Sri Mahantesh vs State Of Karnataka
2021 Latest Caselaw 6860 Kant

 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. 62 OF 2015

BETWEEN:

1.     SRI. MAHANTESH
       S/O LATE ANANTHAPPA,
       AGED ABOUT 35 YEARS,

2.     SRI. THIPPESWAMY
       S/O LATE ANANTHAPPA,
       AGED ABOUT 38 YEARS,

3.     SRI. A. NAGESH
       S/O LATE ANANTHAPPA,
       AGED ABOUT 34 YEARS,

       ALL ARE R/O
       NEAR MYSORE MEDICAL STORES,
       GOPALPURA ROAD,
       CHITRADURGA-577 501.

                                  ...PETITIONERS
(BY SRI. G.S. BALAGANGADHAR, ADVOCATE)

AND:

STATE OF KARNATAKA
BASAVANAHALLI POLICE STATION
CHICKMAGALUR
                           2

REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BENGALURU-560 001.
                                          ...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 ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED 26.12.2014
PASSED BY THE LEARNED PRINCIPAL SESSIONS JUDGE
CHICKMAGALUR IN CRL.A.NO.331/2013 AND ALSO THE
JUDGMENT DATED 5.10.2013 PASSED BY THE LEARNED
II   ADDITIONAL    CIVIL  JUDGE    AND   JMFC.,
CHICKMAGALUR IN C.C.NO.728/2013 AS AGAINST THE
REVISION    PETITIONER   FOR    THE   OFFENCES
PUNISHABLE UNDER SECTION 420 READ WITH 34 OF
IPC AND UNDER SECTION 3, 4 OF D.P.ACT AND TO
ACQUIT THE REVISION PETITIONERS OF ALL THE
CHARGES LEVELLED AGAINST THEM.

     THIS CRIMINAL REVISION PETITION COMING FOR
FINAL HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:-

                        ORDER

The accused, who has suffered an order of

conviction in C.C.No.728/2012 for the offence

punishable under Section 420 read with 34 of IPC and

under Sections 3 and 4 of Dowry Prohibition Act, which

was confirmed in Crl.A.No.331/2013 is before this Court

in this revision.

2. The brief facts of the case are as under:-

The complaint came to be lodged against the

revision petitioners for the offence punishable under

Section 420 of IPC and 3 and 4 of Dowry Prohibition Act

contending that accused No.1 agreed to marry the

daughter of the complainant and accordingly accused

Nos.1 to 3 visited the house of the complainant and

engagement ceremony has taken place on 04.12.2011

and on that juncture the accused party demanded dowry

in the form of 250 grams of gold and one car and

demanded that the marriage should be performed in one

of the famous choultry at Chikkamagaluru. The

complainant, however, agreed to give a sum of

Rs.1,00,000/- on the date of engagement and marriage

date was fixed on 3.5.2012 and 4.5.2012. Pursuant to

the engagement, choultry was booked by the

complainant at Seetha Dayananda Pai Kalyana Mantapa

by paying advance of Rs.30,000/-. When the marriage

stood thus, the accused persons demanded to get the

house in the joint khatha in the name of accused No.1

and daughter of the complainant and to execute a

registered sale deed in the name of accused No.1 in

respect of the house. When the complainant refused to

do so, the marriage tie stood cancelled. Therefore,

complaint came to be lodged for cheating the

complainant parties. The police after registering the

case, investigated the matter and laid a charge sheet

against the accused. The presence of the accused

persons were secured and charge was framed. The

accused persons pleaded not guilty and therefore, trial

was held. In order to prove the case of the prosecution,

the prosecution in all examined nine witnesses as PWs.1

to PW.9 and relied on documentary evidence which were

marked and exhibited at Exs.P1 to P14 and material

object namely Compact Disc showing the engagement

ceremony was also marked.

3. On conclusion of the prosecution evidence,

the statement of the accused was recorded as is

contemplated under Section 313 of Cr.P.C., wherein the

accused denied all the incriminatory circumstances put

to them. However, they filed written submission as is

contemplated under Section 313(5) Cr.P.C., wherein the

accused persons have stated that they have agreed

about the engagement but accused No.1 has also stated

that since the complainant party failed to fulfill the

promise, they had to look for some other alliance and a

false case has been foisted against the accused.

4. Thereafter, the trial Magistrate heard the

matter in detail and after considering the oral and

documentary evidence on record convicted the accused

for the aforesaid offences. Being aggrieved by the

same, the accused party preferred an appeal before the

District Judge in Crl.A.No.313/2013. The learned judge

in the First Appellate Court after securing the records,

heard the parties in detail. On re-appreciating the

material evidence on record, learned judge in the First

Appellate Court dismissed the appeal. Being aggrieved

by the same, the accused persons are in this revision.

5. In the revision petition, the following grounds

are raised:

• The Courts below erred in convicting the accused/petitioners instead of acquitting the revision petitioners.

• The Courts below erred in not considering fact that the prosecution has miserably failed to prove its case beyond reasonable doubts.

• The Courts below erred in not considering the fact that none of the ingredients of Section 420 of IPC are pleaded and proved beyond reasonable doubt by the prosecution.

• It is submitted that the allegations is with regard to engagement ceremony and subsequent refusal to marriage. It is submitted that none of the ingredients of Section 420 of IPC has been made out by the prosecution. There is no question of

dishonest, inducement and the complaint averments are bald.

• The Courts below erred in not considering the fact that the complaint at Ex.P-1 is bald and none of the ingredients of Section 420 or Section 3 and 4 of the Dowry Prohibition Act by the Courts below.

•     The Courts below erred in           not
considering   the   fact that there       are
contradictions in the evidence of         the
prosecution witnesses.

•     The Courts below erred in not properly

analyzing the evidence of prosecution witnesses. PW-1 is the complainant, PW-2 is the daughter of PW-1 and PW-3 is son-in-law of pPW-1 and they are all related and interested witnesses. Their version is not corroborated by independent evidence.

• PW-1 deposes that she gave Rs.1 lakh on engagement day to revision petitioners 1 and 2. PW-2, daughter deposes that she has not seen her mother giving money to accused. PW-3 in his cross-examination deposes that Rs.1 lakh is given to Thippesh and in the cross-examination, PW-3 deposes that his uncle Eshwarappa gave amount to brother of accused. PW-3, further deposes that he has given statement to police that his mother-in-law has raised loan to the tune of Rs.7 to 8 lakhs. This contradictory version is not properly analyzed by the Courts below.

• The Courts below further erred in not properly considering the fact that PW-6, Nissar Ahmed, PW-7, Mohan Sing, PW-9,

Nageen who are supposed to be independent witnesses have not supported the prosecution case. PW-6 deposes that he does not know with regard to talks and he has been treated as hostile and he has denied the suggestion by the prosecution that he has seen the payment of money. Further, in the cross-examination he admits that he does not know the contents of the Mahazar.

PW.7, another independent witness according to prosecution, deposes that he does not know about the talks and he does not know the reason for break-up of marriage and he has also been treated as hostile by the prosecution. He further admits that he is a tenant in the house of PW-1. He has also deposed in his cross-examination that he has not seen with regard to the marriage talks.

PW-9, another independent witness, deposes in his cross-examination that she was present and no talks has taken place in her presence and she has not seen the payment of amount and further admits that PW-1 is her friend. This evidence clearly falsifies the evidence of PW-1.

• The Courts below erred in relying upon the evidence of CW-8, Kumar. The receipts are not proved and they are of no help.

• The Courts below erred in not considering the fact that investigation officer has not been examined, which is fatal to the prosecution case. This is because crucial witnesses, PW-6, PW-7, PW-9, have turned

hostile and unless investigation officer is examined, their evidence is of no help.

• The Courts below erred in not properly analyzing the defense of the revision petitioners herein.

• The learned Trial judge erred in not considering the fact that the learned judge has no jurisdiction to award sentence of 5 years. It is submitted that under Section 29(2) of Cr.P.C., the learned Judicial Magistrate First Class can award imprisonment for a term not exceeding 3 years or fine not exceeding Rs.10,000/- or of both. Hence, the learned Trial judge ought to have proceeded under Section 325 of Cr.P.C. if accused are held guilty. In that case, the learned trial judge ought to have referred the matter to the learned Chief Judicial Magistrate to proceed in accordance with law. Thus, the judgment of the learned trial Judge is capricious and perverse and contrary to provisions of Cr.P.C., vitiated. The same has caused prejudice to the accused/revision petitioners. The entire approach of the Courts below is not proper and liable to be set aside.

• It is submitted that the revision petitioners are innocent and they have not committed any such offences. They have no criminal antecedents.

• Without prejudice to the above contentions, it is humbly submitted that the sentence and fine awarded by the Courts below is on the higher side, exorbitant and liable to be set aside. The accused/revision

petitioners are the only earning members of the family and there are no other members to look after the family and the Courts below erred in not invoking the provisions of the Probation of offenders Act. It is submitted that the Revision petitioner No.3 is working in Government of Karnataka, i.e., in Horticulture Department.

6. Reiterating the above grounds, Sri.G.S.

Balagangadhar, learned counsel for revision petitioner

contended that there are no ingredients to attract the

offence under Section 420 of IPC or under provisions of

Sections 3 and 4 of Dowry Prohibition Act and sought for

allowing the revision petition. He further contended that

the prosecution evidence is not sufficient enough to

show that sum of Rs.1,00,000/- was paid by the

complainant party to the accused at the time of

engagement. The Bank statement produced and

marked as Ex.P7 does not depict payment of

Rs.1,00,000/- to the accused party by the complainant

party. Further, since no marriage has taken place, the

provisions of the Dowry Prohibition Act per se is not

attracted in the case on hand and therefore both the

courts have wrongly appreciated the material evidence

on record and prays for allowing the revision petition.

7. Learned High Court Government Pleader

supported the impugned judgment stating that very

demand of payment of money as dowry in connection

with the marriage, the provisions of Dowry Prohibition

Act get attracted and so also one lakh rupees paid by

the complainant and not repaid by the accused for the

offence punishable under Section 420 of IPC stood

established which has been rightly appreciated by both

the courts and sought for dismissal of the revision

petition.

8. In view of the rival contentions, the following

points would arise for consideration:-

i. Whether the finding recorded by the trial magistrate that the accused persons were found guilty of offence punishable under Section 420 of IPC and under Sections 3 and 4 of Dowry Prohibition Act and

confirmed by the First Appellate Court is suffering from patent factual defect, legal infirmity, error of jurisdiction and perversity and thus calls for interference?

ii. Whether the sentence is excessive?

9. In the case on hand, it is an admitted fact

that the accused party participated in the engagement

ceremony with the complainant party and it was agreed

that the daughter of the complainant Kavitha Rani was

engaged with accused No.1 - Mahantesh for the

marriage to be performed on 03.05.2012 and 04.5.2012

at Seetha Dayananda Pai Kalyan Mantapa,

Chikkamagaluru. It is contended by the complainant

party that at the time of engagement sum of rupees One

lakh was paid to the accused party. To substantiate that

the payment has been made to the complainant party,

Bank statement is marked and relied on by the

prosecution at Ex.P7. On perusal of Ex.P7, it clearly

shows that there is no payment made by the

complainant to the accused party. Further, Bank

statement is subsequent to the date of the engagement.

Bank statement at the most shows that there is a

borrowing of the loan but the payment made to the

accused parties does not stand proved. There is no

evidence made on record to substantiate the payment of

Rs.1,00,000/- at the time of engagement or after the

engagement by placing cogent and convincing evidence

on record. However, the fact remains that a sum of

Rs.30,000/- was paid to the Kalyana Mantapa as

advance amount for the marriage to be performed on

03.05.2012 and 04.05.2012. It is also found from the

records that a house was agreed to be given to the

accused No.1 and registration was to take place in the

name of accused No.1 and a joint khatha to be made in

the name of accused No.1 and Kavitha Rani. However,

the said promise did not materialize for the reasons best

known to the parties and therefore, the very marriage

itself is called off. At the most, the complainant party

have suffered financially for meeting out the expenditure

for the engagement ceremony. Mere engagement itself

is not a proof of marriage. Therefore, since there is no

payment of any money in pursuance of the marriage

stands established by placing necessary oral and

documentary evidence on record, no provisions of the

Dowry Prohibition Act stands attracted in the case on

hand. So also mere non agreeing to marry Kavitha Rani

by the accused No.1 on account of some

misunderstanding between the parties would not

amount to cheating per se as there was no inducement

or fraud played by the accused as against the

complainant party. Under the circumstances, any one of

the ingredient much less all ingredients attract 420 of

IPC and 3 and 4 of Dowry Prohibition Act stood attracted

in the case on hand, which has been unfortunately not

been properly appreciated by the trial Magistrate and

the learned judge in the First appellate Court. In the

considered opinion of this Court, since there was no

proof of payment of Rs.1,00,000/- by the complainant

party to the accused party and the marriage having

been failed on account of reasons that parties did not

see eye to eye in respect of registration of the house in

the name of accused No.1, this Court is of the

considered opinion that the patent factual error

committed by the learned judge in the first appellate

court resulting the judgment to be termed as perverse

judgment and therefore, this Court is of the considered

opinion that the point No.1 is to be answered in the

'Affirmative' and accordingly it is answered.

10. In view of point No.1 answered in the

'Affirmative', the question of imposing any sentence

would not arise and accordingly Point No.2 does not

arise for consideration and pass the following:-

ORDER

i. The Criminal revision petition is allowed.

     ii.     The   order     passed     by      the    trial
     magistrate     in     C.C.No728/2012        for   the

offence punishable under Section 420 IPC and Section 3 and 4 of Dowry Prohibition Act confirmed by the learned judge in the First Appellate Court in Crl.A.No.331/2013 is hereby set aside and bond if any executed by the accused persons stands discharged and accused persons are acquitted of all the offences. Fine amount if any is ordered to be refunded by the accused persons forthwith under due identification.

In view of the disposal of the main petition,

I.A.No.1/2021 also stands disposed of.

Sd/-

JUDGE

AG