Probation can be granted following conviction under theft and fraud charges, particularly post restitution.

ORDER

Preface:

This Criminal Revision is directed against the concurrent conviction of the petitioner/Accused No.1 for offences under Sections 406 and 420 IPC, as confirmed in C.A. No. 14 of 2022 by the learned IV Additional District and Sessions Judge, Madurai, arising from C.C. No. 1232 of 2019 on the file of the learned Judicial Magistrate No. II, Madurai. While re-examining the conviction and sentence under Sections 397/401 Cr.P.C., 1973, this Court also records the subsequent developments before it concerning restitution to the victims and considers the appropriateness of extending the benefit of the Probation of Offenders Act, 1958 (“PO Act”).

Case of the Prosecution :

2. The de-facto complainant Mohammed Rakip (PW1) and victim Saravanakumar (PW2) were reception/administrative staff at Vadamalayan Hospital, Madurai. Accused No.1, Krishnakumari @ Praghalya, a resident of Krishnanagar/Thiruppalai, Madurai, and Accused No.2, Aso Jebro Samuel, a Kenyan national, then residing at Madurai, allegedly represented that 2^nd Accused's father was running a hospital in Cuba and induced PW-1 and PW-2 to part with monies on the promise of overseas employment. On diverse dates, i.e., 23.04.2018, 02.05.2018, 14.05.2018, 20.05.2018, and 11.10.2018, PW1 and PW2 paid, in cash/bank deposits/ATM transfers, an aggregate of Rs.

3,00,000/- (Rupees Three Lakhs only) each to Accused Nos.1 and 2 including Rs.10,000/- (Rupees Ten Thousand only) to 1^st Accused's Canara Bank A/c No. 6115101004640. Victim Suresh Krishnan (PW-4) similarly paid Rs. 3,00,000/- (Rupees Three Lakhs only) upon promises of employment in “Google”, and passports of PW1, PW2 and PW4 were taken and not returned until recovery during investigation. The prosecution relied on alleged forged “offer letters”/“flight tickets” (Ex.P1, P2, P5, P7, P8), bank receipts (Ex.P3, P6, P9), seizure mahazars (Ex.P12 and P13), and recovery of the passports (Ex.P18 and P19). On 16.02.2019, near Vasantham Hotel, Ayyar Bangalow, when repayment was demanded by PW1, PW2, and PW3 (PW1’s father Syed Mohammed), the accused allegedly issued threats. The FIR in Crime No. 430/2019 was registered on 11.03.2019 under Sections 406, 420, 506(ii) IPC. Later Section 14 of the Foreigners Act, 1946, was invoked against Accused No.

2 for overstay.

Gist of the Trial Court Judgment in C.C. No. 1232 of 2019:

3. After examining PW1 to PW8 and marking Ex.P1 to P23, the learned Magistrate acquitted Accused Nos.1 and 2 under Section 506(ii) IPC, and convicted Accused No.1 under Sections 406 & 420 IPC, Accused No.2 under Sections 406 & 420 IPC and Section 14, Foreigners Act, 1946, and imposed Simple Imprisonment for one year on each IPC count with fine, with sentences to run concurrently (Accused No.2 additionally one year under the Foreigners Act, 1946) and set-off was granted for pre-trial custody.

Gist of the Judgment in C.A. No. 14 of 2022:

4. The learned 1^st Appellate Court confirmed the learned Trial Court’s findings and sentence against Accused Nos.1 and 2, holding that the oral evidence of PW1 to PW4, the bank/ATM material and the recovery of passports established dishonest inducement and misappropriation, rejecting challenges based on delay, document authorship, and non-examination of Vignesh/Niranjan.

Grounds in Revision

5. The petitioner urges, inter alia, that the Courts below misappreciated the evidence. Ex.P4 complaint vis-à-vis Ex.P14 FIR and dates 16.02.2019 vs. 11.03.2019, render the prosecution doubtful. The ingredients of Sections 406and 420 were not proved. Some exhibits, such as Ex.P1, P2, P5, P7, P8 are unreliable. PW1/PW2’s testimonies were not considered in proper perspective, and the sentence is excessive, and overall findings are unreasonable/arbitrary.

6. The learned counsel for the petitioner rested on t