IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.06.2011 CORAM THE HONOURABLE MS. JUSTICE R.MALA CRL.R.C.No. 206 of 2009 Thangavelu .. Petitioner/Ist Accused ..Vs.. The State Rep. by the Inspector of Police, CCB, Coimbatore. Crime No.1 of 1996. .. Respondent/Complainant Prayer:- The Criminal Revision is filed under Sections 397 read with 401 of Cr.P.C., to set aside the judgment passed in C.A.No.398 of 2006 on the file of the Additional District and Sessions Judge and Presiding Officer, Special Court for E.C. Act Cases, Coimbatore dated 13.05.2008 confirming the judgment passed in C.C.No.327 of 2002 on the file of the learned Judicial Magistrate No.1, Coimbatore, dated 02.09.2006. For Petitioner : Mr.K.Kalyanasundaram For Respondent : Mr.C.Emalias Ms.M.F.Shabana Govt. Advocate (Crl.side) O R D E R The criminal revision has been filed against the judgment of conviction and sentence dated 13.05.2008, in C.A.No.398 of 2006, passed by the learned Additional District and Sessions Judge and Presiding Officer, Special Court for E.C. Act Cases, Coimbatore, whereby the appellant/1st accused found guilty for the offence under Section 420 I.P.C. and sentenced him to undergo two years rigourous imprisonment and imposed a fine of Rs.5,000/-, which was remitted by the accused, confirming the judgment of conviction and sentence dated 02.09.2006, in C.C.No.327 of 2002, on the file of the learned Judicial Magistrate No.1, Coimbatore. 2.The skeleton of the prosecution is as follows: (i)The appellant and his son were doing cable network broadcasting T.V. Programmes to the houses within the Tamil Nadu Agricultural University, Coimbatore and one Radhakrishnan, who was https://hcservices.ecourts.gov.in/hcservices/ working as a Professor in the said University. (ii)During the trial, the trial Court examined P.W.1 to P.W.59 and marked Exs.P1 and P2. P.W.1-Dharmalingam, in his evidence, stated that Gobi Arumugham, V.R.Subramaniam, P.C.Chandran and others, totally 63 persons gave Rs.16,00,000/- to the appellant and other accused. On 21.05.1995, when they enquired the appellant and other accused about the interview to which the accused denied the same and threatened them. When they demanded for repayment of money on 30.05.1995, the appellant gave a cheque bearing No.036412 for Rs.6,73,000/- in the name of P.W.1 and then promised to repay the remaining amount and on that day itself, he issued a cheque for Rs.5,53,000/- in the name of P.W.9-Arumugham. When the cheques were presented for encashment, they were returned as 'stop payment'. So the accused get back all the cheques issued to P.W.1 and P.W.9 and then he issued four cheques to P.W.1, which are as follows: Sl.No. Date Cheque No. Amount 1 6/6/95 3186071 Rs.2,00,000/- 2 8/6/95 3186072 Rs.2,00,000/- 3 10/6/95 3186073 Rs.2,00,000/- 4 12/6/95 3186074 Rs.73,000/- Total: Rs.6,73,000/- The petitioner/first accused issued another three cheques for Rs.5,53,000/- in favour of P.W.9. When those cheques were presented for encashment in the Bank, again they were returned as 'No funds'. So, P.W.1 gave a complaint Ex.P1 before P.W.59-Assistant Commissioner, C.R.B. Coimbatore and the case was registered in Crime No.1/1996. The F.I.R. was marked as Ex.P2. (iii)P.W.59, who took up the matter for investigation, has examined the witnesses and recorded the statements of the persons, who gave the money to the accused for getting job. After completing the investigation, he filed a charge sheet against the accused for the offences under Sections 120b, 420 read with 109 I.P.C. 3.The trial Court framed necessary charges against the accused. During the pendency of the trial, the said Radhakrishnan/A3, who was working as a Professor in the Agricultural University was died. Since the accused pleaded not guilty, the trial Court, after hearing both sides and considering the evidence of P.W.1 to P.W.59 and Exs.P1 and P2, acquitted the second accused and convicted the first accused for the offence under Section 420 I.P.C., sentenced him to undergo two years rigourous imprisonment and imposed a fine of Rs.5,000/- in default to undergo one month simple imprisonment. The fine amount of Rs.5,000/- was remitted by the first accused and aggrieved against the order of the trial Court, he was preferred an appeal in C.A.No.398 of 2006, where the learned Sessions Judge has confirmed the same, against which, the present revision has been https://hcservices.ecourts.gov.in/hcservices/ preferred by the first accused. 4.Challenging the conviction and sentence passed by both the Courts below, the learned counsel for the revision petitioner/first accused submitted that on the basis of the complaint given by P.W.1, a charge sheet has been filed against three persons (i.e.) the petitioner/A1 herein, his son/A2 and one Radhakrishnan/A3, who was working as a Professor in Agricultural University, Coimbatore, but he was died, during the pendency of the trial. After contesting, A1 alone convicted for the offence under Section 420 I.P.C. and A2 was acquitted from the charges levelled against him. He further submitted that P.W.3, P.W.41 to P.W.45, P.W.50, P.W.51 and P.W.54 have deposed that they were given their amount only to P.W.9- Arumugam and since they have not secured employment, their money were returned. Some of the witnesses were not examined by the investigation agency and some of the witnesses were handed over their money through only P.W.1 and not directly to the accused. So the oral evidence has not been considered by both the Courts below. Since the trial Court and the first appellate Court have not considered all the aspects in a proper perspective, the offence under Section 420 I.P.C. has not been made out against the revision petitioner. Therefore, he prayed for setting aside the judgment of conviction and sentence passed by both the Courts below and allowing of this revision. 5.Refuting the same, the learned Government Advocate (Crl. side) submitted that nearly 59 witnesses were examined, out of which, 58 persons were given their money for securing job and they have been categorically deposed before the trial Court. A1 to A3 have stated that there is a proposal for giving job to the persons, whose lands have been acquired by the Agricultural University. From 06.09.1994, the revision petitioner/A1 has cheated the persons and received money from them as if the money would be given to Radhakrishnan/A3 for securing job either to the witnesses or to their children or to their relatives. P.W.1-Dharmalingam, P.W.8- Shanmuga sundaram and P.W.9-Arumugam are star witnesses, who approached the revision petitioner/first accused for securing job to the witnesses and they paid their amount to him. So ingredients of Sections 415 and 420 I.P.C. have been made out. Hence, he prayed for dismissal of the revision. 6.Considered the rival submissions made on both sides. 7.Admittedly, the revision petitioner and his son were doing cable network broadcasting T.V. Programmes to the houses within the Tamil Nadu Agricultural University, Coimbatore. P.W.1-Dharmalingam, who was working as a Driver in Government Transport Corporation, was a close friend of the revision petitioner. P.W.1 and the revision petitioner were belonging to same political party, whereas P.W.1 being a General Secretary and the revision petitioner/accused https://hcservices.ecourts.gov.in/hcservices/ being a Secretary in the Youth wing. They were friends for more than 7 to 8 years. P.W.8-Shanmugasundaram also belonging to the same party and was working as a Conductor in the Government Transport Corporation. 8.P.W.1 in his chief examination, stated that on the basis of the statement and the promise given by the accused, he intimated same to his friends that the University has given jobs to the persons, whose lands were acquired by the University. He further stated that some of the witnesses were entrusted their amount to him and the same has been received by the accused, who promised to offer a job and their certificates were verified by the deceased Radhakrishnan, but no one has been secured any job within the time stipulated by the accused. The total amount paid to the accused is about Rs.16,00,000/- for securing job for 63 persons as per the amount fixed by the accused for each posts. On 20.05.1995, they came to know Bharathiyar University has sent an intimation to employment exchange to call for the candidates list for each posts. Since they have not secured any appointment order, they approached the accused. At that time, the accused 1 to 3 have given the cheque for Rs.6,73,000/-, when it was presented for encashment, it was returned as 'stop payment'. Subsequently, another cheque has been issued and the same also returned. So P.W.1 lodged a complaint against all the accused. 9.On perusing lengthy cross-examination of P.W.1, it is clearly proved that on the basis of the promise given by the accused, the witnesses have paid their amount through P.W.1, P.W.8 and P.W.9. As per the arguments advanced by the learned counsel for the petitioner, the amount paid through P.W.9-Arumugam has been returned back to the witnesses P.W.41-Gunasekaran, P.W.42- Chandrasekaran, P.W.43-Annadurai, P.W.44-Dinakaran, P.W.45-Nagaraj, P.W.50-Velmurugan, P.W.51-Muralidaran and P.W.54-Inbaraj. The learned counsel for the petitioner would emphasis that since the amounts were returned, the petitioner ought to have exonerated from the charges levelled against him. But, the above argument does not hold good as that the revision petitioner not only received money through P.W.1, P.W.8 and P.W.9, he also received money from P.W.10- Subramaniam. The other witnesses have clearly deposed that they have paid amounts for securing employment in the Agricultural University, Coimbatore. They also deposed that they neither got appointment order nor got refund of the amount they paid. The accused fixed amounts for each posts and received the same. P.W.3-Govindappan, P.W.18-Murugesan, P.W.20-Gunasekaran, P.W.22-Devendran, P.W.28- Murugesan, P.W.30-Rajasekar, P.W.31-Somasundaram, P.W.35-Kuppusamy and P.W.52-Appachi were given their amount through P.W.1. P.W.33- Thangavelu, P.W.34-Jayaprakash, were given their amount through P.W.2-Duraisamy. Some persons were given their amount through P.W.22-Devendran. https://hcservices.ecourts.gov.in/hcservices/ 10.As per the prosecution, even though P.W.1, P.W.2, P.W.8, P.W.9 and P.W.22 have received amount from other prosecution witnesses, in turn they paid the amount to the revision petitioner herein. Since the prosecution witnesses have not received their appointment order, they approached the accused in the cable T.V. Room at the Tamil Nadu Agricultural University, wherein Radhakrishnan/A3 and the revision petitioner/A1 have issued cheques, which is not disputed. 11.P.W.1, in his cross-examination, deposed that he received amount from 40 persons and handed over the same to the accused. Since the accused has given assurance that certainly the persons will secure employment, who paid amount, believing the statement only, other prosecution witnesses have paid their money. P.W.1 further stated that he returned amounts to respective prosecution witnesses and for the same, he also executed promissory notes. A suggestion was posed to P.W.1, he himself collected money from some persons for securing employment and refused to return the same, he lodged the complaint against the revision petitioner/accused, since to escape from the clutches of law, but it was denied by him. 12.P.W.2-Duraisamy, in his chief examination, stated that he paid Rs.21,00,000/- for clerk post, Rs.11,000/-, Rs.16,000/- and Rs.16,000/- for office assistant post for Mahendran, Jayaprakash and Gunasekaran. Totally, Rs.69,000/- has been paid to the revision petitioner by him. Since they have not received appointment order, they made a request to Thangavel/the revision petitioner herein, who gave a cheque, when it was presented for encashment, it was returned as 'stop payment', but P.W.2 was not cross examined by the defence. P.W.3 also paid amount to the accused for securing job (i.e.) driver post in the University. P.W.4-Angamuthu paid Rs.40,000/- to the accused along with certificates and two passport size photos for getting clerk post in the Agricultural university. P.W.5-Palaniswamy deposed that he paid Rs.25,000/- to the accused for getting electrical job. So all the witnesses were paid amount for securing job either to them or to their children or to their brothers or to their kith and kin, but they have not received any appointment order. The evidence of P.W.1 has been corroborated by the evidence of P.W.2, P.W.3, P.W.8 and P.W.9, which shows that the witnesses were paid their amount either directly to the accused or through P.W.1, P.W.8 and P.W.9 and either in the cable T.V. network room or in TamilNadu Agricultural University building. Admittedly, running of cable T.V. network by the accused was not disputed and the same was also not denied by any of the prosecution witnesses. The money entrusted in the cable T.V. room is also not denied by the accused during cross examination of prosecution witnesses. At the time of questioning the accused under Section 313 Cr.P.C. he has not denied that he is running cable T.V. Network, but denied the evidence as false. The revision petitioner further stated that https://hcservices.ecourts.gov.in/hcservices/ P.W.1, P.W.8 and P.W.9 are politically influenced persons, on their instigation only, a false case has been foisted against him and he never issued any cheque. 13.The learned counsel for the revision petitioner submitted that witnesses were fully aware of that giving bribe for seeking job is against law. So the petitioner is not guilty for the offence under Section 420 I.P.C., merely because the witnesses are aware of the said wrong, it does not mean that the revision petitioner can escape from the clutches of law. Though the witnesses were aware of the consequences still unemployment problem induces them to commit such mistakes, but taking advantage of the said mistake, the revision petitioner has not been empowered or given liberty to collect money from the witnesses and to commit penal offence. 14.Now, it is appropriate on the part of this Court to consider the ingredients of Section 420 I.P.C., which are as follows: 1.Accused cheated the complainant. 2.Accused did so dishonestly. 3.Thereby induced the complainant. (i) to deliver some property to accused or to some other person. (ii)to make, alter or destroy the whole or any part of the valuable security or anything which was signed, sealed, and which was capable of being converted into valuable security. The accused should not only cheat but he must induce to deliver any property as well. Here, considering the evidence of prosecution witnesses, the accused deceived the prosecution witnesses fraudulently, dishonestly and induced them to deliver the money. The accused has intentionally deceived P.W.1, P.W.8 and P.W.9 and make them belief that he will secure job to the persons, who paid amount to him. With an intention of fraudulent and dishonest means on the basis they paid the amount. So ingredients of Section 415 I.P.C. has been made out, so the accused is guilty for the offence under Section 420 I.P.C. The essential ingredients of offence for cheating is dishonest and fraudulent intention. Transaction with free will is not dishonesty. A representation subsequently turning to be untrue is dishonesty. The evidence of prosecution witnesses does prove that the accused is guilty for the offence under Section 420 I.P.C. beyond reasonable doubt. So the trial Court and the first appellate Court on considering the evidence of the prosecution witnesses and nature of the offence, came to the correct conclusion that the accused is guilty for the offence punishable under Section 420 I.P.C. The revision petitioner/accused cheated the public, who are wandering here and there for securing job and exploited them by way of receiving amount for each and every cadre, by taking advantage of unemployment problem in his own hand. In such circumstances, the petitioner is not entitled to any leniency in the https://hcservices.ecourts.gov.in/hcservices/ sentence imposed by the Courts below. Therefore, the criminal revision is dismissed as devoid of merits. 15.In fine, • The Criminal Revision is dismissed. • The judgment of conviction and sentence passed by both the Courts below are hereby confirmed. • The bail bond executed by the revision petitioner/accused, if any, shall stand cancelled. • The trial Court is directed to take steps to secure the custody of the revision petitioner/accused to undergo the remaining period of sentence. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. kj To 1.The Additional District and Sessions Judge Coimbatore. 2.The Presiding Officer Special Court for E.C. Act Cases, Coimbatore. 3.The Judicial Magistrate No.1, Coimbatore 4. The Chief Judicial Magistrate Coimbatore 5.Inspector of Police CCB, Coimbatore. 6.The Public Prosecutor High Court, Madras. 7..The Record Keeper Criminal Section, High Court, Madras. 1 cc to M/s.K. Kalyanasundaram, Advocate, Sr. 37385 CRL.R.C.No. 206 of 2009 UG (CO) kk 5/7 https://hcservices.ecourts.gov.in/hcservices/