Madras High Court
Chellaiah vs The State Rep. By
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A(MD)No.149 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 20.01.2020
JUDGMENT DELIVERED ON : 30.01.2020
CORAM:
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.(MD)No.149 of 2014
Chellaiah .. Appellant / PW-1 (Victim)
Vs.
1.The State rep. by
The Deputy Superintendent of Police,
Thoothukudi Town,
Thoothukudi District
(I.O. in crime No.364 of 2008
Thoothukudi South P.S.) ... Respondent / Complainant
2.Raghunathan ... 2nd Respondent / Accused
PRAYER: Petition filed under Section 374(2) of Criminal Procedure
Code, to call for the records in S.C.No.34 of 2010 on the file of the II
Additional Sessions Judge, Tirunelveli, Tirunelveli District and set
aside the judgment dated 13.03.2014 and punish the accused/2nd
respondent herein in accordance with law.
For Appellant : Mr.A.Thiruvadikumar
For Respondent : Mr.M.Chandrasekaran, APP for R1
Mr.G.Marimuthu, for R2
1/44
http://www.judis.nic.in
Crl.A(MD)No.149 of 2014
JUDGMENT
This Criminal Appeal is arising out of acquittal of the accused passed by the learned II Additional Sessions Judge, Tirunelveli, in Special C.C.No.34 of 2010, dated 13.03.2014, and convict the appellant.
2. The brief facts of the case, as projected by the prosecution are as follows:
(i)The appellant/complainant belongs to Hindu Pallar a Scheduled Caste Community. The 2nd respondent/accused belongs to Hindu Nadar Community. The accused was the 42nd Ward Councillor of Thoothukudi Corporation. The complainant wife was working as Anganwadi in the same ward. The appellant is known to P.W.2. P.W.2 had informed about her daughter attending interview for Assistant Engineer post in TNEB. The accused being a Councillor, belonging to DMK party, claimed himself to have good relationship with politicians and Government Officials and shall get a job for his daughter in TNEB, for which, he demanded Rs.
4,00,000/- from the complainant. The complainant believing his words paid the amount to him on 02.09.2007, the accused made an 2/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 endorsement in a white paper, which is marked as Ex.P1. However, the accused was unable to get the job, as promised. The complainant asked him to repay the money several times. The accused told that he utilized the said money for his housing loan and promised to pay a sum of Rs.2,00,000/- in the end of April and he will pay the balance of Rs.2 lakhs on 25 th May, he executed a Deed, which is marked as Ex.P2, wherein, P.Ws.9 and 10 signed as witnesses. The accused failed to repay the amount as he promised. Hence, on 09.05.2008, at about 08.00 hours, the complaint went to the house of the accused, asked him to repay the amount, the accused abused him, insulted him by calling his caste name viz., “gs;sg;gany> gwg;gany> eP bfl;l nfl;Lf;F cdf;F fth;bkz;l; ntiy ntZkhny” and criminally intimidated him. P.W.1 on the same day gave a complaint to the Superintendent of Police, Thoothukudi, which was forwarded on 10.05.2008 to the South Police Station. Later, on 10.05.2008, at about 14.30 hours, a case came to be registered for the offences under Sections 420 and 506(ii) IPC and Section 3(1)(x) of SC/ST (POA) Act by P.W.16. FIR is marked as Ex.P16.
(ii)As per Ex.P18, Investigation was carried out by Mr.M.Mohamed Ghouse Khan Gori, Deputy Superintendent of Police. During trial, the said DSP passed away. Thereafter, as per 3/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 the order Ex.P17 of the Superintendent of Police, Thoothukudi District, Mr.C.D.Chakkaravarthy, P.W.17, Deputy Superintendent of Police was nominated, as Investigating Officer. The previous DSP Mr.Mohammed Ghouse Kan Gori examined the witnesses, recorded their statements, prepared Ex.P.4 observation mahazer and Ex.P19 rough sketch. He obtained Community Certificates of the complainant and the accused viz., Exs.P.12 and 13 respectively from P.W.13, Thirumani, Tahsildar. Thereafter, accused was arrested, obtained handwriting reports Exs.P.15 from the Scientific Officers and after completion of investigation, filed the charge sheet in this case.
3.Before the trial Court, on the side of prosecution P.Ws.1 to 17 were examined and Exs.P.1 to P.19 were marked, no material object was produced. On completion of the examination of the witnesses on the side of the prosecution, the accused was questioned under section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and he denied them as false. On behalf of the defence, no witness was examined and Ex.D1, copy of FIR in crime No.457 of 2006 has been marked as defence document.
4/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014
4. Considering the evidence available on record, the learned II Additional District Judge, Tirunelveli by judgment dated 13.03.2014 found the accused not guilty for the offences under Sections 420 and 506(ii) IPC and Section 3(1)(x) of SC/ST (POA) Act and acquitted him, as the prosecution has failed to prove the guilt of accused beyond reasonable doubt. Challenging the said judgment of acquittal, , the appellant/defacto complainant has preferred this appeal.
5.The learned counsel for the appellant submitted that the finding of the lower court is perverse, contrary to the law and drawn the attention of this Court to the judgment of the lower Court at Page Nos.140, 141, 142. Further, he submitted that in this case the second respondent is the then 42nd Ward Councillor of Thoothukudi Corporation, belonging to a leading political party. P.W.2, is the appellant's wife and she is an Anganwadi worker. P.W.3 is the daughter of the appellant. P.W.2 knew the second respondent. It is the case of the prosecution that the second respondent promised to get employment in Tamil Nadu Electricity Board for P.W.3, received a sum of Rs.4 lakhs from the appellant. On receipt of the same, he executed Ex.P.1. P.W.3 failed to get employment, since she did not 5/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 qualify in the interview. P.W.8, relative of the appellant along with appellant had gone to the second respondent's house seeking return of money, at that time the second respondent gave an undertaking Ex.P.2, in presence of P.Ws.9 and 10, who attested Ex.P2.
6.He further submitted that in Ex.P.2 the second respondent undertook to return the amount on or before 25.05.2008, which was given by the appellant for getting job for his daughter in the Tamil Nadu Electricity Board. P.W.1 is a retired employee of BSNL took loan from various persons and by pledging jewels he could arrange the money of Rs.4 lakhs, handed over the same to the second respondent. Their daughter (P.W.3) is an Engineering Graduate, B.E (Electrical and Electronics). P.W.2 states that one of her son is in abroad and another son is employed in CISF and her other daughter is married and settled.
7.He further submitted that Handwriting Expert P.W.14 categorically given a finding about Q1 to Q3 tallying with A1 to A15. The admitted signatures and writings of the second respondent, admitted documents were produced by P.Ws.11, 12 and 15. The officials of Corporation of Thoothukudi, who in normal course have dealt with these documents. Though specific question was posted to 6/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 Q4 with regard to the writings of the appellant, the same could not be answered by P.W.14 for the reason that the appellant refused to give the signature and hand writing despite orders passed by the Judicial Magistrate, as could be seen from P.W.5. The adverse inference has to be drawn against the appellant on his refusal to give specimen writing and signatures. There is no specimen signature and writings for this reason, hence, Q4 could not be answered for want of specimen writings.
8.The learned counsel further submitted that with regard to the other charge for the offence under Section 3(1) (x) of SC/ST (POA) Act apart from P.W.1, P.W.4 and 6 have witnessed and heard the appellant using prohibitory words calling the appellant by his caste name. P.W.13 Thasildhar, who had issued the Community Certificate Exs.P12 and P13 for the appellant and respondent No.2. P.W.5 not supported the case of the prosecution. He submitted that it is a case of job rocketing and a huge amount of Rs.4 lakhs was cheated by the second respondent being an elected member of Ward No.42 of Corporation of Thoothukudi, deceived and received money from the appellant, after getting money, he executed Exs.P.1 and P2, thereafter, cheated the appellant. He further submitted that the Trial Court has not given proper reason in acquitting the accused 7/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 and finding of the Trial Court is perverse contrary to law. Hence, he prayed for setting aside the acquittal judgment, by allowing the appeal and convict the accused/2nd respondent herein. In support of his contention, the learned counsel relied on the following decisions:-
(i)In the Judgment in Devender Kumar Singla, reported in (2005) 9 SCC 15) the Hon'ble Supreme Court, in paras 7 and 8 has held as follows:
“7.In order to appreciate the rival submissions, it would be necessary to consider on the background of the factual position as to whether offence punishable under Section 420 IPC is made out. Section 420 deals with certain specified classes of cheating. It deals with the cases whereby the deceived person is dishonestly induced to deliver any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. Section 415 defines "cheating". The said provision requires, (i) deception of any person (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or (iii) intentionally inducing that person 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. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly 8/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 clear by use of disjunctive conjunction 'or'. The definition of the offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which no transfer occurs.
Deception is the quintessence of the offence. The essential ingredients to attract Section 420 are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and the (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420. (See Bashirbhai Mohamedbhai v. State of Bombay, AIR (1960) SC 979.
8.As was observed by this Court in Shivanarayan Kabra v. State of Madras, AIR (1967) SC 986 it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things it is not always possible to prove dishonest intention by any direct evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn.”
(ii).The Hon'ble Apex Court in the Judgment in Arun Bhandari V. State of U.P. and Others, reported in (2013-2-L.W. (Crl.) 261) in para 27, it has been held as follows:
“27. We have referred to the aforesaid decisions in the field to highlight about the role of the Court while dealing with such issues. In our considered opinion the present case falls in the category which cannot be stated at this stage to be purely civil in nature on the basis of the admitted documents or the allegations made in the FIR or what 9/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 has come out in the investigation or for that matter what has been stated in the protest petition. We are disposed to think that prima facie there is allegation that there was a guilty intention to induce the complainant to part with money. We may hasten to clarify that it is not a case where a promise initially made could not lived up to subsequently. It is not a case where it could be said that even if the allegations in entirety are accepted, no case is made out. Needless to emphasise, the High Court, while exercising power under Article 226 of the Constitution or Section 482 of the CrPC, has to adopt a very cautious approach. In Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS and another[18], the Court, after referring to Janata Dal v. H.S. Chowdhary[19] and Raghubir Saran (Dr.) v.
State of Bihar[20], has observed that the powers possessed by the High Court under Section 482 of the IPC are very wide and the very plentitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles and such inherent powers should not be exercised to stifle a legitimate prosecution. This Court has further stated that it is not proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It has been further pronounced that it would be erroneous to assess the material before it and conclude that the complaint could not be proceeded with. The Bench has opined that the meticulous analysis of the case is not necessary and the complaint has to be read as a whole and if it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no 10/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. ”
(iii). In the Judgment in Khurshid Ahmed Vs. State of Jammu and Kashmir reported in (2018) (7) SCC 429 wherein, the Hon'ble Supreme Court, in paras 35 to 38 has held as follows:
“35. When analyzing the evidence available on record, Court should not adopt hyper technical approach but should look at the broader probabilities of the case. Basing on the minor contradictions, the Court should not reject the evidence in its entirety. Sometimes, even in the evidence of truthful witness, there may appear certain contradictions basing on their capacity to remember and reproduce the minute details. Particularly in the criminal cases, from the date of incident till the day they give evidence in the Court, there may be gap of years. Hence the Courts have to take all these aspects into consideration and weigh the evidence. The discrepancies and contradictions which do not go to the root of the matter, credence shall not be given to them. In any event, the paramount consideration of the Court must be to do substantial justice. We feel that the trial Court has adopted an hyper technical approach which resulted in the acquittal of the accused.
36. The learned counsel strenuously submitted that in an appeal against acquittal, the scope of interference by the appellate Court is very narrow and the High Court erred in interfering with the well considered judgment of acquittal. It is appropriate to refer Padam Singh v. State of U.P., (2000) 1 SCC 621, in which 11/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 while explaining the duty of the appellate court, this Court has expressed thus:
“2. ......... It is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.”
37. The power of the appellate Court in an appeal against acquittal is the same as that of an appeal against conviction. But, in an appeal against acquittal, the Court has to bear in mind that the presumption of innocence is in favour of the accused and it is strengthened by the order of acquittal. At the same time, appellate Court will not interfere with the order of acquittal mainly because two views are possible, but only when the High Court feels that the appreciation of evidence is based on erroneous considerations and when there is manifest illegality in the conclusion arrived at by the trial Court. In the present case, there was manifest irregularity in 12/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 the appreciation of evidence by the trial Court. The High Court based on sound principles of criminal jurisprudence, has interfered with the judgment of acquittal passed by the trial Court and convicted the accused as the prosecution was successful in proving the guilt of the accused beyond reasonable doubt.
38. In view of the foregoing discussion and a conspectus of all the material would pave way to conclude that the prosecution has proved the case beyond reasonable doubt and the appeal preferred by the accused is bereft of any substance and accordingly dismissed.”
(iv) In the Judgment reported in (2010) 2 Supreme Court Cases (Cri) 256 – Ashish Jain V. Makrand Singh and Others, the Hon'ble Apex Court in paras 34 to 38 has held as follows:
“34. Another incriminating factor as argued by the counsel for the complainant is that the fingerprints of Accused No. 1 were found upon the tea tumblers found at the scene of the crime. We do not agree with the conclusion of the High Court that the fingerprint samples of the accused (used for comparison with the fingerprints on the tumblers) were illegally obtained, being in contravention of the Identification of Prisoners Act, 1920, inasmuch as they were obtained without a magisterial order. Importantly, Section 4 refers to the power of a police officer to direct taking of measurements, including fingerprints:
“4.Taking of measurements, etc., of nonconvicted persons.— Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner.” 13/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014
35.Section 5 of this Act provides for the taking of such samples upon an order of a Magistrate, if the Magistrate is satisfied as to its expediency:
“5. Power of Magistrate to order a person to be measured or photographed.—If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898)† it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:
Provided that no order shall be made directing any person to be photographed except by a Magistrate of the First Class:
Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.”
36.However, as affirmed recently by this Court in Sonvir v. State (NCT) of Delhi, (2018) 8 SCC 24, Section 5 is not mandatory but is directory, and affirms the bona fides of the sampletaking and eliminates the possibility of fabrication of evidence. The Court also relied on various judgments on the point, including Shankaria v. State of Rajasthan, (1978) 3 SCC 435, a threeJudge Bench decision of this Court to reach this conclusion. While discussing the decision of this Court in Mohd. Aman v. State of Rajasthan, (1997) 10 SCC 44, the Court observed at paragraphs 6062 as follows:14/44
http://www.judis.nic.in Crl.A(MD)No.149 of 2014 “60. This Court observed that the prosecution has failed to establish that the seized articles were not or could not be tampered with before it reached the Bureau for examination. Further the following was stated in para 8: (Mohd. Aman case [Mohd. Aman v. State of Rajasthan, (1997) 10 SCC 44 : 1997 SCC (Cri) 777] , SCC p. 49) “8. … Apart from the above missing link and the suspicious circumstances surrounding the same, there is another circumstance which also casts a serious mistrust as to genuineness of the evidence. Even though the specimen fingerprints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate.” (emphas is supplied)
61. The above observation although clearly mentions that under Section 4 police officer is competent to take fingerprints of the accused but to dispel as to its bona fide or to eliminate the fabrication of evidence it was eminently desirable that they were taken before or under the order of the Magistrate.15/44
http://www.judis.nic.in Crl.A(MD)No.149 of 2014
62. The observation cannot be read to mean that this Court held that under Section 4 police officers are not entitled to take fingerprints until the order is taken from the Magistrate. The observations were made that it is desirable to take the fingerprints before or under the order of the Magistrate to dispel any suspicion…” (emphasis supplied)
37.Even otherwise, pursuant to S. 8 of the Identification of Prisoners Act, rules have been framed by the Madhya Pradesh government for the purpose of carrying into effect the provisions of the said Act. The relevant rules for the matter on hand are Rules 3, 4 and 5, which are reproduced herein:
“3. Taking of photographs or measurements. Allow his photograph or measurements to be taken under Section 3 or Section 4, shall allow them to be taken under the directions of a police officer.
4. Places at which measurements and photographs can be taken.
(1) Measurements and photographs may be taken
(a) in Jail, if the person whose photograph, or measurements are to be taken, is in Jail;
(b) at a police station or at any other place at which the police officer may direct the taking of the measurements or photographs, if the person whose photograph or measurements are to be taken is in police custody.
(2) If the person whose photograph or measurements are to be taken has been released from jail before his measurements or 16/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 photograph have been taken or is not in police custody, he shall on receipt of an order in writing from an officer in charge of a Police Station attend at such place as may be specified in such order, on the date and at the time stated therein, for the purpose of having his measurements or photograph taken.
5. Measurements how to be taken. (1) Measurements of the whole or of any part of the body may be taken.
(2) The measurements of a woman shall be taken by another woman with strict regard to decency.” A bare reading of these rules makes it amply clear that a police officer is permitted to take the photographs and measurements of the accused. Fingerprints can be taken under the directions of the police officer.
38.As held by this Court in Sonvir (supra), although Section 4 mentions that the police officer is competent to take measurements of the accused, but to dispel doubts as to its bona fides and to rule out the fabrication of evidence, it is eminently desirable that they were taken before or under the order of a Magistrate. However, the aforesaid observations cannot be held to mean that this Court observed that under Section 4, police officers are not entitled to take fingerprints until the order is taken from a Magistrate. If certain suspicious circumstances do arise from a particular case relating to lifting of fingerprints, in order to dispel or ward off such suspicious circumstances, it would be in the interest of justice to get orders from the Magistrate. Thus there cannot be any hard and fast rule that in every case, there should be a 17/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 magisterial order for lifting the fingerprints of the accused. Thus, it cannot be held that the fingerprint evidence was illegally obtained merely due to the absence of a magisterial order authorizing the same.”
9.The learned Additional Public Prosecutor submitted that in this case, P.W.1 is the complainant, P.W.2 is his wife and P.W.3 is her daughter. These witnesses are natural, corroborated to each other. P.W.7 is the observation mahazer witness. P.W.13 is the Tahsildar, who had issued community certificates of the appellant and second respondent. P.W.16, Sub Inspector of the police registered the complaint. He further submitted that prosecution filed a petition under Section 311 A Cr.P.C. before the Lower Court in Crl.M.P.No. 4559 of 2008 during investigation. Despite the order of Lower Court dated 23.07.2008, the 2nd respondent/Accused refused to give his specifimen writings and signature, but preferred a petition before the Sessions Court in Crl.R.C.No.38 of 2008, which was dismissed on 05.05.2009. The accused with criminal intent refused to give his specimen adverse inference to be drawn. The lower Court on wrong premise despite materials and evidence available had held that the prosecution has not proved the case beyond reasonable doubt, which is perverse and to be set aside. 18/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014
10.Mr.G.Marimuthu, learned counsel for the second respondent/complainant submitted that in this case the lower Court on the evidence of materials had given a clear finding. The prosecution has not produced any letter of P.W.3 that she was called for interview and for what purpose money was given by P.W1 and P.W.2. Further, they have not produced any bills for pledging the jewels and not examined any person to show that loan was taken from them. In Ex.P.3 though there is mention of several annexures, they are not produced.
11.The learned counsel further submitted that P.W.1 in his chief examination has also not mentioned how he was in possession of Rs.4 lakhs and handed over to second respondent. According to the second respondent, one Kamalakannan, a ward member of Thoothukudi Corporation, is politically against him and using the appellant and others in fabricating documents had initiated the above case.
12.The learned counsel denied the signatures found in Ex.P.1 and Ex.P.2 and further stated that the 2nd respondent has also given reasons, when he was questioned under Section 313 Cr.P.C. in question No.23. As per Identification of Prisoners Act, the specimen signature of writings were not obtained. There is considerable delay 19/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 in registering FIR. According to the appellant, the date of occurrence is on 09.05.2008 and FIR came to be registered only on 10.06.2008. He also contended that no letter or any material produced to show P.W.3 was called for interview. Further no much reliance to be placed in Ex.P5. In view of the same, the hand writing expert (P.W.14) and his report (Ex.P.15) cannot be taken as a substantial evidence. The entire case, has been politically motivated and the second respondent never received any money. The lower Court on perusal of evidence rightly acquitted the second respondent and the finding of the lower Court cannot be disturbed without showing any perversity. Thus, he prayed for dismissal of the appeal. In support of his contention, he relied upon the decision of this Court in V.Ponnusamy V. State reported in 2016(3) MWN (Cr.) 148, wherein, this Court in paras 24, 27and 28 has held as follows:
“24. With regard to the arguments of the learned counsel for the appellant based on Rule 7, framed under the Scheduled Caste and Scheduled Tribes (Prevention Atrocities) Act, 1989, I have occasion to consider the same elaborately in Periyasamy's case (supra). It is relevant here to extract the following portions from the judgment in the said case:-
“26. In 1995, in pursuance of Section 23 of the SC&ST (P.A.) Act, 1989, the Scheduled Castes and the Scheduled Tribes 20/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 (Prevention of Atrocities) Rules, 1995 has been framed. Its Rule 7 relevant for our purpose runs as under:-
"7. Investigating Officer.--(1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.
(2) The Investigating Officer so appointed under sub- rule (1) shall complete the investigation on top priority basis within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police to the State Government."
27. In view of the nature of the offence, Higher Officials namely an Officer not below the rank of a Deputy Superintendent of Police has been specified in the Rules, to investigate this type of offences. Further Rule 7(1) specifically mentions that the D.S.P. should have specified past experience etc. Further, as per Rule 7(2), the investigation has to be completed within 30 days.
28. In Mrs.Mariammal vs. State of Tamil Nadu {1998 (1) MWN (Cr.) 349}, this Court interpreted the said Rule as under:-
"18. It follows from this Rule that it is mandatory in the case of an offence complained of under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 that 21/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 the investigation should be done by a Deputy Superintendent of Police and not the Inspector of Police, whatever may be the allegation as true or otherwise. In other words even if the allegations in the FIR are not true, even then the case can be investigated by the Deputy Superintendent of Police and not by the Inspector of Police."
29. In Sambasivam and Another vs. State {2007 (1) MWN (Crl.) 69}, this Court had occasion to go elaborately into the significance of the said Rule 7(1). In Sambasivam (supra), the Court observed as under:-
15. Rule 7(1) of the Rules reads:
"An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time."
16. A careful reading of the above Rule and its purpose would reveal, that an Investigating Officer has to be appointed to investigate this kind of cases by the State government/Director General of Police/ Superintendent of Police, taking into account the past experience, sense of ability etc. of the officer and this is possible only if the individuals are considered separately. Rule does not say that all the Deputy Superintendents of Police are competent to investigate this kind of cases, irrespective of their experience, 22/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 sense of ability etc. Therefore, in my considered opinion, a person, who has been named and appointed, considering his past experience and ability alone is competent to investigate this kind of cases, otherwise, the purpose of the Rule will not be served. If all the Deputy Superintendents of Police of the State are empowered, as observed by the trial Court, placing reliance upon some circular, which is not available for perusal, before me, then, there may not be any chance for the higher authorities to take into account the past experience, sense of ability and justice to perceive the implications of the case of the officer, which were considered so essential, to investigate this kind of cases, considering the sensitiveness and the caste discrimination prevailed or prevailing throughout, though we have crossed so many years from the date of independence. When the Rules framed under the Act, says how, by whom the case is to be investigated, I am of the view, the same cannot be nullified or overlooked, by issuing a circular, empowering all the Deputy Superintendents of Police, to investigate this kind of cases, forgetting or ignoring the purport of Rule 7, which is mandatory, not challenged. If it is to be taken, all the Deputy Superintendents of Police are empowered, the Rule need not say, past experience, sense of responsibility etc., simply it would have been stated "by the officer not below the rank of Deputy Superintendent of Police" in general form, which is not the import or purport of Rule 7, as read from its proper perspective.
17. The learned counsel for the appellants, inviting my attention to a decision of the Division Bench of the Andhra Pradesh High Court in Viswanadhula Chittibabu vs. State of 23/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 A.P. (2002 (4) Andhra Law Times Reports 456), would submit that the investigation done by any person, not authorised under Rule 7 of the Rules, should be treated as prejudice caused to the accused, since Rule 7 is mandatory and not directory. It is observed in the above Ruling:
“The Act was enacted in the year 1989, whereas the Rules were framed in the year 1995, under Section 23 of the said Act. There was a delay of about six years in framing the Rules. It has to be considered why the Government framed this Rule. According to our logic, the Government experienced that the Act is being misused and therefore, felt that under such Acts, the investigation has to be done by a responsible Senior Officer and therefore, they chose Dy.S.P. to make an investigation. This Rule does not provide that all Dy.S.Ps. can investigate into the matter but provides that the Dy.S.P., named by the State Government or Director General of Police or Superintendent of Police has to nominate and select a Dy.S.P., with integrity and experience to investigate into such offences, which will prevent the misuse of the Act, and therefore, the provision contained in Rule 7 of the said Rules has to be interpreted as mandatory. In some of the rulings cited, their Lordships held that if there were procedural defects, the trial would not vitiate. The procedure means a procedure, which is adopted by the Court. When the investigation has to be done by a Police Officer not below the rank of Dy.S.P. under Rule 7 of the said Rules framed under Section 23 of the said Act, it has some meaning. It is not the procedural defect, it is inherent defect in making the investigation and that would vitiate the entire trial."24/44
http://www.judis.nic.in Crl.A(MD)No.149 of 2014 The said reasonings are legally sound and I should follow, as concluded by me in the previous paragraph.
18. The same view was taken by this Court also in H.THENMOZHI vs. INSPECTOR OF POLICE, P.R.C.UNIT, St.THOMAS MOUNT POLICE STATION, CHENNAI AND ANOTHER [(2006) 2 MLJ (Crl.) 463], wherein it is stated that the investigation done by the Inspector of Police vitiates the entire proceedings and the accused is entitled to an acquittal. In the case involved in the above decision, as seen from the judgment, the investigation has been done by the Inspector of Police and the same has been forwarded to the DSP, to investigate the matter further, probably considering the fact, the investigation by the Inspector of Police goes to the root of the matter. This Court, considering the above facts, took the view that the same would vitiate the entire proceedings, giving acquittal, which should be followed by me also, since I am in confirmity with the view expressed by the learned Judge.
30. Recently, in Sekar and others vs. D.S.P., Pudhuchatram {CDJ 2011 MHC 5916}, this Court while referring to the said Rule 7(1) reiterated the its earlier views which we have seen already.
31. In Asmathunnisa vs. State of A.P. (CDJ 2011 SC 332), referring to the said Rule 7(1) when the Investigating Officer namely D.S.P. is not the person as contemplated in the Rules, in other words, not specifically empowered referring to his past experience, the Apex Court held him an incompetent Police Officer to investigate such an offence.
25/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014
32. Now considering the above Rule position and the decisions on the point, there cannot be quarrel over the proposition that it is not all the D.S.Ps. even Police Officers above him in rank cannot investigate the offences alleged to have been committed under SC&ST (P.A.) Act, 1989 unless they are specifically empowered by the Government or by the Superintendent of Police (in case of Metropolitan Cities, the Deputy Commissioner) taking into account their past experience and sense of ability etc.
33. The consequence of investigation done by a Police Officer not below the rank of a Deputy Superintendent of Police who has not been so empowered as mandated in Rule 7(1) has been pointed out by this Court in Sambasivam (supra) that the entire proceedings is vitiated.
34. Now in this case, PW-15 Subramaniam, D.S.P., Avinashi Sub Division took up his investigation on 25.4.2007. No materials or records to show that he has been empowered to undertake investigation with the required authorisation as contemplated under Rule 7(1).
25. Now on this aspect, we will revert to the case before us.
26. No doubt, PW-11 is a Deputy Superintendent of Police, but the point is whether then he was statutorily qualified to investigate this case registered under SC&ST (P.A.) Act, 1989. There is no record to show that a specific order empowering him to investigate this case has been passed by the District Superintendent of Police taking into account his special qualification as prescribed under the Rules. Further, nowhere in his evidence, PW-11 would say that he has been so empowered. In such circumstances, Periyasamy's case squarely applies to this case.
26/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014
27. In this case, FIR has been registered on 3.9.2007 by PW-10 Inspector of Police. On the same day, PW-11, D.S.P., took up his investigation. Admittedly, he has completed his investigation and filed the Final Report before the Court only on 17.10.2007. It is clear that it is beyond 30 days.
28. In this connection, it is relevant here to extract what is stated in paragraph-36 in Periyasamy's case, which runs as under:-
“36. As per Rule 7(2), the investigation has to be completed within 30 days. Now in this case PW-15 took up his investigation on 25.4.2007. He has filed the Final Report before the concerned Court only on 10.9.2007. It is far beyond 30 days. The Act gave him 30 days, but he took more than 3 months to complete the investigation.”
13.Heard the learned counsel appearing for the appellant, learned Additional Public Prosecutor appearing for R1/State and the learned counsel appearing for the 2nd respondent/accused.
14. In this case, totally there are 7 witnesses and 18 documents on the side of the prosecution and one defence document. The witnesses could be broadly classified as follows:-
P.Ws. 1 to 3 are the witnesses to prove the fact for occurrence on 30.08.2007, the 2nd respondent has come to their house, made false promise to secure job of Assistant Engineer in Tamil Nadu 27/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 Electricity Board (in short, 'TNEB'), and demanded Rs.4,00,000/-.
On 02.09.2007, Rs.4,00,000/- was paid by P.W.1 in the presence of P.W.2 and P.W.3, the 2nd respondent executed Ex.P1 / receipt.
Thereafter, for repayment of Rs.4,00,000/- the 2nd respondent executed an undertaking Ex.P2 on 14.04.2008. P.Ws.8 to 10 are the witnesses for respondent executing undertaking on 14.04.2008, in which reiterating the receipt of Rs.4,00,000/-, on 02.09.2007, for securing job to P.W.3 in TNEB and his failure to get the same are recorded. Thereafter, promised to repay by 25.05.2008. P.W.9 and P.W.10 are the witnesses to Ex.P2. P.Ws.11, 12 and 15 are from Corporation, Thoothukudi. P.W.11 is the Junior Assistant, who produced the Attendance Register of the Councillors attending the Council meeting / Ex.P6. P.W.12 another Junior Assistant of the Corporation, Thoothukudi, who produced the recommendation letters signed by the 2nd respondent / Ex.P.10 and P.11. P.W.15 was the Commissioner, Corporation, Thoothukudi, during 2007 – 2009 had directed P.W.12 to submit the documents, as per the orders of the Court. Further, this witness state that Exs.P10 & P11 are the letters signed by 2nd respondent.
15. For the occurrence taken place on 09.05.2008, on which date, P.W.1 had come to the residence of 2nd respondent, asking for 28/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 return of money, as per Exs.P1 and P2. There seems to be some heated exchange of words between the appellant and the 2nd respondent and the appellant was threatened and 2nd respondent had used abusive prohibitory words, by calling upon the appellant by his caste name, which was witnessed by P.Ws.4, 5 and 6 / the neighbours of the 2nd respondent. P.W.7 is the witness for Observation Mahazar. P.W.13 is the Tahsildar, who had issued Community Certificates of the appellant and the 2nd respondent / Exs.P12 and P13 respectively. P.W.14 is the Handwriting Expert, who had examined Exs.P1 and P2 in which, Q1 to Q4 were examined and he had given Ex.P15 / Report., confirming the signatures found in Exs.P1 and P2 viz., Q1 to Q3 as that of the 2nd respondent. P.W.16 is the Inspector of Police, who registered a case in Crime No.364 of 2008, on 10.06.2008. P.W.17 the Deputy Superintendent of Police, who was entrusted with the case on the death of earlier Investigating Officer.
16.P.W.3 is the daughter of P.Ws.1, and 2. P.W.3 completed her Bachelor Degree in Engineering,. She had attended the interview for the post of Assistant Engineer in TNEB. P.W.2 was working as Noon Meal Co-ordinator in the 42 nd Ward. The 2nd respondent was the Ward Councilor. Hence, they are known to each 29/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 other. P.W.2 had mentioned about her daughter's employment. At that time, the 2nd respondent promised that he knew officials and politicians, through them he would secure a post for her daughter.
On 30.08.2007, the 2nd respondent had come to the house of the appellant, promised to secure employment to P.W.3 and for which, he received Rs.4,00,000/-. Thereafter, on 02.09.2007, the amount of Rs.4,00,000/- was handed over to the 2nd respondent and Ex.P1 was written and signed by the 2nd respondent. This fact has been spoken by P.Ws.1 and 3.
17. Thereafter, the 2nd respondent failed to secure the job and hence, P.W.1 accompanied with his relative P.W.8, had gone to the house of the 2nd respondent, the 2nd respondent admitting about the receipt of money, unable to secure the job and executed an undertaking on 14.04.2008, promising to repay the amount of Rs. 4,00,000/- on 24.05.2008. This undertaking has been signed by the 2nd respondent, witnessed by P.Ws.1 and 8 to 10 confirmed about execution of Ex.P2. Thereafter, on 09.05.2008, the appellant had gone to the house of the 2nd respondent, asking for the return of money. The 2nd respondent become furious, scolded, threatened with abusive words, including prohibitory words by using caste name, which was witnessed by P.Ws.4 and 6 / neighbours of the 2nd 30/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 respondent.
18. Thereafter, P.W.1 lodged a complaint to the respondent and copies have been sent to the higher officials. The complaint submitted to the Superintendent of Police was received on 10.05.2008, which was given S.No.773, dated 10.05.2008 and forwarded to the South Police Station, Thoothukudi with the stamp and endorsement, dated 12.05.2008. Thereafter, the complaint / Ex.P3, after preliminary investigation FIR / Ex.P16 came to be registered on 10.06.2008. The lower Court had acquitted the 2nd respondent of all the charges under Sections 420 and 506 (ii) IPC and Section 3(1)(x) of SC/ST Act.
19. For the occurrence on 09.05.2008, the charge under Section 506 (ii) IPC and Section 3(1)(x) of SC/ST Act had been framed, for which the evidence of P.Ws.1 and 4 to 6 were relied. P.W.5 had not supported the case of the prosecution. From the evidence of P.Ws.1, 4 and 6, there are some contradictions with regard to the manner and place in which the occurrence had taken place and use of abusive words. P.W.6 is silent about use of any 31/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 abusive words. P.Ws.1 and 4 are contrary to each other for the same, the lower Court disbelieved the evidence as regards to the occurrence on 09.05.2010 is on sound principles and this Court finds which need not be interfered with. Hence, as regards the acquittal of the 2nd respondent for offence under Section 506(ii) and Section 3(1)(x) of SC/ST Act the lower Court finding is confirmed.
20. With regard to the delay in lodging Ex.P3 / Complaint, it is seen from the records that Ex.P3 given to the Superintendent of Police, Thoothukudi, on 10.05.2008, and it is also found necessary endorsement with seal dated 12.05.2008. The Complaint / Ex.P5 is dated 09.05.2008 and hence, there is no delay on the part of the appellant and it is also seen that the appellant along with the complaint had annexed copies of four documents. Though these documents not produced by the 1st respondent, the lapses and latches of the first respondent cannot ensue any right benefiting to the 2nd respondent.
21. With regard to the charge for offence under Section 420 IPC., the evidence of P.Ws. 1 to 3 are categorical and clear in respect of false promise, deception and receipt of Rs.4,00,000/-, by the 2nd respondent, on 02.09.2007 and execution of Ex.P1. Though 32/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 attempt was made by the 2nd respondent to cast aspersions and motive as though he had given a complaint against P.W.2 with regard to distribution of eggs in the Noon Meal Centre and that is the reason he has been implicated in this case, apart from this empty suggestion, there is no other materials. Further, the other contention is that the appellant had no resources to make payment of Rs.4,00,000/- and no receipt or any loan papers have been produced in the case, though it has been mentioned in Ex.P3 complaint, P.W.1 had categorically states that he had submitted the proof along with the complaint. P.W.2 clearly mentions about the family background and status wherein, she states that her eldest son Selvakumar is settled in U.S; her second son working in CISF; her other daughter Kavitha is settled in Kuwait and P.W.3 is the only daughter with them. Further, P.W.1 had retired from the BSNL, a Public Sector Undertaking; P.W.2 is employed in Anganwadi. Hence, the family had resources. In anxiety to get employment for P.W.3 in TNEB, lured by the words of 2nd respondent, they were deceived and handed over Rs.4,00,000/-, which is not unaffordable amount, as could be seen from the family status and earnings capacity of P.Ws.1 and 2. Hence, the contention of the petitioner is not sustainable.
22. With regard to the other contention that P.Ws.3 had not 33/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 produced any document to show that she had attended the interview in TNEB is not sustainable as could be seen that P.W.3 is categorical about the date when she had attended the interview. In fact, the amount of Rs.4,00,000/- had been paid after the interview, before the results, since the 2nd respondent promised that he could get the job and employment order in favour of P.W.3. Hence, the 2nd respondent on receiving Rs.4,00,000/- from P.W.1 on 02.09.2007, executed Ex.P1, which is clearly proved by the evidence of P.Ws.1 to 3 and in Ex.P1, the signature viz. Q.3 had been proved to be that of the 2nd respondent as per the evidence of P.W.14 and Ex.P15 / Report.
23. Likewise, for the happenings on 14.04.2008, on which day, Ex.P2 undertaking was executed by the 2nd respondent, P.Ws.1 and 8 to 10 have clearly stated about P.Ws.1 & 8 visiting 2nd respondent, asking for return of money. At that time, the 2nd respondent gave an undertaking that by 25.05.2008, he shall return back the amount of Rs.4,00,000/- and he had signed Ex.P2. P.Ws.9 and 10 are the attesting witnesses, who have clearly spoken about the execution of Ex.P2. On perusal of Exs.P1 and P2 it is seen that the 2nd respondent had admitted about receipt of Rs.4,00,000/- to secure the job for P.W.3 on his failure promised to return the same by 34/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 25.05.2008, since he was unable to secure the job, as promised. The signatures of the 2nd respondent found in Ex.P2 are Q1 and Q2, which had been compared and studied by P.W.14, given a report / Ex.P15 that the signatures found in Ex.P2 is that of 2nd respondent. The 2nd respondent made an attempt to project as though one Kamalakannan and another, who are politically against him and using the Self Help Group loan documents, which the 2nd respondent had obtained on 02.09.2007, in which, his signature is found had been made use and forged signatures have been created in document Exs.P1 and P2. Exs.P1 & P2 wherein Q1 to Q4 are the questioned documents were compared with Exs.P6 to 11, admitted documents, which are the attendance register, signatures found in the register and the letters of the 2nd respondent. These documents have been produced on the orders of the lower Court by P.Ws.11 and 12. P.W.15, the Corporation Commissioner confirms about forwarding the documents. These documents are signed by the 2nd respondent in normal course during his tenure as Ward Councillor, when he attended the council meeting and the registers are maintained in the normal course. The 2nd respondent signatures found in the registers and letters are admitted signatures A1 to A15.
35/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014
24. It is pertinent to note that the 2 nd respondent was directed by the lower Court to furnish his signatures and writings under Section 311(A) Cr.P.C., despite the direction of the lower Court, the 2nd respondent refused to furnish. Thereafter, he filed a Revision before the Sessions Court and the Sessions Court in Cr.R.C.No.38 of 2008, by order dated 05.05.2009, had dismissed the Revision, confirming the orders of the trial Court. Thus, the 2nd respondent though was directed to give specimen signatures and writings, fearing exposure and falsity of his claim that signatures in Exs.P2 and P3 were not that of him he refused to give specimen, hence, adverse inference under Section 114 of Indian Evidence Act comes into play. The 2nd respondent having refused to furnish his signature cannot now question the veracity and findings of the Handwriting Expert and his report.
25. The lower Court without assigning any proper reason had made only a passing reference to P.W.14 / Expert and stated that the Expert Opinion is only a corroborative evidence and it is not a conclusive proof. In this case, the Expert evidence of P.W.14 and Ex.P15 are corroborative and in confirmative to the evidence of P.Ws.1 to 3 and 8 to 10. Hence, it has been clearly proved that the signatures Q1 to Q3 found in Exs.P1 and P2 are signed by the 2 nd 36/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 respondent. The lower Court in paragraph 28 had given a finding as though P.W.14 had not examined the Tamil writings in Ex.P1 and thus Ex.P1 cannot be said to be proved. In the same paragraph, without any reason, Ex.P2 is also included as a document, which is not proved. Ex.P1 is the Tamil manuscript. in view of the 2nd respondent refusing to give specimen writings cannot seek any advantage.
26. It is also seen that in the written explanation to Section 313 Cr.P.C., questioning, the 2nd respondent admitted that he was councilor during the period between 2006 to 2011. P.W.2 was an Anganwadi Co-ordinator in Ward No.42. Further, he cast aspersion on P.Ws.11, 12 and 15, the Thoothukudi Corporation officials, as though they have taken sides with one Kamalakannan and had created documents would only expose the criminal intention of the 2nd respondent to make allegation against anyone to somehow get out from the case. P.Ws.11, 12 and 15 are officials from Corporation of Thoothukudi, they are not known to the appellant or enemical to the 2nd respondent, they are no way interest in the outcome of the case.
27. This Court, on perusal of the report and documents finds that there is no infirmity and the prosecution had clearly proved by 37/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 materials and evidence that the signatures found in Exs.P1 and P2 is that of the 2nd respondent. The 2nd respondent is not a layman, being councilor, he knows the import of writings made in Exs.P1 and P2, having executed the same admitted about receipt of Rs. 4,00,000/- has clearly committed an offence of cheating. Being in an envious position, as an elected member of a leading political party, claiming to have contacts with the officials and politicians, promised sure in securing the job for P.W.3, the anxious parents had been lured, deceived and their anxiety had been encashed by the 2nd respondent and on receiving the amount, executed Exs.P1 and P2 would clearly amount to cheating. Further, failure to co-operate with the investigation in giving specimen writings and signatures, despite the orders of the Court fortified and proved that Exs.P1 and P2 were signed and executed by the 2nd respondent.
28. The reason given by the lower Court in this regard are not sound. The lower Court in its judgment at paragraph 20 states that Exs.P1 is a unilateral document and it is a piece of white paper with some writings and there is no explanation on the side of the prosecution why P.W.1 handing over huge amount, got Ex.P1 in a white paper instead of getting it in a stamped document. Further, the interview was held on 18.08.2007 and the alleged transaction 38/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 was on 02.09.2007. From the evidence of P.W.3 it is clear that after the interview only, the 2nd respondent promised that he would secure job for P.W.3. Further, the 2nd respondent had executed Ex.P1 in a white paper, which has been clearly spoken to by P.Ws.1 to 3. The signatures found in Ex.P1 has been proved.
29. On the same breath, the lower Court, at paragraph 21 states that Ex.P2 reveals that Rs.4,00,000/- to be repaid and Ex.P2 undertaking in a bond and the subsequent act of the 2nd respondent agreeing to repay the same at a latter date would clearly show that there is no intention of the 2nd respondent that he would not repay the amount, further, at paragraph 37, he gives a finding that the accused has no dishonest intention at the time of borrowal of money. Further goes to state that if 2nd respondent had dishonest intention from the beginning, when he executed Ex.P1, he would have refused to execute Ex.P2. So, the conduct of 2nd respondent shows that his intention to repay the amount and hence, there is no question of cheating. This finding of the lower Court is perverse against law. If this proposition is to be accepted, it would lead to anomaly. Every persons who commits cheating, if he pretends to show inclination by undertaking and further does not make any payment, then, no offence of cheating would arise, cannot be acceptable, and absolve 39/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014 such persons.
30. The lower Court had lost sight of the fact that the admitted writings of the 2nd respondent had been produced by P.Ws. 11 and 12, which have been verified by P.W.14 and a report Ex.P15 had been given. Hence, the admitted signatures had been verified with the questioned documents Q1 to Q4 of which, Q1 to Q3 are the signatures of the 2nd respondent, which are found in Exs.P1 and P2. It is admitted fact that the 2nd respondent refused to provide specimen sign and signatures on the orders of the Magistrate. Further, as per Ex.P5, it has been categorically sated that the 2nd respondent refused to give his specimen signatures and writings, which would prove the criminal intent of the 2nd respondent.
31. In view of the above, this Court, on the evidence of P.Ws.1 to 3, P.Ws.8 to 15 and on Exs.P1, P2 and P6 to P11 and on the report / Ex.P15 has no hesitation and comes to the conclusive proof that the signatures in Exs.P1 and P2 of the 2nd respondent has been proved and on taking into consideration of both oral and documentary evidence of the witnesses it is clearly proved that the 2nd respondent had committed an offence under Section 420 of IPC. 40/44 http://www.judis.nic.in Crl.A(MD)No.149 of 2014
32. In fine, the Criminal Appeal is partly-allowed, setting aside the Judgment of acquittal recorded by the learned II Additional Sessions Judge, Tirunelveli, Tirunelveli District, dated 13.03.2014 to the extent that the 2nd respondent is found guilty of the offence under Section 420 IPC., and is convicted accordingly.
33. The learned counsel appearing for the 2nd respondent shall inform the accused to personally remain present before this Court on 10/02/2020. This Court adjourns the case for hearing the accused / 2nd respondent on the question of sentence. If on that day, he fails to appear before this Court, the counsel for the 2nd respondent will be heard on the question of sentence.
34. For hearing of the accused on the quantum of sentence, Registry is directed to list the appeal on 10/02/2020, under the caption, “for the appearance of the 2nd respondent”.
30.01.2020
Index : Yes / No
Internet : Yes / No
Arul / Mpk
41/44
http://www.judis.nic.in
Crl.A(MD)No.149 of 2014
To
1.The II Additional Sessions Judge,
Tirunelveli,
Tirunelveli District.
42/44
http://www.judis.nic.in
Crl.A(MD)No.149 of 2014
2. The Deputy Superintendent of Police,
Thoothukudi Town,
Thoothukudi District
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Record Clerk,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
M.NIRMAL KUMAR, J.
MPK
43/44
http://www.judis.nic.in
Crl.A(MD)No.149 of 2014
PRE-DELIVERY JUDGMENT MADE IN
Crl.A.(MD)No.149 of 2014
30.01.2020
44/44
http://www.judis.nic.in