Kerala High Court
Binu Cheriyan vs State Of Kerala on 1 August, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
CRL.A NO. 942 OF 2006
AGAINST THE JUDGMENT DATED 08/05/2006 IN SC NO.286 OF 2004 OF
SESSIONS COURT, MANJERI.
APPELLANT/ACCUSED:
BINU CHERIYAN,
S/O.P.M.CHERIYAN,
PRAYAMKUDI VEEDU,
PEMPAKADA, MEMURI VILLAGE,
MUVVATTUPUZHA.
BY ADV SRI.T.K.AJITH KUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
NILAMBUR,
BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.SANAL P.RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
29.07.2024, THE COURT ON 01.08.2024 DELIVERED THE FOLLOWING:
2
Crl.Appeal No. 942 of 2006
C.S.SUDHA, J.
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Crl.Appeal No. 942 of 2006
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Dated this the 1st day of August 2024
JUDGMENT
This is an appeal under Section 374(2) of Cr.P.C. filed by
the accused/appellant against the judgment dated 08/05/2006 in
S.C.No.286/2004 on the file of the Court of Session, Manjeri.
2. The prosecution case is that on 19/07/2001, the
accused pretending to be one John Mathew, an officer in the
Indian Army, introduced himself so by showing a fabricated and
forged identity card, the copy of which is Ext.P5, to PW1 the
Branch Manager, Nedungadi Bank, Nilambur Branch and the
latter believing the words of the former, opened savings bank
(SB) account No.3034 in the name of the accused. Exts.P6 and
P7 are the SB account opening form and specimen signature card
given by the accused. The accused was issued a cheque book
when the account was opened. Thereafter on 20/07/2001, the
accused presented Ext.P1, a forged demand draft of the Bank of
India, Nemom Branch for an amount of ₹1,25,000/-. The demand
draft was produced and used as genuine by which he dishonestly
induced PW1 to part with a sum of ₹95,000/-. Hence, the
accused is alleged to have committed the offences punishable
under Sections 419, 420, 468 and 471 IPC.
3. When the accused appeared before the trial court, he
was furnished with the copies of all the relevant records. A
charge under the aforesaid Sections was framed, read over and
explained to the accused to which he pleaded not guilty. PW1 to
PW5 were examined and Exts.P1 to P22 were marked on the side
of the prosecution.
4. After the close of the evidence of the prosecution, the
accused was questioned under Section 313(1)(b) Cr.P.C. He
denied all those circumstances and maintained his innocence. As
the Sessions Court did not find it a fit case to acquit the accused
under Section 232 Cr.P.C., he was called upon to enter on his
defence and adduce evidence in support thereof. No oral
evidence was adduced by the accused. Ext.D1 was marked on his
side.
5. The trial court on a consideration of the oral and
documentary evidence and after hearing both sides, found the
accused guilty of the offences alleged against him. He has been
sentenced to rigorous imprisonment for 3 years and to a fine of
₹5,000/- for the offence punishable under Section 419 IPC and in
default to undergo imprisonment for 6 months; to rigorous
imprisonment for 7 years and to a fine of 50,000/- for the offence
punishable under Section 420 IPC; imprisonment for 7 years and
to a fine of ₹50,000/- under Section 468 IPC; imprisonment for 7
years and fine of ₹25,000/- for the offence punishable under
Section 471 IPC. In default of payment of fine for the sentences
awarded under Section 420, 468 and 471, to imprisonment for 3
years each. The substantive sentences have been directed to run
concurrently.
6. The only point that arises for consideration in this
appeal is whether there is any infirmity, illegality or perversity in
the findings of the trial court calling for an interference by this
Court.
7. Heard both sides.
8. It was submitted by the learned counsel for the
accused/appellant that all the offences alleged against the accused
are triable by a Judicial Magistrate of the First Class. However,
the case was tried by the Sessions Court, which is an irregular and
illegal procedure, causing serious prejudice to the accused as he
lost a right of appeal before the Court of Session and a further
revision before this Court. In support of this argument, reference
was made to the dictum in Sudir v. State of Madhya Pradesh,
AIR 2001 SC 826 : 2001 KHC 166 and Vinay Tyagi v. Irshad
Ali @ Deepak, (2013) 5 SCC 762.
8.1. Section 26 Cr.P.C. reads -
"26. Courts by which offences are triable -
Subject to the other provisions of this Code, -
(a) any offence under the Indian Penal Code
(45 of 1860) may be tried by-
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is
shown in the First Schedule to be triable;"
(Emphasis supplied)
Therefore, 26 (a) (ii) makes it clear that a sessions Court is
competent to try any offence under the IPC.
Section 228 Cr.P.C. reads thus -
" 228. Framing of charge.--(1) If, after such
consideration and hearing as aforesaid, the Judge is of
opinion that there is ground for presuming that the
accused has committed an offence which--
(a) is not exclusively triable by the Court of
Session, he may, frame a charge against the accused
and, by order, transfer the case for trial to the Chief
Judicial Magistrate, or any other Judicial Magistrate
of the first class and direct the accused to appear
before the Chief Judicial Magistrate, or, as the case
may be, the Judicial Magistrate of the first class, on
such date as he deems fit, and thereupon such
Magistrate shall try the offence in accordance with the
procedure for the trial of warrant cases instituted on a
police report;
(b) is exclusively triable by the Court, he shall
frame in writing a charge against the accused.
(2) Where the Judge frames any charge under
clause (b) of sub-section (1), the charge shall be read
and explained to the accused and the accused shall be
asked whether he pleads guilty of the offence charged
or claims to be tried." (Emphasis supplied)
8.2. The word used in Clause (a) to sub-section (1) is 'may'.
The dictum in Sudir (Supra) relied on by the learned counsel for
the appellant/accused itself makes the position clear. In the said
case it has been held that the Sessions Court has the power to try
any offence under the IPC and that it is not necessary that the
offence should be one exclusively triable by a Court of Sessions.
This power of the Sessions Court can be discerned from a reading
of Section 26 of the Code. When it is realised that the Sessions
Judge has the power to try any offence under the IPC and when a
case involving offence not exclusively triable by such court is
committed to the Court of Sessions, the Sessions Judge has to
exercise a discretion regarding the case which he has to continue
for trial in his court and the case which he has to transfer to the
Chief Judicial Magistrate. The employment of the word 'may' in
Clause (a) of sub-section (1) to Section 228 and the word 'shall' at
the latter part of Clause (a) unmistakably indicates that when the
offence is not triable exclusively by the Sessions Court, it is not
mandatory that he should order transfer of the case to the Chief
Judicial Magistrate after framing a charge. In situations where it
is advisable for him to try such offence in his court, there is no
legal obligation to transfer the case to the Chief Judicial
Magistrate. Therefore, the argument to the contrary, is only liable
to be rejected.
9. The prosecution relies on the testimony of PW1, the
Manger, Nedungadi Bank; PW2, the accountant and PW3, the
clerk to prove the case. The law was set in motion by PW1
giving Ext.P9 complaint to the police. In Ext.P9 submitted before
the then Sub Inspector of Police, Nilambur, PW1 has stated that
on 19/07/2001 the accused came to his office at about 11:00 a.m.
and introduced himself as a captain of the Indian Army and
represented that he was working at MRC, Wellington, Conoor,
Nilgiris. He requested for opening an SB account. The accused
produced his identity card in support of his representations. PW1
believing his words and the identity card produced opened SB
account no.3034. The accused made an initial deposit of
₹1,000/-. The accused left the office of PW1 after receiving the
passbook. On 20/07/2001, the accused again approached PW1
and presented a demand draft of ₹1,25,000/- purported to have
been issued by the Bank of India, Nemom Branch on their
Malappuram Branch. As the instrument produced seemed to be
in order and being a demand draft issued by a nationalized bank,
PW1 credited the amount to SB account no.3034 of the accused.
The accused stating that part of the amount was required to be
given for the purchase of a property, withdrew an amount of
₹95,000/- using one of the cheque leafs out of the cheque book
issued to him. The accused left the bank on receipt to the
amount. The demand draft was sent on 20/07/2001 for collection
to the Nedungadi Bank, Malappuram branch. On receipt of the
demand draft at the Malappuram branch, the accountant of the
said branch contacted PW1 over the phone and informed him that
there was no branch for the Bank of India at Malappuram.
Thereupon, the Manjeri branch of the Bank of India was
contacted over phone and enquiries made regarding the draft. It
was revealed that Bank of India did not have a branch at Nemom,
Thiruvananthapuram. This established that the draft presented by
the accused was a forged one. PW1 tried to contact the account
holder in the telephone numbers given by the accused. However,
all the numbers turned out to be fake. According to PW1, the
accused had played a fraud on the bank by making fraudulent
misrepresentations with the intention to cheat the bank and to
misappropriate the funds of the bank.
9.1. Based on Ext.P9 complaint, Ext.P15 FIR was
registered. PW1 when examined stands by the case narrated in
Ext.P9. He is ably supported by PW2 and PW3 also. PW1
certainly ought to have been more careful. But he seems to have
been carried away/taken in by the words of the accused whom he
seem to have bona fidely believed to be an officer of the Indian
Army. Believing the words of the accused, PW1 acted on the
identity card produced by the accused. Ext.P5 is the copy of the
identity card that had been shown by the accused to PW1. On the
basis of the representations made by the accused and believing
the identity card shown to PW1, savings bank account was
opened in the name of the accused and a cheque book issued.
Ext.P2 is one of the cheque leafs issued to the accused. After
opening the account, Ext.P1 demand draft was produced before
PW1. The amount in Ext.P1 was credited to the account of the
accused and the accused using Ext.P2 cheque withdrew an
amount of ₹95,000/-. PW1 to PW3 identified the accused in the
box.
9.2. It is true that the said witnesses had no prior
acquaintance with the accused. But this is not a case where the
witnesses had only a fleeting glance of the accused. PW1 to PW3
did get opportunity to interact with the accused and hence had
sufficient opportunity to note his features. Nothing has been
brought out to disbelieve the testimony of PW1 to PW3. John
Mathew is a fictitious person. The name of the accused is Binu
Cheriyan. Section 416 IPC dealing with the offence of cheating
by personation says that 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. The Explanation to the Section says that the offence is
committed whether the individual personated is a real or
imaginary person. Therefore, it is clear that the offence under
Section 416 IPC punishable under Section 419 IPC has been
made out against the accused.
10. By presenting Ext.P5 demand draft which is also a
forged and fabricated document, the accused induced PW1 to part
with the money of the bank. To hold a person guilty of cheating
as defined under Section 415 IPC, it is necessary to show that he
had a fraudulent or dishonest intention at the time of making the
promise with an intention to retain the property. In other words,
Section 415 IPC requires deception of any person, (a) inducing
that person to : (i) to deliver any property to any person, or (ii) to
consent that any person shall retain any property, or (b)
intentionally inducing that person 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, anybody's mind, reputation or property. (Hira Lal
Hari Lal Bhagwati v. C.B.I., 2003 SCC (CRI) 1121)
10.1. It is true that neither Ext.P5 demand draft nor the
other documents presented by the accused were sent by the police
for examination by an handwriting expert for the purpose of
comparing it with his admitted signatures. But here is a case
where PW1 to PW3 deposed that the account opening form and
other connected documents were filled up and prepared by the
accused in their presence. The next day the accused himself
presented Ext.P5 demand draft and using Ext.P2 cheque,
withdrew the amount. There is direct evidence relating to the acts
of the accused and hence it is not necessary for obtaining expert
evidence, which is only opinion evidence. Therefore the
evidence on record clearly makes out a case of the offence of
cheating under Section 415 IPC punishable under Section 420
IPC.
11. Now coming to the offences under Sections 468 and
471 IPC. As per Section 468 IPC, any person commits forgery
for the purpose of cheating when he intends that the document be
used for the purpose of cheating. Section 471 says that whoever
fraudulently or dishonestly uses any document as genuine, which
he knows or has reason to believe to be a forged document, is also
liable to be punished. The evidence makes it clear that the
accused had forged documents for the purpose of cheating the
bank and that he had used such documents as genuine which he
knew to be forged. Therefore the offences under Section 468 and
Section 471 IPC are also clearly made out.
In these circumstances, I do not find any infirmity, illegality
or perversity in the findings of the trial court. Hence the appeal
is liable to be dismissed and I do so.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
