Madras High Court
Padmini vs The State on 3 October, 2018
Crl. R.C.(MD)No.255 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 14.09.2023
Delivered On : 06.11.2023
CORAM
THE HONOURABLE MR. JUSTICE P. DHANABAL
Crl. R.C.(MD)No.255 of 2019
and
Crl.M.P.(MD)No.3749 of 2019
Padmini .. Petitioner
Vs.
The State,
Rep. By the Sub Inspector of Police,
District Crime Branch,
Dindigul,
Cr.No.3 of 2007 .. Respondent
Prayer : This criminal revision case is filed under Sections 397 r/w. 401 of Cr.P.C.,
to call for the records in connection with the judgment passed by the learned
Principal District and Sessions Judge, Dindigul in C.A.NO.3 of 2015 dated
03.10.2018 by confirming the judgment passed by the learned Judicial Magistrate
No.II, Dindigul in C.C.No.71 of 2010 dated 10.12.2014
For Petitioner : Ms.J.Saranya
For Respondent : Mrs.M.Aasha
Government Advocate (Crl. Side)
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https://www.mhc.tn.gov.in/judis
Crl. R.C.(MD)No.255 of 2019
ORDER
This petition has been filed by the petitioner to set aside the judgment and conviction passed by the Principal District and Sessions Court, Dindigul in C.A.No.3 of 2015 on 03.10.2018, in confirming the judgment and conviction passed by the learned Judicial Magistrate No.II, Dindigul District in C.C.No.71 of 2010 on 10.12.2014 wherein this petitioner has been arrayed as accused in the trial Court in C.C.No.71 of 2010 for the offence under Sections 406 and 420 of IPC and the trial Court convicted the accused for the offence under Section 420 of IPC and released the accused on probation by executing a bond of Rs.10,000/- for two years under Section 4 of Probation of Offenders Act and also directed the accused to pay a compensation of Rs.2,00,000/- to the defacto complainant in default to undergo two months simple imprisonment under Section 5 of Probation of Offenders Act. The trial Court acquitted the accused from the offence under Section 406 of IPC. As against the said conviction and judgment, the petitioner filed a criminal appeal in Crl.A.No.3 of 2015 and the same was dismissed by confirming the judgment and conviction passed by the learned Principal District and Sessions Judge, Dindigul District through its judgment dated 03.10.2018. Aggrieved by the said judgment, this present Criminal Revision Case is filed.
2.The prosecution case is that the accused has been arrayed as A2 in the case 2 / 16 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 and A1 is the husband of A2. A1 was working in Union office at Dindigul. When A1 was working in Panchayat Union office, the defacto complainant knew about A1. Based on that, both the accused on 05.01.2002, came to the house of the defacto complainant and represented that they have acquittance with the higher officials in the Government Department and thereby, he would arrange employment in the Government office for the daughter of the defacto complainant. Believing the words of the accused, the defacto complainant on 25.03.2002 and on several installments, paid a sum of Rs.2,00,000/- to the accused. Thereafter, the accused had not arranged for any employment to the daughter of the defacto complainant and they failed to return the sum borrowed by them. Thereafter, the defacto complainant gave a complaint Ex.P1 through P.W.9 S.I. Of Police and then P.W.9 registered FIR Ex.P12 in Crime No.3 of 2007 for the offence under Sections 406 and 420 of IPC. P.W.10 after investigation, filed final report against the accused. After filing the final report, the trial Court has furnished the copies of records relied on by the prosecution to accused under Section 207 of Cr.P.C. Thereafter, charges were framed as against the accused under Sections 406 and 420 of IPC and the said charges were read over and explained to the accused and she denied the charges.
3.The prosecution had examined P.W.1 to P.W.10 and marked Exs.P.1 to P.12 and on the side of the accused, no one was examined and no document was marked. 3 / 16 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 After examination of prosecution witnesses, the accused were examined under Section 313(1)(b) of Cr.P.C., and she denied the evidences. During the pendency of the trial, A1 died and thereby, A2 alone had faced the trial.
4.Upon hearing both sides and perusing the oral and documentary evidence, the trial Court found the petitioner guilty for the offence punishable under Section 420 of IPC and acquitted the accused under section 406 of IPC. Thereafter the trial Court has invoked Section 4 of Probation of Offenders Act and released the accused by executing a bond of Rs.10,000/- for two years and as per Section 5 of Probation of Offenders Act, also directed the accused to pay a compensation of Rs.2,00,000/- to the defacto complainant in default to undergo two months simple imprisonment. The trial Court acquitted the accused from the offence under Section 406 of IPC.
5.Aggrieved by the same, the petitioner preferred an appeal in Crl.A. No.3 of 2015 on the file of the learned Principal District and Sessions Judge, Dindigul and the Appellate Court also dismissed the same, by a judgment dated 03.10.2018 and confirmed the conviction and sentence imposed by the trial Court.
6.Aggrieved by the said judgment, the petitioner has filed the present revision case on the following grounds:-
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https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 The judgment passed by the Courts below by convicting the petitioner is against law, weight of evidence and probabilities of the case. The Courts below have failed to appreciate the evidence of the petitioner properly. The Courts below failed to look into the fact that the alleged occurrence took place on different dates in the year 2002 and the complaint has been lodged after a period of five years of delay against the petitioner. The Courts below failed to look into the fact that even though P.W.1 and P.W.2 are one family as mother and daughter, there had been no cogency in the evidence given by them and there had been lot of contradictions in their evidence. The Courts below failed to look into the fact that there was no consistent and cogent evidence about the alleged overt act of the petitioner. The Courts below failed to appreciate that out of 10 witnesses in the above said case, only police witnesses alone have examined and the respondent police failed to bring the independent witnesses before the court below in support of the prosecution. According to the trial Court even though the charge against the petitioner under Section 420 of IPC was proved, it was not a serious one and therefore, taking into account the situation faced by the petitioner instead of sentencing him, releasing him by invoking Section 4 of Probation of Offenders Act. Further the trial Court ordered a compensation of Rs.2,00,000/- to be paid by petitioner to the defacto complainant by invoking Section 357(3) of Cr.P.C., is unacceptable. The petitioner is a widow and maintaining her daughter with her megar income arrived from Anganvadi worker 5 / 16 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 and she is not in a position to pay the amount as directed by the lower Courts.
7.The learned counsel appearing for the petitioner would contend that the alleged occurrence took place on different dates in the year 2002 and the complaint has been lodged after the lapse of 5 years and the same has not been properly explained by the prosecution. The evidence of P.W.1 and P.W.2 are not cogency and there are lot of contradictions and the same has not been considered by the Courts below. Once the trial Court acquitted the accused under Section 406 of IPC, the trial Court ought to have acquitted the accused for the offence under Section 420 of IPC also. Further the trial Court once invoked the provisions of Probation Offenders Act, which ought not to have awarded a sum of Rs.2,00,000/- as compensation. The petitioner is a widow and is working as Anganvadi worker and A1 died. The Courts below have not taken into account of the evidence adduced by the prosecution and the prosecution failed to prove the case and the judgments of the Courts below are liable to be set aside by allowing the revision.
8.The learned Government Advocate appearing for the respondent would contend that the accused along with her husband involved in the crime of cheating and criminal breach of trust. In order to prove the case of prosecution, P.W.1 to P.W. 10 were examined and Ex.P1 to Ex.P12 were marked. The prosecution witnesses 6 / 16 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 have categorically deposed about the prosecution case and the trial Court found the petitioner guilty under Section 420 of IPC and acquitted for the offence under Section 406 of IPC and the trial Court has invoked the provision 4 of Probation of Offenders Act and released the accused on executing the bond of Rs.10,000/- for two years and invoked the provision 5 of Probation of Offenders Act, to pay a compensation to the defacto complainant. Thereby, the revision has no merits and is liable to be dismissed.
9.Upon perusing the documents and evidences adduced on both sides and upon perusing the judgments of lower Courts, the points for determination in this petition is whether the judgment of the learned Principal District and Sessions Judge, Dindigul in Crl.A.No.3 of 2015 on 03.10.2018, in confirming the conviction and sentence imposed by the learned Judicial Magistrate No.II, Dindigul in C.C.No.71 of 2010 on 10.12.2014 is sustainable according to law and on facts. Point:-
10.The prosecution case is that this accused along with her husband who was working in Dindigul Union office, have insisted the defacto complainant to pay amount for getting Government job on various dates. The defacto complainant paid a sum of Rs.2,00,000/- in the year 2002 and the accused neither arranged for 7 / 16 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 employment nor repaid the amount. Thereby, the accused committed offence under Sections 406 and 420 of IPC.
11.In order to prove the case of the prosecution, P.W.1 to P.W.10 were examined and Ex.P1 to Ex.P12 were marked. In this case, the main accused is A1 and he died during the pendency of the case. Hence, the case is proceeded as against A2. The trial Court found the accused guilty for the offence under Section 420 of IPC and by invoking Section 4 of Probation of Offenders Act, released the accused on executing the bond of Rs.10,000/- for two years and invoked the provision 5 of Probation of Offenders Act and directed the accused to pay a compensation to the defacto complainant. The accused was acquitted under Section 406 of IPC.
12.P.W.1 is the complainant and he deposed before the trial Court that in January 2002, the accused assured to get employment in the office for typist and paid a sum of Rs.50,000/- in the presence of Natrayan Thiyagu, Singarayar Sesu and Devaraj and in the next month, they paid a sum of Rs.50,000/- in the presence of same witnesses. After two months, the accused demanded Rs.1,00,000/- and the same was also paid to them. At the time of giving Rs.1,00,000/-, his daughter Grace Mariewilli was also present and thereafter, the accused have not arranged employment. When the same was questioned by P.W.1, the accused threatened them and thereby, he gave a complaint, Ex.P1. The acknowledgement executed by A1 is 8 / 16 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 Ex.P2 and the acknowledgement executed by A2 is Ex.P3. Therefore, from the evidences of P.W.1, Ex.P2 and P3, they revealed that, the accused has borrowed a sum of Rs.2,00,000/- from the complainant. Further the prosecution has also marked Ex.P5 and the prosecution has proved that signature found in Ex.P5 is that of A2. In this case, the main accused is A1 and he died during the pendency of the case.
13.Further P.W.2 also in her evidence stated that on 10.01.2002, both the accused came to her house and obtained sum of Rs.50,000 in the presence of Natrayan Thiyagu, Singarayar Sesu and Devaraj and thereafter, on 05.02.2005 also, the accused borrowed a sum of Rs.50,000/- in the presence of same witnesses and thereafter, on 25.03.2002 also, the accused borrowed a sum of Rs.1,00,000/- in the presence of same witnesses and thereafter, they have not arranged for employment and failed to repay the amount. Thereby, her mother gave a complaint.
14.P.W.3 is the eye witness to the occurrence and he deposed before the trial Court that in the year 2002, the deceased Kalimuthu and his wife demanded Rs. 2,00,000/- money from the complainant P.W.1 for the job in the Union office. As first installment, they paid Rs.50,000/- and again paid Rs.50,000/- and lastly paid a sum of Rs.1,00,000/-. At the time of giving money to the accused, he was also present. Thereafter, the accused failed to get job and also failed to repay the said 9 / 16 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 amount. Thereby, P.W.1 has given complaint. P.W.4 is also an eye witness to the occurrence and he also deposed about the payment made by the defacto complainant and received by the accused. P.W.5 also deposed about the obtaining of money by the accused from the defacto complainant. P.W.6 is also an eyewitness to the occurrence and he also deposed about the amount borrowed by the accused from the defacto complainant. P.W.7 has not supported the prosecution case and he turned hostile. However the other witnesses have deposed about the payment made by the defacto complainant and the payment received by the accused.
15.P.W.8 deposed about the comparison of signature and he also deposed that disputed signatures are tallied with admitted signatures of the accused. P.W.9 has deposed about the registration of FIR and preliminary investigation. P.W.10 has deposed about the further investigation and filing of final report. Therefore, from the evidence of prosecution evidence, they revealed that the accused have borrowed the amount from the defacto complainant for getting employment and thereafter, they failed to return the amount. Therefore, the prosecution has proved the case against the accused for the offence under Section 420 of IPC. At the same time, there is no evidence to attract provisions under Section 406 of IPC.
16.As far as offence under Section 406 of IPC is concerned, there is no 10 / 16 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 specific evidence as against the accused, the amount was entrusted with this accused and thereby, committed criminal breach of trust.
17.As far as offence under Section 420 of IPC is concerned, the available evidence shows that A2 also present at the time of receiving money and the accused insisted the defacto complainant to give money for getting employment of her daughter. The prosecution has proved the charges as against the accused for the offence under Section 420 of IPC. The trial Court after elaborate discussion, rightly came to the conclusion that the offence under Section 420 of IPC has been proved as against the accused and thereby, invoked the provision 4 of Probation of Offenders Act and released the accused on probation for 2 years and further as per Section 5 of Probation of Offenders Act, the trial Court also has directed the accused to pay of Rs. 2,00,000/- to the defacto complainant. Therefore, the trial Court has correctly analyzed the evidence and passed the reasoned judgment.
18.The learned counsel appearing for the petitioner has relied upon the judgment of this Court in the case of R.Chinnadurai v. Devendiran in Crl.R.C.Nos. 1242 and 1243 of 2015, wherein this Court in para nos.10 to 16 held as follows:-
“10. In this regard, the relevant provision of the Code for compensation is Section 357, where, sub section (3) empowers the Court to order the accused persons to pay by way of compensation to the 11 / 16 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced. The relevant portion of Section 357 of Cr.P.C. i.e., sub section (3) is extracted hereunder for easy reference:
357. Order to pay compensation:
(1) . . . . .
(2) . . . . .
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced."
11. If we have a cursory reading of Sections 360(3) and 357(3) Cr.P.C., the following position would emerge:
(i) If any person is convicted for an offence in IPC punishable for not more than two years imprisonment, and in that case, if the Court thinks fit having regard to the age, character, etc. of the accused and the nature of the offence, instead of sentencing him to any punishment, it may release him after due admonishing.
(ii) If a Court imposes a sentence where imposition of fine does not form part, the Court can order the accused to pay compensation to the person who suffered any loss or injury by the act of the accused person for which he has been so sentenced.
12. From the aforesaid emerging situation, it becomes necessary that a person, who has been found guilty and before conviction and imposing sentence, instead of sentencing him, he can be admonished, provided, the case meets the ingredients within the meaning of sub 12 / 16 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 section 3 of section 360 of Cr.P.C.. Once admonition is ordered, it cannot be treated as if the person who has been admonished, has suffered with sentence.
13. However, as per Section 357(3)Cr.P.C., if the Court imposes a sentence, of which fine does not form part, only then, the question of ordering compensation would arise. It means when a person is not sentenced, the scope of awarding compensation may not arise in view of the language used in sub section (3) of section 357 of Cr.P.C.
14. Therefore, if a person is sentenced, then only the court can decide about the imposition of compensation payable to the victim. In the case in hand, A1 has been admonished, which means, he has not been sentenced, because admonition itself is given only in lieu of the sentence, as the language used in sub Section 360 Cr.P.C., clearly states as follows: “Instead of sentencing him to any punishment, release him after due admonition.”
15. After a person gets admonished, he cannot be treated to be a person who had suffered with sentence. He may be a convicted person, but has not been sentenced. When the court thinks to impose a sentence, in view of the language used in sub section (3) of section 357, the Court does not have the power to impose compensation payable to the victim, on the person who has been admonished.
16. In the case in hand, A1 was completely admonished by invoking Section 360(3) of the Code and he was not sentenced to undergo any imprisonment and no fine was imposed against him. When that being the position, A1 can be treated only as a person who has been admonished and he cannot be treated as a person against whom sentence has been imposed for the offences punishable for the purpose of sub 13 / 16 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 section(3) of Section 357 of Cr.P.C.“ 19.1. A careful perusal of the aforesaid judgment, it will not applicable to the present facts of the case. In this case, the trial Court has invoked the provisions 4 of Probation of Offenders Act and awarded compensation under Section 5 of Probation of Offenders Act. In the aforesaid case, this Court has discussed about Sections 360(3) and 357(3) of Cr.P.C., but there is no discussion about the provision under Sections 4 and 5 of Probation of Offenders Act.
19.2. Section 5 of probation of offenders act reads as follows:
"5.Power of Court to require released offenders to pay compensation and costs.
(1) The Court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay--
(a) Such compensation as the Court thinks reasonable for loss or injury caused to any person by the commission of the offence; and
(b) Such costs of the proceedings as the Court thinks reasonable. (2) The amount ordered to be paid under sub-section (1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the code.
(3) A civil Court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as 14 / 16 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 compensation under sub-section (1) in awarding damages."
On a careful perusal of section 5 of probation of offenders act, it is clear that the Court while releasing the offender under section 3 and 4 can direct to pay compensation and costs, if the Court thinks fit. Thereby the contention of the learned counsel for the petitioner is not acceptable in that regard.
20.Therefore, as discussed above, this Court is of the opinion that the prosecution has proved the charge as against the accused for the offence under Section 420 of IPC. The trial Court also correctly convicted the accused and invoked the provision 4 of Probation of Offenders Act and released the accused on probation by obtaining a bond for a period of two years and as per Section 5 of Probation of Offenders Act, directed to pay compensation to the defacto complainant. There is no infirmity found in the judgment of the trial Court. Further the appellate Court also after giving reasons, correctly dismissed the appeal. The judgments of the Courts below are well reasoned and no warrants for interference. Hence, the Criminal Revision Case has no merits and deserves to be dismissed.
21.In the result, the Criminal Revision Petition is dismissed and the judgment and conviction passed by the learned Additional District and Sessions Judge, Dindigul in C.A.No.3 of 2015 on 03.10.2018, in confirming the judgment and conviction passed by the learned Judicial Magistrate No.II, Dindigul in C.C.No.71 of 15 / 16 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.255 of 2019 P.DHANABAL, J.
Mrn 2010 on 10.12.2014 are confirmed. Consequently connected miscellaneous petition is closed.
06.11.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes/No
Mrn
To
1.The Principal District and Sessions Judge, Dindigul.
2.The Judicial Magistrate No.II, Dindigul.
3.The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.
Crl. R.C.(MD)No.255 of 2019
06.11.2023 16 / 16 https://www.mhc.tn.gov.in/judis