IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 Crl.Rev.Pet.No. 2432 of 2009() ------------------------------ CRA.489/2006 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CC.309/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/IST ACCUSED -------------------------------------------------------------- BHAGAVATH SINGH, S/O.JAYACHANDRAN, PUTHUVAL PUTHEN VEEDU, TC 46/381, PALLITHERUVU, MANIKYAVILAKOM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2432 of 2009 --------------------------------------- Dated this 26th day of August 2009 ORDER Petitioner along with two others faced trial in the court of learned Judicial Magistrate of First Class, Thiruvananthapuram in C.C.No.309 of 2000 for offence punishable under section 420 r/w section 34 of the Penal Code (for short, “the Code”). Case is that petitioner and accused Nos.2 and 3 induced PWs.1 to 3 and husband of PW4 to believe that petitioner and accused Nos. 2 and 3 could procure visa for them for job abroad and collected various amounts and their passports from them on 31-01-1996. Further amounts were collected on 06-06-1999 also. But as promised petitioner or accused Nos.2 and 3 did not procure visa for PWs.1 to 3 and husband of PW4. On their demanding repayment of the amount, petitioner and accused Nos.2 and 3 refused. Alleging that they were dishonestly induced by petitioner and accused Nos.2 and 3 to part with the money on a false promise of arranging visa a complaint was preferred to the police. Police after investigation submitted final report against petitioner and accused Nos.2 and 3. Prosecution examined PWs.1 to 6 and proved as Exts.P1 to P5. Petitioner and accused Nos.2 and 3 examined as DW1 and proved Ext.D1. Learned magistrate found that the involvement of accused Nos.2 and 3 is not proved beyond reasonable doubt and acquitted them. Petitioner was found guilty and convicted under section 420 of Crl.R.P.No.2432 of 2009 2 the Code. He was sentenced to undergo rigorous imprisonment for three months and to pay compensation to PWs.1 to 4 at the rate of Rs.15000/- each and in default of payment to undergo simple imprisonment for four months. Appellate court did not interfere with the conviction, sentence or direction for payment of compensation. It is contended in this revision that conviction and sentence of petitioner are not legal or proper. 2. PWs.1 to 4 have given evidence regarding the alleged incident. They have stated that on a promise of arranging visa for PWs.1 to 3 and the husband of PW4, they paid money to the petitioner on various dates. PW5 stated that he had accompanied PWs.1 to 4 to the house of petitioner to make payment on 06-06-1996. He claimed to have seen PW3 paying Rs.60000/- to the petitioner. Ext.P2 is an agreement found by the courts below as executed by accused No.2 wherein there is reference to receiving Rs.60000/- for arranging visa for PWs.1 to 3 and the husband of PW4. Learned magistrate referred to Ext.A2 and other circumstances and found that it corroborated the evidence of PWs.1 to 4. PW6 the Sub Inspector registered the case. Ext.P6 is the mahazar for verification of visa produced by PW1. PWs.1 to 5 had referred to that going to the office of the petitioner at Trivandrum in connection with the deal. Petitioner examined DW1 to say that in the building belonging to DW1 (and suggested by PWs.1 to 5), petitioner was not having any office of travel agency. That Crl.R.P.No.2432 of 2009 3 according to PW1, was given by the petitioner. But DW1 does not know whether petitioner was conducting any travel agency in his building during 1998-1999. Courts below have considered the evidence on record and found that petitioner dishonestly induced PWs.1 to 4 to part with money on a false promise to arrange visa and thus cheated them. On going through the judgments under challenge and hearing learned counsel I find no reason to interfere with the concurrent finding that petitioner committed offence punishable under section 420 of the Code. 4. What remained for consideration is whether sentence imposed is excessive. It is submitted by learned counsel that petitioner is not involved in any other case. Having regard to the nature of offence and circumstances proved in the case I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. 5. At the same time, PWs.1 to 4 who parted with money in favour of petitioner cannot be forgotten. Learned magistrate observed that there is no acceptable evidence as to the exact amount they had given to the petitioner. True, PWs.1 to 4 were not able to produce documentary evidence to prove the exact amount they had given to the petitioner. Ext.P2 only refers to the lumpsum of Rs.60000/-. As per the evidence of PWs.1 to 4 the transaction was in the year 1996 and 1999. Learned magistrate directed petitioner to pay compensation Crl.R.P.No.2432 of 2009 4 of Rs.15000/- each to PWs.1 to 4. The revisional court is competent to award compensation as per section 357(4) of the Code of Criminal Procedure. That power included the power to re-fix compensation if compensation awarded by the court below is not just and proper. Having regard to the facts and circumstances, I direct that petitioner has to pay compensation of Rs.25,000/- each to PWs.1 to 4. In case of failure he has to undergo simple imprisonment for a period of six months. Resultantly, this revision petition is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is directed to deposit in the trial court Rs. 100000/- (Rupees One Lakh Only) on or before 15-12-2009 for payment to PWs.1 to 4 by way of compensation in equal proportion, failing which petitioner shall undergo simple imprisonment for six months. 3. Petitioner shall appear in the trial court on 17-12-2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 17-12-2009. THOMAS P JOSEPH, JUDGE Sbna/