Karnataka High Court
Sri P. Dayananda Chowdary vs State By on 24 March, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.232/2012
C/W.
CRIMINAL REVISION PETITION NO.231/2012
CRIMINAL REVISION PETITION NO.233/2012
IN CRIMINAL REVISION PETITION NO.232/2012:
BETWEEN:
1. SRI P.DAYANANDA CHOWDARY
S/O LATE P.B.BHASKAR NAIDU,
AGED ABOUT 60 YEARS,
R/AT NO.690, 17TH 'C' MAIN ROAD,
6TH BLOCK, KORAMANGALA,
BENGALURU.
2. SMT. P. CHITTI CHOWDARY
W/O P. DAYANANDA CHOWDARY,
AGED ABOUT 56 YEARS,
R/AT NO.690, 17TH 'C' MAIN ROAD,
6TH BLOCK, KORAMANGALA,
BENGALURU. ...PETITIONERS
(BY SRI M.VISHWAJITH RAI, ADVOCATE)
AND:
STATE BY
KORAMANGALA POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001. ...RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
2
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 23.08.2011, PASSED IN CRIMINAL
APPEAL NO.314/2010 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-XII, BENGALURU AND ORDER DATED
08.12.2009, PASSED BY THE IV ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU IN
C.C.NO.8358/2001.
IN CRIMINAL REVISION PETITION NO.231/2012:
BETWEEN:
1. SRI P.DAYANANDA CHOWDARY
S/O LATE P.B.BHASKAR NAIDU,
AGED ABOUT 60 YEARS,
R/AT NO.690, 17TH 'C' MAIN ROAD,
6TH BLOCK, KORAMANGALA,
BENGALURU.
2. SMT. P. CHITTI CHOWDARY
W/O P. DAYANANDA CHOWDARY,
AGED ABOUT 56 YEARS,
R/AT NO.690, 17TH 'C' MAIN ROAD,
6TH BLOCK, KORAMANGALA,
BENGALURU. ...PETITIONERS
(BY SRI M.VISHWAJITH RAI, ADVOCATE)
AND:
STATE BY
KORAMANGALA POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001. ...RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
3
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 23.08.2011, PASSED BY THE
PRESIDING OFFICER, FAST TRACK COURT-XII, BENGALURU IN
CRIMINAL APPEAL NO.319/2010 AND ORDER DATED
08.12.2009, PASSED BY THE IV ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU IN
C.C.NO.8167/2001.
IN CRIMINAL REVISION PETITION NO.233/2012:
BETWEEN:
1. SRI P.DAYANANDA CHOWDARY
S/O LATE P.B.BHASKAR NAIDU,
AGED ABOUT 60 YEARS,
R/AT NO.690, 17TH 'C' MAIN ROAD,
6TH BLOCK, KORAMANGALA,
BENGALURU.
2. SMT. P. CHITTI CHOWDARY
W/O P.DAYANANDA CHOWDARY,
AGED ABOUT 56 YEARS,
R/AT NO.690, 17TH 'C' MAIN ROAD,
6TH BLOCK, KORAMANGALA,
BENGALURU. ...PETITIONERS
(BY SRI M.VISHWAJITH RAI, ADVOCATE)
AND:
STATE BY
KORAMANGALA POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001. ...RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
4
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 23.08.2011, PASSED BY THE
PRESIDING OFFICER, FAST TRACK COURT-XII, BENGALURU IN
CRIMINAL APPEAL NO.313/2010 AND ORDER DATED
08.12.2009, PASSED BY THE IV ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU IN
C.C.NO.8359/2001.
THESE CRIMINAL REVISION PETITIONS COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Criminal Petition No.232/2012 is filed to set aside the
order dated 23.08.2011, passed in Criminal Appeal No.314/2010
on the file of the Presiding Officer, Fast Track Court-XII,
Bengaluru and order dated 08.12.2009, passed by the IV
Additional Chief Metropolitan Magistrate, Bengaluru in
C.C.No.8358/2001.
2. Criminal Petition No.231/2012 is filed to set aside
the order dated 23.08.2011, passed in Criminal Appeal
No.319/2010 on the file of the Presiding Officer, Fast Track
Court-XII, Bengaluru and order dated 08.12.2009, passed by the
IV Additional Chief Metropolitan Magistrate, Bengaluru in
C.C.No.8167/2001.
3. Criminal Petition No.233/2012 is filed to set aside
the order dated 23.08.2011, passed in Criminal Appeal
No.313/2010 on the file of the Presiding Officer, Fast Track
Court-XII, Bengaluru and order dated 08.12.2009, passed by the
IV Additional Chief Metropolitan Magistrate, Bengaluru in
C.C.No.8359/2001.
4. The factual matrix of the case of the respondent-
prosecution is that C.W.1-Sri Aloke Ghose, Assistant General
Manager, M/s. IVP Ltd., Bengaluru, a registered company,
representing the company has filed a private complaint under
Section 200 of Cr.P.C. before the jurisdictional Magistrate
against these petitioners alleging cheating, fraud, criminal
breach of trust, conspiracy and receiving of stolen property and
in all, claimed the amount to the tune of Rs.83.04 lakhs.
5. The prosecution, in order to prove the charges in all
the three cases, examined only P.Ws.1 and 2 and other
witnesses were not secured and hence, at the first instance, in
all the three cases, the Trial Court acquitted the petitioners
herein since, no exhibits are marked, except the evidence of
P.Ws.1 and 2.
6. Being aggrieved by the said judgment of acquittal,
criminal appeals are filed and the Appellate Court, having
reconsidered the material on record and also looking into the
order sheet, allowed the appeals and set aside the order passed
by the Trial Court and remanded the matter back to the Trial
Court with a direction to the learned Magistrate to take effective
steps for securing the presence of the prosecution witnesses to
examine them and then to dispose of the matters in accordance
with law. The Appellate Court also taken note of the fact that no
coercive steps are taken against the witnesses, who have been
cited in the case on hand and also fixed the date to appear
before the Trial Court and without awaiting any further notice,
directed to appear before the Trial Court to dispose of the
matter. Being aggrieved by the order of remand, the present
revision petitions are filed.
7. Learned counsel for the petitioners would contend
that the complaint is of the year 1999 and charge-sheet came to
be filed during the year 2001 and the complainant witnesses
have not given any evidence before the Trial Court and inspite of
non-bailable warrant was issued against them, the same was not
executed. The Trial Court has given sufficient time to examine
the witnesses and place the documents and the prosecution
failed to place the documents and also failed to examine the
witnesses. Hence, the very approach of the Appellate Court is
erroneous and ought not to have remanded the matter to the
Trial Court to consider the same afresh by securing the
witnesses.
8. Per contra, learned High Court Government Pleader
appearing for the respondent-State would submit that the
witnesses P.Ws.1 and 2 were examined in the year 2008, though
it is the matter of the year 2001 and no doubt, order sheet
disclose that the witness summons were issued, the same was
not served on the witnesses and subsequently, non-bailable
warrant was also issued and the same was also not executed.
Hence, the Trial Court comes to the conclusion that the
prosecution was unable to secure the material witnesses and
examine them and the Appellate Court has rightly come to the
conclusion that it is a matter of allegation of cheating, fraud and
criminal breach of trust involving a huge amount of Rs.83.04
lakhs and the same was for the period from 1997 and August
1999.
9. The allegation against these petitioners are also that
accused No.1 was working as Assistant Manager (Commercial) in
the Bangalore Divisional office and had colluded with rest of the
accused and by creating false and bogus Stock Transfer Notes to
the tune of Rs.83.04 lakhs during the period 1997 and taking
note of the gravity of the offence and the allegations made in the
charge-sheet, remanded the matter and not committed any
error.
10. Having heard the respective counsel and also on
perusal of the material on record, no doubt the complaint is filed
in 1999 and after investigation, charge-sheet is filed in 2001 and
on perusal of the order sheet, it is seen that the trial has
commenced in the year 2008, though the charge-sheet is filed in
the year 2001. But, subsequently, on perusal of the order sheet,
it is also noted that witness summons were issued and the same
was not served. Hence, non-bailable warrant was also issued
against the witnesses and the same has not been executed.
Hence, the Appellate Court, taking note of the material on
record, comes to the conclusion that, no coercive steps are taken
to secure the accused persons and when no coercive steps are
taken and the witnesses were not examined, the accused
persons cannot be exonerated on the ground of non-examination
of witnesses, that too, when the offences under Sections 408,
420, 423, 411 and 468 read with Section 34 of IPC are invoked.
11. Having heard the respective counsel and also on
perusal of the finding, no doubt the Trial Court has given the
finding that material witnesses are not examined and the
documents are not secured and produced, but the fact that the
offences are invoked under Sections 408, 420, 423, 411 and 468
read with Section 34 of IPC is not in dispute. It is also the
specific allegation that, accused No.1 was working as Assistant
Manager and he himself indulged in misappropriating the funds
to the tune of Rs.83.04 lakhs along with other accused persons.
Hence, the Trial Court ought to have taken coercive steps to
secure the witnesses and the same has not been done.
However, only on the basis of the fact that witnesses were not
secured, dropped the proceedings and proceeded to pass an
order. Therefore, I do not find any error committed by the
Appellate Court in remanding the matter to the Trial Court to
consider the same afresh by securing the material witnesses and
dispose of the matter on merits.
12. The very contention of the learned counsel for the
petitioners is that the complaint was filed in the year 1999 and
charge-sheet was filed in 2001. I have already pointed out that
though the charge-sheet was filed in 2001, the order sheet
reveals that, periodically the accused persons have not appeared
before the Trial Court and therefore, non-bailable warrant is
issued against the accused persons and ultimately, spilt up case
was registered against one of the accused and thereafter,
proceeded to record the evidence.
13. When such material is available before the Court and
the Trial Court has also not taken any coercive steps to secure
the witnesses and examine them, I do not find any force in the
contention of the learned counsel for the petitioners that the
Appellate Court committed error in remanding the matter to the
Trial Court with a direction to take effective steps to secure the
presence of the prosecution witnesses and dispose of the matter
in accordance with law. Hence, the very approach of the
Appellate Court with regard to the application of mind and taking
note of the seriousness of the offence and also misappropriation
to the tune of Rs.83.04 lakhs is not perverse. Therefore, I do
not find any error committed by the Appellate Court in
remanding the matter. However, it is made clear that, since the
matter is of the year 2001 and almost two decades have elapsed
and these petitioners are is unfortunately pending from 2012,
almost for a period of one decade, that too, when the matters
are remanded to the Trial Court and the same has been
questioned in these revision petitions, it is appropriate to direct
the Trial Court to secure the witnesses by issuing effective
process and dispose of the matter within a period of six months.
14. The prosecution is also directed to secure the
witnesses immediately and examine them and the learned
counsel appearing for the petitioners is directed to assist the
Trial Court for disposal of the case within a time bound period.
15. At this point, the learned counsel for the petitioners
would submit that the complainant has also filed a separate civil
suit for recovery of the amount against these petitioners and the
same is dismissed and has reached its finality. The Trial Court
also, while dismissing the suit has given the finding that the
claim made by the complainant is imaginary. The dismissal of
the civil suit is not a ground to drop the proceedings against the
petitioners herein, when criminal breach of trust and also the
offence of forgery and fraud is alleged against the petitioners
herein. Hence, the very contention of the learned counsel for
the petitioners cannot be accepted.
16. In view of the discussions made above, I pass the
following:
ORDER
(i) The criminal revision petitions are dismissed.
(ii) The petitioners are directed to appear before
the Trial Court on 08.04.2022 and no fresh
summons are required to be issued to the
petitioners.
(iii) The Trial Court is directed to dispose of the
matter within six months from 08.04.2022
and both the parties are directed to assist the
Trial Court to dispose of the matter within the
stipulated time.
(iv) The office is directed to send the Trial Court
records as well as the Appellate Court records
forthwith, to enable the Trial Court to dispose
of the matter in accordance with law.
Sd/-
JUDGE
ST
