IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 Crl.L.P..No. 1418 of 2008 --------------------------- CC.798/2002 of J.M.F.C.-III, PUNALUR .................... PETITIONER/COMPLAINANT ------------------------------------------ JYOTHILEKSHMI R., JYOTHIS, KARAVALOOR, PUNALUR. BY ADV. SRI.R.ARUN RAJ RESPONDENTS: STATE - ACCUSED ------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. LETHA (SECRETARY), ALL KERALA S.T.(ADVIASI) RURAL DEVELOPMENT SOCIETY, VENGARAMOODU, TRIVANDRUM. 3. RAVEENDRAN, (VICE PRESIDENT), ALL KERALA S.T.(ADVASI) RURAL DEVELOPMENT SOCIETY, ORUPARAKARIKKAM, KUNNUMPURATHU VEEDU, KOCHUVILA P.O., PERINGAMALA, TRIVANDRUM. 4. HARI, (BOARD MEMBER), ADVASI RURAL DEVELOPMENT SOCIETY, VENGARAMOODU, TRIVANDRUM. R1 BY PUBLIC PROSECUTOR SRI VENUGOPAL M.R. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 31/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P. No.1418 of 2008 ---------------------------------------- Dated the 31st day of August, 2011 ORDER The complainant, in a prosecution for the offence under section 420 of the Indian Penal Code, is the petitioner who seeks leave of this Court under section 378(4) Cr.P.C to file appeal against the judgment dated 20.1. 2007 in C.C No.798 of 2002 of the court of Judicial First Class Magistrate-III, Punalur, since, by the said judgment, the learned Magistrate acquitted the accused, who are three in numbers. 2. The case of the complainant is that the Ist accused who was the President of all Kerala S.T(Adivasi) Rural Development Society, Venjaramoodu, Trivandrum and A2 to A4 who are respectively the Secretary, Vice President and Board Member of the said society, in furtherance of their common intention to cheat the complainant and thereby to gain unlawfully and cause corresponding loss to the complainant, fraudulently represented to her that the institution is approved by the Government and getting grant from it and the said society is conducting an educational institution at Tholicodu namely, Dr. Ambedkar CRL.L.P. 1418/08 2 Memorial Tribal Hostel for girls with the grant obtained from the Government. Thus, according to the complainant, on 23.3.2000, all the accused came to the residence of the complainant and dishonestly induced her that she will be given appointment to the post of tutor in the above institution for a monthly salary of Rs.2500/-. According to the complainant, as a pre condition, the accused demanded a deposit of Rs.50,000/- assuring that the agreed job will be given to her immediately. Thus, according to the complainant, the complainant paid a sum of Rs.50,000/- to the accused on 23.3.2000 and at that time, A1 and A2 had jointly executed a receipt acknowledging the receipt of Rs.50,000/- in a 50/- rupees stamp paper. It is the specific case of the complainant that, accordingly she was given the agreed job of tutor in the Dr. Ambedkar Memorial Tribal Hostel for Girls at Tholicodu and she was paid the agreed salary of Rs.2500/- in the initial stage. But after 2000 July, she was not given the agreed salary. According to the complainant, she had worked their till 6.11.2000. It is also stated that , as and when the complainant approached the accused and demanded CRL.L.P. 1418/08 3 for salary, she was told that no salary will be given and she need to work only if she wishes. During the trial of the complaint, the complainant herself was examined as PW1 and produced Exts P1 to P3 documents. From the side of the defence, Dws 1 and 2 were examined and Exts.D1 to D4(a) were marked. The trial court, after considering the entire facts and circumstances involved in the case, and the evidence and materials on record, has found that there is nothing in the evidence of Pws 1 and 2 to show that accused persons made PWs1 and 2 to make the payment of Rs.50,000/- after having made arrangements to close the institution so as to make a finding that they kept a dishonest intention from the very inception itself. On the basis of the above finding, the accused 2 to 4 were acquitted under section 248(1) Cr.P.C for the offence under section 420 IPC. It is the above finding and order of acquittal sought to be challenged by way of an appeal for which the petitioner seeks leave of this Court under section 378(4). 3. Heard the Counsel for the petitioner and I have perused the judgment of the trial court which sought to be CRL.L.P. 1418/08 4 impugned, in case leave is granted by filing an appeal. 4. The learned counsel for the petitioner vehemently submitted that the petitioner/complainant was made believe that Dr. Ambedkar Memorial Tribal Hostel for Girls was a Government Institution and the complainant would be appointed there as tutor on a monthly salary at the rate of Rs.2500/- But immediately after her appointment, the hostel was closed and in spite of the offer, only one month salary was given and she was forced to work as tutor till November 2000 without salary. Thus, Section 420 of IPC is attracted against the accused and therefore, the finding of the learned Magistrate is factually and legally incorrect and unsustainable. In the light of the above submission of the learned Counsel, and the findings of the learned Magistrate on the basis of the materials and evidence referred in the Judgment, the point to be considered is whether the petitioner has succeeded in making out a case so as to grant leave under section 378(4) Cr.P.C. 5. Going by the evidence and materials referred to by the learned Magistrate in the impugned judgment, and the CRL.L.P. 1418/08 5 discussions contained therein and in the light of the submission made by the learned counsel , it can be seen that certain facts are beyond dispute. Thus it is a fact that the complainant was appointed as tutor in the Dr. Ambedkar Memorial Tribal Hostel for Girls for a monthly salary of Rs.2500/- and connected with the said appointment, the accused had received Rs.50,000/- from the complainant as evidenced by Ext.P1 receipt. It is also a fact that after the appointment of the complainant, in terms of the offer made by the accused, she was appointed and she had drawn a salary of Rs.2500/- for the month of July, 2000. Thus she had worked in the institution till November, 2000 and according to the complainant she was forced to work there without salary till the closing of the hostel. The learned Magistrate, after an analysis of the evidence of PWs 1 and 2 and the other facts and circumstances involved in the case, came into the conclusion that there is nothing to infer that while receiving the amount of Rs.50,000/- and making the offer for appointment, the accused had maintained any dishonest intention so as to cheat the complainant. The above finding according to me, is very vital CRL.L.P. 1418/08 6 as far as an offence under section 420 IPC is concerned. The very fact that the complainant has got job in the institution as offered by the accused and she had drawn a salary of Rs.2500/- in the initial stage, would show that the accused had materialised the undertaking made by them and no dishonest intention or inducement can be drawn because of the subsequent development that taken place after the appointment of the complainant. As rightly pointed out by the learned Magistrate, there is no material or evidence to show that the accused persons had made arrangements to close the institution before the complainant was made to pay the amount of Rs.50,000/-. In the light of the above facts and evidence , I am of the view that the learned Magistrate is fully justified in his finding and the order of acquittal recorded in favour of the accused. Therefore, even if an appeal is entertained, there is no scope for any interference with the finding especially, when there are no materials or evidence to attract the ingredients of Section 420 IPC. Therefore, the petitioner is not entitled to get the relief as sought for in this petition under section 378(4) CRL.L.P. 1418/08 7 Cr.P.C. In the result, this Crl.L.P is dismissed as devoid of any merit. V.K.MOHANAN, JUDGE kvm/- CRL.L.P. 1418/08 8