IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 474 of 2003()
1. K.GOPALAKRISHNAN, S/O.KESAVAN,
... Petitioner
Vs
1. SIVAKUMAR, ASI, RAILWAY PROTECTION
... Respondent
2. STATE OF KERALA, REP. BY THE PUBLIC
For Petitioner :SRI.M.SREEKUMAR
For Respondent :SRI.LATHEESH SEBASTIAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :09/06/2009
O R D E R
M.N.KRISHNAN, J.
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CRL.A.No.474 OF 2003
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Dated this the 9th day of June, 2009
J U D G M E N T
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This appeal is preferred against the order of acquittal passed by the
Judicial First Class Magistrate’s Court, Trivandrum, in C.C.No.94/1998.
The accused was charged u/s.420 of the Indian Penal Code and the Court
below on appreciation of the materials, held that there is no material to
connect the accused with the crime and acquitted the accused. It is
against that decision the present appeal is preferred. The brief facts
would reveal that, it is the case of the complainant that the accused, who
was an employee in Railway Protection Force, had promised to get an
employment for a relative of him. He demanded a sum of Rs.1 lakh and
an advance of Rs.50,000/-. The complainant in the presence of PW2
advanced Rs.20,000/- with the earnest hope that the accused will make
arrangements to get a job. But it did not materialise and the amount was
also not given back and thereby he had cheated him. The Court below
considered the evidence as well as Ext.D1 document. The evidence of
PW1 is to the effect that the accused was employed at Veli, but Ext.D1
would show that he was employed in Cochin Harbour Terminus during the
CRL.A.No.474 OF 2003
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period from 08.05.1996 to 05.02.1997. The alleged transaction
is dated 25.12.1996. So it is very clear that the accused was
attached to Cochin Harbour Terminus and the version of PW1,
which reiterated that he was at Veli does not appear to be
correct. Secondly, according to the complainant the promise
was to provide a job for his relative, Mr.Binu. When a question
was put that this Binu has become a graduate only in the year
1999, the complainant pleads ignorance and he does not know
about it. The alleged offer was for the post of a Sub Inspector,
which requires a basic qualification of a degree. So the case of
the complainant can not be accepted when he does not even
know what is the qualification of his relative. Further
interestingly it is also admitted by PW1 that the said Binu has
not applied for the post of Sub Inspector of police also. So the
case that the amount which has been advanced for the purpose
of getting the post of Sub Inspector of police, does not appear to
be true as analysed and found by the Court below. PW1 and
PW2 would say that the amount was advanced from the house
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of the first accused. To start with, even the wife and son of the
accused was dragged in to the party array as accused, but later
deleted. This shows the attitude of the accused. In order to
establish a case of cheating first of all the transaction must be
proved and the fraudulent nature should be proved and the
object of such an act should be proved. I do not find any
materials to prove any of the ingredients to attract the offence
u/s.420 of the Indian Penal Code. When the transaction is not
proved the question of dishonest intention does not arise.
Therefore, I do not want to interfere with the decision rendered
by the learned Magistrate. The appeal fails and the same is
dismissed.
M.N.KRISHNAN, JUDGE
an.