IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 Crl.Rev.Pet.No. 187 of 2011(C) ----------------------------- CRMP.1061/2009 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVISION PETITIONER/COMPLAINANT ---------------------------------------------------- M.B.SASIDHARA MENON, S/O.BALAKRISHNA MENON, AGED 55, AYILLIA NIVAS, MEMMUGOM, MANNEEDU P.O. PIRAVOM, ERNAKULAM DISTRICT. BY ADV. SRI.K.C.ELDHO SRI.JIJO THOMAS RESPONDENTS : STATE AND ACCUSED -------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CHACKO, PROPRIETOR, ACTIVE HUMAN SOLUTION AND TRAVEL AGENTS, OPPOSITE MYMOON THEATRE, CHITTOOR ROAD, KOCHI - 682 018. 3. BIJU MATHAI, S/O.CHACKO, LICENCE HOLDER, ACTIVE HUMAN SOLUTION AND TRAVEL AGENTS, OPPOSITE MYMOON THEATRE, CHITTOOR ROAD, KOCHI - 682 018. PUBLIC PROSECUTOR SRI.V.TEK CHAND FOR R1 ADV. SRI.V.VENUGOPALAN NAIR FOR R3 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------ Crl.R.P No.187 of 2011 ------------------------------------- Dated this the 17th day of February, 2011 O R D E R The complainant in Crl.M.P.No.1061 of 2009 of the Court of Chief Judicial Magistrate, Ernakulam, is the revision petitioner. His grievance is that the learned Magistrate dismissed his complaint under Section 203 Cr.P.C along with certain other private complaints holding that no offence under Section 420 I.P.C is made out. 2. I have heard Sri.K.C.Eldho, the learned counsel appearing for the revision petitioner. I have also perused Annexure-A3, the impugned order, of the learned Magistrate. 3. The case of the complainant is that in pursuance of the advertisement made by the accused in Malayala Manoram daily inviting applications for job opportunities, the complainant as well as his son approached the accused for a job for the son of the complainant. According to the complainant, the accused offered job visa on payment of Rs.1,10,000/- and accordingly as per the complaint, the complainant along with his son, went to the office of the accused at Ernakulam and paid Rs.1,10,000/- to Crl.R.P No.187 of 2011 2 the accused. It is the case of the complainant that though the amount was received, no receipt issued for the same. But according to the complainant, the transaction was recorded in their mobile camera. It is the further case of the complainant that subsequently the accused handed over a document stating that it is the visa for the son of the complainant and on the basis of that visa the son of the complainant left for Dubai. But he was detained at the Dubai airport itself because the visa documents were not proper. According to the complainant, when his son was detained at the airport in Dubai, he contacted the accused but no help was extended by the accused and no step was taken to get over the objection raised against the son of the complainant and the job visa in Dubai airport. The specific case of the complainant is that because of the improper and irregular visa, the complainant's son is now in distress and held up in Dubai. Thus the substance of the allegation is that the complainant's son did not obtain the job as promised and proper job visa was not given contrary to the promise and undertakings of the accused and received money for the same. 4. When the complainant approached the learned Magistrate by filing a complaint, the same was sent for police Crl.R.P No.187 of 2011 3 investigation under Section 156(3) Cr.P.C and it appears that the police had referred the case as mistake of facts and therefore the present complaint was filed as protest complaint. From the impugned order it appears that the learned Magistrate has referred to the sworn statement of CWs 1 to 3. The learned Magistrate after perusal of the sworn statement of the witnesses and the documents produced and also after going through the final report filed by the police, came into the conclusion that the son of the complainant, the revision petitioner, is now working in Dubai and the relatives of CWs 2 and 3 also got job after a few months. It is also the observation of the learned Magistrate that as the complainant's son was taken on by a driver's visa, which is not sufficient to drive vehicle in Dubai and for which the son of the complainant has to obtain licence issued from the Dubai authority. So the learned Magistrate came to the conclusion that the employment was delayed since the son of the complainant was not obtained licence issued from the Dubai authority for the above reason. It is also found by the learned Magistrate that the relatives of CWs 2 and 3 got job as promised. The learned Magistrate thus concluded that as promised by the accused, the son of the complainant was taken abroad and thereafter he Crl.R.P No.187 of 2011 4 appeared for the driving licence, which is in Dubai and thus he has got job there. From the impugned order it appears that though the revision petitioner's son was taken to Dubai, no job was given on reaching Dubai; whereas the son of the complainant was compelled to remain at least for 7 days in Dubai airport itself. If the visa given by the accused was proper as promised by them, there need not be any sort of harassment and detention of the complainant's son in the Dubai airport. 5. The learned counsel for the revision petitioner submitted that after receiving the money from the complainant, the accused conducted driving test in Cochin and they were made belief that by passing the driving test at Cochin the revision petitioner's son will get job as driver in Dubai. 6. Getting a job after 5 or 7 months cannot be treated as materialisation of promise given by the accused if the sworn statement of the witnesses discloses that the revision petitioner was promised to give job visa for his son. But there is no discussions in the order impugned about what was the offer allegedly made by the accused and what are the conditions to be complied with and what are the safeguards to be undertaken by the accused when they promised employment visa to the son of Crl.R.P No.187 of 2011 5 the complainant etc. are relevant facts which are manifestly absent in the impugned order. Therefore according to me, it is only just and proper to remand the matter to the same Court for fresh consideration after hearing the petitioner by providing reasonable opportunity including for furnishing the documentary evidence available with him which according to the complainant, was not with him at the time of the filing of the complaint etc. In the result, this revision petition is disposed of setting aside the order dated 04.12.2009 of the Court of Chief Judicial Magistrate, Ernakulam in Crl.M.P.No.1061 of 2009 and remitted back to the same court for fresh consideration and disposal. (V.K.MOHANAN, JUDGE) rtr/-