Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE23D DAY OF OCTOBER20121ST KARTHIKA1934 Crl.Rev.Pet.No. 2760 of 2011 ( ) --------------------------------- AGAINST THE JUDGMENT
IN CRL.A. 607/2009 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-III), N.PARAVUR. AGAINST THE JUDGMENT
IN CC4612004 of J.M.F.C.-I, ALUVA. REVISION PETITIONER(S)/APPELLANT: --------------------------------- ABDULLA, S/O. ALIMON, AGED47YEARS, NOOLPADATH HOUSE, NATTIKA BEACH, THRISSUR DISTRICT. BY ADVS.SRI.ANIL K.MOHAMMED SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.MANU TOM SRI.THOMAS ABRAHAM (NILACKAPPILLIL) RESPONDENT/RESPONDENT/COMPLAINANT: ---------------------------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON2310-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HARILAL, J.
------------------------------------------------------ Crl.R.P. No. 2760 of 2011 ------------------------------------------------------ Dated this the 23rd day of October, 2013 ORDER
The revision petitioner is the accused in C.C.No.461/04 on the files of the Judicial First Class Magistrate's Court-I, Aluva, as well as the appellant in Crl. Appeal No.607/09 on the files of the Additional District & Sessions Judge, (Ad- hoc-III), North Paravur. He was prosecuted for the offences punishable under Secs.419, 468 and 471 of the Indian Penal Code and Sec.12(1)(b) of the Indian Passport Act.
2. The gist of the prosecution case is as follows: With the dishonest intention to procure a passport with his genuine photograph and the identity of a different person and for using that fake passport for travelling abroad from India and back, the accused to whom a genuine passport bearing No.A30914 issued from the Regional Passport Crl.R.P. No.2760 of 2011 2 Office, Kochi, on 27/7/87 submitted an application before the Regional Passport Office, Thiruvananthapuram, with his genuine photograph and describing his identity to be one Abdulla Abbas, Chinivila Veedu, Trivandrum, together with forged documents in support of his identity as above and obtained passport No.M99074 and knowing fully well that the aforesaid passport is a fake one, obtained by suppressing material facts and giving false and forged documents, he used it on several occasions for travelling abroad and back to India and during yet another attempt to fly from International Airport Kochi to Dubai in Flight No.A1 391, on 10/3/01 he was caught during emigration check up. Thus, he has committed the offence alleged against him by the prosecution.
3. After trial, the learned Magistrate found the revision petitioner guilty of the said offences and convicted thereunder. He was sentenced to undergo simple imprisonment for one year under Sec.419 of the IPC; simple Crl.R.P. No.2760 of 2011 3 imprisonment for two years and to pay a fine of `5,000/- under Sec.468 of the IPC and in default, to undergo simple imprisonment for three months. He is also sentenced to undergo simple imprisonment for one year under Sec.471 of the IPC. The sentences shall run concurrently and set off, if any, is also allowed. He was found not guilty under Sec.12(1)(b) of the Indian Passport Act and therefore, he was acquitted of that offence under Sec.248(1) of the Cr.P.C.
4. Aggrieved by the conviction and sentence, though he had preferred the above Crl. Appeal, the appellate court, after re-appreciating the entire evidence on record, confirmed the conviction under Sec.419 of the IPC only and acquitted of all other offences. This revision petition is filed challenging the concurrent findings of conviction and sentence imposed on the revision petitioner under Sec.419 of the IPC.
5. The learned counsel for the revision petitioner submits that there is no legal evidence to show Crl.R.P. No.2760 of 2011 4 that the revision petitioner is 'Abdulla, S/o. Alimon, Noolpadath House, Nattika Beach, Thrissur.' The court below ought to have found that there is nothing to constitute the evidence under Sec.419 IPC. Similarly, the court below ought to have found that fraudulent and dishonest intention, which is necessary to constitute an offence under Sec.419 of the IPC is absent in this case. The only document to prove the identity of the revision petitioner as 'Abdulla, S/o. Alimon' is Ext.P6 letter issued by PW3. Therefore, in view of the arguments assailing conviction under Sec. 419 of the IPC entered against the revision petitioner, the question to be considered is whether there is any illegality, impropriety or perversity in the findings that the revision petitioner is guilty of the offence under Sec.419 of the IPC. Put it differently, the question is whether the offence under Sec.419 of the IPC is proved against the revision petitioner beyond reasonable doubt.
6. Coming to the evidence on record, going by the Crl.R.P. No.2760 of 2011 5 appellate court judgment, it could be seen that now the revision petitioner stands acquitted of all offences for which he was convicted by the trial court except the offence under Sec.419 of the IPC. According to 416 of the IPC, a person is said to cheat by personation if he cheats by pretending to some other person or by knowingly substituting one person or another or representing that he or any other person is a person other than he was such other person really is. Here, the allegation is that the revision petitioner cheated the Emigration Authorities by pretending that he is 'Abdulla', S/o. Abbas, Chinivila Veedu, Trivandrum when he is 'Abdulla, S/o. Alimon, Noolppadathu House, Nattika beach, Thrissur.
7. Going by the prosecution evidence, it could be seen that he was caught hold of on 10/03/2001 during the Emigration check up at International Airport, Cochin. When he was about to travel from Cochin to Dubai in Flight No.A1 391, by using the passport bearing No.M990745 issued to Crl.R.P. No.2760 of 2011 6 one Abdulla Abbas, Chinivila Veedu, Trivandrum. In short, the question is whether he cheated the Emigration Authority pretending that he is Abdulla Abbas, Chinivila Veedu, Trivandrum. Going by the said passport, it has come out in evidence that he used this passport on several occasions for travelling abroad and back to India and during in the course of another attempt to fly from International Airport to Dubai, he was caught hold of. The photograph affixed in the passport is that of the revision petitioner. It is the prosecution case that genuine passport was also issued bearing No.A309149 in the name of the petitioner as Abdulla, S/o. Alimon, Noolppadathu House, Nattika beach, Thrissur, by the Regional Passport Officer, Cochin on 27/07/1987 and on the basis of an application submitted before the Regional Passport Officer, Trivandrum with his genuine photograph and describing his identity to be one Abdulla Abbas, Chinivila Veedu, Trivandrum, another passport bearing No.M990745 was also issued to him. Crl.R.P. No.2760 of 2011 7 8. The Passport Officer, Regional Passport Office, Cochin, who issued Ext.P6 letter was examined as PW3 and marked Ext.P6 through him. When he was examined, there was no challenge disputing his identity as Abdulla, S/o. Alimon, Noolppadathu House, Nattika beach, Thrissur. Thus, the identity of the revision petitioner as Abdulla, S/o. Alimon, Noolppadathu House, Nattika beach, Thrissur stands proved without challenge. More importantly, it is pertinent to note that throughout the proceedings, the revision petitioner represented as Abdulla, S/o. Alimon, Noolppadathu House, Nattika beach, Thrissur. Even in this revision petition also, his case is that he is none other than Abdulla, S/o. Alimon, Noolppadathu House, Nattika beach, Thrissur. But, Ext.P2 passport contains the genuine photograph of the revision petitioner describing him as Abdulla Abbas, Chinivila Veedu, Oonninmoodu, Hariharapuram, Varkala, Trivandrum, Kerala. During every occasion, he reported for emigration clearance, he Crl.R.P. No.2760 of 2011 8 personated himself to be Abdulla Abbas as referred above knowing fully well that he is N.A.Abdulla, S/o. Alimon, Noolppadathu House, Nattika beach, Thrissur and thereby he played deception on the emigration authorities and also that but for that deception, he would not have been permitted to travel abroad and back to India, several times. The said evidence is sufficient to prove that he has personated himself to be the said Abdulla, S/o. Abdulla Abbas, Chinivila veedu, Varkala, Trivandrum and thereby cheated the emigration authorities. Hence, the act done by the revision petitioner would squarely comes punishable under Sec.419 of the IPC and the same is proved by the evidence given by PWs.1 to 10 coupled with Exts.P2 to P6, P8 and P11 . Thus, the evidence available on record, brings home the guilt of the accused beyond reasonable doubt. There is no illegality or impropriety in the findings that the revision petitioner had committed the offence punishable under Sec. 419 of the IPC. I do not find any kind of Crl.R.P. No.2760 of 2011 9 perversity in the appreciation of evidence from which those findings have been arrived at.
9. The next point survives for consideration is the quantum of sentence. The learned counsel for the revision petitioner submits that the sentence imposed on the revision petitioner is disproportionate with the nature and gravity of the offence and it is excessive and harsh. At the time of commission of offence, he was aged only 37 years. He is not involved in any other offences. He is the only bread-winner of his family and if he is incarcerated for a long period, the entire family will be put in great hardship and difficulty.
10. Prison term can be imposed to secure the interest of deterrence. But, deterrence does not necessarily depend upon the length of the term that the offendor spends behind the Bar. At the same time, misplaced sympathy cannot also have any place in the criminal adjudicatory process. Therefore, having regard to the facts and the aggravating and mitigating circumstances of the case, this Court is Crl.R.P. No.2760 of 2011 10 inclined to balance the above aspects equally. In supersession of the sentence imposed by the court below, the revision petitioner is sentenced to pay a fine of 10,000/- (Rupees Ten thousand only) under Sec. 419 of the IPC and in default to undergo simple imprisonment for three months. This revision petition is allowed in part. K.HARILAL, JUDGE. Nan/stu //True copy// P.A to Judge.