Kottapalli Krishna Kumari And Another, vs The State Of A.P., Rep By Pp.,
2023 Latest Caselaw 6088 AP

Andhra Pradesh High Court - Amravati

Kottapalli Krishna Kumari And Another, vs The State Of A.P., Rep By Pp., on 15 December, 2023

          HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

              CRIMINAL APPEAL No.507 OF 2010

JUDGMENT:

This Criminal Appeal, under Section 374(2) of the Code of

Criminal Procedure, 1973 (for short, „the Cr.P.C‟), is filed by the

appellants, challenging the judgment dated 16.04.2010, in

Sessions Case No.29/S/2009, on the file of Special Judge for Trial

of Offences under the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989, Guntur (for short, „the learned

Special Judge‟). The present appellants faced charges under

Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (for short, „the SCs & STs Act‟),

under Sections 506, 417 of the Indian Penal Code, 1860 (for short,

„the IPC‟).

2. The learned Special Judge acquitted the appellants for the

charges under Section 3(1)(x) of the SCs & STs Act and under

Section 506 of the IPC, but found them guilty of the charge under

Section 417 of the IPC, convicted them under Section 235 (2) of

Cr.P.C. The learned Special Judge after questioning A.1 and A.2

about the quantum of sentence and considering that A.1 as on

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date of the judgment is aged about 60 years and A.2 is aged about

72 years, sentenced them to suffer Simple Imprisonment for six

(06) months each and to pay a fine of Rs.2,000/- each, in default

to suffer Simple Imprisonment for 15 days each for the offence

under Section 417 of the IPC.

3. The parties to this Criminal Appeal will hereinafter be

referred to as described before the learned Special Judge, for the

sake of convenience.

4. The case of the prosecution in brief, as set out in the charge

sheet filed by the Sub-Divisional Police Officer, Guntur in Crime

No. 125 of 2008 of Pattabhipuram Law and Order Police Station,

alleging the offence under Section 3(1)(x) of the SCs & STs Act and

Section 506 of the IPC is as follows.

(i) The de-facto complainant Gundabattuni

Malakondaiah-PW.1 got substantial amount of Rs.7,00,000/- on

his retirement. He belongs to Hindu Mala-Scheduled Caste and

Gundabathuni Adilakshmi-PW.2 is his wife. The accused were

neighbours and known to them very intimately, who came to know

about the receipt of amounts towards retirement benefits by PW.1

and approached PW.1 and also promised to give 24% p.a., interest

on the amount and will repay the same as and when demanded

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and believing the same, PW.1 gave Rs.7,00,000/- to the accused

and A.1 executed two promissory notes for Rs.1,00,000/- each

under Exs.P7 and P8 and his wife-A2 executed five promissory

notes under Exs. P2 to P6, each for Rs.1,00,000/-, repayable with

interest at 24% p.a., in favour of PW.1 and his wife i.e., PW.2 and

children and in spite of repeated demands for repayment, the

accused were postponing the same.

(ii) The son of the accused has also executed two

promissory notes and PW.1 with fond hope of securing money for

performing his daughter‟s marriage kept money with the accused

and they are making repeated demands and accused was

postponing the same, on some pretext or other. Then, they took

mediators namely Goli Venkata Ramana Rao-PW.3, Arekuti

Prasada Reddy-PW.4 to the house of accused and demanded to

pay the monies and accused replied that they will pay it shortly

i.e., after couple of days. Hence, again on 04.07.2008, PWs. 1 and

2 went to the house of accused to get the money. The accused did

not pay the money as promised before the elders. On the contrary,

they abused and insulted them in public view and threatened

them with dire consequences and having left with no option, PW.1

went to the police station and presented Ex.P1 complaint at 10.30

PM, which was registered as a case in Cr.No.125/2018.

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Sub Divisional Police Officer, as per the directions of

Superintendent of Police, Guntur under Ex.P15 proceedings, took

up investigation, collected the promissory notes and also various

signatures of the accused from the bank and sent them to Hand

Writing Expert and confirmed that Exs.P2 to P8/ pronotes, were

executed by accused. Further on 04.07.2008 when PWs. 1 and 2

went to the house of accused, both the accused abused them and

insulted them in public view touching their caste and committed

offence under Section 417 of the IPC and under Section 3(1)(x) of

the SCs & STs Act.

5. On appearance of the accused, the learned Special Judge

framed charges under Sections 506 and 417 of the IPC and further

under Section 3(1)(x) of the SCs & STs Act and explained to the

accused in Telugu for which they pleaded not guilty and claimed

to be tried.

6. To bring home the guilt against the accused, the

prosecution, before the Special Judge, examined PWs.1 to 8 and

got marked Exs.P1 to P16.

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7. After the closure of the evidence of the prosecution, both the

accused were examined under Section 313 Cr.P.C with reference

to the incriminating circumstances appearing in the evidence let in

by the prosecution for which they denied the same. They did not

adduce any defence evidence.

8. The learned Special Judge, on hearing both sides and after

considering the oral as well as documentary evidence on record,

gave a finding that prosecution did not prove the charges under

Sections 3(1)(x) of the SCs & STs Act and Section 506 of the IPC,

as such found A1 and A2 not guilty of the same and acquitted

them under Section 235(1) of Cr.P.C. However, the learned Special

Judge found them guilty of the charge under Section 417 of the

IPC, convicted them under Section 235 (2) of Cr.P.C. and after

questioning them about the quantum of sentence, sentenced them

as above. Felt aggrieved of the said judgment of the learned

Special Judge in convicting them under Section 417 of the IPC,

both the appellants filed the present appeal.

09. There is no appeal filed by the State with regard to the

acquittal of the accused under Section 3(1)(x) of the SCs & STs Act

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and Section 506 of the IPC. Hence, the scope of the present

appeal is confined to Section 417 of the IPC.

10. Now in deciding the present appeal the simple question that

false for consideration is as follows:

"1. Whether the prosecution before the learned Special

Judge proved that both the accused dishonestly and

fraudulently induced the de-facto complainant to part

with an amount of Rs.7,00,000/- under different

promissory notes and later with a dishonest intention

omitted to make payments in the manner as alleged and

as to whether accordingly they cheated the de-facto

complainant.

2. Whether there are any grounds to interfere with the

impugned judgment?"

11. POINT NOs.1 & 2: It is to be noted that when Section 415

of the IPC defines the cheating for which the accused are charged,

Section 417 of the IPC provides for punishment of cheating.

12. Mr. A.Venkata Durga Rao, learned counsel, representing

Mr.Durga Prasad Theegala, learned counsel for the appellants,

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would vehemently contend that absolutely there was no basis

whatsoever for the learned Special judge to record a conviction

under Section 417 of the IPC, for which F.I.R. was not registered,

case was not investigated and even without there being any basis

a charge under Section 417 of the IPC was framed and it was held

to be proved without any evidence whatsoever. Even according to

the case of the prosecution, the transaction between the de-facto

complainant and the accused was of a civil in nature, borne out by

about seven (7) promissory notes. So, the remedy for the de-facto

complainant was to recourse Civil action in a competent Court of

Law. The de-facto complainant allowed the time for institution of

suit barred. Even none of the prosecution witnesses deposed that

accused with a dishonest intention got the amounts from PW.1

and his family. So, without there being any evidence conviction of

the accused is not sustainable. In support of his contentions, he

would rely upon the decisions in Sarabjit Kaur Vs. The State of

Punjab & Anr1 and Satishchandra RAtanlal Shak Vs. State of

Gunarat and Another. 2 With the above submissions, he would

contend that absolutely the conviction against the appellant is not

at all sustainable.

2023 LiveLaw (SC) 157

(2019) 9 Supreme Court Cases 148

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13. Mr. Y.Jagadeeswara Rao, learned Special Assistant,

representing learned Public Prosecutor appearing for the

respondent-State would, seeks to support the judgment of the

Trial Court. He would contend that the learned Special Judge

made specific findings that the accused deliberately cheated the

de-facto complainant and considering the evidence on record,

conviction was given and the judgment of the learned Special

Judge is not liable to be interfered with.

14. PW.1 is the de-facto complainant. PW.2 is the wife of the

de-facto complainant. PW.3 is a person who came to know that

A.1 has to pay some amounts to the de-facto complainant‟s family.

PW.4 is also a hearsay witness who came to know from PW.1 that

accused borrowed money from him on different promissory notes.

15. Prosecution examined PW.5 to prove to the fact that PW.1

belonged to Scheduled Caste and accused belongs to Forward

Caste. Through his examination, Ex.P9 and P10 i.e., the caste

certificate of PW.1 and caste certificates of A.1 and A.2 were

marked. PW.6 acted as Mahazar witness with regard to seizure of

promissory notes seven (7) in number from the de-facto

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complainant i.e., PW.1 under the cover of Ex.P11 Mediatornama.

PW.7 is the Sub-Inspector of Police, Pattabhipuram Law and Order

Police Station, who registered the F.I.R. on 04.07.2008 at 10.30

PM., basing on the report of PW.1 as case in Crime No.125 of

2008, under Section 3(1)(x) of the SCs & STs Act, Ex.P14 is

original F.I.R. PW.8 is the Sub-Divisional Police Officer, Guntur

Town, who investigated the case and filed charge sheet.

16. The substance of the allegations in Ex.P1 were such that the

accused borrowed amounts and when the de-facto complainant

repeatedly asked them about the repayment, they committed

offence under Section 3(1)(x) of the SCs & STs Act by abusing him

in the name of the caste. As seen from the charge sheet,

investigation was confined to the allegations under Section 3(1)(x)

of the SCs & STs Act and Section 506 IPC. The cognizance was

also taken under above provisions of law. As evident from the

charge sheet, the Investigating Officer did not arrive to a

conclusion that there was any element of cheating on the part of

the accused in borrowing the amounts from the de-facto

complainant and his family to a tune of Rs.7,00,000/-. Even it is

not the case of the prosecution that any of the prosecution

witnesses gave any statements brining out the offence under

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Section 415 of the IPC punishable under Section 417 of the IPC.

However, apart from the charge under Section 3 (1)(x) of the SCs &

STs Act and Section 506 of the IPC for which the charge sheet was

laid, a further the charge under Section 417 of the IPC came to be

framed as if A.1 on 01.10.2002 executed two promissory notes for

Rs.1,00,000/- each, promising to repay the amount and cheated

LW.1- Gundabattuni Malakondaiah.

17. However, the judgment of the Court was ultimately

convicting A.1 and A.2 for the charge under Section 417 of the

IPC.

18. Now, I would like to refer here only the relevant evidence

seen so far as charge under Section 417 of the IPC is concerned.

19. The testimony of PW.1 is that in the year 2001 he took

voluntary retirement. He received Rs.7,00,000/-towards

retirement benefits. Having come to know that he is with the

money, the accused came and stated that they will return the

amount as and when he demanded with an interest of 24% p.a.,

He agreed for the said proposal and on 01.10.2002, a sum of

Rs.5,00,000/- was given and at that time they executed and five

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(5) promissory notes. No one was present then. But when the

accused came and made proposal they were with Goli Venkata

Ramana Rao, Habib Khan, Mannem Srinivas and Arekuti Prasad

Reddy. After one year, he went and demanded for return of

amount, but they did not give. Witness again says that on

14.10.2002 another Rs.2,00,000/- was given to the accused.

When he paid Rs.5,00,000/-, A.1 executed five(5) promissory notes

one (1) in favour of his wife, two (2) in the name of his daughters

i.e., Madhavilatha and Radhika and two (2) were in his name. For

further Rs.2,00,000/- two (2) promissory notes for Rs.1,00,000/-

each in the name of his daughter -Sailaja and his son-Balaji were

executed. Accused used to promise to pay the amount, soon after

the marriage is fixed. In the year 2006, he performed marriage of

his daughter. In the year 2007, he performed the marriage of

another daughter. They promised to pay amount by December,

2006 stating that they will get the fixed deposits matured from

Margadarshi Chit funds. Later, they absconded. This is substance

of the evidence of PW.1 relating to the execution of promissory

notes and the so called conduct of the accused.

20. PW.2 who is the wife of PW.1 spoke about execution of the

promissory notes for a sum of Rs.7,00,000/-, as if believing the

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version of the accused they gave the amount to them for which,

they executed promissory notes and later they did not repay the

amount. They went to postpone amount. Ultimately they did not

pay the amount and escaped from the house.

21. PW.3 is hearsay witness who learnt about the above episode

from PW.1. PW.4 is also a hearsay witness who came to know

about the above issue from PW.1.

22. As this Court is dealing with the offence under Section 417

of the IPC, the evidence of PW.5 who issued the caste certificates

of PW.1 and A.1 and A.2, has no significance. There is no dispute

that during the investigation, the police took out the promissory

notes from PW.1 under the cover of Mahazarnama. The outcome of

the investigation was not revealing any offence under Section 417

of the IPC. That is why the Investigating Officer laid charge sheet

under Section 3 (1)(x) of the SCs & STs Act and Section 506 of the

IPC.

23. Now, this Court has to see whether the evidence adduced by

the prosecution in the form of examination of PWs.1 and 2 and by

production of the Exs.P2 to P8 promissory notes would establish

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the offence under Section 417 of the IPC. The evidence of PWs. 1

and 2 is not such that both the accused with a dishonest intention

or with a fraudulent intention made them to believe that they

would repay the amount with interest @ 24 % p.a. compoundable

with yearly rests and that believing their representation they

parted with the amount and that ultimately they realized that they

were cheated. Absolutely neither contents of Ex.P1 nor the

outcome of the investigation nor the evidence of PWs. 1 and 2,

revealed the same. Added to that during the course of cross

examination, PW.1 stated that he did not issue any notice to the

accused demanding them to pay the amount. He denied that

taking undue advantage of the promissory notes with him even

after discharging the amounts, he foisted a false case.

24. Coming to the cross examination of PW.2, she deposed that

they did not give any written notice to the accused calling upon

them to repay the amount. She admitted that before April, 2008 or

after April, 2008, accused did not give any written

acknowledgment and promise to pay the amount due under the

promissory notes. It is true that they have not filed any civil suit

basing on Exs.P2 to P8 promissory notes. Witness says that as the

accused were promising to pay the amount, they did not file any

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Civil Suit. She denied that entire amount was already paid and

that she is deposing false.

25. It is to be noted that, PW.1 did not recourse to legal

remedies available under law for alleged non-payment of the

amounts covered under Exs.P2 to P8 by the accused. There is no

dispute that the so called promissory notes under Exs.P2 to P8

were time barred by the time of Ex.P1 as PW.1 did not recourse to

any legal action. It is quietly evident from the evidence on record.

The evidence of PW.8 i.e., Sub-Divisional Police Officer, Guntur,

reveals that basing on the authorization given by the

Superintendent of Police, he proceeded to conduct investigation

and during investigation, he examined several witnesses and he

took over Exs.P2 to P8 from PW.1. His evidence did not disclose

that a case is made out under Section 417 of the IPC. So, the

evidence of Investigating Officer i.e., PW.8 did not reveal that the

accused committed any offence under Section 415 of the IPC

punishable under Section 417of the IPC.

26. The learned Special Judge after recording the findings that

the prosecution did not prove the charges under Section 3 (1)(x) of

the SCs & STs Act and Section 506 of the IPC, started discussion

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about Section 417 of the IPC in the judgment. As evident from the

judgment of the learned Special Judge at para 22 of the judgment

made a finding that the normal course of conduct for any person

to discharge the amount would be to pay the amount by way of

cheque or obtain receipt for the due payment. The learned Special

Judge made adverse comments against the accused that their

contention that the amount is repaid is not tenable and from the

very contention itself, dishonest intention would be accepted. The

learned Special Judge having acknowledged the fact that PW.1 did

not file any civil suit or issued notice, but as the accused took a

plea that they discharged amount for which they did not produce

any proof, gave finding that from the very contention deception

can be inferred. This Court is unable to agree with the said

reasoning of the learned Special Judge for giving conviction to the

accused under Section 417 of the IPC. It is a case where PW.1 was

responsible for the time barring of the debt covered under Exs. P2

to P8. He did not testify that there was any element of the

deception on the part of the accused. His evidence was confined

relating to the offence under Section 3 (1)(x) of the SCs & STs Act

and Section 506 of the IPC alone. Simply because the accused

failed to probablise their contention that they made discharge of

the amounts under Exs.P2 to P8, it does not mean that they made

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such plea with any dishonest intention. Absolutely the evidence is

lacking that with a dishonest intention, they made PW.1 to believe

that they would repay amount if the amount is lent and pursuant

to such dishonest intention, they got the amounts from PW.1 and

later deceived PW.1. Admittedly on the face of it, the dispute

between PW.1 and A.1 and A.2 basing of Exs.P2 to P8 is nothing

but a civil in nature. The learned Special Judge relied upon the

decision of Kerala High in A.K.Ali Vs. Ch.H.Mamutty and

another.3 The factual scenario in that case were that the accused

was said to have promised to somebody to secure employment in

the Gulf Countries and received some amounts and later, the said

person was not provided with the employment as promised. A case

was registered against the accused as he was said to have

committed cheating. In that back ground, it was held that the

allegations would attract the offence of cheating.

27. Coming to the present case on hand, there was a contract

entered into between A.1 and A.2 at one hand and PW.1 and his

family members at another hand being borne out from Exs.P2 to

P8. So absolutely it is nothing but breach of contractual

obligations arising Exs. P2 to P8.

Crimes (HC)21989 493 = Crl.L.J.(1(89) 1820

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28. In the Sarabjit Kaur's case (supra), the Hon‟ble Supreme

Court categorically held that: a breach of contract does not give

rise to criminal prosecution for cheating unless fraudulent or

dishonest intention is shown right from the beginning of the

transaction. Merely the allegation that the opponent failed to keep

up promise is not sufficient to initiate criminal proceedings. In the

aforesaid case, the liability arose out of agreement of sale. So, the

issue was of civil nature. As an element of fraudulent and

dishonest intention was missing, the Hon‟ble Supreme Court

allowed the criminal appeal quashing the F.I.R.

29. In Satishchandra Ratanlal Shak's (supra), the Hon‟ble

Supreme Court held that mere breach of contract would not rise to

criminal action.

30. Coming to the present case on hand, the whole intention as

evident from Ex.P1 is to have remedy for the so called act of the

accused in committing the offence under Section 3 (1)(x) of the

SCs & STs Act and Section 506 of the IPC. Ex.P1-F.I.R. Having

regard to the overall facts and circumstances of the case, I am of

the considered view that absolutely there is no substantial

evidence at all to prove the offence under Section 415 of the IPC

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punishable under Section 417 of the IPC against the appellants. In

my considered view, the learned Special Judge on erroneous

appreciation of the evidence on record, erred in giving conviction

under Section 417 of the IPC. The judgment would disclose that

basing on assumptions and presumptions, adverse remarks were

made against A.1 and A.2. Having regard to the above, I am of the

considered view that the evidence is absolutely lacking to connect

the accused to the charge of Section 417 of the IPC, as such, the

judgment of the learned Special Judge giving conviction under

Section 417 of the IPC is liable to be interfered with.

31. In the result, the Criminal Appeal is allowed setting aside

the conviction sentence dated 16.04.2040, in Sessions Case

No.29/S/2009 on the file of the Court of Special Judge for trial of

offences under the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989, Guntur, thereby, the accused

shall stand acquitted of the alleged charge under Section 417 of

the IPC under Section 235(1) Cr.P.C. The fine amount if any paid

by the accused shall be refunded to them after the appeal time is

over.

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Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 15.12.2023 Vnb