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Madras High Court · body

2008 DIGILAW 1807 (MAD)

Ganesan v. R. Nachi & Another

2008-06-17

P.R.SHIVAKUMAR

body2008
Judgment :- This Criminal Revision Case filed under Section 397 & 401 Criminal Procedure Code is directed against the judgment of the learned District Munsif cum Judicial Magistrate, Kodumudi dated 22.07.2005 and made in C.C.No.5/2002 acquitting the accused therein/first respondent herein for the offences punishable under Section 420 IPC and 406 IPC. 2. The facts leading to the filing of the present Criminal Revision Case can be briefly stated thus. N. Veeran S/o.Nachi of Municipal Chattiram, Erode, who was examined as P.W.1 before the trial court preferred a written complaint, marked as Ex.P1 on the file of the learned District Munsif cum Judicial Magistrate, Kodumudi alleging that R.Nachi son of Raman (a) Vellaiyan, the first respondent herein/accused cheated him (P.W.1), P.W.2 -Veeran, P.W.3 - Ganesan, P.W.4 - Loganathan, P.W.5 - Ramayi, P.W.6 - Vimala, P.W.7 - Palanisamy, P.W.8 - Sathyamurthy, P.W.9 - Selvaraj, P.W.10 -Chinna Palani, P.W.11 - Periya Palani, P.W.12 - Chinna Raman, P.W.13 -Maral by making a false promise that he could get 3 cents of land for each one of them at the rate of Rs.1,000/- per cent and thereby made them part with a total sum of Rs.48,700/-; that thereafter he neither made arrangements for getting the land for them nor chose to return the amount and that thereby the first respondent/accused committed the offence of cheating on the above said 13 persons. The said complaint was forwarded by the learned District Munsif cum Judicial Magistrate, Kodumudi to Sivagiri Police station for registering a case and investigation. P.W.16 - Thiru Ammasai, the then Sub-Inspector of Police attached to Sivagiri Police station prepared Ex.P2 -First Information Report in the printed format and registered a case against the first Respondent herein in Crime No.88/2001 for an offence under Section 420 IPC. He himself took up the investigation of the case, examined and recorded statement of the witnesses, also arrested the accused and submitted a final report on the file of District Munsif cum Judicial Magistrate, Kodumudi accusing the first respondent herein/accused of committing the offences punishable under Section 420 and 406 IPC. The same was taken on file as C.C.No.5/2002 by the trial court. On appearance of the first respondent herein/accused who was on bail, the trial court framed necessary charges and conducted trial pursuant to the plea of innocence made by the first respondent herein/accused. 3. The same was taken on file as C.C.No.5/2002 by the trial court. On appearance of the first respondent herein/accused who was on bail, the trial court framed necessary charges and conducted trial pursuant to the plea of innocence made by the first respondent herein/accused. 3. In order to substantiate the charges, 17 witnesses were examined and three documents were marked on the side of the prosecution. After the evidence for the prosecution was over, the first respondent herein/accused was questioned under Section 313(1)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution. The first respondent herein/accused denied them as false and stated that due to previous enmity, P.W.1 to P.W.13 had given a false complaint through P.W.1. The first respondent herein/ accused had also submitted a written statement contending that on 10.07.2000 at about noon P.W.10 - Chinna Palani had got admitted in Government General Hospital, Erode informing the hospital authorities that the first respondent herein/accused and his aids, six in number, attacked him and caused injuries at 10.00 PM on 09.07.2000; that the police who went to the hospital on receipt of intimation from the hospital got the statement of Chinna Palani, based on which a case was registered on 10.07.2000 itself in Crime No.174/2000 on the file of Arachalur Police Station; that the said Chinna Palani took treatment as inpatient in the Government General Hospital, Erode from the afternoon of 10.07.2000 till 15.07.2000, the date on which he was discharged; that his father Chinna Raman, his brother Periya Palani (P.W.11) and Sarasal, wife of Periya Palani were also said to be attending on him; that the first respondent herein was shown to be an absconding accused in the said case; that ultimately the said case ended in conviction and the respondent herein and 6 others were sentenced to pay a fine of Rs.850/- each; that the facts of the earlier case would make it abundantly clear that the present case is nothing but a cooked up one. Including the first respondent herein/accused, totally three witnesses were examined as defence witnesses and six documents were marked on his side. 4. Including the first respondent herein/accused, totally three witnesses were examined as defence witnesses and six documents were marked on his side. 4. At the conclusion of trial, the learned District Munsif cum Judicial Magistrate, Kodumudi heard the arguments advanced on either side, considered the evidence in the light of the said arguments, upon such consideration, came to the conclusion that the charges against first respondent herein/ accused were not proved beyond reasonable doubt and based on the said finding acquitted him of both the offences with which he stood charged. 5. Questioning the correctness and legality of the said judgment of acquittal dated 22.07.2005 pronounced by the learned District Munsif cum Judicial Magistrate, Kodumudi in C.C.No.5/2002, P.W.3 - Ganesan has brought-forth this Criminal Revision Case on various grounds set out in the Criminal Revision Petition. 6. This court heard the submissions made by Mr. A.K. Kumaraswamy, learned counsel appearing for the petitioner, Mr. N. Manokaran, learned counsel appearing for the first respondent herein/accused and Mr. R. Muniapparaj, learned Government Advocate (Crl.Side) representing the second respondent/Investigating Officer. The materials available on record were also perused. 7. Mr. A.K. Kumaraswamy, learned counsel for the petitioner, argued that the court below failed to properly appreciate the evidence adduced on the side of the prosecution and on an erroneous appreciation of facts and law, it had arrived at a wrong conclusion that the prosecution had not proved the charges beyond reasonable doubt. It is his further contention that the overwhelming evidence adduced through P.W.1 to P.W.13 who spoke in one voice regarding the occurrence without any material contradiction have been overlooked without any justification and that the same led to the eventual acquittal of the first respondent herein/accused, which according to him would mean miscarriage of justice. 8. On the other hand, Mr. N. Manokaran, learned counsel for the first respondent herein/accused would contend that the court below, on a proper appreciation of evidence, came to the correct conclusion that the prosecution had failed to prove the charges beyond reasonable doubt; that there is no error or illegality in the judgment of the court below acquitting the first respondent herein/accused and that there is no scope whatsoever for interfering with the same in exercise of the Revisional powers of the High Court. The learned Government Advocate representing second respondent was non-committal in his approach and submitted that the court could pass any order on merit. 9. Let us now consider the merits and demerits of the rival submissions made by the counsel for appellant and first respondent. 10. The petitioner herein was one of the witnesses examined on the side of the prosecution before the trial court in C.C.No.5/2002. The first respondent was the accused therein. He was prosecuted for offences punishable under Section 420 and 406 IPC. According to the prosecution case, he made a false promise to P.W.1 to P.W.10, P.W.12, P.W.13 and Sarasal wife of P.W.11 that he could get three cents of land to each one of them at the rate of Rs.1,000/-per cent and made them believe his representation and the above said persons believing the representation made by the first respondent herein/accused to be true, paid a total sum of Rs.48,700/- in the hope that he would arrange land. Thereafter, the first respondent/accused failed to fulfill his promise either by arranging land or repaying the amount received whereupon the above said persons allegedly cheated by the first respondent/accused came to know that he had not only cheated them but also committed a criminal breach of trust by misappropriating the amount received from them and thereby had committed offences punishable under Sections 420 and 406 IPC. P.W.1 to P.W.13 would have spoken in one voice that on 10.07.2000 at 7.00 PM near the Mayavar Temple in Poolavalasu, all of them had assembled to offer their worship to the deity; that at that point of time, the first respondent herein/accused came their and voluntarily offered to get 3 cents of land to each one of them at the rate of Rs.1,000/-per cent and that that believing the said representation, 11 persons paid a total sum of Rs.33,000/-whereas two other persons, namely Sarasal wife of P.W.11 - Periya Palani and Ganesan - P.W.3 gave Rs.8,500/-and Rs.7,200/- respectively with the hope of purchasing 9 cents of land each. But there are material contradictions regarding the means of transportation used by them to go over to the place of occurrence. 11. P.W.1, P.W.2 and P.W.13 would say that all the thirteen witnesses went to the place of occurrence in one and the same vehicle. But there are material contradictions regarding the means of transportation used by them to go over to the place of occurrence. 11. P.W.1, P.W.2 and P.W.13 would say that all the thirteen witnesses went to the place of occurrence in one and the same vehicle. According to the evidence of P.W.1 and P.W.3, they used a tempo as the means of transport to go to the place of occurrence from Erode. According to the evidence of P.W.5, she and her husband did not go along with the other witnesses. At the same time P.W.6 would state that they went by bus. If considered in isolation the contradictions pointed about regarding the means of transport used by the witnesses P.W.1 to P.W.13 to reach the place of occurrence would seem to be of less importance or trivial. 12. But when it is considered in the light of other evidence, it will assume more importance throwing a serious doubt on the prosecution version regarding the occurrence. According to P.W.1, till the first respondent/accused approached them with the proposal they did not have any idea of purchasing any land and he paid a sum of Rs.3,000/- out of the money he had carried for his expenses. P.W.3, P.W.5 and P.W.7 also state that they had no plan of purchasing any land when they started from their place. But P.W.2 and P.W.9 would state that they had already planned to purchase land and hence they carried the money along with them. More particularly, P.W.2 stated that the plan to purchase the land was made a week prior to the date of occurrence. This particular evidence of P.W.2 and P.W.9 would make the case of the prosecution that on 10.07.2000 at 2.00 p.m. the first respondent/accused all of a sudden approached P.W.1 to P.W.13 when they were offering their worship at Mayavar Temple with the above said promise, quite improbable. 13. There is material contradiction in the evidence of prosecution witnesses as to whether they were able to get the key of the temple from the accused. P.W.5 in her evidence stated that when accused was asked to hand over the key of the temple so as to enable the prosecution witnesses to offer worship, he refused to do so. 13. There is material contradiction in the evidence of prosecution witnesses as to whether they were able to get the key of the temple from the accused. P.W.5 in her evidence stated that when accused was asked to hand over the key of the temple so as to enable the prosecution witnesses to offer worship, he refused to do so. On the other hand, P.W.6 would state that the accused, being the Administrator of the temple, at the first instance refused to hand over key and that he gave the key only after the prosecution witnesses argued with him for sometime. P.W.9 and P.W.13 have stated that there was a special pooja in Mayavar temple on 10.07.2000 to take part in which all of them had gone there. But others do not support their version. 14. According to the prosecution version, the first respondent herein/accused promised to get three cents for each one of the prosecution witnesses P.W.1 to P.W.10, P.W.12, P.W.13 and Sarasal wife of P.W.11 at the rate of Rs.1,000/- per cent. But P.W.3 -Ganesan and Sarasal wife of P.W.11 came forward to purchase 9 cents each and P.W.3 paid a sum of Rs.7,200/- whereas Sarasal paid a sum of Rs.8,500/-. The cost of 9 cents of land at the rate of Rs.1,000/- per cent comes to Rs.9,000/-. According to the evidence of prosecution witnesses P.W.3 paid only a sum of Rs.7,200/- whereas Sarasal paid a sum of Rs.8,500/-. While the other witnesses would state that they were not aware of the reason why a lesser amount was accepted from P.W.3 and Sarasal, P.W.3 alone would state that there was an understanding that the balance amount would be paid at the time of purchase. Per contra, P.W.4 would state that there was no such discussion regarding the payment of balance. The said discrepancy has also caused a heavy shadow on the prosecution version. 15. Apart from the discrepancies and contradictions pointed out above, there are other vital aspects, which virtually demolish the prosecution theory. P.W.7 clearly admitted that the village itself had been divided into two groups even prior to the date of occurrence, namely 10.07.2000. He would also admit that poojari Ramans son belonging to the opposite group committed suicide prior to 10.07.2000 and none of the prosecution witnesses attended his funeral or offered their condolence. P.W.7 clearly admitted that the village itself had been divided into two groups even prior to the date of occurrence, namely 10.07.2000. He would also admit that poojari Ramans son belonging to the opposite group committed suicide prior to 10.07.2000 and none of the prosecution witnesses attended his funeral or offered their condolence. Admittedly poojari Raman belonged to the group of the first respondent herein/ accused. When that is so, it is quite improbable that the first respondent herein/accused would have volunteered to get lands for P.W.s 1 to P.W.13 and that P.W.1 to P.W.13 would have paid money to the accused believing his representation. According to the complaint and the evidence of P.W.1, P.W.11 Periyapalani was not one of the persons who had gone to the place of occurrence to offer worship at Mayavar temple and it was his wife Sarasal who went along with the other prosecution witnesses to the temple on the date of occurrence. According to the complaint and the evidence of P.W.1 it was Sarasal who paid Rs.8,500/- to the first respondent herein/accused. No other witness except P.W.11 has stated that P.W.11 was also present and it was he who paid Rs.8,500/-to the accused. On the other hand, the statement found in the complaint and the evidence of P.W.1 is to the effect that the said amount was paid by P.W.11 through his wife Sarasal suggesting that P.W.11 was not there in the scene of occurrence at the time of making payment. In this regard P.W.11s evidence is quite contra to the same. He would state that he himself was present and it was he who paid the amount to the accused. This aspect will also improbablise the prosecution version. 16. Regarding the occurrence that allegedly took place on 10.00 PM on 09.07.2000, a case was registered on the file of Arachalur Police Station in Crime No.174/2000 against the first respondent herein/accused and six other persons for offences punishable under Section 147, 448, 341, 323 IPC. P.W.10 -Chinna Palani was the person injured in the said occurrence and he was admitted in the Government General Hospital, Erode on 10.07.2000 itself. Based on the intimation received from the said hospital, a constable from Arachalur Police Station went to the hospital and recorded his statement and based on the said statement, case was registered. A copy of the said FIR has been marked as Ex.D1. Based on the intimation received from the said hospital, a constable from Arachalur Police Station went to the hospital and recorded his statement and based on the said statement, case was registered. A copy of the said FIR has been marked as Ex.D1. Admittedly the said case ended in conviction and the first respondent herein/accused and 6 other persons accused therein were convicted for the said offences and each one of them was sentenced to pay a fine of Rs.850/-. The investigating officer in the said case has been examined as DW1 in this case. The doctor who admitted P.W.10 as in-patient and prepared the Accident Register, has been examined as DW2. Copies of the First Information Report, Observation Magazar, rough sketch, charge-sheet, Accident Register and the judgment in the said case have been marked as D1 to D6 respectively. In addition to that, the first respondent herein/accused also has been examined as DW3. From the said documents and the evidence of DW1 to DW3, it is quite obvious that there was an incident at 10.00 PM on 09.07.2000 itself in which P.W.10 - Chinna Palani got injured and that he was given treatment as an inpatient from 10.07.2000 at about 2.25 PM and was discharged only on 15.07.2000. Hence his presence in the scene of occurrence, namely near the Mayavar Temple on 10.07.2000 at 7.00 PM, has got to be ruled out. 17. Furthermore, in connection with the former case, namely Crime No.174/2000 of Arachalur Police Station, DW1 seems to have conducted investigation and at 7.00 p.m. on 10.07.2000 he visited the place of occurrence which was very near to Mayavar temple. Ex.D2 and D3 were prepared at 7.00 p.m. on 10.07.2000. In the said case, first respondent herein/accused was one of the accused persons who was not then secured by the police. Ex.D2 - observation magazar was prepared in front of the house of Sarasal, wife of Periya Palani (P.W.11). P.W.2 and one Nachimuthu happened to be the attestors of said observations magazar. If it is so, it is quite improable that the first respondent/accused would have been present in the scene of occurrence, namely Mayavar Temple and offered to get land for the prosecution witnesses simultaneously, when the Investigating Officer in the former case was making his enquiry in the nearby place including a place in front of the house of Sarasal. If it is so, it is quite improable that the first respondent/accused would have been present in the scene of occurrence, namely Mayavar Temple and offered to get land for the prosecution witnesses simultaneously, when the Investigating Officer in the former case was making his enquiry in the nearby place including a place in front of the house of Sarasal. P.W.10 in his evidence admitted that he was taking treatment as an in-patient in Government Hospital, Erode from 10.07.2000 till 15.07.2000. Therefore his evidence that he also was present near Mayavar temple at 7.00 PM on 10.07.2000 and gave a sum of Rs.3,000/- to the first respondent herein/accused cannot be true. 18. Furthermore P.W.11 has stated in his chief examination that he went to Mayavar temple as there was a festival in the temple and he paid a sum of Rs.3,000/- to the first respondent herein/accused. According to the prosecution case it was his wife Sarasal who paid the amount to the accused. But, P.W.11 would say that it was he who paid the amount to the accused. There is also a discrepancy regarding the amount paid. According to the recitals found in the complaint and the evidence of other witnesses, P.W.11s wife Sarasal paid a sum of Rs.8,500/-for purchasing 9 cents of land. Whereas P.W.11 would say that he paid a sum of Rs.3,000/-alone for purchasing three cents of land. Curiously P.W.11 himself would admit that on 10.07.2000 itself his own brother Chinna palani was admitted in the hospital and a complaint against the respondent herein/accused and others was lodged with the Arachalur police in the afternoon of 10.07.2000 itself. The same will clearly rule out the presence of P.W.11 at 7.00 PM on 10.07.2000 in the scene of occurrence. He has also stated that he was not in the village on 10.07.2000 and that he returned to the village only four days later. It is his further admission that P.W.3 - Ganesan, P.W.1 - N.Veeran, P.W.2 -R.Veeran also came to the Government Hospital to see P.W.10 -Chinna Palani on 10.07.2000. The said admission will make it improable that those persons would have gone to Poolanvalasu Mayavar temple and gave money to the accused at 7.00 PM on 10.07.2000. 19. It is his further admission that P.W.3 - Ganesan, P.W.1 - N.Veeran, P.W.2 -R.Veeran also came to the Government Hospital to see P.W.10 -Chinna Palani on 10.07.2000. The said admission will make it improable that those persons would have gone to Poolanvalasu Mayavar temple and gave money to the accused at 7.00 PM on 10.07.2000. 19. From the evidence discussed above, it is quite obvious that the relationship between P.W.s 1 to 13 and the first respondent herein/accused, before the date of occurrence, was not cordial; that hours before the alleged occurrence, a case was registered against the first respondent herein/accused based on the complaint of P.W.10-Chinna Palani against accused and others and that there was also dispute over some chit transaction. Under such circumstances, in the wake of strained relationship it is quite improbable that the first respondent/accused would have volunteered to get 3 cents of land for each one of P.W.1 to P.W.13 at the rate of Rs.1,000/-per cent. It has also been pointed out supra that the presence of P.W.3, P.W.10 and P.W.11 in the place of alleged occurrence is quite improbable as they were attending on P.W.10 who had been admitted in the hospital as an in-patient. 20. All the above said aspects have been clearly analyzed by the court below. The court below has marshaled the evidence properly and arrived at a right conclusion that the prosecution had failed to substantiate the charges framed against the first respondent herein/accused beyond reasonable doubt. There is no defect, error or illegality in the above said finding of the court below. The evidence adduced on the side of the first respondent herein/accused, coupled with the above said improbabilities, will even clearly establish that the case has been foisted against the accused and that there is no truth in the allegation made against the accused. However the court below was content with holding that the prosecution failed to prove the charges beyond reasonable doubt and hence first respondent herein/accused was entitled to be acquitted. This court finds no reason whatsoever to interfere with the same. 21. However the court below was content with holding that the prosecution failed to prove the charges beyond reasonable doubt and hence first respondent herein/accused was entitled to be acquitted. This court finds no reason whatsoever to interfere with the same. 21. In the judgment of the Honble Supreme court, in "Bindeshwari Prasad Singh alias B.P. Singh and others vs. State of Bihar (Now Jharkhand) and another" reported in "(2002) 6 Supreme Court Cases 659)", while considering the scope of revisional jurisdiction of the High Court has observed as follows: "It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice." The Honble Supreme Court has also observed, "It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. At best the High Court thought that the prosecution witnesses were reliable while the trial court took the opposite view. This Court has repeatedly observed that in exercise of revisional jurisdiction against an order of acquittal at the instance of a private party, the court exercises only limited jurisdiction and should not constitute itself into an appellate court which has a much wider jurisdiction to go into questions of facts and law, and to convert an order of acquittal into one of conviction." 22. Applying the said view expressed by the Honble Supreme Court to the case on hand, this court finds no defect of procedure adopted by the court below. The finding of the court below cannot be termed perverse. There was also no improper acceptance or rejection of evidence. Applying the said view expressed by the Honble Supreme Court to the case on hand, this court finds no defect of procedure adopted by the court below. The finding of the court below cannot be termed perverse. There was also no improper acceptance or rejection of evidence. No discrepancy or illegality in the conduct of trial vitiating the trial has been pointed out. Therefore there is no scope for using revisional jurisdiction against the finding recorded by the court below. Moreover in this case, even on a re-appreciation of evidence there is no possibility to come to a different conclusion than the one arrived at by the court below and hence there is no scope, whatsoever, to interfere with the order of the court below. There is no merit in the Criminal Revision case and the same deserves to be dismissed. 23. In the result the Criminal Revision Case fails and accordingly the same shall stand dismissed.