IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 Crl.Rev.Pet.No. 611 of 2011() ----------------------------- CMP.5278/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S): COMPLAINANT -------------------------------- ELLYAS C.A., S/O.ABDUL KHADER, MAKDAVAL HOUSE, EDAPPAL P.O., MALAPPURAM. BY ADV. SRI.C.A.CHACKO SRI.N.A.SHAFEEK SRI.M.S.UNNIKRISHNAN (OASIS) RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. D.C.KIZHAKKEMURI FOUNDATION, D.C.KIZHAKKEMURI EDAM, GOOD SHEPHERD STREET, KOTTAYAM, REPRESENTED BY THE SECRETARY REVI D.C.- 686001. 2. DCSMAT MEDIA SCHOOL, KINFRA FILM AND VIDEO PARK, KAZHAKKOOTTAM THIRUVANANTHAPURAM, REPRESENTED BY DIRECTOR-695582. 3. RAVI D.C., SECRETARY, BOARD OF TRUSTEE, DCSMAT MEDIA SCHOOL, (D.C.KIZHAKKEMURI FOUNDATION) D.C.KIZHAKKEMURI EDAM, GOOD SHEPHERD ROAD, KOTTAYAM-686001. 4. SMT.PONNAMMA D.C., CHAIR PERSON, BOARD OF TRUSTEE, DCSMAT MEDIA SCHOOL, (D.C.KIZHAKKEMURI FOUNDATION)D.C.KIZHAKKEMURI EDAM GOOD SHEPHERD ROAD, KOTTAYAM-686001. 5. RETHEEMA D.C., VICE CHAIRPERSON, BOARD OF TRUSTEE, DCSMAT MEDIA SCHOOL, (D.C.KIZHAKKEMURI FOUNDATION)D.C.KIZHAKKEMURI EDAM GOOD SHEPHERD ROAD, KOTTAYAM-686001. 6. MEERA ANIL D.C. TREASURER, BOARD OF TRUSTEE, DCSMAT MEDIA SCHOOL, Crl.Rev.Pet.No. 611 of 2011() 2 (D.C.KIZHAKKEMURI FOUNDATION)D.C.KIZHAKKEMURI EDAM GOOD SHEPHERD ROAD, KOTTAYAM-686001. 7. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.ABRAHAM MARKOS FOR R5 & R6 SRI.BINU MATHEW FOR R5 & R6 SRI.MATHEWS K.UTHUPPACHAN FOR R5 & R6 SRI.B.J.JOHN PRAKASH FOR R5 & R6 SRI.TOM THOMAS (KAKKUZHIYIL) FOR R5 & R6 PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.611 OF 2011 ------------------------------------------------- Dated this the 22nd day of March, 2011. ORDER The revision petitioner is the complainant in C.M.P.No.5278 of 2008, filed before the Chief Judicial Magistrate Court, Kottayam and his grievance is that the said complaint is dismissed by the order dated 30.9.2010 under Section 203 of Cr.P.C. 2. The allegation in the above complaint is that the first counter petitioner is an institution registered under the provisions of Travancore Cochin Literary Scientific and Charitable Societies Act 1995 and represented by the third counter petitioner. Counter petitioners 4 to 6 are respectively Chair Person, Vice Chair Person and Treasurer. The allegation of the complainant is that the counter petitioners published advertisement in newspaper and other medias calling applications for interested candidates to join Post Graduates Diploma Course in Media and convergence under the auspices of DC books in the name of late D.C.Kizhakkemuri. According to the complainant, attracted by the advertisement complainant Crl.R.P.NO.611 OF 2011 2 and several other students applied for the course, believing the availability of the facilities offered as detailed in the brochure and advertisement. According to the allegation the counter petitioners demanded Rs.1,25,000/- as fees for the course and accordingly the complainant had paid 50,000/- as first instalment to the counter petitioners on 4.10.2005 and a receipt was issued. In spite of the offer, instead of 3.10.2005 the course did not start till 7.11.2005. It is also the allegation that the infra structure facilities not made available and the faculties were not arranged as published in the advertisement and brochure. According to the petitioner/complainant the students spent their valuable time and money and adversely affected their career because of the false promise made by the counter petitioners. Finally, the institution was closed on August, 2006. Thus, according to the complainant himself and others were cheated by the counter petitioners and thereby committed the offences punishable under Sections 406 and 420 r/w Section 34 of IPC. 3. It appears that initially though a complaint was filed before the court, the same was forwarded to the Police for investigation under Section 156(3) of Cr.P.C and accordingly, the Crl.R.P.NO.611 OF 2011 3 Kottayam East Police registered, Crime No.107/2008 and after investigation they preferred refer report against which the petitioner preferred the present protest complaint which is now dismissed under Section 203 as per the order impugned. 4. I have heard the counsel for the revision petitioner as well as the counsel appearing for the first respondent. 5. The counsel for the revision petitioners vehemently submitted that due to the mis-representation made by the respondents/counter petitioners he had invested his money towards fee and after receiving the money, the counter petitioners miserably failed to provide facilities as offered through the advertisements and brochure and the course was not commenced within the time they offered and finally, the course was stopped before completing the entire period of course. Thus, according to the learned counsel the above offences are attracted against the respondents. The learned counsel also took me through the deposition of CW2 a student and also CW3 a teacher who was appointed in the institution of the counter petitioners. Thus, on the basis of the above materials learned counsel submitted that the learned Magistrate Crl.R.P.NO.611 OF 2011 4 is wrong in dismissing the complaint under Section 203. According to the learned counsel the criminal intention of the counter petitioners can be gathered from the facts brought to the notice of the court through the sworn statement of the complainant as well as the other witnesses. 5. I am unable to sustain the above contention of the learned counsel. From the impugned order itself it can be seen, that even according to the witnesses who were examined for and on behalf of the complainant, the course as offered by the counter petitioners has already commenced. Besides CWs.1 and 2, there were seven students more and none of them made any complaint. From the case of the complainant himself, it is clear that though the complainant join for the course on 2.10.2005 at Kottayam thereafter, on 7.11.2005 onwards he attended the course at Thiruvananthapuram. According to the explanation of the learned counsel the petitioner was bound to attend the course because of the offer made by the counter petitioners and undertaking made by them. It is discernible from the statement of CW2 that she was paid back Rs.10,000/- the fee which was collected from her and a sum of Rs.1,20,000/- deposited by the Crl.R.P.NO.611 OF 2011 5 counter petitioners in the bank account of CW2. Thus, it can be seen that as offered by the counter petitioners the course was commenced and though it was started, the entire period was not completed. The above fact itself is sufficient to show that the counter petitioners had started the course as offered in the advertisement as well as in the brochure, but there may be some shortage of facilities and other infra structure for the proper conduct of the course, but the same fact is not sufficient to draw the inference that the counter petitioners were maintained the criminal or fraudulent intention at the time of making the offer through the advertisement as well as the brochure. 6. In this juncture, it is also relevant to note that though the Police had conducted an investigation after registering a crime against the counter petitioners, they have referred the crime as mistake of facts. In the light of the above facts and in view of the above discussion, I am of the view that the learned Magistrate is fully justified in holding that the counter petitioners were not having requisite mens rea at the time of the alleged offer made by them through the advertisement and brochure. Considering the subsequent facts including the Crl.R.P.NO.611 OF 2011 6 commencement of the course would further show that the counter petitioners had attempted fulfill their offer though completely not in terms of the offer they made. The above facts and the fact regarding return of fees to CW2 and deposit of Rs.1,20,000/- in Bank are sufficient to hold that at the time of making the promise or offer the counter petitioners have maintained fraudulent intention to cheat the complainant and they have committed any kind of misappropriation. In the result, I find no merit in the revision petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE pm