Kerala High Court
Chacko Pathrose vs State Of Kerala on 2 November, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
SATURDAY, THE 2ND DAY OF NOVEMBER 2024/11TH KARTHIKA,
1946
CRL.REV.PET NO.2454 OF 2013
AGAINST THE JUDGMENT CONVICTION AND SENTENCE IN
C.C.NO.1050 OF 2006 OF THE COURT OF JUDICIAL FIRST CLASS
MAGISTRATE I, PERUMBAVOOR DATED 11.01.2013 AS CONFIRMED
BY THE JUDGMENT CONVICTION AND SENTENCE IN CRL.APPEAL
NO.66 OF 2013 OF THE COURT OF ADDITIONAL SESSIONS JUDGE -
VII, ERNAKULAM DATED 12.11.2013
REVISION PETITIONER/APPELLANT/ACCUSED NO.3:
CHACKO PATHROSE
S/O.CHACKO, THOLAKKULAM HOUSE, PANGODE KARA,
AIKKARANADU NORTH
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI. NAUSHAD. K.A PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 02.11.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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2
Crl.R.P.No.2454 of 2013
P.G. AJITHKUMAR, J.
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Crl.R.P.No.2454 of 2013
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Dated this the 2nd day of November, 2024
ORDER
The petitioner is the 3rd accused in C.C.No.1050 of 2006
on the files of the Judicial Magistrate of First Class-I,
Perumbavoor. He along with three others was charged for the
offences punishable under Sections 406 and 420 read with 34
of the Indian Penal Code, 1860. Since accused Nos.1 and 2
absconded from the process of the Court, the petitioner and
the 4th accused were tried. The Trial Court after appreciating
the evidence tendered by both prosecution, which consists of
oral testimonies of PWs 1 and 2 and Exts.P1 to P12, as well as
the defence, which consists of only Ext.D1, found the
petitioner guilty of the offence under Section 420 of the IPC.
The 4th accused was acquitted. Petitioner was sentenced to
undergo rigorous imprisonment for a period of one year. He
appealed against it. The appellate court did not interfere with
the conviction and sentence. The petitioner assails the
findings leading to his conviction in this revision petition filed
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under Sections 397 read with 401 of the Code of Criminal
Procedure, 1973.
2. Heard the learned counsel for the petitioner and
the learned Public Prosecutor.
3. The prosecution rests essentially on the oral
evidence of PWs 1 and 2 and Ext.P2 series to prove the core
allegation that PW1 deposited Rs.1,76,500/- in Mass Life
Charitable Trust to which the accused persons are the
trustees, and deposited money was not returned. Another
component of the charge of cheating is that the accused
persons assured to pay back double the amount of deposit in
three years, but did not pay.
4. The learned counsel for the petitioner would
contend at the outset that the prosecution can only fail owing
to the irregularities and omissions in the process of
investigation and the failure to bring on record evidence which
is very much available. It is submitted by the learned counsel
that the investigating officer was not examined. The FIR was
not proved by examining its author. The Mahazar concerning
seizure of Ext.P2 series has not been duly proved and that no
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document concerning registration of the Trust and document
showing its members have been brought on record.
5. No doubt, there occurred irregularities in the
investigation and omissions on the part of the investigating
agency. It can certainly be said that there are defects in
investigation inasmuch as the documents concerning
incorporation and character of the Trust were not collected
and produced before the Court. It is seen from Ext.P2 that
the Trust is a registered one. Therefore, documents are
undoubtedly available with the authorities regarding
registration of the Trust which could have been brought
before the court. But the question is whether, for those
defects and irregularities, the evidence that came on record
can be discarded altogether.
6. The Apex Court in State of Karnataka v.
Yarappa Reddy [(1999) 8 SCC 715] held that even if the
investigation is illegal or even suspicious, the rest of evidence
must be scrutinised independently. The Apex Court reminded
that, otherwise, criminal trials will plummet to the level of the
investigating officer ruling the roost. Hence, I shall consider
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whether the rest of the evidence is reliable and sufficient for a
conviction.
7. PW1 is the wife and PW2 the husband. Going by
their versions it is seen that PW1 was employed in the Trust
as a Collection Agent. She made deposits as evidenced by
Exts.P2 series. She caused others to make deposits in the
Trust as well. The oral testimonies of other depositors, PWs 3
to 6, 8 and 9 certainly render support to the assertion of PW1
that through her the others also made deposits. It may be
said that PWs 1 and 2 are interested inasmuch as they have a
grievance that their money which was deposited in the Trust
was lost. When there is sufficient evidence including
documents to prove that PW1 made such deposits there is no
reason to discard the evidence that came on record
concerning such deposits in Mass Life Charitable Trust.
8. It is the version of PWs 1 and 2 that on believing
the assurance of the 1st accused that the deposit amount
would be doubled in three years and thereafter the same
would be returned, deposits were made. On a perusal of
Ext.P2 series receipts also such an assurance is writ evident.
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Date of deposit of the 1st receipt is 27.07.2005 and date of
maturity mentioned in it is 27.07.2008. As against deposit of
Rs.50,000/- the maturity amount is shown as Rs.1,00,000/-.
That is enough to prove beyond doubt that there was an
assurance that the deposit amount would be doubled in three
years. In that context the evidence of PWs 1 and 2 has to be
appreciated.
9. PW1 deposed that at the time when deposits were
made, besides accused Nos.1 and 2, the petitioner (3rd
accused) was also present. He is the father of the 1st
accused. The learned counsel for the petitioner would submit
that his mere presence in the office of the Trust is insufficient
to implicate him in the criminal offence. True, mere presence
of a person is not enough to implicate him with an offence of
this nature. i.e., receiving money in false assurance and
misappropriation.
10. The petitioner is none other than the father of the
1st accused. PW1 categorically asserted that the petitioner
also assured about doubling of the deposit amount and
repayment. The same is the version of PW2 as well. All the
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same PW2 fairly conceded that the 4th accused was not
present while PW1 made payments. If these witnesses had
any mischievous intention to falsely implicate any of the
accused, PW2 would not have deposed in that manner.
Therefore the view taken by the courts below that PWs 1 and
2 can be believed as regards the assertion that the deposits
were made on believing the assurance made by not only
accused No.1 and 2, but also the petitioner. Viewed so the
concurrent finding rendered by the courts below that the
petitioner is also liable for conviction for an offence under
Section 420 of the IPC cannot be interfered with.
11. It is seen from Ext.D1 Ration Card that the
petitioner was aged 67 years in 2011. So he is now aged
around 80 years. Having considered his role in the offence,
his age and similar other mitigating circumstances, I am of
the view that the sentence imposed on him is liable to be
altered.
Accordingly, conviction of the petitioner for the offence
under Section 420 of the IPC is confirmed. The sentence is
modified. He is sentenced to undergo imprisonment till the
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rise of the Court and directed to pay compensation of
Rs.60,000/- (Rupees Sixty Thousand only) to PW1 under
Section 357(3) of the Code. If the amount of compensation is
not paid, the petitioner shall undergo simple imprisonment for
a period of one month.
Revision petition is disposed of accordingly.
Sd/-
P.G. AJITHKUMAR
JUDGE
PV
