Sri. K. N. Jayram Shetty vs The State Of Karnataka
2021 Latest Caselaw 6906 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 21ST DAY OF DECEMBER, 2021

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.169/2019

BETWEEN

SRI. K. N. JAYRAM SHETTY
AGED ABOUT 42 YEARS,
S/O. NARAYAN SHETTY,
HINDU,
A.V. GUDI COMPOUND,
NALYA PADAVU,
SHAKTI NAGAR,
MANGALORE-575 001.
                                     ...PETITIONER
(BY SRI RAJARAM SOORYAMBAIL, ADVOCATE)

AND

THE STATE OF KARNATAKA
REPRESENTED BY PUBLIC PROSECUTOR,
D.K. MANGALORE.
BY ITS SPP
HIGH COURT OF KARNATAKA
BENGALURU - 560 001
                                     ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SETTING ASIDE THE JUDGMENT AND ORDER
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DATED 06.07.2018 WHICH WAS PASSED BY THE COURT
OF THE 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE,
D.K., MANGALORE IN CRL.A.NO.171/2014, THAT THEREBY
CONVICTING THE PETITIONER AND ALSO CONFIRMING
THE JUDGMENT DATED IN C.C.NO.194/2008, FOR THE
OFFENCES P/U/S 406,408 AND 420 OF IPC, PASSED BY
THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE AND
C.J.M., MANGALORE D.K.

     THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:-

                              ORDER

Though this matter is listed for admission today, with

the consent of both the parties, the matter is taken up for

final disposal.

2. Heard Sri. Rajaram Sooryambail, learned

counsel for the Revision Petitioner and Sri V.S.Vinayaka,

learned High Court Government Pleader for the respondent

and perused the records.

3. This Revision Petition is filed by the accused,

who suffered an order of conviction in C.C.No.194/2008,

on the file of the II Additional Senior Civil Judge and CJM,

Mangalore, Dakshina Kanna by Judgment dated

28.06.2014, whereby he has been convicted for the

offences punishable under Sections 406, 408 and 420 IPC,

which was confirmed in Criminal Appeal No.171/2014 on

the file of the I Additional District & Sessions Judge,

Dakshina Kannada, Mangalore by judgment dated

06.07.2018.

4. Brief facts of the case are as under:

Upon a complaint lodged by Margadarshi Chits

(Karnataka) Pvt. Ltd., Mangalore alleging that the accused

being entrusted to collect the amount from the members

and issue temporary receipts and tune of Rs.1,61,250/-

from CW.2. The Mangalore South Police Station after

registering the case, investigated the matter in detail and

filed charge sheet for the aforesaid offences against the

accused.

5. The presence of the accused was secured

before the learned Magistrate and charge was recorded.

Accused pleaded not guilty and as such, trial was held.

6. In order to prove the case of the prosecution,

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

and relied on 89 documentary evidence which were

marked and exhibited as Exs.P1 to 89

7. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

Cr.P.C was recorded, wherein accused denied all the

incriminatory circumstances found in the prosecution

evidence. However, accused did not choose to place his

version about the incident on record by examining himself

or by placing any written submission as is contemplated

under Section 313(5) Cr.P.C.

8. Thereafter, learned Magistrate heard the

parties in detail and after appreciating the oral and

documentary evidence on record including the oral

testimony of complainant and PW.2-Balakrishna and also

taking note of the expert opinion about disputed signatures

marked at Q1 to Q17 and admitted signatures of the

accused marked at S1, recorded a categorical finding that

the accused not only collected a sum of Rs.1,61,250/-

from Balakrishna who is examined as PW.2 but also failed

to remit the said amount to the Margadarshi Chits

(Karnataka) Pvt. Ltd and also concocted the documents for

having disputed the same and convicted the accused for

the aforesaid offences and sentenced as under:

"Acting under Section 248(2) of Cr.P.C., accused is hereby convicted for the offence punishable under Sections 406,408,420, IPC.

Accused is sentenced to undergo rigorous imprisonment for a period of one year and sentenced to pay fine of Rs.2,000/- for the offence punishable under section 406 of IPC. In default of payment of fine, he shall undergo S.I. for one month.

Accused is sentenced to undergo rigorous imprisonment for a period of two and half year and sentenced to pay fine of Rs.5,000/- for the offence punishable under section 408 of IPC. In default of payment of fine, he shall undergo S.I. for two months.

Accused is sentenced to undergo rigorous imprisonment for a period of two and half year and sentenced to pay fine of Rs.5,000/- for the offence punishable under section 420 of IPC. In default of

payment of fine, he shall undergo S.I. for two months."

9. Being aggrieved by the same, accused

preferred an appeal in Criminal Appeal No.171/2014.

Learned Judge in the First Appellate Court after securing

the records and hearing the parties in detail, dismissed the

appeal and confirmed the order of conviction and sentence

passed by the learned Magistrate. Thereafter, the accused

is in the Revision Petition.

10. In the Revision Petition, the following grounds

are raised:

¾ " It is submitted that the Judgment and order passed by the Courts below is contrary to law, evidence on record and the same are liable to be set aside.

¾ The courts below has not adduced proper evidence on records and misconstrued wrongly and convicted the Petitioner and passed impugned order of sentence.

¾ It is submitted that, the Court below ought to have considered that, denials made by the Petitioner against the evidences and material records produced

by the Prosecution. But the same has not corroborated properly.

¾ It is submitted that, as per the case of the prosecution, the accused collected a sum of Rs.1,61,200/- (One Lakh Sixty one thousand two hundred only/-) from CW-2 between 13.09.2004 to 26.12.2005 and issued manipulated receipts with dishonest intention and subsequently he has failed to remmit the amount collected from CW-2 to the Margadarshi chits Karnataka Pvt Ltd. Being the employee of the company he had deceived company as well as CW-2 by Manipulating the document and misused the funds. Both the courts below, in fact has not properly adduced the evidence and only on the statement of the CW-2, the court has come to the conclusion that, the Petitioner herein had misused the funds and there by deceived to the company. But in fact, the Petitioner has not misused any amount and not deceived to the company.

¾ It is submitted that, the PW-1 who was before the court below, stated that the Petitioner was working as Development officer at Margadarshi Chits (Karnataka Pvt. Ltd). The Petitioner herein was entrusted work of securing members to the funds, collecting chits funds from them and to remitt the same to the office with receipts. The PW-1 further stated before court below that, the Petitioner used to

correctly mention the amount collected from the members in the first receipt of the triplicate receipts and use to issue the same to the members. But while remitting the amount to the office used to make short remittances. On making short remittances, entries in the other two triplicate receipts. In the said manner the Petitioner used to make short remittances to the office of the chit funds. The said statements have been given by the PW-1/CW 1, orally, only on the said statements, the court below has come to the conclusion that, the Petitioner has misused the funds and deceived to the company. Hence, on the said ground only the instant Revision Petition may be allowed and whatever order of sentence has been passed by the lower Appellate Court and Court below may be set aside.

¾ It submitted that, the Complainant and others couldn't prove before the court below that, the Petitioner herein has misused the receipts. Even the prosecution has been examined as the employee of the Margadarshi Chits Ltd, before the court below. PW5 stated the amount collected from the members use to prepare three receipts, one original receipt and two carbon copies of the receipts and original receipts used to be handed over to the members who made payment to the company and 1st te Carbon Copy in pink color used to be submitted to the office and the 2nd carbon copy in Yellow colour

used to be retained in the receipt book. Further, PW- 5 also stated that for the amount referred in the pink receipt they used to prepare computerized receipt and they use to hand over the computerized receipt to the Development officer. The aforestated statements which was admitted before the court below which clearly manifests that, there is no specific procedure in the receipt books. The statement of the PW-5, from which we can confirm that the Petitioner herein has not misused the amount. Hence, on the basis of the afore stated admitted facts which we can confirm that, the court below has not properly adduced the evidence.

¾ Viewed from any angle, the impugned Judgment and order passed by the Courts below are otherwise opposed to law, improper and unsustainable.

¾ The learned Trial Judge has not properly appreciated the oral and documentary evidence.

¾ The learned Trial Judge has not given cogent reason for accepting the defense of the accused.

¾ Looking from any angle the judgment and Order of the Trial Court and Lower Appellate court is not maintainable either on facts or on law cannot be sustained.

¾ No other Petition or proceedings has been filed or pending on the same cause of action before this Hon'ble Court."

Reiterating the above grounds, Sri. Rajaram Sooryambail,

learned counsel for the Revision Petitioner vehemently

contended that both the Courts have improperly

appreciated the materials available on record and wrongly

convicted the accused resulting in miscarriage of justice

and thus, sought for allowing the Revision Petition. He also

pointed out that the materials available on record does not

establish all ingredients to attract the offence punishable

under Sections 406, 408 and 420 IPC and therefore,

sought for allowing the Revision Petition. Alternatively, he

further contended that in the event of this Court coming to

the conclusion that offences alleged against the accused

stands proved. The Court may take into consideration that

accused is a first time offender, may grant the probation

by directing him to pay misappropriated amount to the

tune of Rs.1,61,250/- and imposing a reasonable amount

of fine.

11. Per contra, learned High Court Government

Pleader supported the impugned judgment by contending

that materials available on record especially the oral

testimony of Balakrishna and the receipts, which have

been relied upon by the accused to show that the amount

collected from Balakrishna to the tune of Rs.1,61,250/-

being deposited into Margadarshi Chits (Karnataka) Pvt.

Ltd. being proved to be fake documents by virtue of the

opinion given by the handwriting expert, trial Magistrate

was justified in convicting the accused for the aforesaid

offences, which has been rightly reappreciated by the

learned Judge in the First Appellate Court and sought for

dismissal of the Revision Petition.

12. Insofar as the alternate plea is concerned, the

learned High Court Government Pleader contended that

people like accused if shown leniency, the perpetrators of

the crime will get a message that they can get out of the

rigors of law easily and therefore, no mercy can be shown

to the Revision Petitioner and prayed for dismissal of the

Revision Petition in toto.

13. In view of the rival contentions and having

regard to the scope of the revisional jurisdiction, the

following points would arise for consideration:

"1. Whether the finding recorded by the trial Magistrate that the accused is guilty of the offences punishable under Sections 406, 408 and 420 IPC and confirmed by the learned Judge in the First Appellate Court is suffering from the patent factual defects, error of jurisdiction, legal infirmity and perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

14. In the case on hand, the categorical statement

made by PW.2-Balakrishna on oath, who is one of the chit

member of Margadarshi Chits (Karnataka) Pvt. Ltd. to the

effect that he has paid a sum of Rs.1,61,250/- to the

hands of the accused to be paid as the chit installment

having been not deposited by the accused to the company

resulted in a claim made by the company against him

stands proved. In the cross examination, the defense is

unable to elicit any material to show that he did not collect

the said sum of money from Balakrishna. Further, the

accused has taken a defence that he has already deposited

the amount to the company but in that regard, he has

relied on certain documents. The questionable documents

were marked before the Court as Q1 to Q14 and same was

said to Q15 to Q17. The admitted signature of the accused

was marked as S1. Both the questionable documents and

admitted signature was sent to handwriting expert. The

hand writing expert has given a report as per Ex.P85. As

per report, the documents that are relied upon by the

accused said to have been deposited into Margadarshi

Chits (Karnataka) Pvt. Ltd. proved to be false documents

and therefore, all ingredients required to attract the

offences punishable under Sections 406, 408 and 420

stand proved and therefore, trial Magistrate was justified in

recording an order of conviction against the accused for

the aforesaid offences. Learned Judge in the First Appellate

Court has rightly re-appreciated the materials available on

record and could not form any other opinion other than the

opinion formed by the learned Judge in convicting the

accused for the aforesaid offences.

15. Before this Court also the grounds urged in the

Revision Petition on reconsideration of the materials

available on record does not indicate to the fullest extent

that the finding recorded by the trial Magistrate and

confirmed by the First Appellate Court is suffering from

patent factual defects or legal infirmity or perversity or

error of jurisdiction, which calls for interference by this

Court in this revisional jurisdiction. Accordingly, point No.1

is answered in the negative.

16. Insofar as sentence is concerned, learned

counsel for the Revision Petitioner contended that the

Revision Petitioner is ready to pay a sum of Rs.1,61,250/-

and reasonable amount of fine and since he is a first time

offender, he may be granted probation. Learned High

Court Government Pleader however, opposed the said

submission but fact remains that the accused is a first time

offender. It is well established principles of law that role to

be played by a Court while passing an order of conviction

is altogether different from the role to be played while

passing an order of sentence. In this regard, the principles

of the law enunciated by the Hon'ble Apex Court to the

case on hand in the following cases:

i. In the case of Chandreshwar Sharma v. State

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

No.3, it is 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 Cr.P.C. 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 Cr.P.C. 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, 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".

17. Applying the legal principles enunciated in the

aforesaid decision to the case on hand, this Court is of the

considered opinion that since the accused is a first time

offender and he is ready to pay misappropriated amount of

Rs.1,61,250/- to Margadarshi Chits (Karnataka) Pvt. Ltd.

and ready to pay reasonable amount of fine, directing the

accused to execute a bond in a sum of Rs.50,000/- with

one surety for the likesum to the satisfaction of the trial

Magistrate for his good behavior and ordered to pay fine of

Rs.1,61,250/- + Rs.50,000/-, would meet the ends of

justice. Accordingly, point No.2 is answered 'Partly in the

affirmative' and pass the following:

ORDER

i. Criminal Revision Petition is allowed-in-part.

ii. While maintaining the order of the conviction of the accused for the offence punishable under Section 406, 408 and 420 IPC, accused is directed to execute a bond in a sum of Rs.50,000/- with one surety for the likesum to the satisfaction of the trial Court, which shall be in force for a period of two years and to pay fine of Rs.2,11,250/- in all inclusive of fine already imposed by the trial Magistrate on or before 31.01.2022.

iii. Out of the fine recovered, a sum of Rs.1,61,250/- to be paid as compensation to

M/s. Margadarshi Chits (Karnataka) Pvt. Ltd. and balance amount of Rs.50,000/- to be appropriated towards defraying expenses to the State.

iv. It is made clear that if there is any violation of the bond condition or non-payment of the fine amount as aforesaid, the order of the learned trial Magistrate confirmed by the First Appellate Court stands automatically restored.

Office is directed to return the trial Court records

with a copy of this order, forthwith.

Sd/-

JUDGE

KA*