Dismissed

K.Govindaraj v. the Inspector of Police

Madras HC6 Oct 2021CRL A/481/2015

Case brief

AI extract

What is this about?

The High Court disposed of a criminal appeal filed by the defacto complainant against the acquittal of the accused. The court upheld the trial court's order, finding the prosecution case devoid of merit because the daughter was not a medical graduate, no admission application was filed, and the transaction was a repaid loan, not cheating.

What did the court decide?

Confirmed the order of acquittal in C.C.No.6262 of 2014 and dismissed the Criminal Appeal. Granted liberty to the accused to approach the complainant for malicious prosecution.

K.Govindaraj Vs the Inspector of Police — Cheating and Forgery | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 24.06.2021 PRONOUNCED ON : 06.10.2021

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CORAM:

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THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

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Crl.A.No.481 of 2015

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K.Govindaraj ... Appellant/Complainant

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Vs.

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1.The State represented by, The Inspector of Police, Central Crime Branch, Team No.IV,

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E.D.F – II, Vepery, Chennai – 600 007. Crime No.460 of 2013. ... 1^st Respondent/Complainant

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2.K.Thiyagarajan ... 2^nd Respondent/Accused

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Prayer: This Criminal Appeal has been filed under Section 372 of Cr.P.C., against the order of acquittal dated 11.06.2015 passed in C.C.No.6262 of 2014 on the file of the learned XI Metropolitan Magistrate Court, Saidapet.

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For Petitioner : Mr.S.Rahul for Mr.S.Silambu Selvam For R1 : Mr.R.Vinoth Raja Government Advocate (Crl.Side) For R2 : Mr.J.Asokan

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JUDGMENT

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(The case has been heard through Video Conference)

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This Criminal Appeal is filed against the order of acquittal passed in C.C.No.6262 of 2014, by the learned XI Metropolitan Magistrate Court, Saidapet, dated 11.06.2015, wherein, the learned Judge has acquitted the second respondent/accused for the offence under Section 420 of IPC.

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2.The Defacto complainant is the appellant herein.

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3(a).The case of the prosecution is that in the year 2011, when the appellant was seeking admission in PG Medical Course in Chennai for his daughter viz., Rajeswari, he had acquaintance with the second respondent through one of his close friend in Chennai viz., Ganesan and the second respondent has informed that he closely associated with the administrators of the Sri Ramachandra Medical College, Porur, Chennai and through the said administrators he had informed that he will easily get admission in the said college and had demanded a sum of Rs.52 lakhs for medical admission seat and based on his promise, the appellant had handed over the said sum of Rs.52 lakhs, by mode of cash and also through Bank transactions. It is the further case that the second respondent could not keep up his words and get college admission and so after much await and request, the accused had returned back a sum of Rs.20 lakhs by way of cash and some by way of Bank transactions to the complainant. The balance amount of Rs.32 lakhs was not paid as on the date of complaint.

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3(b).Hence, a case has been registered as against the accused/second respondent herein before the first respondent in Crime No.460 of 2013 and the case was taken on file by the learned XI Metropolitan Magistrate, Saidapet, as C.C.No.6262 of 2014, for the punishable offence under Section 420 of IPC. After examining six witnesses, the learned Judge has acquitted the accused/second respondent herein. Hence, the present Criminal Appeal has been preferred by the complainant.

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4.Heard the learned counsel for the appellant and the learned Government Advocate (Crl.Side) of the first respondent. Though the second respondent name has been printed in the cause list, none appeared. Perused the materials placed on record.

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5.After perusing the records, it is seen that the respondent police has filed a charge sheet in C.C.No.460 of 2013 for the alleged offence punishable under Section 420 of IPC against the second respondent herein. The learned XI Metropolitan Magistrate, Saidapet, has taken the case on file in C.C.No.6262 of 2014 and ordered acquittal of the accused for charge under Section 420 of IPC.

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6.The sum and substance of the allegation is that the appellant/defacto complainant has one daughter by name Rajeswari and in connection with her admission for PG Course in Medicine, in Sri Ramachandra Medical College, Porur, Chennai, the accused was introduced to him through PW2/Sriram and PW4/Ganesan and in

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order to secure his daughters admission seat for PG Course in Medicine, in Sri Ramachandra Medical College, Chennai, the accused asked Rs.52,00,000/-. Based upon the promise, the amount has been paid by mode of cash and also through Bank transaction, however, the second respondent could not keep up his words and could not get college admission. Thereafter, on request, the accused had returned back a sum of Rs.20 lakhs to the complainant and balance amount of Rs.32 lakhs was not paid as on this date and hence, the offence.

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7.The suggestive case of the defence as could be seen from the cross examination is that the accused was running RSZ Technology Private Limited, for which, he need an additional amount and hence, he has borrowed the amount from PW1/defacto complainant. But, the defacto complainant was twisted and developed as a story as if he gave the amount to the accused to secure PG Medical Seat for his daughter in the reputed college of Sri Ramachandra Medical College, Porur, Chennai. The accused is having account in SBI, Thirukazlukundram and also in the Axis Bank in the name of the Company. PW1/defacto complainant has paid the amount through Axis Bank account of the accused so also the accused has repaid the amount to PW1 through the account of PW4 on the specific instruction of PW1.

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8(a).In short, it is a specific case of PW1/defacto complainant that while he was seeking to get his daughter's admission for PG Course in Chennai, in order to secure the same he gave Rs.52,00,000/- to the accused by way of money transaction through Bank. On the contrary, the accused has made a suggestive case that he has borrowed a sum of Rs.44,00,000/for running his business from PW1 and along with the interest viz., Rs.2,00,000/-, he has repaid Rs.46,00,000/- to PW1 through PW4.

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8(b).The case of PW1 was denied by the accused, equally the suggestive case of the accused was denied by PW1/appellant. Thus, it is now for this Court to determine whether the accused had committed the charge under Section 420 of IPC.

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9(a).The suggestive case of the defence is that only Rs.44,00,000/- was given by PW1 as a loan and the said amount was paid by PW1 to the accused through Exs.P4, P5 & P6. PW1/appellant/defacto complainant has denied the suggestive case that Rs.8,00,000/- has been repaid by the accused in the presence of PW2 and PW4 in the house of PW1. However, he has admitted that the accused has repaid Rs.20,00,000/- and the same is from the account of the accused to the account of PW1 as could be seen from Ex.R1 and hence, this Court finds that the

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version of PW1 in the witness box is tainted with falsehood.

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9(b)In other words, denial of PW1 as to the repayment of Rs.20,00,000/- stands falsified by Ex.R1 and no explanation was offered by PW1 either by way of explanation in the reexamination or by any other mode, in the manner known to law.

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10.It is further case of the accused that on the instruction of PW1, though his SBI account at Chennai, on six dates viz., 06.02.2012, 07.12.2012, 09.02.2012, 15.02.2012 on each day amounting Rs.5,00,000/- and on 15.03.2012 Rs.2,00,000/and 13.03.2012 Rs.4,00,000/- in total Rs.26,00,000/-, has been sent to PW4. PW4 in the cross examination has admitted that the receipt of Rs.26,00,000/- is suggested by the accused to deny that it is not as per the instruction of PW1. Had it not as per the instruction of PW1, then, it for the PW4 to explain for what purpose the accused has sent money from his SBI account to his Bank account. In this regard, the evidence of PW4 is totally silence. This amount of silence in non explanation as to why Rs.26,00,000/- has been sent from the accused Bank account to PW4 Bank account, this Court finds that the evidence of PW4 is not speaking the true or denying the fact for the purpose of denial and hence, held to be lacking credibility.

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11(a).Yet another point is that the money transaction as spoken to by PW1 is between the November 2011 and May 2012. During the contemporary period alone from the Bank account of the accused, a sum of Rs.26,00,000/- has been transferred to the Bank account of PW4 as could be seen from Ex.R2.

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11(b).Hence, this Court finds that the suggestive case of the defence that from and out of Rs.44,00,000/- said to have been received by the accused as a loan, he has already paid Rs.20,00,000/- as per Ex.R1/statement of accounts, by way of amount transfer from the accused account to PW1 account. So also as per Ex.R2 from the accused account to PW4 account a sum of Rs.26,00,000/- has been transferred and hence, in the absence of any positive explanation much less any explanation by PW4, the accused has paid Rs.26,00,000/- to his account also caused serious doubt, has to be reliable, credible and trustworthiness of the evidence of PW4 and hence, this Court is constrained to draw a conclusion that PW4 is not speaking truth in the witness box and he is suppressing the fact known to him.

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12.At this juncture, the purpose for which the alleged payment of Rs.52,00,000/- made by PW1 said to have been given by the accused is that in order to secure admission of seat for PG Course in Medicine, in Sri Ramachandra Medical College, Porur, Chennai, for the daughter of PW1. The said Rajeswari viz., the

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daughter of PW1 was neither examined by the investigating officer nor interrogated and not recorded any statement during the course of investigation, assumes significance.

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13.The learned counsel for the appellant/defacto complainant would contend that non examination of Rajeswari viz., the daughter of PW1 is not necessary.

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14.This Court unable to accept the said contention for more than one reasons. According to the PW1/appellant/defacto complainant, his daughter was resident of Andhra Pradesh, she had no role to play regarding the admission, however, from the answer elicited in the cross examination of the two investigating officers viz., PW5 and PW6, caused serious doubt as to the purpose of payment of Rs.52,00,000/- to the accused, for the reasons discussed infra.

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15(a).PW5/Srinivasan, the first investigation officer has categorically admitted in his cross examination that he has not recorded any statement of Rajeswari/daughter of PW1 and he has not enquired (i)whether the said Rajeswari has completed MBBS or not (ii) whether the said Rajeswari has registered as a Doctor after completion of her MBBS or not.

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15(b)The allegation in the complaint being admission of seat for PG Course in Medicine. Whether, the said Rajeswari/daughter of PW1 has studied MBBS or not goes to the root of the matter. Further, the investigating officer has also admitted that he has not collected any application form or admit card or any valid card in connection with the alleged application made by the daughter of PW1 viz., Rajeswari before getting PG admission. The Investigating Officer has further admitted that he has not examined any person from Sri Ramachandra Medical College either the administration or on the Management in this alleged connection.

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15(c).PW1/appellant/defacto complainant could deposed that the accused took him along with PW2 to meet the Principal of Sri Ramachandra Medical College. The Investigating Officer has categorically stated that no such statement has been spoken to by PW1, assumes significance. Hence, this Court finds such statement of PW1 is only a improvement amounting to material contradiction. The Investigating Officer has not collected the statement of Bank accounts of PW4 account in connection with Rs.26,00,000/- transferred from the accused Bank account to PW4 Bank account.

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16.So also the second investigating officer/PW6 viz., Ramesh would state as follows:

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mrh1dpd; kfs; uhn$!;thpia ehd; jdpahf tprhupj;J thf;FK:yk; gjpt[ bra;atpy;iy/ nkw;go uhn$!;thp vk;gpgpv!;goj;js;shh; vd;gij fhl;lf;Toa Mtzj;ij ahhplk; ,Ue;jhtJ nfl;L th';fpnddh vd;why; ,y;iy/ mrh1dpd; t';fp fzf;F tUkhd thpfzf;F jdpg;gl;l fzf;F tptuk;. Vjphpapd; cila t';fp fzf;F tptuk;. mrh4dpd; cila t';fp fzf;F tptuk; nkYk; mrh1.4 kw;Wk; vjphp Mfpnahhpd; t';fpfzf;Ffs; cs;s t';fp mjpfhhpfis tprhhpj;J thf;FK:yk; kw;Wk; tptu';fs; th';fpapUe;njdh vd;why; ,y;iy/ uhkre;jpuh kUj;Jt fy;Yhhpapy; ahiuahtJ tprhhpj;J thf;FK:yk; th';fpnddh vd;why; ,y;iy/ mrh2dpd; mj;ijkfs; bt';fnlrd; kw;Wk; gpnuk; Mfpnahiu tprhhpj;J thf;FK:yk; gjpt[ bra;atpy;iy/

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17.Thus, based upon the answer elicited from the cross examination of Investigating Officers viz., PW5 & PW6, this Court finds that the first part of the prosecution theory that the defacto complainant has daughter viz., Rajeswari who has qualified MBBS, seeking admission to PG Medical Course in the Sri Ramachandra Medical College and in this connection, he has paid Rs.56,00,000/- to the first accused, falls to the ground in view of the admission in the cross examination of IO's PW5 and PW6 as discussed supra.

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18.Hence, this Court finds that PW1 along with investigating officers has created a case as if the seats relating to Sri Ramachandra Medical College, for PG, are being carried on by the brokers and they created a defame to the Sri Ramachandra Medical College. In view of the admission of the Investigating Officers viz., PW5 & PW6 to collect these facts, goes to show that the said Medical College is no way connected with the alleged transaction between PW1 and the accused and the name of the Medical College has been dragged on by the false complaint without any substance.

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19.The second part of the complaint viz., payment of Rs.52,00,000/- by way of loan.

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20.According to PW1/appellant/defacto complainant Rs.52,00,000/- was given to the accused to secure admission seat for PG Course in Medicine, in the said Medical College, for his daughter. According to the accused this is loan transaction for the purpose of running his Computer Company.

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21(a).The suggestive case of the accused is that at the time of the borrowal of Rs.44,00,000/-, he had executed a cheque and pronote. Though PW1 denied the same, PW2 & PW4 accepted the same. From the answer elicited in the cross examination of the Investigating Officers, the trial Court has rightly come to the conclusion that it is a false case or false story projected by

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PW1 as if amount is given for securing Medical Seat. It is only a loan and not in connection with securing Medical Seat for the daughter of PW1.

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21(b).In respect of the alleged loan, the entire amount of Rs.44,00,000/- along with interest viz., Rs.2,00,000/totalling to Rs.46,00,000/- has been duly repaid to PW4 and hence, taking advantage of the cheque, which was singed and blank cheque given as security as admitted by PW2 and PW4 as discussed by the Trial Court and the finding rendered thereon that the cheque is only issued as a security for the purpose of loan, is well founded and well considered. Furthermore, it is only a transaction in the nature of the loan and not for securing medical admission in the said medical college. Furthermore, even the amount paid has been repaid to PW6 and hence, this Court finds that the charge under Section 420 is not made out.

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22.In order to constitute the offence under Section 420 of IPC, the prosecution has to let in material that the ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property as held in the case of S.W. Palanitkar v State of Bihar 2002 SCC (Crl) 129.

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Here in the instant case, none of the ingredients as stated by the Hon'ble Apex Court in the above said decision in respect of the charge under Section 420 has been placed before the Court and the evidence of PW1 has factual infirmities and suffers from material contradiction and embellishment amounting material contradiction. The entire transaction has been given of different colour as if the offence under Section 420 of IPC was committed by the accused.

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23.The Trial Court, on a proper appreciation of the evidence has acquitted the accused. In this connection, it is to be stated that based upon the evidence of the attester of the arrest mahazar and the statement of witness, the Trial Court has rendered a finding that the place of the arrest is not the house of PW1/appellant/defacto complainant, when the accused came with his marriage invitation to invite PW1 for his marriage, over few days away for the marriage date, PW1 appears to have put up a

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case and arrested the accused on a false case.

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24.From the answer elicited in the cross-examination of PW2 & PW4, the Trial Court has rightly come to the conclusion that the nature of the money transaction between PW1 and accused is only as a loan and not as projected in the complaint viz., to secure PG admission and thus, this Court finds that the order of acquittal passed by the Trial Court is well considered and well merited and the private complainant appears to have taken the law in his hand to take revenge upon the accused, few days before his marriage when he came over to his house to give marriage invitation, has given false complaint and he also indulged defaming one of the reputed medical college in Chennai viz., Sri Ramachandra Medical College, Porur, Chennai, as if the said college is indulging in PG admission for money and put up this false case which has been clearly demonstrated. As could be seen from the evidence of RW1 and Exs.R1 & R2, the investigating officer measurably failed to enquire and detect the case of false rather than falsely implicated the accused and without any investigation. Such an attitude of the Investigation Officer is hereby deprecated.

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25.After going through the cross-examination of PW1, PW5 & PW6, this Court finds that the accused has been maliciously prosecuted at the instant of PW1 and hence, the accused has given liberty to make any application for maliciously prosecution against PW1/appellant/defacto complainant and if he be so advised and in such an event, the time taken between judicial proceedings shall stands excluded.

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26.With the above observations this Criminal Appeal stands dismissed. The order of acquittal passed in C.C.No.6262 of 2014, by the learned XI Metropolitan Magistrate Court, Saidapet, dated 11.06.2015, is hereby confirmed.

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Sd/-

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Assistant Registrar(CCC)

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// True Copy //

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Sub Assistant Registrar

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dua

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To:

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1.The XI Metropolitan Magistrate Court, Saidapet.

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2.The Inspector of Police, Central Crime Branch, Team No.IV, E.D.F – II, Vepery, Chennai – 600 007.

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3.The Public Prosecutor, High Court, Madras. Copy to: The Section Officer, Criminal Section, High Court, Madras.

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+1cc to Mr.S.Silambu Selvan, Advocate SR.No.52700 +1cc to Mr.J.Asokan for M/s.T.S.Srinivasan,

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Advocate SR.No.52381

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Crl.A.No.481 of 2015

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KG(CO) CB(01/12/2021)

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K.Govindaraj v. the Inspector of Police

Case brief

What is this about?

What did the court decide?

K.Govindaraj v. the Inspector of Police

Case brief

What is this about?

What did the court decide?

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