IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 609 of 1999(A)
1. Y.P.KARUNAKARAN NAIR
... Petitioner
Vs
1. M.P.SURESH
... Respondent
For Petitioner :SRI.A.MOHAMED MUSTAQUE
For Respondent :.
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :26/03/2007
O R D E R
K.R.UDAYABHANU, J
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CRL.A.No.609 of 1999
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Dated this the 26th day of March, 2007
JUDGMENT
The appellant is the complainant in C.C.858/1997, in which
the accused was acquitted by the court below. The prosecution
case is that the accused two in number, the husband and wife
dishonestly induced him to part with a sum of Rs.18,000/- by
promising to arrange visa to Muscat and did not arrange the visa
and towards the amount received the impugned cheque for
Rs.18,000/- was issued. The same was not presented before the
bank in time on the representation of the accused that the
amount will be paid. The court below considering the evidence
that consisted of the testimony of Pws’ 1 to 3 and Exts. P1 to P6
that included the disputed cheque as well as Exts. P2 to P4 the
letters allegedly sent by the first accused promising repayment
of the amount and Exts. D1 and D2 found that the complainant
could not establish the offence alleged beyond reasonable doubt.
The case suggested at the instance of the accused and as is seen
from Ext.P6 reply notice is that the complainant was taken
abroad after arranging the visiting visa with the understanding
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that the complainant would himself find out a job abroad. The
version of defence is that the first accused had to spend
considerable amounts for arranging visiting visa and also for the
residence of the complainant at Muscat. It was also suggested
that the complainant was employed during the above period at
the shop of the accused at Muscat and was paid salary also. Ext.
D1 is the cheque for Rs.23,000/- issued by the first accused.
According to the defence, the above cheque was issued to the
complainant earlier and the first accused was paid Rs.20,000/-
for the expenses to arrange the visiting visa for the complainant
and thereafter he returned the amount with interest for which
Ext.D1 cheque was returned.
2. On the other hand PW1, the complainant has testified
that it was on the undertaking of the first accused that he would
arrange a visa for him for a job in Muscat and as per his
instructions an amount of Rs.18,000/- was paid to the second
accused, who is the wife of the first accused. He had gone
abroad on a visiting visa. But no job could be arranged by the
first accused and he was forced to return. He has also produced
Exts. P2 to P4 letters sent by the first accused to him from the
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Middle East promising to repay the amount and asking for time.
The suggestion in the cross-examination of PW1 is that the above
letters were sent with respect to the amount as mentioned in
Ext. P6 reply notice. The recitals in Exts. P2 to P4 is to the effect
that immediately on his return i.e., of the first accused he would
pay the amount. It is also mentioned in Ext. P2 letter that he
has dropped the idea of arranging the visa. In both letters he
has pleaded for time and assured repayment. It is the consistent
version of the complainant that Rs.23,000/- was given as a loan
to A2 and when she returned the amount the impugned cheque
was given back.
3. It is the version of PW1 that the visiting visa was
arranged by his brother who is working abroad and that he had
resided at Muscat during the period with his brother. He has
denied that he was employed in the shop of the first accused. He
has also denied the suggestion that he had stealthily removed
certain cheque leafs including Ext. A1 cheque leaf from the shop
of the accused while he was working therein at Muscat. It
appears that the above case of the defence is hard to believe
especially considering the fact that there would not have been
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any occasion for the accused to keep the signed cheque leafs
drawn on the Syndicate Bank at his shop in Muscat.
4. In the light of the evidence adduced in the matter, I
find that the acquittal of A1 is not justified. It is proved beyond
reasonable doubt that A1 is guilty for the offence under Section
420 IPC. He is sentenced to undergo simple imprisonment for
one month and to pay a fine of Rs.5,000/- and in default, to
undergo simple imprisonment for another one month. The fine
amount, if realised, shall be paid to the complainant.
The criminal appeal is disposed of as above.
K.R.UDAYABHANU,
JUDGE
csl