IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 CRL.A.No. 474 of 2003() ------------------------------- CC.94/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM ........................................................................................... APPELLANT(S): COMPLAINANT --------------------------------------------- K.GOPALAKRISHNAN, S/O.KESAVAN, VADASSERIKONAM, THYCAUD, VARKALA. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): ACCUSED AND STATE --------------------------------------------------------- 1. SIVAKUMAR, ASI, RAILWAY PROTECTION FORCE, KOCHUVELI, THIRUVANANTHAPURAM, RESIDING AT MANNANVILAKATH VEEDU, KORALAMKUZHY, KULATHUR, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADVS. SRI.LATHEESH SEBASTIAN FOR R1 SRI.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.474 OF 2003 -------------------------- Dated this the 9th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate's Court, Trivandrum, in C.C.No.94/1998. The accused was charged u/s.420 of the Indian Penal Code and the Court below on appreciation of the materials, held that there is no material to connect the accused with the crime and acquitted the accused. It is against that decision the present appeal is preferred. The brief facts would reveal that, it is the case of the complainant that the accused, who was an employee in Railway Protection Force, had promised to get an employment for a relative of him. He demanded a sum of Rs.1 lakh and an advance of Rs.50,000/-. The complainant in the presence of PW2 advanced Rs.20,000/- with the earnest hope that the accused will make arrangements to get a job. But it did not materialise and the amount was also not given back and thereby he had cheated him. The Court below considered the evidence as well as Ext.D1 document. The evidence of PW1 is to the effect that the accused was employed at Veli, but Ext.D1 would show that he was employed in Cochin Harbour Terminus during the CRL.A.No.474 OF 2003 2 period from 08.05.1996 to 05.02.1997. The alleged transaction is dated 25.12.1996. So it is very clear that the accused was attached to Cochin Harbour Terminus and the version of PW1, which reiterated that he was at Veli does not appear to be correct. Secondly, according to the complainant the promise was to provide a job for his relative, Mr.Binu. When a question was put that this Binu has become a graduate only in the year 1999, the complainant pleads ignorance and he does not know about it. The alleged offer was for the post of a Sub Inspector, which requires a basic qualification of a degree. So the case of the complainant can not be accepted when he does not even know what is the qualification of his relative. Further interestingly it is also admitted by PW1 that the said Binu has not applied for the post of Sub Inspector of police also. So the case that the amount which has been advanced for the purpose of getting the post of Sub Inspector of police, does not appear to be true as analysed and found by the Court below. PW1 and PW2 would say that the amount was advanced from the house CRL.A.No.474 OF 2003 3 of the first accused. To start with, even the wife and son of the accused was dragged in to the party array as accused, but later deleted. This shows the attitude of the accused. In order to establish a case of cheating first of all the transaction must be proved and the fraudulent nature should be proved and the object of such an act should be proved. I do not find any materials to prove any of the ingredients to attract the offence u/s.420 of the Indian Penal Code. When the transaction is not proved the question of dishonest intention does not arise. Therefore, I do not want to interfere with the decision rendered by the learned Magistrate. The appeal fails and the same is dismissed. M.N.KRISHNAN, JUDGE an.