Madras High Court
Benedict Balanathan Mahendran Alias ... vs The State on 23 November, 1995
Equivalent citations: 1996CRILJ2619
ORDER
1. The Concurrent Judgments of the learned Principal Sessions Judge, Madras in C.A. No. 146 of 1985, dated 29-7-1986 and the learned II Metropolitan Magistrate, Madras, in C.C. No. 665 of 1982, finding both the revision Petitioners guilty for the offences under Sections 419, 420 and 120B of the Indian Penal Code and Section 12(1)(b) of the passports Act and consequently, sentencing both of them to undergo rigorous imprisonment for a period of four months on all the four counts concurrently, are being canvassed in this Revision for want of legality, propriety and correctness.
2. Both the Petitioners who are husband and wife and Sri Lankan Nationals in origin, stood charged and tried by the trial Court for the offences under Sections 419, 420 and 120B of the Indian Penal Code and Section 12(1)(b) of the passports Act. The first petitioner is stated to be Popular for his talent, excellence in cine photography and his being cine director and the second petitioner, his wife, is also stated to be in the Cinema field, but to a limited extent, in helping her husband with dance performances and so on. It is stated that the first petitioner was born on 20-5-1939 in Navaly, Jaffna District, and the second petitioner was born on 1-9-1948 in Puliyadikudi, Batticalea District, both in Sri Lanka. The parents of both the petitioners are also Sri Lankan nationals as evident from Exs. P. 62 and p. 64. Further, the document Ex. P. 63 cliches the fact that both of them have studied in Sri Lanka and the first petitioner had his earlier employment as a draftsman in that country. Their marriage was also evidenced by Ex. P. 39, the Xerox copy of the marriage register. Both of them had permanent address at their native place. By getting the clearance from the Department of Immigration and Emigation at Sri Lanka, with a Ceylonese passport, the first revision petitioner got the admission in the Film Institute of India at Pune, to study in Cinematography as evident from Exs. P. 19 and p. 20 to p. 28. In a similar mode, the second petitioner also got the clearance to visit India under the strength of an immigration certificate and documents under Exs. P. 44, p. 52 to p. 55, p. 60 and p. 27.
3. It is stated that during their stay in India, particularly at Madras, the second petitioner, with the assistance of the first petitioner, got her visa extended from time to time as evident from Exs. P. 12 to p. 17 and p. 48 to p. 59. It appears, on 17-11-1975, both the petitioners sent their applications Exs. P. 1 and p. 2 respectively to the Regional Passport Authority, Madras, through a travel agency by name International Travels, Madras 18. Exs. P. 3 and p. 4 are the printed forms supplied by the Regional Passport Authority, to be filled in by the applicants themselves, for the issuance of the passport to them. The first petitioner is stated to have given the date of birth in Ex. P. 1 as 19-5-1944, place of birth as Vadakanchery, Trichur District in Kerala permanent address as 'Rama Nilayam', Vadakancheri and his parents' names as P. Raman Nair and N. Saraswathy Ammah. Likewise, the place of birth of second petitioner has been given as Enakakade, Vadakancheri, Trichur District, Kerala, her date of birth as 1-9-1955, permanent address as 'Palissery House', Enakakade post, Vadakancheri, Trichur District Kerala and her parents' names as P. Parameswaran and K. Karthyani Ammah. The entire particulars given in the applications were said to have been verified by witnesses P.W. 12 Bharathan and P.W. 4, A. D. Joseph, who are responsible persons of the locality, to vouch the veracity of the particulars given by the revision petitioners. A Senior Mechanical Engineer, employed in the Integral Coach Factory, Madras, by name, Ramachandran, P.W. 3, has verified the applications Exs. P. 1 and p. 2, on the strength of the which, P.W. 1, the Regional Passport officer, at Madras, till June 1976, had passed the orders issuing the passport to the petitioners bearing Nos. K. 593661 and K. 593662 respectively on 24-11-1975, which were taken delivery by one Varghese, then employed as Manager in International Travels, on behalf of both the petitioners herein, as evident from Exs. P. 4 to p. 7.
4. However, in the meanwhile, a cine actress name Shobha, supposed to be the wife of the first petitioner, and daughter of one Padmanabhan, P.W. 19, and Prema Menon, P.W. 18, died under suspicious circumstances and in that connection, a case under Crime No. 862 of 1980 was registered, and consequently, the C.B., C.I.D. commenced the Investigation through P.W. 25. During the sojourn of the said Investigation, it has come to light that both the revision petitioners herein had duped, with false representation the Regional Passport Authority P.W. 1, by giving and providing factious particulars and documents, thereby making the authorities to issue the passport, in order to visit Singapore and Sri Lanka to see their near and dear relatives. A complaint was given by P.W. 25, the Deputy Superintendent of Police, C.B., C.I.D., pertaining to the above, and a report was submitted under Ex. P. 61, on the receipt of which, the case was registered and P.W. 27, M. Sivadhanu. Deputy Superintendent of Police, investigated the whole case by registering the case in Crime Nos. 13 and 14 of 1980 respectively. He examined Several witnesses, seized many documents by visiting Sri Lanka and in this part of the State, as well as Pune, and recovered the documentary evidence marked on behalf of the prosecution and sent the disputed signature and the specimen handwriting for the analysis by the handwriting expert in the Government Forensic Sciences Laboratory and as a result of which, he laid the final report against both the petitioners for the offences aforementioned, before the trial Court.
5. The prosecution has examined 27 Witnesses marked Exs. P. 1 to p. 64 and on behalf of the revision petitioners Exs. D-1 and D-2 were marked.
6. When both the revision petitioners, who are the accused, were questioned under Section 313 Code of Criminal Procedure, on the basis of the incriminating portion of the evidence found against them, while admitting their nationality as Sri Lankan and their address and the place of birth as Sri Lanka and having come to this country for the purpose of studying and learning the art, they had denied their complicity in toto and stated that they have been implicated falsely in Criminal cases. They have stated particularly, that they have not obtained any passport by making any false representation and that they had not committed any offence.
7. On an elaborate and detailed considered of the entire evidence, both oral and documentary, adduced by the prosecution, in the context of the defence and the rival contentions, the learned II Metropolitan Magistrate, found both the accused guilty of all the charges and accordingly convicted them on all the four counts, but however, sentenced them to undergo the rigorous imprisonment for a period of four months each and directed the sentences to run concurrently. Aggrieved at this, both the accused preferred an appeal before the learned Principal Sessions Judge, Madras, in C.A. No. 146 of 1985 and canvassed the correctness of the impugned Judgment. However, their attempts became futile and consequently the conviction and sentences awarded by the trial Court were confirmed in toto. Challenging the same, for want of its legality and propriety, the present revision has been filed.
8. I have heard the Bar for and on behalf of the revision petitioners and the learned Government Advocate on behalf of the respondent. The Bar for the revision petitioners, ventured every attempt to show that the adduced evidence, in its entirety, has been totally misconstrued by the trial Court and it has been clearly overlooked by the Lower Appellate Court, resulting in the total failure of justice, making the Judgments rendered by both the Courts below inherented with every illegality and impropriety. Mr. A. N. Rajan, the learned Government Advocate, with a view to repel the above contention, took me to the important and conspicuous parts of the oral and documentary evidence by some of the prosecution witnesses, on which he has placed much reliance to justify the conviction and sentences recorded by the Courts below concurrently. In short to say, a strenuous effort had been taken by the learned Government Advocate to justify the impugned Judgments.
9. In the context of the rival positions, the only question that arises for consideration is whether the impugned Judgments concurrently held by the Courts below have become vitiated by reason of the lack of legal sanctity and misconception of the oral evidence, in its entirety, and if so, whether the interference in this revision is warranted in the light of the failure of Justice ?
10. Since the Bar for and on behalf of the revision petitioner and the learned Government Advocate on behalf of the respondent, have laid much stress to canvass their respective contentions by referring the oral and documentary evidence, I have carefully and meticulously perused the same at its beardth and length. To narrated the whole case of the prosecution in substratum as a result of my perusal of the entire case records, it has become necessary to refer some of the witnesses and documents alone. In my considered view, the following oral and documentary evidence relied upon by prosecution would reveal the whole case, in its legal gamut.
11. P.W. 1 is supposed to be the then Regional Passport Officer, who gave evidence only with regard to the applications filed by both the petitioners, Exs. P. 1 and P. 2 He has stated that his office after verification, has processed and finally, he had passed the orders for issuance of the passports to both the petitioners, He would further claim that all the particulars given in Exs. P. 1 and P. 2 are supposed to be the correct ones and accordingly on seeing the verification by responsible officers, he issued the passports to the petitioners. However, at the same stretch, he would admit that the passports in question have been issued to both the petitioners not on the basis of the verification and correctness of the particulars given in the applications nor on the police report and other verifications, necessarily required by law. Barrying, the above evidence, P.W. 1 has not stated any more facts or revealed any circumstances. which are basically and highly necessary to be done in this Case.
12. In the above category, P.W. 3 comes next in rank for the reason of his verification of the particulars given in Exs. P. 1 and P. 2 and P.W. 3 has stated that the particulars were correct. Perhaps, his designation in a responsible post is one of the Government of India. Undertakings, have made P.W. 1 to pass the orders without verification. It is seen that he has claimed that he did not know anything about the petitioner but as they were introduced by his Assistant and Superintendent of his office, he signed Exs. P. 1 and P. 2 stating that the particulars given therein were correct.
13. It is also noticed that Exs. P. 1 and P. 2 were submitted to the Regional Authority in a printed forms supplied by the International Travels, which is a separate Agency and has nothing to do with the Regional Passport Authority. The Printed forms supplied by the Regional Passport Authority have to be filled in by the applicants themselves in their own handwriting. It was the consistent case of the prosecution and their witnesses that both the petitioners have submitted their applications Exs. P. 1 and P. 2, with all its columns filled, on 19-11-1975 in person, that it was processed by the Authority and finally on 24-11-1975, the passports have been issued to them. P.Ws. 1 and 3 claim consistently that the particulars found in Exs. P. 1 and P. 2 were admitted by the petitioners herein as correct, when it was submitted and signed. I am not inclined to accept the said oral version for the simple reasoning that a casual perusal of Exs. P. 1 and P. 2 coupled with Exs. P. 4 and P. 8 would clearly demonstrate the fact that the whole episode was done only through M/s. International Travels and not by the revision petitioners themselves. A careful perusal of Exs. P. 1 and P. 2 would clearly reveal that in a Printed box column, both the revision petitioners had signed. However, the rest of the Printed columns were filled up in the same ink but in different handwriting. That is the mode found in Exs. P. 1 and P. 2. Though P.W. 20, the hand writing expert, gives an approximate possible opinion about the handwriting of both the signatures and the writings, Exs. P. 2 and P. 3 on the one hand and Exs. P. 4 to P. 8 on the other, would run clearly counter to and inconsistent with the claim of P.Ws. 1 and 3 and P.W. 20. I may illustrate the said lacuna by pointing out the fact that the printed forms supplied by the Regional Passport Authority to be filled in by the applicants themselves in their own hand-writing seem to have been not filled by the applicants themselves but by different persons as evident from Ex. P. 3. Ex. P. 4 fortifies my view above referred for the reasoning the Printed forms and all the relevant columns have not at all been filled up by the second petitioner; who was expected to do so, but however, it was filled by typewriting. It is noticed further that an authorisation letter Ex. P. 5 was given by the petitioners to M/s. International Travels to submit their applications, process them, take all due steps and also to receive the passports on their behalf and in furtherance of it, a letter was given by the International Travels to the Regional Passport Authority by affixing the receipt for the payment of fees of Rs. 25/-. This was followed by the acknowledgment by the said travel agency acknowledging the receipt of the particulars relied upon by the prosecution, on behalf of the revision petitioners.
14. Of course it was true that several witnesses examined by the prosecution unanimously claim that the address of both the petitioners, the name of their parents and their place of birth, given in the passports, are factitious, false and bogus ones and to this extent, the prosecution claims that both the petitioners have impersonated themselves with the bogus address and with the dishonest intention denetated the passport authority by producing false documents on verification and so on. If the evidence of P.W. 10 is looked into and analysed in its proper legal perspective, it is worthwhile to note that none of the Staff of M/s. International Travels, who claims to have acquainted with the facts and the documents Exs. P. 1 to P. 8, had been examined by the Investigating Officer and consequently gave the evidence before the trial Court in order to mulct the criminal of both the petitioners herein. It is thus seen that the evidence of P.Ws. 1, 3, 4, 10 and 20 and all the investigating officers are not helpful or render any assistance to the prosecution in metting their case.
15. The rest of the documentary and oral evidence, in my respectful considered view, is not germane to the case, touching the very controversy in question. The voluminous documents Exs. P. 35 to P. 64 are not very much in dispute in the instant case. The evidence of the handwriting expert based on his reports Exs. P. 50 to P. 53 does not help the prosecution. P.W. 1 has not whispered anything in his evidence pertaining to the offences to which both the petitioner are stood and tried. Likewise, in the evidence of the other witnesses also, there was absolutely no iota of evidence by the prosecution to show that either of the petitioners herein had made any oral or written representation making the Regional Authority to believe their versions with a view to dishonestly obtain the passports. In short to say, after a careful perusal of the entire oral and documentary evidence, I am totally unable to persuade myself to accept the prosecution case.
16. While stating so, I am fully conscious of the fact that while exercising the revisional jurisdiction under Sections 397 and 401 of the Code or Criminal Procedure Re-appraising of the oral and documentary evidence, before the trial Court is neither conducive nor an acceptable procedure as settled by law now. But, however, I may observe that the Courts below have considered the evidence, both oral and documentary, not in accordance with the proper legal perspective but misconstrued it wholly and totally, resulting in the failure of justice against the accused who stood charged for the criminal offences. I am constrained to say that such circumstances factually provide every ground for this Court to intervene in this revision by virtue of the above sections of law. If any misconception of misappreciation of the facts on the basis of the evidence, by the trial Court or the Appellate Court goes to the root of the very controversy, in my considered view, it is also a total illegality would result always in the failure of justice of the mis-carriage of justice. If the abovesaid facts are identified, then this Court can interfere even with the concurrent finding based on the total misconception and misconstruing of the entire evidence adduced. Therefore, I feel that I am fully justified in reappraising the whole evidence as above referred.
17. It has become relevant for me to advert to the legal aspects of the charges framed and tried against the revision petitioners in this case. Section 416 of the Indian Penal Code defines 'cheating by personation' in the following words :-
"416. Cheating by personation.
A person is said to 'cheat by personation' if he cheats by pretending to be some other person or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.
Explanation. The offence is committed whether the individual personated is a real of imaginary person."
If the concept spelt out in the above Section of law is established, then only it will attract Section 419, Indian Penal Code, which is a punishment Section. If the ingredient of the above concept of 'cheating by personation' is looked into in the facts of the instant, case, I am at every difficulty to identify the three ingredients namely the cheating by the petitioners whom they cheated by pretending to be some other person, if they have substituted who was the other person or what was the representation made by them to P.Ws. 1 or 4. As I have already observed none of the prosecution witness had spoken even about a semblance of the representation or the overt act as warranted by the Section of Law.
18. Coming to the legal concept of cheating, to attract the punishment under Section 420 of the Indian Penal Act, I have to advert to Section 415 of the Indian Penal Code, which is as follows :-
"415. Cheating : Whoever, by deceiving any person, fraudulently or dishonestly induce the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to cheat. Explanation. A dishonest concealment of fact is a deception within the meaning of this section."
The above section of law clearly spells out the fraudulent or dishonest inducement or representation made by any person as a necessary basic ingredient and thereby the believe the other and to deprive him of any property or valuable thing, is a basic thing to be necessarily proved and established. In a similar way, if the above definition is looked into the the facts of the instant case, I have necessary to reject the case of the prosecution for the reason than none of the prosecution witnesses has claimed any representation or inducement or specific overt act by the petitioners in getting the passports. It results in the formation of a conclusion that the prosecution has to necessarily fail in proving the second and third charges also.
19. To appreciate the case of the prosecution for the fourth charge, it has become vital to advert to Section 12(1) of the Passports Act. It runs like this;
12. Offence and penalties - (1) Whoever -
(a) Contravenes the provisions of Section 3, or
(b) Knowingly furnishes any false information or suppresses any material information or suppresses any material information with a view to obtaining a passport of travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entires made in a passport or travel document; or
(c) ...
(d) ...
(e) ...
shall be punishable with imprisonment for a term which may extent six months or with fine which may extent to two thousand rupees or with both."
If the above section of law is perused, then it is seen that the phraseology adopted in the above section requires that before a person could be mulcted with the criminal liability under the above section, it must be shown that he has furnished a false information or has suppressed any material information, with a view to obtain a passport or travel document or would have altered or caused to alter the entries in a passport or travel document without any lawful authority. Unless and until the above overt acts are spoken to and established before a Court of law, one would find it difficult to find a person to be guilty under the above Section of law. In this context, it is not known what is the false entry or the false representation or information made by the revision petitioners herein to the Passport Authority with a view to get the passport to go to Singapore or Ceylon. The finding and observations of both the Court below are that the entries relating to their parents' name, door number, house name and the addresses given in Exs. P. 1 and P. 2 are the basic ingredients taken to have been furnished by the petitioners and that therefore, it is stated that they have committed the offences under the Passports Act. Under such circumstances, it has to be seen whether there was any evidence available adduced by the prosecution in this case. The evidence of none of the prosecution witnesses or documentary evidence reveal the said facts. If perused so, I do not come across any iota of oral or documentary evidence in this regard. On the other hand, the applications Exs. P. 1 and P. 2 were signed by both the petitioners in the columns shown in the boxes of the printed forms, supplied by the International Travels. The rest of the printed columns were filled up by different persons and it is manifest to the naked eye of anyone, who looks into it. This view of mine is being fortified by the fact that the printed forms supplied by the Regional Passport Authority are expected to be filled-in by the applicants themselves in person but the applications Exs. P. 1 and P. 2 have not been filled up by the applicants, which is contrary to the regular procedure. The printed form for the first petitioner is found to be filled-in by a different person and the printed form given to the second petitioner was found to be filled up by way of typing. Above all, the applications and the necessary fees for the issuance of the passport were also seem to have been submitted by the International Travels and not by the applicants themselves. For the very object, the travel agency people had the authorisation from both the petitioners and accordingly, after getting the passports issued, the staff of the Inter-national Travels had received the passports on behalf of the revision petitioners. The above said facts were evident from Ex. P. 4 to P. 8. Therefore, after thus having carefully considered, in the light of Exs. P. 1 to P. 8 and the contents thereto. I am fully constrained to hold that none of the applications Exs. P. 1 and P. 2 have been submitted to P.W. 1 on 19-11-1975 by both the petitioners in person but definitely and certainly by and through International Travels as evident from the Authorisation letter for submitting and receiving the passport, given in Exs. P. 4 to P. 8. This established aspect has been clearly proved and if the same is identified, it will run totally counter to the claim of P.Ws. 1 and 3.
20. Above all, it is pertinent, at this stage, to refer that no verification of their addresses given in Exs. P. 1 and P. 2 has been done in this case. The investigation has not been done in the angle whether there was any verification of then particulars given in Exs. P. 1 and P. 2 and if so, where was that verification and who did it. P.W. 1 claims that the particulars given in Exs. P. 1 and P. 2 were in triplicate and one was sent to the concerned police for verification and report. If the police verified and submitted the report, then the chance of issuing the passports to the petitioners is not at all possible. But, however, the passports for the petitioners have been issued and in the absence of any verification report or the police report or the report by the Indexing Department or P.W. 1, I am at very difficulty to say that the accused have appeared before them and made all the overt acts necessary to invite the offences, for which they stood charged and tried.
21. That part, the oral testimony of P.W. 3 would belie the whole matter and this view is possible in the context that since both the petitioners were introduced by the Subordinate Officer, he put the signatures. Even though a claim made by P.W. 3, after a period of more than 10 years, in the light of the above documentary evidence, I am not inclined to attach any credence for his oral claim to the extent that the petitioners have admitted that the particulars given in the documents were true. There is no iota of evidence adduced by the prosecution to prove the charge of conspiracy which comes under section 120B of the Indian Penal Code, but even the circumstances do not prove it. Admittedly, both the petitioners are husband and wife and have come to India for the purpose of studying and staying on the strength of Ceylonese passports and Visas and the first petitioner seems to have studied at the Film Institute of India at Pune and the second petitioner appears to have learnt the dancing, as evident from the certificates given by her Dance Master at Madras. During the sojourn all through, their Visas have been extended time and again on more then one occasion and if they were having the true and genuine valid documents, there exists no need for them to have bogus passports by duping or falsely representing the passport issuing authority in this country, to go to their own native place or to any other country. It is thus seen that there is a grave error and serious doubt inherent in the prosecution case as a whole. As has been stated, during the course of investigation done in another case, in connection with the petitioners, the authorities would have been prompted to probe the matter. However, whatever may be, I am of the firm view that the investigation in this case has not been done in its proper course and to the core expected.
22. Several documents were relied on by the prosecution to show that both the petitioners were and are staying in this country under the valid travel documents. If that be so, as evident from the number of documents Exs. P. 35 to P. 64, it would go against the very claim of the prosecution. There is a possibility that both the petitioners would have signed Exs. P. 1 and P. 2 in blank forms but the international Travels, being their agents, might have filled up all the portions of the printed forms and approached the passport authorities, perhaps with the bogus address of their own and for the specific reasons known at the time when the applications Exs. P. 1 and P. 2 were made. The evidence given by the present staff of the travel agency would go to show that there was no truth in his claim. It is also significant to note that without following the mandatory rules, specifically provided to verify the genuineness and validity of the particulars given in the travel documents to issue the passports, the passports in this case seem to have been issued to the petitioner's authorised persons or agents. It is also significant to note that it is not the prosecution case that the bogus passports have been utilised by the petitioners for any purpose. In the absence of such evidence and the legal evidence, pertaining to all the offences above referred, and having considered the whole adduced oral and documentary evidence, I am duly satisfied to hold that the oral and documentary evidence adduced by the prosecution in its entirety, do not prove any offence nor go anyway near the basic ingredients of the offences above referred. Therefore, both the Courts below have not appreciated the evidence adduced in this case in its proper legal perspective. Both the Courts below appear to have proceeded on the basis of conjectures, surmises and mere inferences. It is the settled law and Courts of law in this country shall not be carried away by mere sentimentalities or the conjectures or surmises but bound to proceed on the basis of the legal and legal evidence alone. In the context of mere circumstances alone, relied upon by the prosecution, I am fully constrained to say that both the Courts below have totally overlooked the legal concepts, which are required to be identified while rendering the impugned judgments and the approach adopted by both the Courts below and mode preferred by them are erroneous, resulting in the failure of justice. It is thus seen, after having meticulously perused the entire evidence, the impugned concurred judgments have been inherited with every erroneous approach, misconception of law and misappreciation of evidence and therefore, they have become vitiated. The prosecution has deliberately and wilfully failed to establish the guilt of both the accused beyond all reasonable doubt. Thus, the revision has every merit to be accepted.
23. In the result, for all the foregoing reasons, the revision succeeds and shall stand allowed. Consequently, the concurrent judgments rendered by the learned II Metropolitan Magistrate Madras, in C.C. No. 665 of 1982 dated 21-6-1985 and the learned Principal Sessions Judge, Madras, in C.A. No. 146 of 1985 dated 29-7-1986 are hereby set aside. Both revision petitioners/accused are hereby acquitted of all charges and they are set at liberty. Their bail bonds, if any, are hereby cancelled.
24. Revision allowed.