HON’BLE SRI JUSTICE K.G.SHANKAR CRL.R.C.No. 1119 of 2005 O R D E R: The prosecution was launched against two persons for the offence u/sec.420 r/w. 34 IPC. A-1 and A2 who are brothers, allegedly cheated P.Ws.1 to 4 and Md.Ghouse and Sayed Saleem inducing them to part with Rs.50,000/- each so as to enable to take them to Saudi Arabia. The inducement was allegedly by A-1. A-1 would appear to be not in India by the time the case went for trial. The case would appear to have been split up and was proceeded against A-2. It is not clear as to what happed to the case of A-2. 2. So far as A-1 is concerned, A-1 faced trial before the learned I Addl. Judicial First Class Magistrate, Tenali in CC No.34 of 1998. The prosecution examined six witnesses including P.Ws.1 to 5, who are alleged victims and P.W.6, who is the Investigating Officer. The learned trial Judge considered that the offence u/Sec.420 IPC was made out against A-1. He convicted A-1 and sentenced him to rigorous imprisonment for a period of two years and fine of Rs.1,000/- with appropriate default sentence. The petitioner preferred appeal before the learned XI Addl. Sessions Judge, Guntur at Tenali. The Sessions Court dismissed the appeal confirming the conviction and sentence recorded by the learned trial Judge. Hence, the revision by A-1 alone. 3. Sri A.Srikanth Reddy, learned counsel for the revision petitioner contended that first, the offence u/Sec.420 IPC has not been made out against A-1 and secondly, the prosecution examined only interested witnesses, P.Ws.1 to 5 and that in the absence of corroboration to the evidence of P.Ws.1 to 5, their evidence could not be accepted. 4. The learned Public Prosecutor on the other hand, contended that the evidence of P.Ws.1 to 5 is water-tight so much so, the prosecution has established the guilt of the accused for the offence u/Sec.420 IPC beyond reasonable doubt. 5. I may point out that the conviction of the accused was not u/Sec.420 r/w. 34 IPC, but was for the offence u/Sec.420 IPC simplicitor, holding that the revision petitioner/A-1 was guilty of cheating P.Ws.1 to 4. A-1 allegedly cashed upon the greed of P.Ws.1 to 4 to go over to Saudi to make a flat earning in Saudi Arabia. 6. The point for consideration is whether the prosecution has brought home the guilt of the accused beyond reasonable doubt. 7. The case of the prosecution as can be noticed from the evidence is : i) A-1 is a Muslim. The rest of the material witnesses, P.Ws.1 to 4 are Hindus. ii) The revision petitioner/A-1 was a mason. He was a resident of Tenali. P.Ws.1,2 and 4 are masons. P.W.5 is also a mason. Md.Ghouse is the son of P.W.5. P.W.3 however, is not a mason. He was a barber by profession. A-1 was working in Gulf countries. In the month of May, 2005, perhaps during one of his visits, A-1 met P.Ws.1 to 4 and induced them that he would make arrangements to take them to Gulf so that they can make earning at Rs.20,000/- or more per month. P.Ws.1 to 4 contemplated and ultimately decided to make payments to A-1, so that A-1 could make arrangements to take them and others to Gulf country. It is agreed that each of A-1 to A-4, son of P.W.5 and another were to pay Rs.50,000/- so that A-1 could make arrangements to take them to Gulf. iii) It would appear that P.Ws.1 to 4 wanted to act cautiously. They therefore, agreed to make payments in installments only. In accordance with the inducement of A-1, Saleem and P.Ws.1 to 4 paid Rs.20,000/- each to A-1 towards the first installment so that A-1 could take them to a Gulf country. On the same day on which Saleem and witnesses paid Rs.20,000/- each to A-1, A-1 took all of them to Mumbai for the alleged medical check up as a prelude to take them to Gulf countries. Informing P.Ws.1 to 4 that the Doctor, who was to examine P.Ws.1 to 4 and two others and to issue medical certificates was not available, A-1 brought back P.Ws.1 to 4 and two others to Tenali. iv) On 10.7.1995, A-1 took P.Ws.1 to 4 and others once again to Mumbai. He got them medically examined at that time. P.Ws.1 to 4 therefore, were satisfied that A-1 was acting bona fide. Consequently, on 12.7.2005 each of P.Ws.1 to 4 and others paid Rs.20,000/- to A-1. The first payment of Rs.20,000/- and the second payment of Rs.20,000/- were at the house of P.W.5 and in the presence of P.W.5 only. The sister of P.W.5 was also said to be present at that time. v) A-1 made a representation on 12.7.1995 that he might be provided another Rs.10,000/- urgently. Consequently, in the month of September, 1995, each of P.Ws.1 to 4 and others made payment of Rs.10,000/- to A-1. vi) The accused thereafter took P.Ws.1 to 4 and others to Mumbai and put them up in a lodge for about 10 to 15 days. He did not make any arrangements immediately to take them to any Gulf country claiming that Dassara holidays were in progress and that A-1 would take them to Gulf thereafter. vii) On 13.10.2005 the revision petitioner allegedly informed P.Ws.1 to 4 and others that they would be flying from Mumbai in 11.30 p.m. flight on the same day. A-1 apparently asked P.Ws.1 to 4 and others to meet A-1 at gate No.3 of the airport so that they could be taken along with them. At that point of time, A-1 would appear to have handed over a bag as his bag containing pickles and bed sheets to be brought to the airport to be carried along with them to the Gulf country. viii) P.Ws.1 to 4 and others went to Airport hoping to meet A-1 at the airport. They waited and waited. A- 1 however, did not turn up. P.Ws.1 to 4 and two others waited till morning. At that stage, P.W.4 opens the bag handed over by A-1 to them. The bag contained the passports of P.Ws.1 to 4 and others apart from a blanket. ix) P.Ws.1 to 4 and others showed their passports to the personnel at the airport. They were informed that visa stamping was required on the passports to go over to Gulf country, but the passports did not contain the visa stamping and that they were duped. P.Ws.1 to 4 and two others thereafter, returned to the lodge. They were informed at the lodge that A-1 sold away the visas to some other persons and had already left for Saudi Arabia. x) Realizing that they were cheated, they returned to Tenali and demanded A-2 to pay back the money paid by them. A-2 declined to do so. Having no alternative, P.W.1 lodged Ex-P1 complaint. Ex.P1 was subsequently registered as Ex.P6 FIR by P.W.6. On an occasion, when A-1 returned to India, he was caught and was prosecuted. This is the sum and substance of the prosecution story. 8. P.Ws.1 to 4 are the duped persons. One Saleem and Md.Ghouse, s/o P.W.5 were also allegedly cheated by A-1. The prosecution however, did not examine the said Saleem and Md.Gouse. The prosecution examined P.Ws.1 to 4 as well as P.W.5. The evidence of P.Ws.1 to 4 is more or less corroborated by each other on every aspect that the payments were made by the P.Ws.1 to 4 to A-1 and the payments were made in the presence of P.W.5 at the house of P.W.5. According to P.Ws.1 to 5, one of the victims is the son of P.W.5. Thus, not only P.Ws.1 to 4, but P.W.5 also is the victim and was cheated in the hands of A-1. 9. The learned counsel for the accused inter alia contended that the prosecution did not chose to examine any independent witness apart from P.Ws.1 to 4 and 5. His contention is that P.Ws.1 to 5 are interested witnesses. Although I do not hold P.Ws.1 to 5 as interested witnesses, I accept the contention of the learned counsel for the accused that P.Ws.1 to 5 are the victims in the hands of A-1. In other words, the prosecution did not examine any witness other than the victims. This is the aspect on which the learned counsel for the revision petitioner harps upon to contend that in the absence of corroboration, the evidence of P.Ws.1 to 5 does not deserve to be acted upon. 10. It is not as though, there was no corroborating evidence. P.Ws.1 to 4 and others were allegedly taken to Mumbai for medical examination and were indeed, examined by a Doctor there. The evidence of the Doctor and the records issued by the Doctor are the evidence that A-1 cheated P.Ws.1 to 4 and two others. The prosecution did not chose to examine either the Doctor or the records issued by the Doctor. P.Ws.1 to 4 however, contended that they do not know the name of the Doctor, who treated them. They also did not state the name of the dispensary of the Doctor nor did they state the locality where the dispensary of the Doctor was situate. 11. Added to it, it is the case of P.Ws.1 to 4 that they were taken thrice to Mumbai. On the first occasion, the witnesses were taken to Mumbai and more or less were brought back immediately on the ground that the Doctor was not available. On the second occasion, the Doctor examined the victims and issued medical certificates. On the third occasion, the witnesses were taken to Mumbai and were kept in a lodge for about 10 days. Their claim is that on the earlier two occasions also, the witnesses were kept in the same hotel or lodge, where they were kept on the last occasion. However, the witnesses P.Ws.1 to 4 did not mention the name of the lodge where they were kept nor did they state the locality where the lodging house is situate. When P.Ws.1 to 4 were in the lodge for about ten days, the prosecution could not examine any person of the lodge like the Manager or the bearer to prove that P.Ws.1 to 4 stayed in the lodge at the relevant point of time. The prosecution could have examined the records of the lodge to establish that P.Ws.1 to 4 and two others stayed in the lodge along with A-1. The prosecution did not chose to do so. 12. The examination of the official of the lodge, who informed P.W.1 and others that A-1 sold away the visas of P.Ws.1 to 4 and others and had left for gulf is imperative. Such a witness would have established the intention of A-1 to cheat P.Ws.1 to 4 and two others. The prosecution however, did not chose to examine him. 13. In other words, the prosecution examined only P.Ws.1 to 5 and did not chose to examine any other person concerned, as set out by P.Ws.1 to 4. The prosecution did not even exhibit any document other than the complaint of P.W.1 as Ex.P1 and the FIR as Ex.P6. The prosecution exhibited Exs.P2 to P5, are passports of P.Ws.1 to 4. The prosecution did not file the passports of Salaam and Md.Ghouse (s/o P.w.5). That apart, Exs.P2 to P5 do not establish anything except that P.Ws.1 to 4 were the holders of the passports. 14. The absence of the examination of any person concerning the lodge and any person concerning the dispensary where P.Ws.1 to 4 were examined and also the failure to produce even the medical certificates allegedly issued by the doctor throw grave doubts over the story of P.Ws.1 to 4. Mere statements of P.Ws.1 to 4 supported by P.W.5, I am afraid, are not sufficient to prove the guilt of A-1 for the offence u/Sec.420 IPC where the other evidence was available to corroborate the claim of P.Ws.1 to 4 and where the prosecution failed to bring forth such corroborative evidence for the consideration of the court. In view of the operation of the benefit of doubt, I consider that A-1 deserves to be acquitted. 15. The learned counsel for A-1 also contended that the very ingredients u/sec.420 IPC were not made out. 16. Sec.420 IPC reads thus: “Sec.420 : 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 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.” 17. Under Section 420 IPC, there must be dishonest inducement of delivery of property and the same must be motivated by cheating. The learned counsel for the petitioner contended that there was no intention on the part of A-1 to cheat P.Ws.1 to 4, assuming that the story of P.Ws.1 to 4 is accepted. 18. The learned counsel for A-1 contended that perhaps A-1 honestly believed that he could have helped P.Ws.1 to 4 in going to Gulf and did his best. Indeed, it would appear that if the intention of A-1 was to cheat P.Ws.1 to 4, Exs.P2 to P5 would never have come back into the hands of P.Ws.1 to 4. Return of the passports to P.Ws.1 to 4 by A-1 would not strengthen the case against A-1. The very presence of Exs.P2 to P5 prima- facie shows that there was no intention of cheating on the part of A-1 in the entire episode. At any rate, the question whether the case u/Sec.420 IPC is made out or not is irrelevant where on merits, the prosecution failed to establish that A-1 cheated P.Ws.1 to 4 to part with money. I am not able to agree with the findings of the learned trial Judge as confirmed by the appellate court. I consider that the trial court and the appellate court failed to appreciate the evidence of P.Ws.1 to 4 and the absence of evidence to corroborate the stand of P.Ws.1 to 4. 19. I therefore, consider that the case of the prosecution shall fail. However, I make it clear that A-1 would be entitled to acquittal by virtue of the operation of benefit of doubt and not on the ground that innocence of A-1 is established. The result however, is that the revision petitioner is liable to be acquitted for the offence u/sec.420 IPC. 20. Accordingly, this revision is allowed. The sole revision petitioner is found not guilty of the offence u/Sec.420 IPC and is acquitted for the same. His bail bonds shall stand discharged. The fine amount, if already paid by A-1, shall be refunded to him. _________________ K.G.SHANKAR, J Dt. 12.8.2011 Mjl/*