THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL REVISION CASE No.1544 OF 2008
ORDER:
This Criminal Revision Case, under Sections 397 and 401 of Cr.P.C., is filed by the petitioner/A.1, challenging the judgment, dated 16.07.2008, passed in Criminal Appeal No.30 of 2007 by the learned I Additional Metropolitan Sessions Judge, Hyderabad, whereby, the conviction of the petitioner/A.1 of the offence under Section 406 of IPC and the sentence to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.3,000/-, in default, to undergo simple imprisonment for a period of three months vide judgment, dated 18.12.2006 passed in C.C.No.193 of 2002 by the XIII Additional Chief Metropolitan Magistrate (Mahila Court) at Hyderabad, was set aside and the matter was remitted to the trial Court with a direction to the petitioner/A.1 to appear before the trial Court on 01.08.2008 and with a further direction to the trial Court to frame appropriate charges afresh in view of the directions contained in the said order and dispose of the case on merits afresh by giving opportunity to both parties to adduce evidence as early as possible. 2
Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008
2. Heard Sri Mohd. Muzaffer Ullah Khan, learned counsel for petitioner/A.1, learned Assistant Public Prosecutor representing the respondent/State and perused the record.
3. The case of the prosecution, in brief, is as follows:
PW.1-Smt.B.Vijay Laxmi was married to one B.Srikanth son of A.2 in this case on 14.11.1999 with sufficient dowry in the form of cash and kind. The petitioner/A.1 is the elder son of A.2. After the marriage, PW.1 joined the company of her husband in his joint family, wherein, the petitioner/A.1 and A.2 also used to reside. During the wed lock, PW.1 gave birth to a male child. After the marriage, the business of the husband of PW.1 and petitioner/A.1 got separated, but they lived together in the house bearing No.12- 1-827, Asifnagar, Hyderabad. Unfortunately, the husband of PW.1 died in an accident on 19.11.2000. The petitioner/A.1 took undue advantage of the sudden death of husband of PW.1 and he broke open Almirah of the husband of PW.1 and took away the pronote executed by him for Rs.7,50,000/- in favour of the deceased B.Srikanth. The petitioner/A.1 also shifted the goods from the shop of the deceased Srikanth to his shop and collected the debt amount to a tune of Rs.9 Lakhs. Further, the petitioner/A.1, with the active support of A.2, subjected PW.1 to cruelty and 3 Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008 misappropriated the property of his late brother Srikanth and deprived PW.1 of her rights.
4. Basing on the Court referred complaint of the complainant, LW.8-Mohd.Sardaruddin, Sub Inspector of Police, Women Police Station, CCS, Hyderabad registered a case in Crime No.317 of 2001 for the offence under Sections 498A and 406 of IPC and after completion of investigation, PW.7-Smt.G.Sheshu Kumari, Sub Inspector of Police, laid charge sheet against the accused persons for the offence under Sections 498A and 406 of IPC.
5. Cognizance was taken against the petitioner/A.1 and A.2 for the offence under Section 406 of IPC and on their appearance, copies of the documents were furnished to them under Section 207 of Cr.P.C. They were examined under Section 239 of Cr.P.C. and heard. Charge under Section 406 of IPC which was framed against them, read over and explained to them, for which, they pleaded not guilty and claimed to be tried.
6. To substantiate the charges, the prosecution got examined PWs.1 to 7 and got marked Ex.P1 and P2. PW.1 is complainant, PW.2 is her mother, PW.3 is her father, PWs.4 to 6 are independent witnesses and PW.7 is the Investigation Officer. Ex.P1 is the complaint and Ex.P2 is the FIR.
4
Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008
7. After closure of evidence of prosecution, the accused persons were examined under Section 313 of Cr.P.C. confronting the incriminating material appearing against them. A.1 and A.2 denied the prosecution allegations and adduced defense evidence. A.1 got himself examined as DW.1 and on his behalf, Ex.D1 is the Certified Copy of Affidavit given by PW.1 in O.P.No.141 of 2003 and Ex.D2 is the Certified copy of judgment in C.C.No.483 of 2002 were marked. The trial Court after adverting to the submissions made and the material placed on record, acquitted A.2 of the offence under Section 406 of IPC and convicted the petitioner/A.1 of the offence under Section 406 of IPC and sentenced him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.3,000/-, in default, to undergo simple imprisonment for a period of three months. Challenging the same, the petitioner/A.1 filed the subject Crl.A.No.30 of 2007 before the Court below and the Court below, while setting aside the conviction and sentence passed against the petitioner/A.1, remitted the matter to the trial Court with a direction to the petitioner/A.1 to appear before the trial Court on 01.08.2008 and directing the trial Court to frame appropriate charges afresh in view of the directions contained therein and also directed the trial Court to dispose of the case on merits afresh by giving opportunity 5 Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008 to both parties to adduce evidence as early as possible. Aggrieved by the same, the petitioner/A.1 preferred this Criminal Revision Case.
8. Learned counsel for the petitioner/A.1 would submit that the judgment of the Court below is contrary to law, weight of evidence and probabilities of the case. The Court below erred in directing the trial Court to frame charge against the petitioner/A.1 for the offence under Section 498A of IPC. The Court below failed to appreciate that the appeal was filed by the petitioner/A.1 under Section 386 of Cr.P.C. and no petition was filed by the State or the defacto complainant challenging the order of taking cognizance under Section 406 of IPC or against the order framing a charge under Section 406 of IPC only. The Court below also erred in directing the trial Court to frame charge under Section 498A of IPC instead of acquitting petitioner/A.1 of the offence under Section 406 of IPC. The power of the Court below is confined only to confer or modify or acquit the accused, but it has no power to direct the trial Court to frame charges. Neither the complainant nor the Public Prosecutor filed any application aggrieved by the framing of charge under Section 406 of IPC, so also there is no petition filed by either the defacto complainant or by the police for framing of additional charge under Section 498A of IPC. The trial 6 Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008 Court acquitted A.2 in this case and now the charges has to be framed against the petitioner/A.1 only under Section 498A of IPC and not against other accused in the absence of any appeal by the State. The judgment under challenge is perverse, ex facie, illegal and is liable to be set aside and ultimately prayed to allow the Criminal Revision Case as prayed for. In support of his contentions, learned counsel had relied upon the following decisions.
1. State of W.B. Vs. Laisal Haque and another etc. Mohd.
Abu Bakar Siddique Molla v. Laisal Haque and others1
2. Deepak Kumar v. State of Karnataka2
3. Dwarka Das and others v. State of Haryana3
9. On the other hand, the learned Assistant Public Prosecutor representing the respondent/State supported the impugned judgment and would submit that there is nothing to interfere with the impugned judgment for this Court by exercising Revisional jurisdiction under Sections 397 and 401 of Cr.P.C.
10. In view of the above submissions, the point that arises for determination in this Criminal Revision Case is as follows: 1 1989 CRI.L.J.865 2 2004 CRI.L.J.1316 3 2003 CRI.L.J.414 7 Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008 "Whether the judgment, dated 16.07.2008, passed in Criminal Appeal No.30 of 2007 by the I Additional Metropolitan Sessions Judge, Hyderabad, is illegal, improper or irregular and is liable to be side aside by exercising power under Sections 397 and 401 of Cr.P.C.?
POINT:-
11. I have given thoughtful consideration to the above rival submissions and meticulously gone through entire material on record. This Court is aware of the settled legal position that this Court, in exercise of its Revisional jurisdiction under Sections 397 and 401 of Cr.P.C., cannot interfere with the concurrent findings of fact recorded by the Courts below, unless they are perverse or arrived at ignoring material evidence. Further, the Revisional power of this Court under Sections 397 and 401 of Cr.P.C., cannot be equated with that of an appeal. But however, when the decision of the Court below is perverse or untenable in law or grossly erroneous or glaringly unreasonable or based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, this Court can interfere with the said decision in exercise of its Revisional jurisdiction. Section 401 of Cr.P.C. enables the High Court to exercise all powers of appellate Court, if necessary, in aid 8 Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008 of power of superintendence or supervision, as a part of Revisional power. Section 397 of Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding sentence or order, recorded or passed, and as to the regularity of any proceeding of such inferior court. Thus, a duty rests on the High Court under Sections 397 and 401 of Cr.P.C. to correct manifest illegality resulting in gross miscarriage of justice.
12. In the instant case, admittedly, the marriage between the defacto complainant and the brother of the petitioner/A.1 took place on 14.11.1999. On 19.11.2000, the husband of the defacto complainant, who is the brother of the petitioner/A.1, filed a private complaint under Section 200 of Cr.P.C. before the trial Court. On 06.07.2001 a case was registered in Crime No.317 of 2001 for the offences under Sections 498A and 406 of IPC against the petitioner/A.1 and A.2. After investigation, charge sheet was filed before the trial Court on 30.07.2001 and the same was numbered as C.C.No.193 of 2002. Thereafter, a charge was framed against the petitioner/A.1 and A.2 for the offence under Section 406 of IPC on 23.11.2004. The trial Court, vide judgment, dated 18.12.2006, while acquitting the A.2, convicted the petitioner/A.1 of the offence under Section 406 of IPC and 9 Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008 sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.3,000/-, in default, to undergo simple imprisonment for a period of three months. Assailing the same, the petitioner/A.1 filed the subject Criminal Appeal No.30 of 2007 before the Court below. Vide order, dated 16.07.2000, the Court below had set aside the conviction and sentence recorded against the petitioner/A.1 and remitted the matter to the trial Court directing the petitioner/A.1 to appear before the trial Court on 01.08.2008 and the trial Court was directed to frame appropriate charges afresh in view of the directions given in the appeal and dispose of the case on merits afresh by giving opportunity to both parties to adduce evidence as early as possible. Challenging the same, the petitioner/A.1 filed this Criminal Revision Case. As rightly contended by the learned counsel for the petitioner/A.1, though the charge against the petitioner/A.1 and A.2 was framed on 23.11.2004, neither the complainant nor the State had filed any petition against framing of charge only under Section 406 of IPC against the petitioner/A.1 and A.2, meaning thereby that the charge had become final. A.2 in this case was acquitted by the trial Court and no appeal has been preferred challenging the acquittal either by the State or by the complainant, meaning thereby that the acquittal of A.2 had 10 Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008 also became final and thus, setting aside the judgment of the trial Court would amount to setting aside acquittal of A.2 also.
13. In Laisal Haque's case (1 supra) the Hon'ble Apex Court held that there cannot be a piecemeal trial. Retrial of the case must necessarily revise the prosecution and result in a trial denovo; In the absence of appeal preferred by the State against acquittal of an accused, the High Court could not, under Section 386(b) of Cr.P.C. on a appeal by the respondents against their conviction, alter the acquittal nor can there be a splitting of trial.
14. Further, in the instant case, though the trial Court framed an issue as to whether the prosecution has established the guilt of the A.1, A.2, A.4 and A.5 for the offence under Section 498A of IPC and Sections 4 and 6 of Dowry Prohibition Act beyond all reasonable doubt, acquitted the A.2 of the offence under Section 406 of IPC and convicted and sentenced the petitioner/A.1 of the offence under Section 406 of IPC. In similar circumstances, the Hon'ble Apex Court, in Deepak Kumar's case (2 supra) held as follows:
"The contention of the S.P.P. that accused could be convicted under Section 397, IPC in appeal by exercise of powers under Section 396, IPC is untenable against the acquittal of Accused 2 and partial acquittal of Accused-1 from the charge under Sections 394 and 397, IPC. There is 11 Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008 no appeal preferred by the State. Therefore the order of acquittal becomes conclusive and binding even though it is erroneous. In a case where there is a charge of commission of higher offence by the accused and conviction is rendered for lesser offence and for higher offence accused is acquitted in an appeal by an accused against the conviction, the State cannot argue for reversal or modification of the order of acquittal granted in respect of such of the offence without a specific appeal in that behalf. So also on the sentence without an appeal by the State against the sentence the appellate Court cannot alter the nature and extent of sentence so as to enhance the same. "
Thus, in the absence of any appeal preferred by the State, the order of acquittal becomes conclusive and binding even though it is erroneous. Further, in a case where there is a charge of commission of higher offence by the accused and conviction is rendered for lesser offence and for higher offence accused is acquitted, in an appeal by accused against the conviction, the State cannot argue for reversal or modification of the order of acquittal granted in respect of such of the offence without a specific appeal in that behalf. Further, in the absence of any appeal by the State against the sentence, the Appellate Court cannot alter the nature and extent of sentence, so as to enhance the same.
12
Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008
15. In Dwarka Das's case (3 supra), 20 people died by consuming illicit country liquor. The Sessions Court therein, upon appreciation of evidence convicted seller and vendor of illicit liquor and acquitted others. Under those circumstances, the Hon'ble Apex Court observed that the High Court was swayed away by the nature of the incident and directed the State Government to file appeal against the persons acquitted and accordingly set aside the order of the High Court holding that the same is without jurisdiction.
16. In the instance case, admittedly, no petition was filed either by the complainant or by the State for framing of additional charge under Section 498A of IPC by the trial Court even though the charge was framed by the trial Court on 23.11.2004. Hence, in the considered opinion of this Court, the Court below erred in directing the trial Court to frame a charge under Section 498A of IPC. Considering the totality of the circumstances, the Court below had fallen in a grave error in remitting the matter to the trial Court to frame appropriate charges afresh.
17. Now the question that requires answer is whether the prosecution has proved the guilt of the petitioner/A.1 of the offence under Section 406 of IPC?
13
Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008
18. Section 406 of IPC reads as follows:
406. Punishment for criminal breach of trust.-Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extent to three years, or with fine, or with both.
The phrase "criminal breach of trust" is defined in Section 405 of IPC which reads as follows:
..."Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own USB that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust or willfully suffers any other person so to do commits 'criminal breach of trust'."
To prove the offence under Section 406 of IPC, the prosecution shall prove (I). that the accused was entrusted with property or with dominion over it (II) that he
(a) Misappropriated it, or
(b) Converted it to his own use, or
(c) Use it, or
(d) Dispose of it
19. In the instant case, there was no entrustment of property in favour of the petitioner/A.1 by any one, which is a sine qua non for the offence under Section 406 of IPC. It is essential that the prosecution must prove first of all that the accused was entrusted 14 Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008 with same property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or disposal in violation of a direction of law or by someone else which he willingly suffered to it. So, it falls almost axiomatically from the defense of Section 406 of IPC that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the later must hold at on account of some person or in some way for his benefit. In the instant case, PWs.1 to 3 have categorically stated in their evidence that the accused persons returned of other things except Rs.1,25,000/- and gold. PW.1 further stated that she is in possession of 11 tulas of gold and the accused persons have to give other 10 tulas of gold. Further, PW.1 has categorically stated in her cross-examination that she did not give any complaint when the petitioner/A.1 broke open the almirah. Further she categorically stated that her deceased husband and the petitioner/A.1 executed pronote in favour of her father and that she has not filed the said pronote. Under these circumstances, there is no evidence to hold that the property alleged to be misappropriated by the petitioner/A.1 was entrusted to him, that he has dishonestly misappropriated the same or 15 Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008 converted the property to his own use or that while dishonestly using or disposing of the same, caused any willful suffering to the complainant. Hence this Court is of the considered opinion that none of the ingredients of Section 406 of IPC are made out against the petitioner/A.1. The petitioner/A.1 is entitled for benefit of doubt and is liable to be acquitted of the offence under Section 406 of IPC. Viewed thus, the judgment under challenge suffers from illegality, impropriety and irregularity warranting interference of this Court by exercising power under Sections 397 and 401 of Cr.P.C.
20. Accordingly, the Criminal Revision Case is allowed by setting aside the judgment, dated 16.07.2008, passed in Criminal Appeal No.30 of 2007 by the I Additional Metropolitan Sessions Judge, Hyderabad. Consequently, the petitioner/A.1 is acquitted of the offence under Section 406 of IPC. The bail bonds of the petitioner/A.1 shall stand discharged. Fine amount, if any, paid by the petitioner/A.1, shall be refunded to him.
Miscellaneous applications, if any, pending in this Criminal Revision Case, shall stand disposed of in terms of this order.
________________ JUVVADI SRIDEVI, J 23rd March, 2023 Ksk