PYARILAL Vs. STATE OF KERALA

JUDGEMENT

(1.) FIRST accused in C.C. No. 465/1996 on the file of the Judicial First Class Magistrate Court -II, Aluva is the revision petitioner herein. The revision petitioner along with second accused was charge sheeted by the Additional Sub Inspector of Police, Kalamassery in Crime No. 170/1995 of Kalamassery Police Station under Sections 406 and 420 of Indian Penal Code.

(2.) THE case of the prosecution in nutshell was that the accused two in number in furtherance of common intention of cheating several persons on the promise of getting job in a cement company at Sharjah and induced CW 1 to CW27 to part with amounts on several dates with a dishonest intention of making unlawful gain and they did not fulfill the promise and appropriated the amount and did not return the amount or provide the visa and thereby, they have committed the offence punishable under Sections 406 and 420 read with Section 34 of Indian Penal Code.

(3.) WHEN the revision petitioner appeared before the court below, after hearing both sides, charge under Sections 406 and 420 read with Section 34 of Indian Penal Code was framed against the revision petitioner and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 13 were examined and Exts. P1 to P4 were marked on the side of the prosecution. Since CW35 - the investigating officer was not alive, he could not be examined. The examination of other witnesses were dispensed with. After closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that, he had not committed any offence and he is innocent of the same. No defence evidence was adduced on his side. After considering the evidence on record, the court below found the revision petitioner not guilty under Sections 406 of Indian Penal Code and acquitted him of that charge, but, found him guilty under Section 420 of Indian Penal Code and convicted him thereunder and sentenced him to undergo rigorous imprisonment for three years and also to pay a fine of Rs. 5,000/ - in default to undergo rigorous imprisonment for three months more. The case against the second accused was split up and refiled as C.C. No. 812/2001. Aggrieved by the order of conviction and sentence passed by the court below, the revision petitioner filed Crl. Appeal No. 401/2001 before the Sessions Court, Ernakulam which was made over to the Additional Sessions Court, North Paravur for disposal and the learned Additional Sessions Judge by the impugned judgment, dismissed the appeal. Aggrieved by the same, the present revision has been filed by the revision petitioner - first accused before the court below.