The appellant, a private complainant, challenged the acquittal of the accused in a cheating case involving a false promise of a visa. The High Court held that the trial court's finding of delay and discrepancies in the evidence was justified.
The criminal appeal filed by the aggrieved complainant was dismissed, upholding the order of acquittal of the accused.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
TUESDAY, THE 5TH DAY OF MARCH 2013/14TH PHALGUNA 1934
CRL.A.No. 1582 of 2009 ( )
CC.375/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOZHIKODE.
APPELLANT/COMPLAINANT:
P.K. USMAN, S/O.POCKER, POOVVAKKUNNATH HOUSE, CHELANNUR P.O., KOZHIKODE.
BY ADV. SRI.T.G.RAJENDRAN.
RESPONDENTS/ACCUSED & STATE:
1. SUHARA BEEVI, D/O.ABDURAHIMAN, MUNDATTU PURATH, AMBALAPPAD, IRUVALLUR P.O., KOZHIKODE.
2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.SUNNY MATHEW. R2 PUBLIC PROSECUTOR MR.N. SURESH.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
V.K.MOHANAN, J.
Crl.A.No.1582 of 2009
Dated this the 5th day of March, 2013
JUDGMENT
The complainant in a private complaint is the appellant as he is aggrieved by the judgment dated 12.02.2009 in C.C.No.375 of 2007 of the court of Judicial First Class Magistrate Court, Kozhikode by which the learned Magistrate acquitted the accused who is a lady and who faced the prosecution for the offence punishable under Section 420 of IPC.
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made him believe that A1 would arrange a Driver Visa for a consideration of 76,000/- and thereafter the complainant, his brother and friends went to the house of A2 and A2 undertook to arrange Driver Visa in the gulf countries for a consideration of 76,000/- and thereafter the complainant has disposed his shop, jeep and he has pledged ornaments of his sisters and thereby raised 50,000/- and subsequently, on 02.03.2005, the complainant, his brother and his friends went to the house of A2 and handed over 50,000/- for the job visa and later on 21.03.2005, he went to Saudi Arabia by purchasing plane ticket on his own expense and when he reached there, A1 and a person hailing from Saudi Arabia came there and took him to the hospital to nurse an ailing Arab and thus the complainant had worked for eight months and during that period he was not given any salary and no food was given. It was also alleged that the complainant was treated cruelly by the patient and his relatives. It is the further case of the complainant that subsequently, he came from Jidda and he went to the house of A2 and described his bitter experience and sufferings and he demanded the accused to return the amount. Instead of paying the amount
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back, the complainant was threatened by A2. So, according to the complainant, the second accused in furtherance of her common intention with A1, have cheated the complainant and misappropriated `50,000/-.
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1,26,000/- as compensation. But the above notice was replied by the accused denying all the averments in the notice and thereafter the complainant has preferred a private complaint. The learned Magistrate, on accepting the contention of the defence has found that there was six months' delay in filing the complaint. According to the learned Magistrate, the complaint was filed before the court on 03.06.2006 but the lawyer notice demanding compensation was sent by the complainant on 31.10.2005 and the present complaint was filed before this Court on 11.01.2007. So, there is delay which is not explained by the complainant. The learned Magistrate has also found that as per the evidence of PW1, the complainant and Pws. 2 and 3, PW1 has given 76,000/- to the accused for arranging visa but as per the averments in the complaint, only `50,000/- was alleged to have been paid to the accused for arranging the visa. The learned Magistrate has found that the above aspect is not clarified by the complainant or his counsel. The learned Magistrate has also5
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found that the complainant has miserably failed to depose the details with respect to the transaction and the payment of the amount. The evidence of Pws. 2 and 3 are also silent about these aspects. After observing the above, the contradictions and the discrepancies with respect to the alleged handing over of money to the accused, the learned Magistrate has further found that the claim of the complainant that the complainant was made to believe by the accused that he would arrange job Visa is not proved properly and did not adduce any evidence to that effect. So, the learned Magistrate has concluded and found that there is substantial variation in the version of the complainant about the alleged transaction. It is on the basis of the above facts and finding the learned Magistrate has held that the complainant has failed to prove his case, against the accused beyond reasonable doubt.
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of the complainant. The appellant has no case that the Magistrate has not considered any evidence or materials which are in favour of the complainant and against the accused. So, it cannot be said that the findings of the court below or the judgment of the trial court is perverse or illegal so as to interfere in appeal. In a recent decision reported in Pudhu Raja and another Vs. State {(2013) 1 SCC (Crl.) 430} the Honourable Apex Court has held that,
“The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence”
On examination of the facts and circumstances involved in the present case in the light of the above decision it may be seen that the trial court is fully justified in its finding and there is no perversity or illegality in the above finding so as to interfere in appeal. Therefore, according to me, the appellant has miserably
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failed to make out a prima facie case in support of his challenge
against the judgment of the trial court. Therefore, the appeal fails accordingly, the same is dismissed.
V.K.MOHANAN
JUDGE
mns/
3 issues framed by the court
Whether the apex court decision in Pudhu Raja restricts appellate interference when the trial court's finding of acquittal is based on substantial variations and lack of evidence regarding the transac
Whether the appellant has made out a prima facie case to disturb the order of acquittal recorded by the learned Magistrate.
Whether the order of acquittal under Section 248(1) Cr.P.C. is perverse or illegal warranting interference in appeal.
Colour shows how this judgement treated each authority
Pudhu Raja and another Vs. StateDistinguished¶40
Pudhu Raja and another Vs. State {(2013) 1 SCC (Crl.) 430} · Who else cites this
1 provisions across 1 enactments
P.K. Usman
Suhara Beevi
State of Kerala
V.K. Mohanan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
V.K. Mohanan
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