judgments passed by the Courts below, and is of the considered view that the Courts below, especially, the lower appellate Court had independently applied its mind to the oral and documentary evidence in proper perspective and rightly reached the conclusion to sustain the conviction and sentence of imprisonment awarded by the trial Court. This Court on an exhaustive consideration of the submissions made by the learned counsel appearing for the revision petitioner/third accused, is of the view that there is no error or infirmity in the reasons assigned by the lower appellate Court to confirm the conviction and sentence awarded by the trial Court and finds no merits in this revision.

In the result, this Criminal Revision Case is dismissed confirming the Judgment, dated 27.08.2008, made in C.A. No.147 of 2006, by the learned Additional District and Sessions Judge, Fast Track Court No.II, Tiruchirappalli.

During pendency of this revision, the sentence of imprisonment has been suspended by this Court and in view of the dismissal of this Criminal Revision Case, the bail bonds shall stand cancelled and the respondent is directed to take immediate and necessary steps to secure the custody of the revision petitioner/ third accused to undergo the remaining part of the sentence.

It is also open to the revision petitioner/third accused to approach P.W.1/de facto complainant for the purpose of compounding the offence, as the offence for which, he has been convicted, is a compoundable one.