IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE [ENTITY] MONDAY, THE 28TH DAY OF OCTOBER 2013/6TH KARTHIKA, 1935 CRL.A.No. 386 of 2002 (E) AGAINST THE OF 1995 OF ORDER/JUDGMENT IN C.C.No.1 J.M.F.C.-III, KOZHIKODE DATED 29/8/2001 APPELLANT/COMPLAINANT [ENTITY], S/[ENTITY], ILAYADATH HOUSE, NEDUNGOTTOOR [ENTITY]. BY ADV. SRI.SUNNY MATHEW RESPONDENTS/ACCUSED AND STATE [ENTITY], S/[ENTITY], [ENTITY]. 2.HIGH STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.THOMAS ANTONY R2 BY PUBLIC PROSECUTOR [ENTITY] THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: [ENTITY], J. [CASE NUMBER] Dated this the 28th day of October, 2013 JUDGMENT
The complainant in a prosecution for the offence punishable under [SECTION] of [ACT] is the appellant as he is aggrieved by the judgment dated 29/8/2001 in [CASE NUMBER] of the court of the Judicial First Class Magistrate-III, Kozhikode by which the learned Magistrate acquitted the accused under [SECTION] of [ACT]
2. The gist of the prosecution allegation is that, the accused being the owner of 54 cents of land comprised in Sy.No.559/1-B, lying in Re.Survey No.158/3 C in Nanmanda amsom desom, Kozhikode Taluk entered into an agreement with the complainant to sell his property for a total consideration of `1,00,000/- and according to the complainant out of total consideration of `1,00,000/-, `90,000/- has paid to the accused and thereafter the accused has not executed the sale deed with respect to the property in favour of the complainant and he had sold out of the property covered by :-2-:
the agreement to some other purpose and therefore the accused has committed the offence punishable under [SECTION] of [ACT].
3. Raising such an allegation and by filing a formal complaint the complainant approached the court below and after recording the sworn statement of the complainant cognizance was taken for the offence punishable under [SECTION] of [ACT]. Thereafter the complainant was examined as PW.1 and Exts.P1 to P13 were marked and at the request of the defence the complainant was cross-examined and Ext.D1 was marked. One more witness was examined from the side of the complainant as PW.2. Thereafter a formal charge was framed against the accused for the offence punishable under [SECTION] of [ACT] which when read over and explained to the accused, he denied the charge and pleaded not guilty. Thereafter PW.1 was called again and he was cross-examined again. In addition to PWs.1 and 2, PW.3 was also examined from the side of the complainant. After having considered the entire evidence and materials, the trial court found that, there :-3-:
is very serious doubt regarding the execution of Ext.P1 agreement and it is further found that even if it is assumed that such an agreement was executed, the breach thereof will constitute only civil dispute and ample remedies have been provided in law for the redressal of the grievances of the complainant and the mere breach of contract cannot give rise to criminal prosecution. Accordingly found that the complainant has failed to establish that the accused has committed the offence as alleged and consequently the accused is acquitted under [SECTION] of [ACT] It is the above finding and order of acquittal that are challenged in this appeal.
4. I have heard Sri.[ENTITY], the learned counsel for the appellant and Adv.Sri.[ENTITY], the learned counsel appearing for the first respondent.
5. The learned counsel for the appellant submitted that, the accused maintained hostile intention at the time of executing Ext.P1 agreement and that is why he deliberately evaded from performing his part as per Ext.P1 agreement and :-4-:
sold the property to some other person. According to the learned counsel, the reasons given by the learned Magistrate that the breach of Ext.P1 agreement constitute only civil dispute and civil remedies, etc., are illegal and incorrect. Therefore, according to the learned counsel, the judgment of the trial court is liable to be interfered with and to be reversed and appropriate punishment has to be imposed upon the first respondent/accused for the offence punishable under [SECTION] of [ACT]. Per contra the learned counsel for the respondent submitted that, the complainant has miserably failed to prove the transaction and to establish the essential ingredients of [SECTION] of [ACT] and therefore the trial court is perfect and correct in doubting the transaction claimed by the complainant and acquitting the accused and therefore according to the learned counsel, no interference is warranted.
6. I have carefully considered the submissions made by the learned counsel for the appellant as well as the respondent and perusing the evidence and materials on record.
:-5-:
7. In the light of the rival contentions and in view of the evidence and materials on record, the question to be considered is, whether the trial court is justified in its finding and acquitting the accused and further question to be considered is, whether the appellant has succeeded in showing any compelling circumstances or substantial reason to interfere with the findings of the learned Magistrate and whether the impugned judgment is perverse or illegal calling for the interference of this Court.
8. Having regard to the facts and circumstances involved in the case and especially in the light of the pleadings and the available materials, according to me, this Court need not be go into a detailed appreciation of the evidence and materials on record. The offence alleged against the accused is under [SECTION] of [ACT]. The offence of cheating is defined under [SECTION] of [ACT], which reads as follows:-
"Cheating and dishonestly inducing delivery of property.-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed :-6-:
or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Though I have repeatedly gone through the pleadings in the complaint and evidence of PW.1, I failed to see any specific pleading and evidence in support thereof to attract the ingredients of the offence of cheating. The specific case put forwarded by the complainant is that, though himself and accused entered into an agreement in Ext.P1 by which the accused agreed to sell property for a consideration of Rupees One lakh and the accused received a sum of `90,000/- out of the said total consideration, the sale is not effected by the accused by executing the sale deed, on the other hand he sold the property to some other person. The complainant has no case that the accused has suppressed any material fact or dishonestly induced the complainant to hand over a sum of `90,000/- to the accused. So, according to me, even going by the averments of the complaint and his evidence there is nothing discernible to hold that the accused has maintained a :-7-:
fraudulent intention at the time of the alleged transaction entered into between the complainant and the accused and therefore, for the above sole reason, the accused is entitled to get a clear acquittal.
9. As rightly pointed out by the learned counsel for the respondent, after taking me through the impugned judgment, the transaction claimed by the complainant proved as false and unbelievable. In fact going by the evidence of the complainant it appears that, the complainant has no clear understanding about the relevant and material facts stated by the complainant in support of the allegation raised against the accused. As rightly found by the learned Magistrate there is no evidence that the complainant had paid a sum of `90,000/-
to the accused on the date of Ext.P1 agreement. The learned Magistrate thus specifically found in paragraph 10 of the impugned judgment that as per the evidence of PW.1 particularly stated in cross-examination, he had not entered into any agreement for the sale of property with the accused and according to the learned Magistrate, the above version of :-8-:
PW.1 challenges the very existence of Ext.P1 agreement and it casts very serious doubt on the veracity of his claim. The learned Magistrate has found, which according to me, is factually correct that there is no acknowledgment for the receipt of `90,000/- in Ext.P1 since there is no recital in the agreement to the effect that the accused received a sum of `90,000/-. As I indicated earlier, in order to attract [SECTION] of [ACT], it has to be pleaded and proved that upon the representation that complainant parted with the property/ money. But the above fact shows that, there is no evidence to show that the accused received or the complainant parted the amount of `90,000/- to the accused. So, the very basis of the prosecution allegation goes since the essential ingredient of the offence of cheating not attracted. The entire evidence and materials, especially the facts and circumstances and the evidence referred to in paragraphs 11 and 12 of the judgment, according to me, the learned Magistrate is perfectly correct in his finding that there is very serious doubt regarding the execution of Ext.P1 agreement. As I indicated earlier, as no :-9-:
ingredient of [SECTION] of [ACT] is attracted and going by the averments and the grievance of the complainant according to me, what spelled out is only civil one. But as indicated in the impugned judgment, the complainant did not approach the civil court for specific performance of Ext.P1 agreement. He did not initiate any legal action to get back `90,000/- which allegedly given to the accused, etc. It is also clear that, though the properties were sold to some other person, against such transaction also no legal action is initiated by the complainant. The above circumstances further reiterate the correctness of the findings of the court below and strengthen the doubt expressed by the court about the veracity of the prosecution allegation raised against the accused. In the light of the above discussion and in view of the materials and evidence on record, I am of the view that, the trial court is fully justified in its finding and acquitting the accused.
10. The Hon'ble Apex Court in a recent decision reported in [PRECEDENT], has held as :-10-:
follows:-
"8. In a recent decision in [PRECEDENT], one of us [ENTITY], J. elaborately considered the broad principles of law governing the power of the High Court under [SECTION] of the [ACT] while hearing the appeal against an order of acquittal passed by the trial Judge. After adverting to the principles of law laid down in [PRECEDENT] and series of subsequent pronouncements in para 21 summarized various principles as found in para 42 of [PRECEDENT] as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re-appreciate and re-consider the evidence upon which the order of acquittal is founded.
(2) The [ACT] puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', very strong circumstances', :-11-:
'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." (emphasis supplied).
On examination of the facts and circumstances involved in the present case in the light of the dictum laid down by the Hon'ble Apex Court in the decision cited supra, according to me, the appellant has miserably failed to make out any :-12-:
compelling circumstances or substantial reason to interfere with the order of acquittal recorded by the trial court, by which the accused secured double presumption of innocence and the appellant has also failed to show that the judgment of the trial court is perverse or illegal, warranting interference of this Court, while exercising appellate jurisdiction of this Court.
In the result, I find no merit in this appeal and accordingly the same is dismissed.
[ENTITY], JUDGE skj True copy P.A. to Judge