IN THE COURT OF THE II ADDL. JUDL. MAGISTRATE OF FIRST CLASS,
NIZAMABAD
PRESENT: Sri K.Janardhan, M.A., LL.M., II Addl. Judicial Magistrate of First Class, Nizamabad.
Dated this the 31st day of January, 2012
C.C.No. 109 of 2009
(Cr.No. 232/2008 of PS Navipet) BETWEEN:
The State represented by Sub Inspector of Police, PS Navipet
.. Complainant
AND
1. Dakam Rajaiah s/o Late Poshetty aged 52 years Madhiga, occ; Agriculture r/o Tukajiwada village of Sadashivnagar Mandal
2. Banda Bhaskar s/o Balaiah aged 29 years Madhiga, Travel Agent r/o Bhoompalli village of Sadashivnagar Mandal
3. Banda Balraj s/o Balaiah aged 31 years occ: Teacher r/o Bhoompalli village of Sadashivnagar Mandal
.. Accused
This case is coming on this the 27th day of January, 2012 before me for hearing and disposal in the presence of Sr. A.P.P. for the State and Sri N.Subhash Reddy, Advocate for the accused and after having stood over for consideration, the Court delivers the following:
JUDGMENT
The Sub Inspector of Police, Police Station Navipet filed charge sheet in Crime No.
232/2008 for the offence Under Section 420 IPC against the accused 1 to 3 on a complaint received from the Court in Crl MP No 824 of 2008 which was filed against A1 to A4.
2.The complainant stated that A1 is cousin brother of his wife, A3 is father of A2 and they are Travel Agents. The complainant obtained passport in order to go to Arab countries on employment. The accused persons hatched a plan and got arranged loan of Rs.
70,000/- from the persons known to them and executed promissory note. A1 paid Rs 20,000/- to the land lord of Saleem Farm where the complainant was working and took him to
Tukkajiwada on the pretext that he would arrange visa for him and took work of agricultural operation in his land. When the accused did not arrange any visa, the complainant returned to his village. Thereafter A1 to A3 came to the complainant and arranged visit visa and sent him 2CC.No. 109 of 2009 to Sharjah on 25.5.2008. A4 Balaiah snatched the passport of complainant and he became helpless. The complainant took shelter at the house of his brother Sailoo who got arranged return ticket and send him back. A1 obtained signatures of wife of complainant on blank and stamp papers. On 30.06.2008 A1 came to the house of complainant at Mahantam village and abused him in filthy language and caught hold his shirt color and beat him demanding return of money. Hence, he requested to take action against the accused.
3. Basing the complainant, the SI of Police registered a case in Cr.No. 232/2008 and took up the investigation. Police investigated the matter and ascertained that the accused 1 to 3 have committed the offence U/sec. 420 IPC. The SI of police filed charge sheet only against A1 to A3 as A4 is in abroad.
4.This case was taken on file by taking cognizance for the offence U/s 420 IPC against A1 to A3.
5.On appearance of accused 1 to 3, copies of case documents were furnished to them as contemplated under Section 207 Cr.P.C.
6.The accused were examined U/s.239 Cr.P.C. Heard. After perusing the record and upon hearing arguments, charge for the offence U/s. 420 IPC has been framed and the substance of accusation was read over and explained. Accused denied the allegations, pleaded not guilty and claimed to be tried.
7.In order to prove its case, the prosecution has examined PWs 1 to 5 and got marked Exs.P1 and P2. PW1 is complainant, PW2 is wife of complainant, PW3 and 4 are cited as witnesses and PW5 is the Investigating Officer.
8.After closure of prosecution evidence, accused are examined U/s 313 Cr P C to explain the incriminating evidence found against them. They denied the incriminating circumstances appearing in the evidence on record and reported no defence evidence.
9.Heard the learned APP for the State and the learned counsel for the accused.
Perused the material on record.
3CC.No. 109 of 2009
10.Now the point for consideration is whether the prosecution is able to drive home guilt of the accused beyond all reasonable doubt for the offences U/sec.
420 IPC?
11.The accused stood charged for the offence U/sec. 420 IPC. The allegation against the accused 1 to 3 are they cheated PW1 by sending him to Sharja on visit visa instead of employment visa.
12.It is settled rule in a criminal jurisprudence that the burden is always on the prosecution to prove the guilt of the accused beyond all reasonable doubt for the offence with which he stood charged.
13.PW1 is the defacto complainant. He deposed that about ten months ago, A1 represented that his relatives went to gulf countries and if he is interested, he would send him also and asked him to pay Rs 70,000/-. Accordingly, he gave Rs 70,000/- to A1 who in turn gave the same to A2,A3 whose father B.Balaiah was at Dubai. A2 and A3 assured that they would secure company visa and believing their words he went to Dubai. Father of A2 and A3 came to Air Port and took his passport and never turned up. Thereafter, his brother who was staying there took him to his house and he stayed there for three months and returned to India.
On returned to India, he went to the house of A1 and informed that A2 and A3 cheated him.
Then he went to police station and lodged complaint but they refused to receive the complaint. Then he approached an advocate and got filed a private complaint. He further deposed that till today accused did not return his money.
14.PW2 Satla Sayamma wife of PW1 deposed that in the year 2007 A1 to A3 came to her house at Mahantam village and represented them that father of A2 and A3 would provide visa for the employment of PW1 at Dubai and demanded Rs 70,000/- for that purpose. They agreed for the said proposal and paid Rs 70,000/- to the accused and they promised that they would provide visa within a month. Thereafter, A1 took PW1 to
Turkapally village in order to send PW1 to Dubai and PW1 stayed there for (9) months but did not send him. When she demanded return of amount, A1 refused. One month thereafter,
A2 and A3 send PW1 to Dubai. One of her relative staying at Dubai informed that the visa provided by accused was visiting visa and not a business visa. PW1 stayed in Dubai for one month and his elder brother send him back to India. Then she and PW1 went to A1 and asked 4CC.No. 109 of 2009 about the fake visa provided by A2 and A3 . But A1 demanded for additional payment of Rs 40,000/- to which she refused. They demanded for repayment of Rs 70,000/- to which the accused refused. Then they went to police station and gave report but they did not receive the complaint. Thereupon, PW1 filed a private complaint before the Court and the same was referred to police station Navipet.
15.PW3 K.Sayavva deposed that about three years ago, A1 came to her and requested to give some amount to enable him to send PW1 to gulf country. Then she arranged Rs 70,000/- to A1 at his house in the presence of A2 and the amount was returnable after PW1 going to gulf country. A1 executed promissory note to that effect and PW1 went to gulf country. Three or four months thereafter, she came to know that PW1 retuned to India as father of A2 and A3 sent him back seizing his passport. Then she went to PW2 and asked for money for which Pw2 replied that father of A2 and A3 seized the passport of PW1 and he cannot go to gulf country and cannot repay the amount. Then she went to Police Station
Navipet and informed the same to the SI and shown the promissory note. The SI told that the promissory note does not bear revenue stamp and it is invalid.
16.PW4 Kamareddy Rajamani deposed that about three years back, A1 brought
PW1 to his house to work and promised that he would send Pw1 to gulf country. Thereafter,
A1 approached her mother-in-law PW3 and asked her to provide money to enable him to send
PW1 to gulf country. Accordingly, PW3 gave Rs 50,000/- and she gave Rs 10,000/- and PW1 provided Rs 10,000/- and the total of Rs 70,000/- was paid to A1. PW1 went to gulf country and returned back within one month. Thereafter, they went to the house of PWs 1 and 2 and demanded return of amount. PWs 1 and 2 expressed their inability and further informed that
A1 to A3 cheated them.
17.PW5 is the Investigating Officer who reiterated the contents of charge sheet in his chief examination and further stated the manner in which he conducted investigation and filed charge sheet.
18.This is the evidence available on record with which it has to be seen whether the prosecution is able to prove the guilt of accused for the charged offence beyond all reasonable doubt.
5CC.No. 109 of 2009
19.The offence alleged against the accused is U/s 420 IPC. According to the case of prosecution A1 to A3 cheated PW1 by misrepresenting that he would be sent to Dubai on employment visa by taking Rs 70,000/- and that they arranged visit visa and thus cheated him.
20.Before appreciation of evidence, it is germane to extract Section 415 Cr P C which reads as under:-
Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do any thing which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “ cheat”.
21.It is the evidence of PW2 that A1 approached PW1 and offered to send him to gulf country on employment visa who in turn agreed and paid Rs 70,000/- to A1. A1 gave the said amount to A2 as their father Balaiah was working at Dubai. A2 and A3 secured Visa and
PW1 was sent to Sharja where father of A2 and A3 received him at the air port and took his passport and he never turn up. Thereafter, PW1 took shelter with his brother Sailoo for some time and after three months returned to Indian. He further deposed that they went to the house of A1 and informed about the cheating.
22.It is the case of the complainant that A1 got arranged loan of Rs 70,000/- through known persons. It is also the case of complainant that A1 paid Rs 20,000/- to the owner of Saleem Farm where PW1 was working as farm servant and got relieved him. But in the chief examination, PW1 did not state that A1 got arranged loan of Rs 70,000/- and on the other hand, he deposed that he paid Rs 70,000/- to A1 and he did not whisper about payment of Rs 20,000/- to the owner of Saleem Farm. It is also the evidence of PW1 that A2 and A3 secured visit visa which goes to show that he was well aware of the nature of visa. Having fully aware of the nature of visa, he accepted and went to Dubai. It is not forthcoming from the evidence of PW1 as to what transpired in between himself and father of A2 and A3. But it is his evidence that father of A2 and A3 seized his passport and thereupon he went to his brother Sailoo and took shelter and his brother provide return ticket after three months.
6CC.No. 109 of 2009
23.According to complaint, PW1 left for Dubai on 25.5.2007 and he returned on 27.08.2007 and the complaint was lodged on 11.07.2008 before the Court i.e after (11) months of his return to India. As per the complaint, A1 came to PW1 on 30.6.2008 and demanded repayment of money and when he refused, A1 abused him in filthy language. It clearly goes to show that PW1 kept quiet for more than Ten months and when A1 came and demanded for repayment of money, he lodged complaint on 11.7.2008. Had really accused cheated PW1, he would have lodged complaint as soon as he landed in Indian. But he lodged complaint only when A1 demanded for money. The complaint itself goes to show that PW1 did not pay any money but it is A1 for got arrange the amount by standing as security and also got PW1 relieved from Saleem Farm by paying Rs 20,000/-
24.It is the evidence of PWs 1 and 2 that A1 to A3 cheated PW1. To further strengthen their case, the got examined PW3 and 4. It is the evidence of PWs 3 and 4 who are none other than mother-in-law and sister-in-law in relation. It is the evidence of PW3 that
A1 to A3 came to her for some money to enable them to send PW1 to Dubai for which she replied that she was not having any money. But A1 insisted her to arrange the amount somehow or the other. Two days thereafter, Pw3 had arranged Rs 70,000/- and paid to A1 in his house in the presence of A2 upon his execution of promissory note in her favour.
25.PW4 deposed that her mother-in-law PW3 gave Rs 50,000/- and she gave Rs 10,000/- and Rs 10,000/- was arranged by PW1. It is not the case of prosecution that out of Rs 70,000/- Rs 50,000/- belonged to PW3 and Rs 10,000/- belonged to PW4 and Rs 10,000/- was contributed by PW1. According to the evidence of PWs 3 and 4, said amount was paid to A1 in his house. According to PWs 1 and 2, they have paid Rs 70,000/- to A1 who in turn gave the amount to A2 and A3. According to PWs 3 and 4, they have arranged money for PW1.
But, PW1 neither mentioned this fact in his complaint nor deposed in his evidence before the
Court. PW1 has concealed the truth about arrangement of amount by PWs 3 and 4. PWs 1 and 2 have categorically stated in their evidence that when they approached police for justice, police refused to receive complaint and then they approached the Court through counsel. He did not mention the truth in his complaint but approached the Court with a malafide intention.
7CC.No. 109 of 2009
26.On an over all appreciation of evidence, it is clear the A1 has contributed only
Rs 10,000/- and the remaining amount was arranged by PWs 3 and 4 at the instance of A1 and it is A1 who stood as security for the said amount. It is also clear from the evidence that when
A1 demanded for repayment of amount, this complaint is filed to avoid said payment. From the evidence available on record, the prosecution failed to prove the essential ingredients of
Section 415 IPC. The prosecution failed to prove the guilt of accused beyond all reasonable doubt and consequently the accused are entitled for acquittal.
27.In the result, A1 to A3 are found not guilty of the offence punishable U/s 420
IPC and they are acquitted U/s 248(1) Cr P C. Bail bonds of accused shall stand cancelled.
Dictated to Personal Asst, corrected and pronounced by me in open Court on this the
31st day of January, 2012
II Addl. Judl. Magistrate of First Class, Nizamabad.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION:-FOR DEFENCE:-
PW1LW1Satla PoshettyNil Pw2LW2Satla Sayamma PW3LW3Kamareddy Sayavva PW4LW4Kamaraeddy Rajamani PW5LW5D.Balaji, SI of Police
XHIBITS MARKED
FOR PROSECUTION:-FOR DEFENCE:-
Ex.P1: Complaint -Nil- Ex.P2: FIR
MOs MARKED
- Nil --Nil-
II Addl. Judl. Magistrate of First Class, Nizamabad.
8CC.No. 109 of 2009