IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2432 of 2009()
1. BHAGAVATH SINGH, S/O.JAYACHANDRAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.G.SUDHEER
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :26/08/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No.2432 of 2009
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Dated this 26th day of August 2009
ORDER
Petitioner along with two others faced trial in the court of learned
Judicial Magistrate of First Class, Thiruvananthapuram in C.C.No.309 of
2000 for offence punishable under section 420 r/w section 34 of the
Penal Code (for short, “the Code”). Case is that petitioner and accused
Nos.2 and 3 induced PWs.1 to 3 and husband of PW4 to believe that
petitioner and accused Nos. 2 and 3 could procure visa for them for job
abroad and collected various amounts and their passports from them
on 31-01-1996. Further amounts were collected on 06-06-1999 also.
But as promised petitioner or accused Nos.2 and 3 did not procure visa
for PWs.1 to 3 and husband of PW4. On their demanding repayment of
the amount, petitioner and accused Nos.2 and 3 refused. Alleging that
they were dishonestly induced by petitioner and accused Nos.2 and 3
to part with the money on a false promise of arranging visa a
complaint was preferred to the police. Police after investigation
submitted final report against petitioner and accused Nos.2 and 3.
Prosecution examined PWs.1 to 6 and proved as Exts.P1 to P5.
Petitioner and accused Nos.2 and 3 examined as DW1 and proved
Ext.D1. Learned magistrate found that the involvement of accused
Nos.2 and 3 is not proved beyond reasonable doubt and acquitted
them. Petitioner was found guilty and convicted under section 420 of
Crl.R.P.No.2432 of 2009 2
the Code. He was sentenced to undergo rigorous imprisonment for
three months and to pay compensation to PWs.1 to 4 at the rate of
Rs.15000/- each and in default of payment to undergo simple
imprisonment for four months. Appellate court did not interfere with
the conviction, sentence or direction for payment of compensation. It
is contended in this revision that conviction and sentence of petitioner
are not legal or proper.
2. PWs.1 to 4 have given evidence regarding the alleged
incident. They have stated that on a promise of arranging visa for
PWs.1 to 3 and the husband of PW4, they paid money to the petitioner
on various dates. PW5 stated that he had accompanied PWs.1 to 4 to
the house of petitioner to make payment on 06-06-1996. He claimed
to have seen PW3 paying Rs.60000/- to the petitioner. Ext.P2 is an
agreement found by the courts below as executed by accused No.2
wherein there is reference to receiving Rs.60000/- for arranging visa
for PWs.1 to 3 and the husband of PW4. Learned magistrate referred
to Ext.A2 and other circumstances and found that it corroborated the
evidence of PWs.1 to 4. PW6 the Sub Inspector registered the case.
Ext.P6 is the mahazar for verification of visa produced by PW1. PWs.1
to 5 had referred to that going to the office of the petitioner at
Trivandrum in connection with the deal. Petitioner examined DW1 to
say that in the building belonging to DW1 (and suggested by PWs.1 to
5), petitioner was not having any office of travel agency. That
Crl.R.P.No.2432 of 2009 3
according to PW1, was given by the petitioner. But DW1 does not
know whether petitioner was conducting any travel agency in his
building during 1998-1999. Courts below have considered the
evidence on record and found that petitioner dishonestly induced
PWs.1 to 4 to part with money on a false promise to arrange visa and
thus cheated them. On going through the judgments under challenge
and hearing learned counsel I find no reason to interfere with the
concurrent finding that petitioner committed offence punishable under
section 420 of the Code.
4. What remained for consideration is whether sentence
imposed is excessive. It is submitted by learned counsel that
petitioner is not involved in any other case. Having regard to the
nature of offence and circumstances proved in the case I am inclined
to think that simple imprisonment till rising of the court is sufficient in
the ends of justice.
5. At the same time, PWs.1 to 4 who parted with money in
favour of petitioner cannot be forgotten. Learned magistrate observed
that there is no acceptable evidence as to the exact amount they had
given to the petitioner. True, PWs.1 to 4 were not able to produce
documentary evidence to prove the exact amount they had given to
the petitioner. Ext.P2 only refers to the lumpsum of Rs.60000/-. As
per the evidence of PWs.1 to 4 the transaction was in the year 1996
and 1999. Learned magistrate directed petitioner to pay compensation
Crl.R.P.No.2432 of 2009 4
of Rs.15000/- each to PWs.1 to 4. The revisional court is competent to
award compensation as per section 357(4) of the Code of Criminal
Procedure. That power included the power to re-fix compensation if
compensation awarded by the court below is not just and proper.
Having regard to the facts and circumstances, I direct that petitioner
has to pay compensation of Rs.25,000/- each to PWs.1 to 4. In case of
failure he has to undergo simple imprisonment for a period of six
months.
Resultantly, this revision petition is allowed in part to the
following extent:
1. Substantive sentence awarded to the petitioner is modified as
simple imprisonment till rising of the court.
2. Petitioner is directed to deposit in the trial court Rs. 100000/-
(Rupees One Lakh Only) on or before 15-12-2009 for payment to
PWs.1 to 4 by way of compensation in equal proportion, failing
which petitioner shall undergo simple imprisonment for six
months.
3. Petitioner shall appear in the trial court on 17-12-2009 to receive
the sentence. Execution of warrant if any against the petitioner
will stand in abeyance till 17-12-2009.
THOMAS P JOSEPH, JUDGE
Sbna/