Karnataka High Court

K Halappa vs State By on 20 December, 2021

Bench: V Srishananda

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 20TH DAY OF DECEMBER, 2021

                          BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL REVISION PETITION NO.66/2017

BETWEEN

1.    K. HALAPPA
      S/O KESHAVAPPA
      AGED ABOUT 47 YEARS
      R/O AKKITHIMMAIAHNAHATTI VILLAGE
      HOSADURGA TALUK
      CHITRADURGA DISTRICT-577 527

2.    PRAKASHA
      S/O MANJUNATHA
      AGED ABOUT 37 YEARS
      AGRICULTURIST
      R/O MAVINAKATTE VILLAGE
      HOSADURGA TALUK
      CHITRADURGA DISTRICT-577 527

3.    VIJAYANNA
      S/O CHANDRAPPA
      AGED ABOUT 37 YEARS
      AGRICULTURIST
      R/O MADHURE VILLAGE
      HOSADURGA TALUK
      CHITRADURGA DISTRICT-577 527
                                          ...PETITIONERS

(BY SRI GOPALAKRISHNA MURTHY, ADVOCATE)

AND

STATE BY HOSADURGA P.S.
REP BY ITS SPP
                                2


BENGALURU-560 001
HIGH COURT BUILDING.
                                              ...RESPONDENT
(BY SRI V.S. VINAYAKA, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C. PRAYING TO SET
ASIE THE ENTIRE IMPUGNED JUDGMENT AND ORDER DATED
20.10.2015 PASSED BY THE PRINCIPAL C.J. AND JMFC.,
HOSADURGA IN C.C.NO.409/2013 AND ORDER DATED
15.12.2016 PASSED BY THE I ADDL. DISTRICT AND S.J.,
CHITRADURGA IN CRL.A.NO.72/2015 AND ACQUIT THE
PETITIONERS.

     THIS  CRIMINAL REVISION PETITION COMING ON FOR
HEARING     THROUGH       PHYSICAL     HEARING/VIDEO
CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:


                          ORDER

Heard Sri Gopalakrishna Murthy, learned counsel

appearing for the revision petitioners and learned HCGP for

the respondent-State and perused the records.

2. A memo of withdrawal is filed by learned counsel for

the revision petitioners in Court today, to permit petitioner

No.1 to withdraw the petition, which reads as under;

"Memo of withdrawal The undersigned counsel appearing for the petitioners respectfully prays that this Hon'ble Court may be pleased to permit the petitioner No.1 to

withdraw the above petition since he has already deposited fine amount of Rs.2,000/- before the Hon'ble Court and hence kindly dismiss the same to meet the ends of justice.

Place:Bengaluru Sd/-

Date:20.12.2021. Advocate for petitioners"

3. Memo is taken on record.

4. In view of the memo, the revision petition as against

petitioner No.1 is dismissed as withdrawn.

5. Heard on merits.

6. The brief facts of the case are as under;

The accused persons faced trial for the offence under

Section 420 read with 34 of IPC on the ground that they

have cheated the Insurance Company. On 14.10.2010, at

about 5.30 p.m., when accused No.1 was standing by the

side of the road near Government Lower Primary School,

Akkithimmaiahnahatti Village, the driver of a Tractor drove

the same in a negligent manner and dashed against

accused No.1 thereby caused the accident and therefore,

they sought for a suitable compensation by approaching

the MACT stating that the vehicle bearing KA 16 S 3910

was involved in the accident is what has been alleged by

the accused persons. On enquiry by the Insurance

Company, it appears that no such accident has taken place

and the accused persons, in collusion, have laid a false

claim and therefore, a criminal case was filed, which was

investigated resulting in filing of the charge sheet. The

accused persons pleaded not guilty and trial was held.

The prosecution in all examined 11 witnesses as PWs.1 to

11 and got marked 12 documentary evidence exhibited as

Exs.P.1 to P.12. Upon conclusion of the trial, the accused

statement as contemplated under Section 313 of Cr.P.C.

were recorded and the accused persons denied all the

incriminating circumstances found against them, but did

not place on record their version of evidence. The learned

Trial Magistrate convicted the accused persons for the

offence punishable under Section 420 of IPC and ordered

them to undergo simple imprisonment for a period of one

year each and to pay fine of Rs.2,000/- each. Being

aggrieved by the same, the accused persons preferred an

appeal in Crl.A.No.72/2015 before the First Appellate

Court. Learned Judge in the First Appellate Court after

securing the records and after hearing the parties,

modified the judgment and order of conviction only in

respect of accused No.1 taking note of his health condition

that he was suffering from bedsores and ordered only fine

as against him. In so far as the other accused persons,

the judgment of conviction and sentence was confirmed by

the First Appellate Court. Being aggrieved by the same,

the accused persons are in revision before this Court.

7. Learned counsel for the revision petitioners

reiterating the grounds urged in the revision petition

contended that both the Courts have wrongly appreciated

the material evidence on record and have passed the order

of conviction resulting in miscarriage of justice and thus,

sought for allowing the revision petition.

8. Alternatively, learned counsel for the revision

petitioners contended that in the event of this Court

maintaining the order of conviction, since accused Nos.2

and 3 are first time offenders, they may be granted

probation by enhancing the fine amount.

9. Per contra, learned High Court Government Pleader

supported the impugned judgment and contended that the

accident said to have taken place on 14.10.2010 and later

claimed before the MACT has not at all taken place on a

thorough investigation by the Insurance Company and the

entire incident as alleged by the accused persons is fake

and therefore, the complaint was lodged. Learned Trial

Magistrate after considering the oral and documentary

evidence on record, recorded the finding that no such

accident has taken place involving the vehicle bearing

No.KA 16 S 3910 and only with an intention to cheat the

Insurance Company for the purpose of avoiding the claim,

the motorcycle bearing No.KA 16 S 3910 has been

implanted in the case. Therefore, the judgment of the

learned Trial Magistrate and the learned Judge in the First

Appellate Court is on sound and logical reasons and thus,

sought for dismissing the revision petition.

10. In so far as the alternate plea is concerned, learned

High Court Government Pleader contended that there was

no material or mitigating circumstances placed by the

accused before the learned Trial Magistrate or the learned

Judge in the First Appellate Court. In so far as accused

Nos.2 and 3 are concerned, they are not entitled for any

leniency by this Court and sought for dismissal of the

revision petition in toto.

11. In view of the rival contentions and the findings of

the Courts below, the following points would arise for

consideration;

"i) Whether the findings recorded by the learned Trial Magistrate confirmed by the First Appellate Court against the accused persons for the offences punishable under Section 420 of IPC suffers from legal infirmity, patent factual defect, perversity and thus, calls for interference?

ii) Whether the sentence is excessive?"

12. In the case on hand, the accident has taken place

involving the tractor and some other motorcycle other than

the motorcycle bearing No.KA 16 S 3910 stands

established by placing necessary oral and documentary

evidence on record. As borne out by the records, the

accident has taken place on 14.10.2010 at 5.40 p.m.

However, in order to avoid liability, the motorcycle bearing

KA 16 S 3910 came to be implanted by accused Nos.2 and

3 and ultimately wanted to cheat the Insurance Company.

The Insurance Company on a private investigation noticed

that the motorcycle bearing No.KA 16 S 3910 has been

falsely implanted in the case and lodged a complaint,

which has been thoroughly investigated by the Police and

after thorough investigation, the charge sheet came to be

filed. The material on record depicts that motorcycle

bearing No.KA 16 S 3910 was not at all involved in the

accident. Therefore, action of the accused persons in

falsely implanting the motorcycle bearing KA 16 S 3910 in

order to avoid the liability of the owner of the motorcycle

itself amounts to cheating. The learned Trial Magistrate

was justified in convicting the accused for the offence

under Section 410 of IPC, which is properly appreciated by

the learned Judge in the First Appellate Court. Having

regard to the limited scope of revision and considering the

materials on record, this Court does not find any legal

infirmity or patent factual defect or perversity in the order

of conviction passed by the learned Trial Magistrate and

confirmed by the learned Judge in the First Appellate

Court. Accordingly, point No.1 is answered in the

'negative'.

13. In so far as the sentence is concerned, admittedly,

accused Nos.2 and 3 are first time offenders and they are

entitled for grant of the benefit of probation as is held in

Chandreshwar Sharma v. State of Bihar, (2000) 9 SCC 245

and Gulzar v. State of M.P., (2007) 1 SCC 619.

i. In the case of Chandreshwar Sharma v. State

of Bihar reported in (2000) 9 SCC 245 at paragraph

No.3, it has been held as under:

"3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section

360 of the Cr.P.C. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the Magistrate has not been performed.

Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the CrPC. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly."

ii. In the case of Gulzar v. State of M.P reported in

(2007) 1 SCC 619, at paragraph 12, it has been held as

under:

"12. Section 360 of the Code relates only to persons

not under 21 years of age convicted for an offence

punishable with fine only or with imprisonment for a

term of seven years or less, to any person under 21

years of age or any woman convicted of an offence

not punishable with sentence of death or

imprisonment for life. The scope of Section 4 of the PO

Act is much wider. It applies to any person found

guilty of having committed an offence not punishable

with death or imprisonment for life. Section 360 of the

Code does not provide for any role for Probation

Officers in assisting the courts in relation to

supervision and other matters while the PO Act does

make such a provision. While Section 12 of the PO Act

states that the person found guilty of an offence and

dealt with under Section 3 or 4 of the PO Act shall not

suffer disqualification, if any, attached to conviction of

an offence under any law, the Code does not contain

parallel provision. Two statutes with such significant

differences could not be intended to co-exist at the

same time in the same area. Such co-existence would

lead to anomalous results. The intention to retain the

provisions of Section 360 of the Code and the

provisions of the PO Act, as applicable at the same

time in a given area, cannot be gathered from the

provisions of Section 360 or any other provision of the

Code. Therefore, by virtue of Section 8(1) of the

General Clauses Act, where the provisions of the Act

have been brought into force, the provisions of

Section 360 of the Code are wholly inapplicable."