(Prayer: Criminal Revision Case filed under Sections 397 & 401 of the Cr.P.C, to call for the records of the learned XI Metropolitan Magistrate, Saidapet, Chennai and set aside the Judgment passed by him in C.C.No.9192 of 2010 (Old No.14564 of 2008) dated 30.10.2013 as confirmed by the Appellate Court made in C.A.No.250 of 2013 by judgment dated 04.08.2017 on the file of the learned IV Additional Sessions Judge, Chennai in dismissing the appeal filed by the petitioner herein by allowing the above Criminal Revision Case.)
1. This Criminal Revision is filed by Accused No.3, aggrieved by the judgment dated 04.08.2017, in Crl.A.No.250 of 2013 by the learned IV Additional Sessions Judge, Chennai, confirming the judgment dated 30.10.2013 passed in C.C.No.9192 of 2010 (Old No.14564 of 2008) by the learned XI Metropolitan Magistrate, Saidaptet, Chennai, holding him guilty of the offence under Sections 120B and 420 (2 counts) of the IPC and sentencing him as follows:
| Offence under Section | Sentence imposed |
| 120 IPC | To undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for one month. |
| 420 IPC (2 counts) | To undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/-, in default to undergo simple imprisonment for two months, for each count. |
| Sentences are directed to run concurrently. | |
3. The prosecution had examined 20 witness and marked 47 exhibits. The petitioner had not examined any witness and had marked Ex.D1 on his side. The trial Court believed the evidence of both PW1 and PW9, who both had consistently stated that it was the petitioner, who induced them to donate their kidneys and promised to pay the aforesaid money and thereafter, deceived them. The appellate Court confirmed the finding of guilt and the sentences imposed by the trial Court.
4. The learned counsel for the petitioner would submit that the complaint was an afterthought and was filed belatedly; that apart from the evidence of PW1 and PW9, the prosecution had not established that it was the petitioner, who made a representation to PW1 and PW9; that the petitioner himself was a victim and had donated his kidney; that the prosecution had not examined whether the provisions of the Transplantation of Human Organs and Tissues Act, 1994, have been violated; and that the Courts accepted the version of the witnesses which is not reliable to find the petitioner guilty of the offences.
5. The learned counsel would further submit that the petitioner had only introduced the witnesses to A1 and A2, who are alleged to have obtained necessary documents and admitted the witnesses to the hospital, where it is alleged that the transplantation had taken place. Therefore, the finding of guilt recorded by the Courts below have to be set aside.
6. The learned Additional Public Prosecutor, per contra would submit that both PW1 and PW9 have consistently stated that it was the petitioner, who had made the false representation and that when the witnesses questioned the other accused, they informed the witnesses that they had paid the entire money to the petitioner and the petitioner is liable to pay the money to the witnesses; and that both these witnesses have not been discredited in any manner.
7. Considered the rival submissions and perused the evidence and the original records.
8. It is not in dispute that the prosecution had established that two witnesses were admitted to the hospital for removal of the kidneys. It is the version of the witnesses that they were made to give a false identity at Hospital by A1 and A2. It is reported that both A1 and A2 are no more. The prosecution had examined the witnesses who were allegedly cheated by the accused. The prosecution had also collected the documents of the real persons and examined them to establish that PW1 and PW9 impersonated them. It is also seen from the evidence that it was the petitioner who collected the original documents from the witnesses, whose names were used by PW1 and PW9 while admitting themselves in the hospital.
9. Further, though, there is a delay in lodging of the FIR and there is a discrepancy in the FIR as to the date of the information received at the police station, this Court is of the view that it is only a typographical error and it had not prejudiced the petitioner or other accused in any manner. In a case of this nature, delay in lodging the FIR cannot be the sole basis to disbelieve the witnesses. The fact that the petitioner also had donated his kidney would also make no difference as the evidence suggests that he was the one who made the false representation to both PW1 and PW9 and therefore, this Court is of the view that there is absolutely no infirmity in the concurrent finding of the Courts below holding the petitioner guilty of the offence under Section 420 IPC (2 counts).
10. The learned Additional Public Prosecutor on instructions stated that the petitioner was in prison for 27 days. Considering the fact that the petitioner himself has donated his kidney and the alleged occurrence took place 21 years ago, this Court is of the view that interest of justice would be met if the petitioner is sentenced to the period already undergone for the offence under Sections 120B and 420 (2 counts) of the IPC and is directed to pay a compensation of Rs.75,000/- each to PW1 and PW9.
11. Accordingly, the findings of guilt by the Courts below for the offences under Sections 120B and 420 (2 counts) of the IPC, is confirmed. However, the sentences imposed by the Courts below is modified and the petitioner is sentenced to the period already undergone and is directed to pay a compensation of Rs.75,000/- each to PW1 and PW9, (totally Rs.1,50,000/-) within a period of four weeks from the date of receipt of a copy of this order and in default to suffer six months simple imprisonment. The petitioner shall deposit the compensation amount to the credit of C.C.No.9192 of 2010 (Old NO.14564 of 2008) within the aforesaid period. On such deposit, the learned Magistrate may disburse the compensation amount to PW1 and PW9 as stated above.
12. With the above modification in the sentence imposed by the Courts below, the Criminal Revision is dismissed.
13. The High Court Legal Services Committee, Chennai, is directed to pay a sum of Rs.10,000/- as remuneration to Mr.V.Perarasu, learned legal aid counsel, who also appeared along with the counsel for the petitioner.