Karnataka High Court
Mallanna S/O Hampanna vs The State Of Karnataka on 15 February, 2022
Bench: V Srishananda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.200087/2016
BETWEEN:
MALLANNA S/O HAMPANNA
AGE:60 YEARS, OCC:BUSINESS,
R/O MADDIPET, RAICHUR.
... PETITIONER
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH NETAJI NAGAR,
P.S, RAICHUR, REPRESENTED BY THE SPP
HON'BLE HIGH COURT OF KARNATAKA
BENCH AT KALABURAGI.
... RESPONDENT
(BY SRI SHARANAPBASAPPA M. PATIL, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 (1) R/W 401 OF CR.P.C. PRAYING
TO CALL FOR RECORDS AND SET ASIDE THE JUDGMENT
AND ORDER DATED 19.02.2016 PASSED BY THE HON'BLE
CHIEF JUDICIAL MAGISTRATE AT RAICHUR IN
C.C.NO.305/2011 AND THE JUDGMENT DATED 21.11.2016
2
PASSED BY THE PRL. SESSIONS JUDGE AT RAICHUR IN
CRL.A.NO.6/2016 BY ALLOWING THE ABOVE PETITION.
THIS PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the
learned High Court Government Pleader for the respondent
- State. Perused the records.
2. This revision petition is filed by accused, who
suffered an order of conviction passed in C.C.No.305/2011
by the JMFC Raichur for the offences punishable under
Section 420 of Indian Penal Code (for short 'IPC') and
under Sections 3 and 7 of the Essential Commodities Act,
1955 (for short 'E. C. Act'), which came to be confirmed in
Crl.A.No.6/2016 passed by the Principal Sessions Judge,
Raichur by judgment dated 21.11.2016.
3. Brief facts of the case are as under:
The accused was charge sheeted for the aforesaid
offences as he was found illegally staking the ration, which
was meant for public distribution and also selling the same
for non card holders at an escalated price. The raid was
conducted and food grains and money was seized from the
shop of the accused.
4. After filing the charge sheet, the learned trial
Magistrate after secured the presence of the accused,
framed charges. The accused pleaded not guilty and
accordingly, trial was held.
5. In order to prove the case of the prosecution,
prosecution in all examined 15 witnesses as PWs.1 to 15
and relied on 17 documents, which were exhibited and
marked as Exs.P1 to P17.
6. After conclusion of the prosecution evidence,
accused statement as contemplated under Section 313 of
Cr.P.C. was recorded, wherein, accused has denied all the
incriminatory materials found against him. However, the
accused failed to place his version on record about the
incident either by examining himself or by filing written
submission as is contemplated under Section 313(5) of
Cr.P.C.
7. Thereafter, the learned trial Magistrate heard
the parties in detail and convicted the accused persons for
the aforesaid offence and passed an order of conviction
and sentenced as under:
Offences Imprisonment Fine Default
sentence
Section 420 Imprisonment for Rs.10,000/- Imprisonment
of IPC six months for one month
Section 3 Imprisonment for Rs.2,500/- Imprisonment
read with three months for 15 days
Sec. 7 of E.
C. Act
8. Being aggrieved by the said conviction
judgment, accused approached District Court in Criminal
Appeal No.6/2016. The learned Sessions Judge after
securing the records and after hearing the arguments in
detail, dismissed the appeal by confirming the order of the
trial Magistrate. Being aggrieved by the same,
accused/revision petitioner has preferred this revision
petition.
9. In the revision petition, following grounds have
been urged:
x It is submitted that the judgment and order passed
by the courts below are erroneous, arbitrary and
illegal apart from being perverse
x It is submitted that the courts below have failed to
appreciate the material placed on record in the
right perspective.
x It is submitted that the stock book is said to have
been recovered at the time of the alleged raid. The
stock book would have thrown light on the alleged
variation of stock and price. However, for the
reasons best known to the prosecution, they have
chosen to not to produce the stock book. The non-
production of the vital documents gives a fatal blow
to the case of the prosecution. Despite the non-
production of such vital documents, the courts
below have convicted the petitioner.
x It is submitted that the exhibits that are marked
are documents such as Panchanama, the seizure
Panchanama and such documents. None of the
documents would help the prosecution to prove the
alleged variation of stock and price. The courts
below ought to have drawn adverse inference
against the prosecution for not producing the
records which were alleged to have been seized at
the time of the alleged raid. Instead, the courts
below have placed reliance on such documents to
base the conviction. Thus, the courts below have
committed serious error in convicting the petitioner
for the alleged offences.
x It is submitted that the independent witnesses
have not supported the case of the prosecution.
The offence U/s 420 IPC is an offence against
individuals. The aggrieved person has to support
the case of the prosecution. Unless the person who
is aggrieved deposes before the court, the case U/s
420 IPC cannot be established. In the instant case,
none of the independent witnesses have supported
the case of the prosecution. Thus, the order of
conviction U/s 420 IPC based on the evidence of
the official witnesses is not sustainable in the eye
of law.
x It is submitted that the Investigation Officer has
not been examined by the prosecution. Non-
examination of I.O. coupled with the independent
witnesses turning hostile demolishes the entire
case of the prosecution. Both the courts below
have failed to appreciate these aspects of the case
and have thus erred in passing the order of
conviction.
x It is submitted that the raid is alleged to have been
conducted on 12-10-2010 which was a holiday.
However, the offence was explanation worth on 20-
10-2010. There is no reported consideration for the
inordinate delay in reporting the alleged The delay
in reporting the offence would clearly offence.
demonstrate that the complainant has leisurely
concocted material to falsely implicate the
petitioner for the alleged offences.
x It is submitted that the information is bald and
inconsistent. The case of the prosecution which is
based on such inconsistent evidence ought to have
been trashed and the petitioner ought to have been
acquitted. There is no absolutely no material to
show that the petitioner has sold the goods at
higher price and further there is absolutely no
material to demonstrate the alleged variation of
stock and the register.
x It is submitted that the petitioner was in the
process of distributing the supplies to the card
holders and the witnesses of the prosecution
themselves admit the same in the cross
examination. The independent witnesses have not
supported the case of the prosecution with regard
to the alleged variations. Therefore, in the absence
of any material, the Courts below ought not to
have convicted the petitioner for the alleged
offences.
x It is submitted that the judgment of the courts
below are contrary to well established principles of
law and the material placed on record.
x It is submitted that the petitioner craves to reserve
the leave and liberty to raise other grounds
available to him at the time of arguments.
x Viewed from any angle, the impugned judgment
passed by the courts below are highly
unsustainable in the eye of law.
10. The learned counsel for the revision petitioner
reiterating the grounds urged in the revision petition
contended that both the Courts have wrongly appreciated
the material evidence on record and passed an order of
conviction against the accused/revision petitioner,
resulting in grave injustice and thus sought for allowing
the revision petition.
11. He also pointed out, in the event this Court
confirming the order of conviction, the Court may take
lenient view and impose only fine against the
accused/revision petitioner and sought for allowing the
petition.
12. Per contra, learned High Court Government
Pleader supported the impugned judgments and contended
that the seizure of food grains and cash and also seizure of
the material documents by the head of the raid party
clearly establish all the ingredients to attract the offences
alleged against the petitioner and therefore, sought for
dismissal of the petition.
13. Insofar as alternate submission is concerned,
having regard to the fact that wordings used in Section 7
of E. C. Act, which is a penal section, no special ground are
made out by the revision petitioner to show leniency by
imposing imprisonment less than three months and
therefore, sought for dismissal of the revision petition.
14. In view of the rival contentions of the parties
and having regard to the scope of the revision petition, the
following points would arise for consideration in this
revision petition:
1. Whether the finding recorded by the
learned Magistrate that the accused/revision
petitioner is guilty of the offences punishable
under Section 420 of IPC and under Sections 3
and 7 of E. C. Act confirmed by the First
Appellate Court is suffering from legal
infirmity, perversity and thus, calls for
interference?
2. Whether the sentence is excessive?
15. In the case on hand, the case of the
prosecution stands established by placing necessary oral
and documentary evidence on record. Admittedly, the
accused was running a fair price shop under the proper
licence. He has misused food grains meant for public
distribution as could be seen from the material evidence on
record. Food grains were recognized to be distributed
immediately to the card holders after he received the same
from go down. However, on the date of raid, there is huge
quantity of food grains, which was not distributed to the
card holders. Further, definite complaints received from
the general public, raid has been conducted and food
grains have been seized and cash has also been collected.
The documents collected from the fair price shop also
reveal that there was no proper distribution of the food
grains, which was meant for pubic distribution.
Accordingly, head of the raid party drew a panchanama
and placed it before the Court, which was exhibited and
marked as Ex.P1.
16. Admittedly, head of the raid party did not
possess any previous enmity or animosity against the
accused for having falsely implicated the accused in the
case. Accordingly, this Court is of the considered opinion
that the trial Magistrate has properly appreciatd the
material evidence on record while convicted the
accused/petitioner for the aforesaid offences. The learned
Judge in the first appellate Court has also re-appreciated
the material evidence on record and concurred with the
finding recorded by the trial Magistrate.
17. Having regard to the scope of the revision
jurisdictional, this Court reconsidered the material
evidence on record. Since there is no proper explanation
forthcoming in the accused statement nor any contra
evidence being placed on record to posses the food grains
as on the date of the raid in his fair price shop without
distributing to the card holders, this Court is of the
considered opinion that having regard to the finding
recorded by the trial Magistrate and confirmed by the first
appellate Court does not suffer from legal infirmity or
perversity and accordingly, point No.1 is answered in the
negative.
18. Regarding point No.2: The trial Magistrate has
convicted the accused for the aforesaid offences as
referred to supra. Today the learned counsel for the
petitioner has filed memo with documents. From the
material n record, it could seen that soon after the raid, his
licence was suspended and he has undergone bypass
surgery and therefore, at this point of time, if he is
sentenced to undergo imprisonment as ordered by the trial
Magistrate, the same would result in great hardship.
Accordingly, taking note of the fact that the accused was in
custody from 12.10.2010 to 18.11.2010 and the period
undergone in the custody can be treated as period of
imprisonment and accused be ordered to pay fine of
Rs.50,000/- for the aforesaid offences having regard to the
fact that the imprisonment less than three months is
imposed by this court. Accordingly, point No.2 is
answered and following order is passed:
ORDER
Revision petition is allowed in part.
While maintain the conviction of the
accused/petitioner for the offences punishable under
Section 420 of IPC and Sections 3 and 7 of the E. C. Act
and custody period of accused already undergone between
12.10.2010 to 18.11.2010 is treated as period of
imprisonment by exercising the power under Section
7(1)(a)(ii) of the E. C. Act by enhancing the fine amount to
Rs.50,000/- including the fine already imposed by the trial
Magistrate.
The time is granted to the accused/revision
petitioner till 10.03.2022 to pay the enhanced fine amount.
In the event of failure to pay the fine amount on or
before 10.03.2022, the order passed by the trial
Magistrate stands restored automatically.
Office is directed to return the trial Court records
with a copy of this order forthwith.
Ordered accordingly.
SD/-
JUDGE
Srt
