Joseph Thekkudan vs State Of Kerala
2022 Latest Caselaw 848 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                         PRESENT

                      THE HONOURABLE MRS. JUSTICE M.R.ANITHA

              FRIDAY, THE 21ST 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, ERNAKULAM-
             682031
      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

                                  ORDER

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

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

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

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 2nd 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

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

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

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

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

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

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

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

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

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 respondent-

complainant 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

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

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

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

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