CRL A/946/1999 of Vs on 29 November 2002

:JUDGMENT

Second accused in Calendar Case No. 48 of 1996 on the file of the PrincipalSessions Judge, Chennai, against the conviction under Sections 419 and 420read with 34 I.P.C. and sentence of Rigorous Imprisonment for one year foreach offence to run concurrently, has filed the above appeal before thisCourt.

2. The Inspector of Police, Central Crime Branch, Egmore, Chennai has laidthe charge sheet against A-1 and A-2 under Sections 419, 420 read with 34I.P.C. alleging that in the year 1991, one Ramamoorthy from Neyveli had givena sum of Rs.1,41,000/- to the proprietor of Rajan Builders, that he was notgiven possession of the house allotted to him, that the house allotted to himwas locked, that he approached Accused 1 and 2 along with one Kuppusamy, thatthey (A-1 and A-2) demanded a sum of Rs.12,500/- each from the saidRamamoorthy and Kuppusamy for depositing in Court, and that they each paidRs.12,500/-, totalling a sum of Rs.25,000/-. Subsequently, they came to knowthat A-1 and A-2 cheated many persons with many alias names and that A-1 andA-2 with fraudulent and dishonest intention induced them to part withRs.12,500/- each, thereby the accused had caused wrongful loss with common intention of cheating the complainant Ramamoorthy and Kuppusamy, committed theaforesaid offences. Before the learned Sessions Judge, the prosecution hasexamined P.Ws.1 to 4 and produced 2 Exhibits. On the side of the defence,D.Ws.1 to 7 were examined and Exs. D-1 to D-6 were marked. The learnedPrincipal Sessions Judge, after complying the formalities and after analyzingthe materials placed, found A-2 (appellant herein) guilty under Sections 419and 420 read with 34 I.P.C. and sentenced to suffer Rigorous Imprisonment forone year for each offence and also to pay a fine of Rs.2000/- in default ofwhich A-2 shall suffer Rigorous Imprisonment for three months for the offenceunder Section 420 r/w 34 IPC. The sentence of imprisonment imposed on A-2 wasordered to run concurrently. The learned Judge has also directed that afterthe fine amount is collected, a sum of Rs.1,000/- each will be paid to P.Ws.1and 2 by way of compensation. In the same order, the learned Judge directedP.W.1 is to be paid a sum of Rs.12,500/- and P.W.2 is to be paid Rs.12,500/- as it represents the money paid by them to A-1 and A-2, after the appeal timeis over. Questioning the said conviction and sentence, A-2 has preferred thepresent appeal.

3. Heard the appellant in person and Mr. V. Jayaprakash Narayanan, learnedGovernment Advocate (Criminal Side) for the State.

4. The only point for consideration in this appeal is whether the prosecutionhas established the charges framed against the appellant beyond doubt and thelearned Principal Sessions Judge is right in convicting the accused?

5. Though the charges were framed against A-1 and A-2, as A-1 who is noneelse than the husband of A-2 is reported dead on 16-4-1999, the chargesagainst A-1 has got abated; accordingly the learned Sessions Judge consideredthe charges framed against A-2 alone. Among the witnesses examined on theside of the prosecution, P.W.1-Ramamoorthy and P.W.2-Kuppusamy, who partedwith their money with A-1 and A-2, are relevant. P.W.1 was employed inNeyveli Lignite Corporation and P.W.2 was employed in Automic Research Centre,Kalpakkam. They deposed before the Court that in 1991, they had purchased abuilding site in K.K.Nagar and they made arrangements through a contractor toconstruct house in that site. The contractor did not do the important work asdesired by them. Accordingly, they initiated proceedings before the ConsumerForum. It is further seen from the evidence of P.Ws.1 and 2 that the ConsumerForum has directed the contractor to build houses within a month. Though thecontractor did not complete the same, P.Ws.1 and 2 and other plot ownerscompleted the construction in May, 1996. Thereafter, one Ramachandran bydescribing himself as Manager of one V.P. Jain came and threatened that thehouse belongs to them. In order to initiate legal proceedings with referenceto the dispute relating to their house, on 4-6-96 P.Ws.1 and 2 came to theHigh Court along with P.W.1's son to see their advocate and initiatedproceedings with regard to the problem regarding their plots. At that time aperson came and told them that there is an advocate by name Raman to file acase on behalf of them in door No.25, Krishna Street, T.Nagar, Chennai.Thereupon, on the same day, P.W.1, his son, and P.W.2 went to the said addressand enquired. A-1 by name Raman came there and showed A-2 and identified her as Senior Advocate. He also informed them that there are 5 or 6 Advocateswith them and he would conduct the case very early. Thereafter, A-1 toldP.Ws.1 and 2 that in order to get an order from the Court, a sum ofRs.25,000/- was to be deposited by them. On the next day P.W.2 paidRs.12,500/- towards his share to A-1, who in turn paid the said amount to A-2.On that date P.W.1 paid only Rs.1000/- to A-1 and on the next day that is on7-6-96, P.W.1 went and paid the balance amount of Rs.11,500/- in cash to A-1.At that time, A-2 was present. The evidence of P. Ws.1 and 2 would show thatA-1 had demanded Rs.12,500/- each from P.Ws.1 and 2 and accordingly they paidthe said amount to A-1 and A-2. When P.Ws.1 and 2 went the Court Hall No.21in the High Court on 11-6-9 6, as requested by A-1 and A-2 to get xerox copiesof documents, A-1 and A-2 did not come there as promised. When P.Ws.1 and 2were going near the Court Hall No.22, the advocates were talking there to theeffect that A-1 had defrauded many persons and A-1 was being examined in 22ndCourt. When A-1 came outside the said Court, P.Ws.1 and 2 questioned him andasked for return of the money. Thereafter, in the after noon they gave apetition to the Hon'ble Judge attending 22nd Court and the Hon'ble Judgedirected A-1 to refund the amount. Ex. P-1 is the complaint given by P.Ws.1and 2 to the Hon'ble Judge on 17-6-9 6. Pursuant to the direction of theHon'ble Judge, A-1 deposited Rs.25,000/- in the High Court.

6. P.W.4 is the Investigating Officer. Pursuant to the direction of the HighCourt before whom a complaint under Ex.P-1 preferred by P.Ws.1 and 2, P.W.4registered the same in Crime No. 376/96 under Sections 419 and 420 read with34 IPC against A-1 and A-2. Ex. P-2 is the printed First Information Report.After completing the investigation, he filed charge sheet against A-1 and A-2.

7. I have already referred to the evidence of prosecution witnesses namelyP.Ws.1 and 2 which would show that there was a compelling necessity for themto seek legal assistance. They clearly explained the fraudulentrepresentation by A-1 and A-2 and part with Rs.12,500/- each totalling a sumof Rs.25,000/-. Though on the side of the defence as many as 7 witnesses wereexamined as D.Ws.1 to 7, a perusal of those evidence would clearly show thatthey support the case of the prosecution and the fraudulent act played by A-1and A-2. It is clear from the materials placed by the prosecution that A-1and A-2 had collected a sum of Rs.12,500/- each from P.ws.1 and 2 totallingRs.25,000/- on the ground that the same is required for the purpose ofdepositing in the Court for filing cases on behalf of P.Ws.1 and 2. I havealready referred to the fact that P.Ws.1 and 2 are retired Government servantsand they had invested their life savings for buying a flat in SabariApartments. It is also clear that with reference to the problem regardingtheir purchase of flats, they approached A-1 and A-2 for legal assistance andthey (A-1 and A-2) have cheated P.Ws.1 and 2. It is clear that A-2 wasintroduced by A-1 as a senior advocate. It is also clear that A-2 was presentwhen P.ws.1 and 2 paid Rs.12,500/- each. Though A-1 died on 16-4-99, there isample evidence with regard to the part played by A-2 and she also associatedwith A-1 in impersonation and cheated P.ws.1 and 2 by receiving a sum ofRs.12,500/- each on false and untenable grounds. Though the appellantappearing in person has stated that only on direction by the High Courtwithout a proper material in evidence, the Sessions Judge has convicted her,after going through the entire materials, more particularly the evidence of P.Ws.1 and 2 and P.W.4 Investigating Officer, complaint-Ex.P-1, I am satisfiedthat the prosecution has established both the charges under Sections 419 and420 read with 34 IPC and the learned Sessions Judge has also imposedappropriate punishment for the same. In this regard, it is relevant to refera judgment of the Supreme Court in SRI BHAGWAN SAMARDHA SREEPADA VALLABHAVENKATA VISHWANDADHA MAHARAJ v. STATE OF A.P. [(1999) 5 Supreme Court Cases740 ]. The following conclusion in para 8 of the judgment is relevant:

"8. If somebody offers his prayers to God for healing the sick, there cannotnormally be any element of fraud. But if he represents to another that he hasdivine powers and either directly or indirectly makes that other personbelieve that he has such divine powers, it is inducement referred to inSection 415 IPC. Anybody who responds to such inducement pursuant to it andgives the inducer money or any other article and does not get the desiredresult is a victim of the fraudulent representation. The court can in such asituation presume that the offence of cheating falling within the ambit ofSection 420 IPC has been committed. It is for the accused, in such asituation, to rebut the presumption."

In our case, though it is stated that A-2 is a qualified advocate, no materialhas been placed either before the trial Court or before this Court. Further,A-1 introduced A-2 to P.Ws.1 and 2 as senior advocate knowing that she is notan advocate. It is established by the prosecution that at the time of paymentof the amount of Rs.12,500/- by P.Ws.1 and 2 on the ground that the money isto be deposited in Court, A-2 was present. Admittedly, both A-1 and A-2 andanother accused Srinivasan did not do any work as promised by them to P.Ws.1and 2. It is also clear that they (A-1 and A-2) introduced P.W.1 for partingwith the sizeable amount by making fraudulent representation and in such asituation, as observed by the Hon'ble Supreme Court, it is presumed that theoffence of cheating falling within the ambit of Section 420 I.P.C. has beencommitted. I have already referred to the fact that though defence witnesseswere examined and some documents were placed, they have not rebutted thepresumption. The appellant herein/2nd accused along with her husband/A-1cheated P.Ws.1 and 2 dishonestly and fraudulently on the pretext that theywill provide legal assistance. This shows how dare she was. This kind offraud especially in the legal profession is very dangerous and if it isallowed to continue, there is possibility of adopting the same style/method bysome other persons in order to collect huge amount from innocent commonpeople/litigants. Considering the fraudulent act played by A-2 along with herhusband A-1, I am of the view that a deterrent punishment has to be imposedfor an eye opener for others. Accordingly, I am in agreement with theconclusion arrived by the learned Principal Sessions Judge and the sentence ofimprisonment imposed on A-2 is reasonable and acceptable. I do not find anyvalid ground for interference.

8. Net result, the Appeal fails and the same is dismissed.

R.B.

To:-

1) The Principal Sessions Judge, Chennai.

2) Copy to the Public Prosecutor, High Court, Madras.

3) The Inspector of Police, Central Crime Branch, Egmore, Chennai.