Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 19TH DAY OF DECEMBER 2012 28TH AGRAHAYANA 193 Crl.Rev.Pet.No. 615 of 2002 ( ) ------------------------------- CRA.270/2001 of ADDL. SESSIONS COURT, THRISSUR CC.72/1998 of C.J.M.,THRISSUR REVISION PETITIONER(S)/APPELLANT/1ST ACCUSED: -------------------------------------------- P.S.MURALI, S/O.SIVARAMAN, POTTEKKAD HOUSE, PUTHANANGADI DESOM MANALOOR VILLAGE, THRISSUR DISTRICT. BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ COMPLAINANT(S)/RESPONDENT/COMPLAINAT: ------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. ROY THOMAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: das N.K.BALAKRISHNAN, J.
================== Crl.R.P. No. 615 of 2002 ========================= Dated this the 19th day of December, 2012 ORDER The petitioner was the first accused. He was concurrently found guilty and convicted for the offences punishable under Sec.10 r/w 24 of Emigration Act and also under Sec.511 of 420 r/w 34 of IPC. The appellate court modified the sentence to R.I for two years for the offence under Sec.511 of 420 and to R.I for one year for the offence under Sec.10 r/w 24 of Emigration Act. The petitioner and the accused one Bhaskara Shetty faced the trial. Both of them were found guilty, convicted and sentenced. But no revision is seen filed by the other accused.
2. An advertisement was caused to be published in Malayala Manorama by the accused persons inviting the job aspirants to appear for the interview with copy of the Crl.R.P.No.615/2002 :
2. : Passport held by such candidates. The advertisement was published in Ext.P1 Malayala Manorama daily dated 12.03.1997. Accordingly, the candidates appeared for interview at the building in Sakthan Thampuran Bus stand Shopping Complex, Thrissur on 13.03.1997. All candidates including ladies appeared for the interview. The advertisement was effected in the name of M/s.Ocean Tours & Travels, Shop No.27, Ist Floor, Sakthan Thampuran Bus stand Shopping Complex, Thrissur. The evidence given by PW8 and PW9 would show that two persons had approached him for effecting advertisement. Though A2 was properly identified, A1 was not identified by PW8 and PW9. Interview was being conducted on 14.03.1997. On getting information the police reached there. A1 and A2 were apprehended by the police. The investigation was conducted and charge sheet was laid alleging offences mentioned earlier. Crl.R.P.No.615/2002 :
3. :
3. PW1 to PW14 were examined and Exts.P1 to P6 were marked.
4. The courts below accepted the evidence given by the prosecution to hold the petitioner and other accused guilty. They were convicted and sentenced as afore-stated.
5. The learned counsel for the petitioner submits that there is no legal evidence to show that the petitioner (first accused) was the person who had entrusted the advertisement to be effected as shown in Ext.P1. It is also argued that though PW8 and PW9 identified the second accused, they did not actually identify the petitioner herein. But the learned public prosecutor would submit that the evidence would show that two persons had approached PW8 and for effecting advertisement as shown in Ext.P1. The other man was proved to be the second accused. PW5 has stated that at the actual place where interview was conducted the Crl.R.P.No.615/2002 :
4. : petitioner herein was also present. In other words, A1 was also present, engaged in conducting interview/recruitment.
6. The evidence given by PW5 is not the only evidence to connect the petitioner. The fact that the advertisement was effected in Ext.P1 would show that it was effected in the name of this petitioner as well. The petitioner had no case that the advertisement appeared in Ext.P1 was not effected by him nor did he have any case that he had filed any complaint against Malayala Manorama for causing such advertisement nor did he file any complaint before any other authority. It is also in evidence that A1 was also arrested by the police along with A2 from the very spot of recruitment. These circumstances cumulatively would establish the role of the first accused in conducting the recruitment. Admittedly, A1 was not having any authority to conduct any recruitment as provided under Sec.10 of the Crl.R.P.No.615/2002 :
5. : Emigration Act. Sec.10 of the Emigration Act reads:
10. No person to function as recruiting agent without a valid certificate.- Save as otherwise provided in this Act, no recruiting agent shall, after the commencement of this Act, commence or carry on the business of recruitment except under and in accordance with a certificate issued in that behalf by the registering authority; Provided that a person carrying on the business of recruiting agent immediately before the commencement of this Act may continue to carry on such business without such a certificate for a period of one month from such commencement, and if he has made an application for such certificate under this Act within the said period of one month and such application is in the prescribed form and contains the prescribed particulars, till the disposal of such application by the registering authority." 7. The penalty provided for the aforesaid offence is provided under Sec.24 of the Act which provides that the person who is found to have committed the offence under Sec.10 is liable to be punished for a term which may extent to two years and with fine which may extent Crl.R.P.No.615/2002 :
6. : to Rs.2,000/-. The proviso states that such imprisonment shall not be less than six months and such fine shall not be less than Rs.1,000/-.
8. The learned counsel for the petitioner submits that though the courts below have found the petitioner guilty of the offence under Sec.511 of 420 IPC, there is no legal evidence to sustain that conviction. The courts below only assumed that the accused persons must have collected money from the candidates/job aspirants. That assumption may be true also. But no witnesses did say that this petitioner had asked any candidate to pay any amount for the purpose of getting recruited so as to go abroad. Though the circumstances may show that it might have been done after collecting amount from the candidates or that the petitioner might have demanded for money, there is no legal evidence to prove that the accused attempted to collect money inducing the candidates or other job aspirants. Therefore, the Crl.R.P.No.615/2002 :
7. : conviction for the offence under Sec.511 of 420 IPC cannot be sustained.
9. In the result, this criminal revision petition is disposed of as stated below. The conviction and sentence passed against the petitioner for offence under Sec.511 of 420 IPC are set aside. The conviction and sentence passed against the petitioner for offence under Sec.10 r/w 24 of the Emigration Act is confirmed. The Magistrate will take steps immediately to execute the sentence. Sd/- N.K.BALAKRISHNAN, JUDGE das // True copy // PA to Judge