Fairoj Ahamed S/O Mohammad Ali vs The State Of Karnataka
2022 Latest Caselaw 3486 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 2ND DAY OF MARCH, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

         CRIMINAL REVISION PETITION NO.663/2012

BETWEEN:

FAIROJ AHAMED
S/O MOHAMMAD ALI
AGED 44 YEARS
PARANAGERI, HARAPANAHALLI
DAVANAGERE DISTRICT
                                            ... PETITIONER

      (BY SRI BASAVARAJ S SAPPANNAVAR, ADVOCATE FOR
               SRI K.CHANDRAMOHAN, ADVOCATE)

AND

THE STATE OF KARNATAKA
BY PSI, HARAPANAHALLI POLICE STATION
                                          ... RESPONDENT
              (BY SMT. RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED U/S.397
R/W 401 CR.P.C BY THE PETITIONER PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION DATED 26.10.2011 IN
C.C.NO.386/2008 PASSED BY THE JMFC, HARAPANAHALLI
CONVICTING THE PETITIONER FOR OFFENCES UNDER SECTION
171(E) OF IPC BY SENTENCING HIM TO UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD OF ONE YEAR AND TO PAY A
FINE OF RS.5,000/- IN DEFAULT TO UNDERGO SIMPLE
IMPRISONMENT FOR ONE MONTH AND SAME WAS CONFIRMED
BY THE PRL. DISTRICT AND SESSIONS JUDGE, DAVANAGERE IN
CRL.A.NO.153/2011 DATED 02.06.2012 AND ETC.
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     THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:


                                ORDER

Heard the learned counsel appearing for the petitioner and

the learned High Court Government Pleader for the State.

2. The factual matrix of the case is that on 14.05.2008,

on receipt of the credible information that this revision

petitioner/accused had indulged in distributing the amount on

behalf of the BJP party to the voters, the raid was conducted on

the same day at 1.30 p.m. and this petitioner was apprehended

and an amount of Rs.11,200/- was seized from the conscious

possession of this revision petitioner and mahazar was drawn

and the case was registered for the offence punishable under

Section 171E of IPC and the matter was investigated and

charge-sheet has been filed.

3. The prosecution in order to substantiate its case

examined PW1 to PW6 and also got marked Ex.P1 to P5 and

MO1 to MO3 i.e., cash, ballet paper of BJP party and voters' list.

The revision petitioner/accused also examined one witness as

DW1 and marked the document at Ex.D1 i.e., Raghavendra

Beedi works letter. The Trial Court after considering both the oral

and documentary evidence, convicted the revision petitioner for

the offence punishable under Section 171E of IPC for a period of

one year with a fine of Rs.5,000/- in default, the accused shall

undergo simple imprisonment for a period of one month. Being

aggrieved by the said order, the revision petitioner preferred an

appeal in Crl.A.No.153/2011. The Appellate Court also

reconsidered the material available on record and came to the

conclusion that the prosecution has proved the case against the

revision petitioner and there are no grounds to set aside the

judgment of conviction and sentence passed by the Trial Court

and confirmed the same.

4. Being aggrieved by the order of both the Courts, the

present revision petition has filed before this Court. The learned

counsel for the revision petitioner vehemently contend that this

petitioner has denied the charges leveled against him and

seizure of the amount from the hands of this petitioner is not

disputed by the petitioner but the seizure of the election ballet

paper, voters' list is disputed by the petitioner. PW1 and 2 who

are the mahazar witnesses turned hostile to the case of the

prosecution and PW3, 5 and 6 are the eye-witnesses and they

are the police constables and they have deposed that they have

seized the ballet papers, voters list and amount from the revision

petitioner and in the cross-examination of PW5, he specifically

deposed that the accused was identified in BJP party and also

admitted that accused was working in Beedi works factory. The

counsel vehemently contend that the petitioner has taken a

specific defence before the Trial Court that he was brought a

sum of Rs.20,000/- from the Raghavendra Beedi Works to

distribute the same to the Beedi Workers. When such being the

case, the burden lies on the prosecution to prove the same. In

support of his contention, he had examined the Proprietor of

Raghavendra Beedi Works as DW1 and he has issued one

endorsement staing that the petitioner had received a sum of

Rs.20,000/- from him on 14.05.2008 for distribution to the Beedi

Workers. Inspite of the said specific defence taken, the Trial

Court erred in convicting the revision petitioner and also the

Appellate Court committed an error in re-appreciation of the

evidence available on record.

5. The learned counsel for the petitioner would

vehemently contend that according to the prosecution,

information was received on 14.05.2008 at 7.30 a.m and the

said information was not reduced in writing and alleged raid was

conducted at 1.00 p.m on the same day, hence, there was a long

gap between the receipt of information and to the alleged raid.

PW1 and 2 have not supported the case of the prosecution and

there was non-compliance of procedure established under law

and apart from that interested witnesses are police witnesses

and due to political rivalry, a false case has been registered

against the revision petitioner.

6. Per contra, the learned High Court Government

Pleader for the State would submit that both the Courts have not

committed any error in convicting the revision petitioner and the

Trial Court after considering the material on record, in detail,

discussed with respect to the seizure as well as Material Objects

and also taken note that this petitioner has not disputed the

seizure of the amount from the conscious possession of the

petitioner but he only taken the defence before the Trial Court

that he had received the amount of Rs.20,000/- from the Beedi

company to distribute the same to the Beedi workers but the

said defence is not substantiated by DW1 in his cross-

examination and no documents are forthcoming for having

received the said amount by the petitioner and also not

produced any document for having paid the amount to this

petitioner to distribute the same for Beedi workers.

7. In reply to the arguments of the learned High Court

Government Pleader for the State, the learned counsel for the

revision petitioner submit that none of the voters have been

examined before the Trial Court and also even their names are

not found in the voters' list and hence, it is a case for invoking

revisional jurisdiction.

8. Having heard the respective counsel appearing for

the parties and also on perusal of the materials available on

record, the point that would arise for consideration is:

1. Whether the order passed by the Trial Court as

well as the Appellate Court suffers from any

illegality and it requires correctness of the order

invoking revisional jurisdiction?

2. What order?

Point No.1:

9. Having heard the respective counsel appearing for

the parties and on perusal of the materials available on record it

discloses that the charges leveled against this petitioner is that

he had indulged in distributing the amount to the voters on

behalf of the political party belonged to BJP. The Ballet paper as

well as the amount was seized by drawing the mahazar and the

prosecution mainly relied upon the evidence of PW1 to 6. PW1

and 2 are the independent witnesses who have turned hostile to

the case of the prosecution but the fact is that the seizure of

amount has not been disputed by the petitioner and he also

admits the seizure of the amount and hence, the evidence of

PW1 and 2 is not a material when the petitioner himself admits

the seizure of the amount. The main defence of the petitioner

before the Trial Court is that he had received the amount of

Rs.20,000/- from the Raghavendra Beedi company to distribute

the same to its workers and in order to substantiate his

contention, he had examined one witness as DW1 and DW1 also

relies upon the endorsement issued by him to show that he had

paid the amount of Rs.20,000/- on 14.05.2008 in order to

distribute the amount to the workers. The said document is

marked as Ex.D1. But the fact is that in the cross-examination

of DW1, he categorically admitted that his Beedi Work's

company is registered one. Further he admits before the Trial

Court that on 14.05.2008, the revision petitioner has not

received any amount from the said company. It is also admitted

that there is an account extract for receipt of amount by the

petitioner but he also categorically admits in the cross-

examination that he does not know the contents of Ex.D1 and

considering DW1's cross-examination, the Trial Court came to

the conclusion that the defence set up by the petitioner is false

and also taken note of the evidence of prosecution witnesses. No

doubt, the other witnesses are police witnesses. But in order to

came to the conclusion that the police have enmity against this

petitioner is concerned, nothing is elicited and the very

contention of the petitioner's counsel is that there is non-

compliance of Section 155 and the fact that the offence is non-

cognizable is not disputed but the contention of learned counsel

for the petitioner is that when the information was received, the

same ought to have been reduced in writing and it is bound on

the Investigating Officer to register the case whenever he has

received the information and the same is also held in the

judgment of the Apex Court in the case of LALITHA KUMARI

v. GOVERNMENT OF U.P. reported in (2014) 2 SCC 1.

Hence, the very contention of the learned counsel for the

petitioner is that the case has not been registered by the

Investigating Officer after receipt of the information cannot be

accepted.

10. The other contention of the learned counsel for the

petitioner is that the witnesses are the official witnesses and

their evidence cannot be relied upon. But in the case on hand,

the fact that the amount has been seized is not disputed by the

revision petitioner and this fact is also considered by the

Appellate Court particularly in paragraph 11 regarding seizure of

amount and also came to the conclusion that the burden lies on

the defence to establish the fact that the revision petitioner had

brought that amount from the beedi company on the date of the

alleged incident and to prove the said fact, the prosecution had

relied upon the cross-examination of DW1 who categorically

admitted that he had no document to show that the amount had

been paid to the revision petitioner to distribute the same to its

workers and the said fact is also discussed in paragraphs 12 and

13 of the order of the Appellate Court with regard to the seizure

is concerned. I have already pointed out that the seizure of the

amount is not disputed by the petitioner himself and when such

being the factual aspects of the case and the material on record

shows that though the specific defence is taken by the revision

petitioner and the same is not proved and the evidence of PW1

and 2 had not supported the case of the prosecution, the

evidence of DW1 establishes that no amount was given to the

revision petitioner. When such being the circumstances, I do not

find any perversity or illegality committed by the Trial Court as

well as the Appellate Court in convicting the revision petitioner

and confirms the same. Hence, there is no merit in the revision

petition to invoke the revisional jurisdiction under Section 401 of

Cr.P.C to set aside the order of the Trial Court as well as the

Appellate Court as both the Courts have given the reasons

regarding conviction as well as confirmation.

11. The learned counsel for the petitioner vehemently

contend that the sentence imposed by the Trial Court is

maximum i.e., one year and this Court has to take note of the

said fact into consideration and set aside the sentence and at the

most, this Court can impose the fine. Having considering the

said fact, the very allegations against this petitioner is that he

had indulged in distributing the amount to the voters and he had

already distributed the amount at the time of his apprehension

and an amount of Rs.11,200/- was remained out of Rs.20,000/-

and I have already pointed out that DW1 came to rescue the

petitioner but no material is placed before the Court to show that

the said amount was given to distribute to the workers of the

beedi factory. When such being the facts and circumstances of

the case, when the petitioner had indulged in distributing the

amount to the voters on behalf of the political party, it is not a fit

case to exercise the powers to reduce the sentence or fine

amount. The fine amount imposed is also only Rs.5,000/-, the

learned Magistrate have power even to impose the fine of

Rs.10,000/- in view of the amended provision, however, the Trial

Court imposed fine of Rs.5,000/-. When such being the factual

aspects of the case, it is not a fit case to interfere with the

sentence imposed by the Trial Court and hence, Point No.1 is

answered as Negative.

Point No.2:

12. In view of the discussions made above, I pass the

following:

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

SN