HON'BLE SRI JUSTICE A.SANTHOSH REDDY
CRL.R.C.No.58 OF 2019
ORDER:
This criminal revision case is directed to set aside the judgment, dated 23.01.2019, passed in Crl.A.No.633 of 2012, on the file of the Special Judge for trial of offences under S.Cs &S.Ts (POA) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad, by modifying the judgment, dated 22.06.2012, passed in C.C.No.294 of 2006 on the file of XI Additional Chief Metropolitan Magistrate at Secunderabad.
2. Heard the learned counsel for the revision petitioner-accused No.1 and learned Assistant Public Prosecutor for respondent-State. Perused the material on record.
3. The respondent police registered case against the petitioner (hereinafter referred as A-1) on the complaint lodged by PW.1 under Ex.P.1 for the offence under Sections 406 and 420 IPC and after investigation, the police laid charge sheet before the learned XI Additioal Chief Metropolitan Magistrate at Secunderabad. The learned Magistrate after taking cognizance of offences and 2 registered the same in C.C.No.294 of 2016 framed the charges for the said offences against A-1 and A-2 and after trial by judgment dated 22.06.2012 convicted A-1 and A-2 for the offence under Section 406 IPC and sentenced to undergo Rigorous Imprisonment for a period of two years and pay fine of Rs.5000/- each in default to suffer simple imprisonment for a period of six months. Further, A-1 and A-2 also convicted for the offence under Section 420 IPC and sentenced to undergo Rigorous Imprisonment for a period of two years and pay fine of Rs.5,000/- each in default of payment of fine, they shall suffer simple imprisonment for a period of six months. Both sentences were ordered to be run concurrently. The remand period undergone by A-1 from 12.11.2005 to 20.12.2005 was given set off. Being aggrieved, the revision petitioner/A-1 challenged the same in Crl.A.No.633 of 2012.
4. After hearing both the parties, the learned Sessions Judge vide judgment, dated 23.01.2019, dismissed the appeal confirming the conviction for the offence under Sections 406 and 420 IPC and modified sentence to that of rigorous imprisonment for a period of six months retaining the fine amount of Rs.5,000/- for each offence. Against the same, the present revision is preferred. 3
5. Learned counsel appearing for the revision petitioner/A-1 submits that the prosecution failed to prove the ingredients of offence under Sections 406 and 420 IPC and both the Courts below erred in finding the accused guilty for the said offence. He also submits that as per the Memorandum of Understanding (M.O.U.) A-1 has already handed over his business to A-2 on 15.09.2003 itself and inspite of the same, the trial Court wrongly concluded the liability of the A-1 for the alleged offences. He further submits that there are material contradictions in the evidence of prosecution witnesses and the prosecution failed to prove the case against the accused beyond all reasonable doubt for the said offences, and therefore, prayed to allow the revision case.
6. Per contra, learned Assistant Public Prosecutor submits that both the Courts below properly appreciated the evidence and the prosecution has successfully proved the guilt of the A-1 and the impugned judgments of the Courts below needs no interference.
7. Thus, after hearing the submissions of both the counsel and on perusing the material available on record, the point for determination is; whether there are justifiable grounds warranting 4 interference with the concurrent judgments of both the Courts below?
8. It is seen from the evidence of prosecution that A-1 and A-2 stated to be running a travel agency by name Skyline International Air Travels attracting unemployed persons to send them to Qatar and other Arab countries for the purpose of employment. A-1 is stated to be the Managing Director, A-2 is stated to be the Manager of said Travels. A-1 and A-2 alleged to have collected Rs.65,000/- each from PW.1 and Md.Khan and issued receipts to that effect on 07.10.2004, 28.10.2004 and 29.10.2004 promising them to send to Qatar by arranging visas and other travel documents. A-1 and A-2 had taken PW.1 and Md.Khan to Mumbai on 23.10.2004 and 23.01.2005 where they found visas and travel documents are fake. Similarly, A-1 and A-2 alleged to have collected Rs.1,60,000/- from Shaik Amjad Huzzain, Shaik Khaja Fayazuddin, Mohd.Jaffer and Kaleem @ Rs.40,000/- each promising them to provide jobs at Saudi Arabia and they were also cheated. In fact PW.1 filed a private complaint in Ex.P.1 and the same was referred to Station House Officer, Mahankali Police Station under Section 156(3) Cr.P.C. On the 5 basis of it, a case in crime No.71 of 2005 was registered against A-1 and A-2, investigated by the police and similarly on the basis of report dated 06.10.2005 in Ex.P.5 filed by Shaik Hussain who is not examined, a case in crime No.323 of 2005 was also registered against A-1 and A-2 for the offence under Sections 406 and 420 IPC by the Mahankali Police. The police filed common charge sheet in both the crimes and registered as C.C.No.294 of 2006. PW.1 is the aggrieved person in crime No.71 of 2005 and another aggrieved person by name Mohd. Khan was not examined by the prosecution. PW.1 in his evidence stated that A-1 promised him and Mohd.Khan to send them to Qatar. As per his demand, they paid Rs.65,000/- each in the year 2004 and A-1 and A-2 have taken them to Mumbai. A-1 has given him Xerox copy of air ticket and asked him to wait in Mumbai for (15) days. Then on the date given by A-1, PW.1 and Mohd.Khan went to Airport of Mumbai and the Airport authorities have informed that visa and air tickets were fake. PW.1 filed receipts Exs.P.2 and P.3. It appears from the evidence of PW.1, there are minor discrepancies. But nothing was elicited in the cross-examination. A-1 and A-2 made false promises and obtained Rs.65,000/- each from PW.1 and another on false 6 promise to send Qatar for employment and utilized Rs.65,000/- for their personal benefit. Therefore, the evidence of PW.1 coupled with the evidence of circumstantial witnesses Pws.2 to 6 and documents in Exs.P.1 to 7 have categorically proved the alleged offences against the accused. Both the Courts below found that the prosecution has proved the ingredients for the offences under Sections 420 and 406 IPC. On careful perusal of entire evidence of the prosecution, both oral and documentary and the judgments of the Courts below would reveal that the Courts below have rightly appreciated the evidence and recorded the conviction. It is settled principle of law that this court, while exercising revisional jurisdiction, can not re-visit the entire evidence and has to see whether there is any perversity in the judgment of the Courts below while appreciating the evidence. The revisional court can interfere only if there is any illegality in the order or there is material irregularity in the procedure or there is error of jurisdiction.
9. In the instant case, a perusal of the material placed on record reveals that there is no illegality, impropriety or irregularity in the judgment under challenge. This Court does not find any merit in this revision.
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10. Coming to the quantum of sentence, learned counsel for the petitioner submits that the petitioner/A-1 has mother, three sons and three daughters and his mother is suffering from heart disease and he has to look after them. Hence, he prayed for reduction of the sentence of imprisonment.
11. In the instant case, having given thoughtful consideration to all the aspects of the matter, this Court is of the considered opinion that the facts mentioned above would certainly be special reasons for reducing the substantive sentence, while maintaining the conviction against the petitioner. The incident occurred in the year 2005. The petitioner was in judicial custody from 12.11.2005 to 20.12.2005 and the said period has been already given set off under Section 428 Cr.P.C. by the trial Court. Considering the totality of the circumstances, this Court deems it appropriate that if the sentence of imprisonment imposed against the petitioner is modified to the period already undergone by them, the same would sub- serve the ends of justice.
12. Therefore, I do not find any justifiable grounds to interfere with the concurrent findings of the courts below, including the 8 sentence imposed by the trial court and modified by the appellate court.
13. Therefore, while maintaining the conviction recorded against the petitioner/A-1, the sentence of imprisonment imposed by the trial Court and modified by the appellate Court, is reduced to the period of imprisonment already undergone by him. However, the sentence of fine imposed against him remains unaltered.
14. The criminal revision case is, accordingly, disposed of. Pending miscellaneous petitions, if any, stand closed.
_______________________ A.SANTHOSH REDDY, J 15.09.2022 Nvl