THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No.1782 of 2006
ORDER:
This revision case is filed by the petitioner-accused against the order of the III-Additional Sessions Judge (FTC-II), Khammam in Criminal Appeal No.23 of 2005, dated 30.10.2006.
2. The petitioner-accused is tried for the offence under Sections 420 and 506 IPC by the I-Additional Judicial Magistrate of First Class, Khammam in CC No.646 of 2001. On 02.05.2001, the de-facto complainant Smt. C. Suryakala lodged a report with the police alleging that the accused being the agent of Asra India, persuaded her to make deposits with the company and believing his words, she made deposits of Rs.20,000/- in her name, Rs.40,000/- in the name of her daughter Dhanalaxmi and recurring deposit of Rs.5,000/- in the name of her another daughter Kalyani. Even after maturity of the fixed deposits, the amounts were not paid and when she asked the accused, he kept on postponing the same. On 01.02.2001, she along with accused went to Asra India office at Hyderabad and she was informed by the neighbouring shop people that the company was closed three and half years ago. The complainant submitted that the accused cheated her and collected amounts till September, 2000 although the company had been closed. She further stated that when she demanded the accused for the amount, the accused threatened her with dire consequences. The said report was registered as Crime No.108 of Dr.GRR,J 2 Crl.RC. No.1782 of 2006 2001 under Sections 420 and 506 IPC and after recording the statements of witnesses, collecting the documents, and arresting the accused, the Investigating Officer filed charge sheet against the accused under Sections 420 and 506 IPC. The I-Additional Judicial Magistrate of First Class, Khammam had taken cognizance of the case for the above offences, framed charges under Sections 420 and 506 IPC, explained to the accused and when the accused pleaded not guilty, proceeded with the trial.
3. The prosecution examined PWs.1 to 3 and marked Exs.P1 to P40. The evidence of PW.4 - Investigating Officer was eschewed from consideration as he failed to appear before the Court inspite of receiving the summons for facing the cross-examination.
4. On considering the oral and documentary evidence on record the learned Magistrate convicted the accused for the offence under Section 420 IPC and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- and convicted him for the offence under Section 506 IPC and sentenced him to undergo rigorous imprisonment for six months. The fine amount is directed to be paid to PW.1 towards compensation. Aggrieved by the said judgment, the petitioner-accused preferred an appeal before the III Additional Sessions Judge (FTC-II), Khammam. The learned III Additional Sessions Judge on re-appreciating the evidence of the witnesses, confirmed the conviction and sentence passed by the I Additional Dr.GRR,J 3 Crl.RC. No.1782 of 2006 Judicial Magistrate of First Class on both counts for the offences under Sections 420 and 506 IPC.
5. Aggrieved further, the petitioner-accused preferred this revision contending that the learned Judge failed to see that the ingredients to constitute the said offences were not made out, the learned Judge erred in placing reliance on the testimony of PWs.1 to 3 which was highly interested and discrepant in material particulars. The learned Judge ought to have seen that the petitioner was only an employee and was not responsible for repayment of the amounts collected by the company. The learned Judge ought to have seen that pursuant to the agreement between the parties, any dispute should be referred for arbitration, the learned Judge failed to see that non- examination of the Investigating Officer was fatal to the prosecution case and prejudice was caused to the accused The learned Judge ought to have seen that the matter was purely civil in nature and erred in holding that the accused collected the amounts after the company was closed and committed error in relying upon Exs.P3 and P4.
6. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
7. A perusal of the record would disclose that PW.1 was the complainant, PW.2 was her husband and PW.3 was the daughter of the complainant. Ex.P1 was the report given by PW.1, Ex.P.2 was the certified copy of the Fixed Deposit receipt for Rs.10,000/-, Ex.P.3 was Dr.GRR,J 4 Crl.RC. No.1782 of 2006 the certified copy of the fixed deposit receipt for Rs.10,000/-. Ex.P.4 was another fixed deposit receipt for Rs.40,000/-. Ex.P.5 was the pass book for the recurring deposit opened in the name of Kalyani, another daughter of PW.1, dated 12.04.1999. Exs.P6 to P40 were the receipts for the amount in all to Rs.5,500/- collected as against the recurring deposit in the name of Kalyani. Ex.P.41 was the FIR. The trial Court as well as the appellate Court discussed the evidence of the witnesses in detail and after considering the oral and documentary evidence on record, answered all the grounds raised by the petitioner-accused in this revision.
8. The evidence of PW.1, being a victim, cannot be considered as interested. The trial Court discussed the discrepancies in the evidence of witnesses also and as they were not material to discredit their evidence, considered them in proper perspective and placed reliance upon them. The contention of the learned counsel for the petitioner that the petitioner was only an employee and was not responsible for repayment of the amounts collected by the company, cannot be considered as valid as the petitioner failed to adduce any defence evidence to prove that he deposited the amounts collected by him to the company and that he received salary from the company till the date of his collection of the amounts from PW.1 till September, 2000.
9. The trial Court rightly pointed out the said aspects and observed that it was hard to believe that the accused was not aware of Dr.GRR,J 5 Crl.RC. No.1782 of 2006 the closure of the company in which he was working. The accused knowing fully well that the company was closed, collected the amounts from Pw.1 with an intention to gain wrongfully and not repaid the amounts to PW.1 even on her demand and threatened her with dire consequences as revealed from the evidence of PWs.1 to 3.
10. The ground raised by the learned counsel for the petitioner that the dispute ought to have been referred to the Arbitrator, also was answered by the Courts below. It was rightly observed that it was not a civil dispute so as to refer the matter for arbitration. It was the accused, who collected the money in the name of the closed company with dishonest intention to cause wrongful loss to the victims and wrongful gain for himself. As such, the question of referring the matter to the Arbitrator would not arise. It was not a civil matter as contended by the learned counsel for the petitioner. The contention of the learned counsel for the petitioner that non-examination of Investigating Officer was fatal to the prosecution case and caused prejudice to the accused is not acceptable as none of the witnesses turned hostile and as rightly observed by the trial Court, the evidence of the Investigating Officer was material only to the extent of the investigation conducted by him and even if he had been examined, he would only have spoken about the arrest of the accused and collection of documents on record, as such, his non-examination was not fatal to the prosecution case and it would not affect the otherwise reliable evidence on record. The order passed by the trial Court, as confirmed Dr.GRR,J 6 Crl.RC. No.1782 of 2006 by the appellate Court, was in accordance with law and there was nothing to interfere with the said orders. As such, I agree with the concurrent findings of the Courts below.
11. Learned counsel for the petitioner alternatively pleaded to reduce the sentence of imprisonment to the fine amount already awarded and to award compensation to the victim from the said fine amount. However, on perusal of the judgments, the trial Court rightly convicted the petitioner/accused with the sentence which is proportionate to the offence committed by him and I find no necessity to interfere even with the sentence awarded by the trial Court, as confirmed by the appellate Court.
12. In the result, the Criminal Revision Case is dismissed, confirming the judgment, dated 24.03.2005, passed in CC No.646 of 2001 by the I-Additional Judicial Magistrate of First Class, Khammam, as confirmed by the III Additional Sessions Judge (FTC- II), Khammam, vide judgment dated 30.10.2006 in Crl.A. No.23 of 2005. The trial Court is directed to take consequential steps in pursuance of the dismissal of the present revision.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J November 02, 2021 KTL