IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03. 12 .2010 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.401 of 2008 Pachayappan .. Petitioner Vs 1.State of Tamil Nadu rep. by Sub-Inspector of Police District Crime Branch Dharmapuri (Cr.No.4 of 2003) 2.Chakravarthy .. Respondents PRAYER: Criminal Revision Case filed under sections 397 and 401 of Criminal Procedure Code praying to set aside the order of acquittal dated 13.12.2007 made in C.C.No.263 of 2003 on the file of the Court of Judicial Magistrate No.2, Dharmapuri. For Petitioner : Mr.N.S.Sivakumar For Respondents: Mr.I.Paul Nobel Devakumar Govt. Advocate for R1 Mr.S.Doraisamy for R2 ----- ORDER This Criminal Revision Case has been preferred against the acquittal of the second respondent herein, who was prosecuted as the accused in C.C.No.263 of 2003 on the file of the learned Judicial Magistrate No.II, Dharmapuri. The impugned judgment of the trial Court was passed on 13.12.2007. PW1 in the trial, is the petitioner in this Criminal Revision Case. The State represented by the Sub- Inspector of Police, has been arrayed as the first respondent in the criminal revision case. 2. The prosecution case in brief, is as follows: The second respondent is employed as a teacher in a Government Primary School. He is a resident of Vediyur. He has committed cheating on one Sankar, grand son of Venkatachala Chetty (since https://hcservices.ecourts.gov.in/hcservices/ deceased), by showing a bogus and fabricated appointment order as if he had secured a job for him in the Thermal Power Station at Kalpakkam. The second respondent/accused who was closely moving with the defacto complainant Venkatachala Chetty (since deceased) informed him that he could get a Government Job for his grand son Sankar (PW4), provided he could arrange for a sum of Rs.1,00,000/- within three months. When the said Venkatachala Chetty replied that he could not arrange for such a huge amount within three months, the second respondent/accused asked him to give Rs.25,000/-as advance and informed him that the balance amount of Rs.75,000/- could be paid when he could get the order and Sankar could join the post. When he was asked about the salary, the second respondent/accused informed that the job was a clerical job in Kalpakkam Thermal Power Station and the monthly salary would be Rs.7,500/-. Based on such promise to get a job, the second respondent received a sum of Rs.25,000/- from the defacto complainant as advance on 26.10.2001. Two days thereafter, he met the defaco complainant and informed him that he had made all arrangements by making payment of the advance amount and in twenty days thereafter he expected the order to come and that hence the defacto complainant should keep ready the balance amount of Rs.75,000/-. After a lapse of twenty five days thereafter, he showed certain papers as if they were the orders of appointment and demanded payment of the balance amount on 20.11.2001. Thereafter, the defacto complainant sold the jewels of his wife and daughter-in-law and along with the sum received as the cost of those jewels, he added his savings and paid the balance amount of Rs.75,000/- in the presence of Pachayappan (PW1), Jayaraman and one Pandurangan (PW3). The second respondent/accused after getting the amount, took Sankar on 28.11.2001 itself informing the defacto complainant that he was taking him to make him join the post. Within two days thereafter, second respondent/accused alone returned back and informed the defacto complainant that the officer had not signed the order and hence it would take two more days for Sankar to join the post. After a week from the said date, Sankar came back and when he was asked by the defacto complainant as to what happened, he informed that the second respondent/accused took him to a room in a lodge in Chennai, got his signatures in certain documents and left that place after informing him that he would come back in two days to make him join the post, but he never returned as he promised and that after staying there in the room in the lodge for five days, drained of all his money and left without money for his survival, Sankar came back to Vediyur. 3. Thereafter, the defacto complainant met the Respondent No.2/accused and asked him to return back Rs.1,00,000/- stating he was not interested in getting the job promised by the second respondent/accused to his grand son. The second respondent/accused replied that he would get a job within a month or return back the amount with interest. But, thereafter he was evading payment for about three months. Hence, the defacto complainant took one https://hcservices.ecourts.gov.in/hcservices/ Kannappan (PW2) to the second respondent/accused and demanded payment of the said amount in his presence, for which the second respondent/accused promised that he would pay back the amount in two months. Thus, the second respondent caused a delay of six months and thereafter, he paid only a sum of Rs.40,000/- and promised to pay the balance amount within three days. The fourth day after the first payment , he paid another sum of Rs.10,000/- and prayed for three more months time for making payment of the balance amount of Rs.50,000/-. When he was again approached after three months, he abused the defacto complainant stating that he had no evidence for having paid any amount to the second respondent/accused, besides proclaiming that he could not do anything. The second respondent/accused also caused threat to the defacto complainant with goondas. The defacto complainant gave complaint under Ex.P4 to the District Collector, Dharmapuri District on the grievance day, namely 03.03.2003. 4. Similarly, the second respondent/accused cheated PW1- Pachayappan and received a sum of Rs.1,00,000/- in two instalments (on 01.11.2001 Rs.25,000/- as first instalment and balance Rs.75,000/- ten days thereafter) on making a false promise of getting a job for his son Senthil Kumar (PW5) in Kalpakkam Thermal Power Station for the salary of Rs.7500/- p.m and returned only a sum of Rs.25,000/-. He also gave a similar complaint on the above said date to the District Collector. Both the complaints were forwarded to the District Crime Branch, Dharmapuri, whereupon a case was registered by preparing Ex.P5-First Information Report in DCB Crime No. 4 of 2003 on 18.03.2003 on the basis of Ex.P4 complaint, for offences punishable under Sections 420 and 468 IPC by the Sub-Inspector of Police, DCB, Dharmapuri. 5. PW6, the Sub-Inspector of Police, who registered the case, took up the case for investigation, completed the investigation and submitted a final report alleging commission of offences punishable under Sections 420 and 468 IPC (2 counts) . Based on the final report of Sub-Inspector of Police, learned Judicial Magistrate No.II, Dharmapuri took cognizance of the case and took it on file as C.C.No.263 of 2003. On appearance, the second respondent herein/accused pleaded not guilty and hence the trial Court framed charges for offences punishable under Sections 420 and 468 IPC. Subsequently the charges were also amended as 420 IPC and 468 r/w. 471 IPC (2 counts). The second respondent / accused denied the charges and pleaded not guilty. 6. In the trial that followed such a plea, totally six witnesses were examined as PWs 1 to 6 and five documents were marked as Exs. P1 to P5. After examining the accused under Section 313 (1)(b) Cr.P.C regarding the incriminating materials found in the evidence adduced on the side of the prosecution, the Court below proceeded to decide the case on the basis of the said evidence since the second https://hcservices.ecourts.gov.in/hcservices/ respondent /accused did not have any oral and documentary evidence to adduce. On either side, no material object was produced. Upon considering the evidence in the light of the arguments advanced on either side, the learned Judicial Magistrate No.II, Dharmapuri came to the conclusion that none of the charges framed against the second respondent/accused was proved beyond reasonable doubt and accordingly acquitted the second respondent/accused by the judgment of the Court below dated 13.12.2007. Aggrieved by and questioning the propriety and legality of the said judgment of acquittal, PW1 has come forward with the present criminal revision case on various grounds set out in the memorandum of revision. 7. The submissions made by Mr.N.S.Sivakumar, learned counsel for the petitioner, by Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.side) representing the first respondent and by Mr.S.Doraisamy, learned counsel for the second respondent were heard. 8. The learned counsel for the petitioner contended that the Court below failed to appreciate the evidence in a proper manner, which resulted in perversity of the finding and that therefore, the judgment of acquittal should be set aside by exercising the power of revision of this Court. The learned Government Advocate (Crl.side) simply supported the argument advanced by the learned counsel for the petitioner without adding any separate and specific contention. 9. Per contra, the learned counsel for the second respondent contended that the Court below, on a proper evaluation of evidence came to the correct conclusion holding the second respondent not guilty of the offences with which he stood charged; that the finding of the Court below cannot be termed infirm or defective, much less perverse and that therefore, the revision should be dismissed. It is the further contention of the learned counsel for the second respondent that a group of cheats operating from Chennai and Salem seem to have cheated the defacto complainant and PW1 besides one Dinakar Prasad, the brother -in-law of the second respondent/accused and that not able to fix the said group, a case has been foisted against the second respondent/accused. The learned counsel for the second respondent also contended that the presumption of innocence in all criminal cases gets strengthened by the acquittal of the accused by the trial Court and that the Court of revision cannot interfere with the judgment of acquittal simply because the evidence admit the probability of two views, one in favour of the accused and the other in favour of the prosecution and the Court of revision prefers to take the other view, namely the view in favour of the prosecution. 10. This Court gave its anxious consideration to the contentions raised on both sides. The evidence available on record were also taken into consideration. https://hcservices.ecourts.gov.in/hcservices/ 11. In this case, investigation has been conducted by the District Crime Branch based on the complaints marked as Exs.P4 and P1. One Venkatachala Chetty (since deceased), grand father of PW4, was the defaco complainant under Ex.P4, whereas PW1 was the complainant under Ex.P1. Ex.P4 is a type-written complaint, where as Ex.P1 is a print out taken after typing the contents in a computer. Both the complaints were not lodged with the police. They were presented to the District Collector on the grievance day, namely 03.03.2003. Though both the complaints were forwarded to the District Crime Branch, Dharmapuri for action, Ex.P4 alone was treated as the basis of the FIR and FIR (Ex.P5) was prepared. In both the complaints similar allegations were made against the second respondent/accused. 12. As per the contents of Ex.P4, Venkatachala Chetty, the grandfather of PW4, was allegedly cheated by the second respondent/accused and as per Ex.P1, it was PW1 Pachayappan, who was cheated by the second respondent/accused. As per the contents of Ex.P4, deceased Venkatachala Chetty paid a sum of Rs.25,000/- on 26.10.2001 and made payment of the balance amount of Rs.75,000/- on 28.11.2001 to the second respondent/accused. As per the contents of Ex.P1, PW1 Pachayappan, the author of Ex.P1, paid a sum of Rs.25,000/- on 01.11.2001 and the balance amount of Rs.75,000/- was paid after 10 days from the date of the first payment. 13. As rightly pointed out by the learned counsel for the second respondent, there is inordinate delay in lodging the complaints under Exs.P4 and P1. The contents of the complaints are almost similar to each other showing possibility of due deliberation and concoction before preferring the complaints. The two persons, for whose appointments' the amount was allegedly received by the second respondent/accused, have been examined as PWs 4 and 5 respectively. PW4 is Sankar, the grand son of Venkatachala Chetty, the author of Ex.P4 complaint. When the evidence of PW4 in the chief examination itself is considered, it will go to show that there is a material contradiction between his testimony and the contents of the complaints, namely Exs.P1 and P4. Though he has deposed in line with the contents of Ex.P4 complaint that a sum of Rs.25,000/- was paid as initial payment and the balance amount of Rs.75,000/- was paid in November 2001 by his grandfather and that the said amount was raised by selling the jewels of his mother and grandmother, he has also ventured to state that on the very same day PW1 also paid a sum of Rs.75,000/- to the second respondent/accused. It is his further evidence that at first his grandfather paid a sum of Rs.75,000/- and thereafter, PW1 paid a sum of Rs.75,000/- and that the second respondent/accused got both the amounts, counted them and put them in his box. According to Ex.P1 complaint, PW1 gave a sum of Rs.25,000/- on 01.11.2001 and paid the balance amount of Rs.75,000/- 10 days after the said date. It will take us to 11.11.2001. https://hcservices.ecourts.gov.in/hcservices/ 14. It is not the case of PW1, as found in Ex.P1, that he and Venkatachala Chetty paid the amount, namely Rs.75,000/- each to the petitioner at one and the same time or that he paid the second installment in the house of Venkatachala Chetty. Similarly, there is no averment in Ex.P4 complaint, that PW1 also paid a sum of Rs.75,000/- in the house of Venkatachala Chetty, when Venkatachala Chetty paid Rs.75,000/- to the accused. Payment of second installment, namely Rs.75,000/- was made, according to Ex.P4 complaint, on 28.11.2001. It should also be noticed that in Ex.P4 complaint it has been stated that Venkatachala Chetty wanted to make payment of the second installment only in the presence of witnesses and expressed the same to the accused, whereupon the accused agreed for the same and that PW1- Pachayappan, PW2-Kannappan and two other persons by names Jayaraman and Pandurangan were invited and in their presence Venkatachala Chetty made payment of the said amount on 28.11.2001. The complaint does not state anything about payment made by PW1 on 28.11.2001 at the time when Venkatachala Chetty allegedly paid a sum of Rs.75,000/-. On the other hand, it is averred in Ex.P1 that the first payment of Rs.25,000/- by PW1 was made on 01.11.2001 and the second payment of Rs.75,000/- was made 10 days thereafter. It will take us to 11.11.2001. 15. Keeping the above said material contradictions in mind, the other evidence adduced on the prosecution side have got to be considered. As per the contents of Ex.P4 complaint, Venkatachala Chetty paid the first installment of Rs.25,000/- on 26.10.2001 and the second installment of Rs.75,000/- was paid on 28.11.2001 i.e., after a lapse of more than a month from the date of first payment. On the other hand, it is the evidence of PW1 that the gap between the first and second payments made by PW1 was only 15 days. PW4 is admittedly a B.Com graduate. He admits that for getting employment in the State Government services, one can get such employment only through TNPSC or employment exchange. However, he would plead ignorance as to whether one should write examinations conducted by Union Public Service Commission for entering Central Government services. As rightly pointed out by the learned counsel for the second respondent, it is highly doubtful as to how the second respondent, who was only a primary school teacher would be able to secure employment in a Central Government concern. 16. It should also be noticed that another revelation made by PW4 will cast a doubt as to whether the Exs.P1 and P4 could have been the first informations received by the police. PW4, in his evidence during cross examination, has stated that he lodged a complaint in the office of the Superintendent of Police in 2001. There is no explanation as to what happened to such a complaint, if at all the same could be true. PW5-Senthil Kumar is the son of PW1. According to PW5's evidence, payment of Rs.25,000/- was made by his father on 10th or 11th November 2001. It is quite contra to what is found in https://hcservices.ecourts.gov.in/hcservices/ Ex.P4 complaint. In Ex.P4 complaint, it has been stated that the said amount was paid on 01.11.2001. It is also the evidence of PW5 that at the time of payment of the above said sum of Rs.25,000/-, Venkatachala Chetty and PW4 were also there. But the same is not the evidence of PW4, nor is it found incorporated in Ex.P4 complaint. However, PW5 in his evidence has made an attempt to show that the balance amount of Rs.75,000/- was paid by his father on 28.11.2001 to the second respondent/accused in the house of Venkatachala Chetty. The said evidence is intended to be in tune with the evidence of PW4, which is contrary to the contents of the complaints as indicated supra. It is also the evidence of PW5 that Venkatachala Chetty gave a sum of Rs.75,000/- to PW2-Kannappan; that PW2 - Kannappan counted the same and then handed it over to the second respondent/accused and that similarly his father namely PW1 gave a sum of Rs.75,000/- to Kannappan and it was Kannappan, who inturn gave it to the second respondent/accused. This is quite contra to the evidence of PW4. PW4's evidence is to the effect that his grandfather Venkatachala Chetty gave the amount of Rs.75,000/- directly to the second respondent/accused, but in the presence of witnesses and that similarly PW1 also gave a sum of Rs.75,000/- directly to the second respondent/accused. It is not his evidence that both the persons paid the amount through Kannappan. 17. In this regard PW5 has also deposed contrary to his statement recorded under Section 161 Cr.P.C. He was successfully contradicted by bringing to his notice that he did not give such a statement to the effect that a sum of Rs.75,000/- was paid through Jayaraman and by subsequently proving that no such statement was made by him by eliciting necessary answer from the Investigating Officer, namely PW6. PW1's evidence is some what different. It is his evidence that the second installment of Rs.75,000/- was paid by Venkatachala Chetty to the second respondent/accused directly and the second respondent/accused received it from Venkatachala Chetty directly, whereas a sum of Rs.75,000/- paid by PW1 as second installment was paid through Kannappan. The evidence of other witnesses, namely PW2- Kannappan and PW3 Pandurangan are also not free from flaws. PW3-Pandurangan would say that he went to the Taylor shop of PW1 to get the dresses, stitching of which he had ordered for his daughter, who had attained puberty; that when he went there, PW1 was not there and after enquiry he went to the house of Venkatachala Chetty in search of PW1 and that there he witnessed PW1 and Venkatachala Chetty paying Rs.75,000/- each to the second respondent/accused. But the testimony of PW3 itself is self contradictory. At one place, he says that after he reached the taylor shop of PW1, PW1 went out informing him that he was proceeding towards Venkatachala Chetty urgently and that thereafter he also followed him to the house of Venkatachala Chetty. At another place he would state that when he reached the taylor shop of PW1, he was not found there and on enquiry with one Sakthivel, who was found in the nearby tea shop, he pointed out the direction in which PW1 had https://hcservices.ecourts.gov.in/hcservices/ gone and that when he went in that direction he found PW1 near the house of Venkatachala Chetty. Apart from that he would also state that he only witnessed PW1 and Venkatachala Chetty paying Rs.75,000/- each to the second respondent/accused, but he did not know what was the purpose for which the said amounts were paid by them. The same is quite contrary to the evidence of the other witnesses and is also unbelievable. 18. So far as the evidence of PW2-Kannappan is concerned, it is his evidence that Venkatachala Chetty paid a sum of Rs.75,000/- to the second respondent/accused and the second respondent /accused received it. It is not his evidence that he got that amount from Venkatachala Chetty, counted it and then handed it over to the second respondent/accused. In this regard, there is material contradictions between his evidence and the evidence of the other witness, namely PW1 and PW5. It is also the evidence of PW2 that PW1 gave the second respondent/accused some amount keeping the same in a box and he did not how much was there in the box. It is his further evidence that it was the statement made by PW1 at that point of time that he was making payment of a sum of Rs.75,000/-. This is quite contra to the evidence of Pws 1, 4 and 5. Pws 4 and 5 would state that the amount was paid through PW2 and PW2 after counting the same handed it over to the second respondent/accused, whereas the evidence of PW2 in this regard is contrary to what PW1 and PW5 have stated. PW4's evidence is to the effect that it was the second respondent/accused who received the amounts directly from Venkatachala Chetty and PW1 and that the Respondent No.2/accused got the amounts, counted the same and then put them in the box. In this regard, there is a material contradiction between the evidence of PW1 and PW4 also. 19.Further more, PW1, during Cross examination, has stated that he had lodged a complaint with the police in January 2003 at Kadathur Police Station. The said evidence of PW1 will make it obvious that neither Ex.P1 nor Ex.P4 could be the original document, based on which the police were given information. Not stopping with the statement that he gave a complaint in January 2003 at Kadathur Police Station, he would also state that the police conducted an enquiry. Similar is the evidence of PW4. PW4 would say that he and his grandfather lodged a complaint with the Superintendent of Police. PW5 Senthil Kumar, in his evidence, has stated that they have lodged a complaint in Kadathur Police Station and Kadathur Police also enquired into the matter. He has also stated that his father and Venkatachala Chetty also gave a complaint in the office of Superintendent of Police. There is no explanation from the prosecution as to what happened to the complaint allegedly given in Kadathur Police Station and the complaint allegedly given to the Superintendent of Police. PW6, the Investigating Officer, would say that he did not receive any other complaint except the two received from the Collectorate. Therefore, apart from there being inordinate delay, there are materials to raise a reasonable suspicion that https://hcservices.ecourts.gov.in/hcservices/ previous complaints have been burked and complaints prepared after due deliberation have been pressed into service. 20. It is the further contention of the prosecution that Pws 4 and 5 were taken by the Respondent No.2/accused to a lodge in Chennai and there, a fake interview was conducted and their signatures were obtained in blank papers. It is the further case of the prosecution that after conducting a mock interview and getting the signatures of Pws 4 and 5 in blank papers, second respondent/accused left the lodge informing them that he had an urgent job in the village and he would be back in two days; that thereafter did not come back to Chennai and that Pws 4 and 5 after staying in the lodge for 5 or 6 days, were drained of all money and left with no money for their survival, they had to return back to their native place. It is curious to note that there is no evidence as to the name of the lodge to which Pws 4 and 5 were taken and were made to undergo a mock interview. They are graduates and they are not laymen. They, having not been put in confinement or under any other form of surveillance, could have very well known the name of