Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05 / 08 / 2013 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.846 of 2005 D.Elumalai .Petitioner versus Hidayathullah .Respondent Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., against the Judgment of the Additional District-Cum-Sessions Judge (Fast Track Court No.I).Chennai in C.A.No.76 of 2000 order dated 05.11.2004 sentencing the Petitioner herein to undergo imprisonment till raising of Court (I.R.T.C) and imposing a fine of Rs.71,000/- under Section 357(b) of Cr.P.C.for an alleged offence under Section 420 I.P.C.by modifying the order passed by the XI Metropolitan Magistrate, Saidapet, Chennai-600 015 in C.C.No.7163 of 1994 dated 27.03.2000.
For Petitioner : Mr.R.Vijayaraghaven For Respondent : No Appearance - - - ORDER
The short facts of the case are as follows:- The original complaint namely S.H.Basha had filed a private complaint in C.C.No.7163 of 1994, on the file of XI Metropolitan Magistrate, Saidapet, against the revision petitioner herein / accused, stating that the accused had received a sum of Rs.70,000/- from him to purchase a plot at Purushothaman Nagar, Chrompet.
But, the accused did not arrange to buy the plot.
As such, the accused had cheated the complainant.
Hence, the case had been levelled against the accused for an offence under Section 420 of I.P.C.2.On questioning, the accused denied the said charges and hence the case has been proceeded with.
On the side of the complainant, 3 witnesses were examined and 3 documents were marked namely: pronotes.
PW1 had adduced evidence that the accused had made false representation to him stating that he would purchase land for him and had received a sum of Rs.60,000/- on 10.01.1991.
Subsequently, after 3 months, the accused had taken a sum of Rs.10,000/- for the same purpose i.e.purchase of land.
PW1 further stated that the accused had also executed 3 pronotes in order to settle the said amount of Rs.70,000/-.
PW2 had spoken on the same lines of PW1 and also stated that he had witnessed the execution of the pronote by the accused.
PW3, son of PW1 had adduced evidence that the accused had worked in his office and as such he is well known to him.
He stated that the accused's friend Palanivel is doing real estate business and that the accused had assured him that he would buy a plot for the complainant through the real estate broker namely Palanivel.
The same was not executed and hence when the amount was demanded by the complainant from the accused, the accused instead of paying the said amount, had executed pronotes to and in favour of the complainant.
3.After recording the evidence of the witnesses and on considering the exhibits marked by the complainant and on considering that the accused had pleaded for minimum punishment, the Magistrate sentenced the accused to undergo 1 year Rigorous Imprisonment and also imposed a fine of Rs.1,000/- and in default to pay the said amount, the accused shall undergo further period of Rigorous Imprisonment for 3 months.
4.Against the conviction and sentence passed by the Magistrate, the accused had filed an appeal in C.A.No.76 of 2000, on the file of Additional District-Cum-Sessions Judge, Fast Track Court No.I, Chennai.
The Appellate Court, on scrutiny of order of trial Court and on hearing the arguments of the counsel for the accused, modified the sentence from one year Rigorous Imprisonment to till rising of the Court.
Further, the trial Court directed the accused to pay a sum of Rs.70,000/- as compensation to the complainant.
Against the said modified order, the revision has been filed by the accused.
5.The highly competent counsel for the accused submits that the said transaction regarding purchase of house sites is civil in nature and therefore criminal complaint is not sustainable under law.
Further, once the accused had executed the pronote for the said amount, therefore, the complainant has to recover the said amount after approaching a proper civil forum on the basis of pronotes.
Therefore, the criminal case is not maintainable.
Further, as per the allegation made by the complainant, it is seen that the accused's friend one Palanivel is doing real estate business and that the accused had arranged to purchase a land for the complainant.
Therefore, the real estate dealer Palanivel is a crucial witness in the said case, but he was not examined before the trial Court.
As such, there is lapse in the impugned conviction and sentence passed by the trial Court.
Further, the witnesses PW2 and PW3 are interested witnesses as they are related to PW1.
6.The above criminal revision case has been filed in the year 2005 and notice was served on the complainant.
Till today, no one has appeared on behalf of the complainant.
Hence, this Court is constrained to pass final ordeRs.7.On considering the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the judgment and conviction of the Courts below, this Court does not find any discrepancy in the conclusions arrived at regarding the conviction of the accused under Section 420 of I.P.C.Further, this Court is of the view that as per the evidence of PW1, the accused had promised him to purchase a plot for the complainant through one Palanivel, who is a real estate broker and believing the same, the complainant had paid a sum of Rs.70,000/-.
After receipt of the said amount, the accused had not arranged for purchase of plot in the name of the complainant as promised by him.
Thereafter, when the complainant had demanded the said amount, the accused had executed pronotes for the said sum.
This Court is of the view that the accused had initially manipulated the sum given for purchase of land for his own use and had subsequently executed the pronote to cover up the transaction.
Therefore, it is evident that the accused had committed breach of faith and cheated the complainant.
Hence, the findings of the Courts below in convicting the accused is appropriate and hence confirmed.
However, the quantum of sentence till rising of Court is meagre and not appropriate in the circumstances of the case.
Further, the appellate Court directed the accused to pay a sum of Rs.70,000/- as fine, which is on the higher side, considering the circumstances of the case.
Therefore, this Court modifies the fine amount from Rs.70,000/- to Rs.35,000/-.
The fine amount of Rs.1,000/- already paid by the accused is not refundable.
Further, this Court sentences the accused to undergo one month Rigorous Imprisonment.
Now, the accused has to either pay a sum of Rs.35,000/- as fine or to undergo one month Rigorous Imprisonment.
This Court directs the trial Court to secure the accused into judicial custody in order to undergo one month Rigorous Imprisonment as per this Court's order, forthwith.
If the accused pays the fine amount to the complainant, the Rigorous Imprisonment of one month imposed on the accused would not be operated and he would be set free.
8.In the result, the above revision is partly allowed with the above observations.
Consequently, the judgment and conviction passed in C.A.No.76 of 2000 on the file of Additional District-Cum-Sessions Judge, Fast Track Court No.I, Chennai dated 05.11.2004, modifying the order passed in C.C.No.7163 of 1994, on the file of XI Metropolitan Magistrate, Saidapet, Chennai dated 27.03.2000 is modified.
05 / 08 / 2013 vs Index : Yes / No.Internet : Yes / No.To 1.The Additional District-Cum-Sessions Judge (Fast Track Court No.I).Chennai.
2.The XI Metropolitan Magistrate, Saidapet, Chennai.
C.S.KARNAN, J vs Pre-Delivery order made in Crl.R.C.No.846 of 2005 05 / 08 / 2013