IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.Rev.Pet.No. 39 of 2009() ---------------------------- CRA.249/2006 of III ADDL.SESSIONS COURT, KOLLAM CC.1152/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA .................... REVN. PETITIONERS/COMPLAINANTS:- ----------------------------------------- 1. SASIDHARAN NAIR S/O.GOPALAN NAIR, AGED 55 DEEPA BHAVANAM,KIZHAKKEKKARA, KOTTARAKKARA. 2. DEEPA S NAIR D/O.SASIDHARAN NAIR ,AGED 26 DEEPA BHAVANAM, KIZHAKKEKKARA, KOTTARAKKARA. BY ADV. MR. PREMCHAND R.NAIR RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:- --------------------------------------------------------------- 1. SIVAN PILLAI S/O.LATE KUTTAN PILLAI KRISHNA VILASOM VEEDU, MARANADU MURI, PAVITRESWARAM VILLAGE, KOTTARAKARA. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. ADV. MR. RAVENDRA BABU, PUBLIC PROSECUTOR MR. K.V.ANIL KUMAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 39 OF 2009 ---------------------------------------- Dated this the 3rd day of June, 2009 ORDER This revision is in challenge of the acquittal of respondent No.1 by the appellate Court. 2. Respondent No.1 along with accused Nos.2 and 3, his father and brother-in-law faced trial in the Court of learned Judicial First Class Magistrate-I, Kottarakkara for offence punishable under Section 420 read with Section 34 of the Indian Penal Code ( for short, “the Code”). Case is that respondent No.1 promised to marry PW7, daughter of petitioner No.1(PW1) and there was exchange of letters from the respective Karayogams. Respondent No.1 received from petitioner No.1 Rs.50,000/- on 22.8.2001. The further allegation is that respondent No.1 falsely claimed that he is employed as a driver but enquiry revealed that he is a drunkard involved in a few cases. This was suppressed from the petitioners. According to the petitioners, respondent No.1 and accused Nos.2 and 3 cheated him. Complaint preferred by the petitioners was Crl.R.P.No.39/09 2 forwarded to the police for investigation. Police after investigation filed chargesheet against respondent No.1 and accused Nos.2 and 3. Charge against accused No.2 abated on his death. Respondent No.1 and accused No.3 faced trial. Learned magistrate found that accused No.3 has not committed any offence. He was acquitted. Respondent No.1 was found guilty, convicted and sentenced to undergo imprisonment and payment of compensation. He preferred an appeal before learned Sessions judge. Learned Sessions Judge vide the impugned judgment found that respondent No.1 has not committed any offence and acquitted him. That judgment is under challenge in this revision. Learned counsel for petitioners submits that acquittal of respondent No.1 is not legal or proper. 3. Complaint is that respondent No.1 approached petitioners through a broker with a proposal for marrying PW7 and he claimed that he is employed as a driver and has no bad habits. It is accordingly that marriage was fixed and the betrothal was agreed to be held on 9.9.2001. Marriage was to be held on 18.11.2001. On 19.8.2001, respondent No.1 and Crl.R.P.No.39/09 3 others came to house of petitioners and said that accused No.3 is in military service, he has only twenty days leave and has to return immediately. They, therefore wanted the marriage to be preponed. Accordingly, the marriage was preponed to on 9.9.2001. They wanted Rs.50,000/- towards marriage expenses. On 22.8.2001 respondent No.1 and others came with letter from their karayogam. That day, petitioner No.1 gave Rs.50,000/- to respondent No.1 but later, petitioners learnt that respondent No.1 is not having any job as claimed and that he is a drunkard involved in several cases. Hence, the marriage was cancelled. Petitioner No.1 gave evidence as PW1. PW7 is his daughter. Pws5 and 6 supported them. Accused No.3 gave evidence as DW1. He admitted the proposal for marriage between PW7 and respondent No.1. They had made all arrangements for the marriage but petitioner withdrew from the proposal. He proved Exts. D1 to D7. Ext.D1 is the copy of notice issued by accused to petitioner No.1. Ext.D2 is the acknowledgment card for its service. Ext.D3 is the invitation card for the marriage got printed by respondent No.1. Ext.D4 is produced to show that Crl.R.P.No.39/09 4 they had booked two buses for the marriage party. Ext.D5 is the receipt produced to show that a photographer was arranged. Ext.D6 is the copy of complaint preferred by respondent No.1 against the petitioner No.1 alleging that petitioner No.1 defamed him. Ext.D7 is the letter issued by the Karayogam of the petitioners. Learned magistrate found that accused No.3 is not guilty and acquitted him but respondent No.1 (accused No.1) was found guilty. Appellate Court found that element of cheating as defined under Section 415 of the Code is not brought out and acquitted respondent No.1. 4. I am unable to think that it was the responsibility of respondent No.1 to inform the petitioners about his alleged bad habits or involvement in criminal cases. That, respondent No.1 allegedly refrained from disclosing his bad habits or involvement in criminal habits cannot by itself mean that there was a dishonest or fraudulent concealment of any fact. After all, respondent No.1 could not have concealed those facts or petitioners could have easily known it had he conducted some enquiry. So there is no reason to think that there was a Crl.R.P.No.39/09 5 dishonest or fraudulent concealment of any such fact. Moreover, on the alleged bad habits and involvement of respondent No.1 in criminal cases there is only the oral evidence of PW3 1 to 3 and 7. No documentary evidence is produced. So far as the allegation that accused No.1 was not having any job as driver as claimed is concerned, evidence of the prosecution witnesses would show that they had not conducted any enquiry as to the employment of respondent No.1. Assuming that as claimed by petitioner, Rs.50,000/- was given allegedly in connection with the marriage and that amount was not returned consequent to cancellation of the marriage proposal, that cannot by itself amount to cheating as defined under Section 415 of the Code in so far as it is not shown that respondent No.1 had no intention to conduct the marriage when he offered himself for marriage with PW7. According to respondent No.1, he had to spent much for the arrangements for the marriage. That, he had to spent money is proved by Exts.D2 to D5. The mere failure to return the amount particularly when respondent No.1 has a case and adduced some evidence to show that he had to mere expenses Crl.R.P.No.39/09 6 in connection with the marriage proposal cannot be taken as amounting to any cheating. Appellate court has evaluated the evidence and held that conviction of respondent No.1 cannot stand. I do not find reason to interfere, as no illegality, irregularity or impropriety is involved. Revision petition is dismissed. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.39/09 7