Sri. M. M. Madaiah vs State Of Karnataka
2023 Latest Caselaw 5880 Kant

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                                    CRL.RP No. 1303 of 2019



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
      DATED THIS THE 23RD DAY OF AUGUST, 2023
                        BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO. 1303 OF 2019
BETWEEN:
SRI M M MADAIAH
S/O SRI. MARIYAIAH
AGED ABOUT 50 YEARS
RESIDING AT MESUVANAHALLI VILLAGE
WARD NO.23, K.R. NAGAR
MYSORE DISTRICT - 571 602.

                                              ...PETITIONER
(BY SRI. C JAGADISH, ADVOCATE)
AND:
STATE OF KARNATAKA
R/BY YELAHANKA NEW
TOWN POLICE STATION
THROUGH PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
                                             ...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)
     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C,
PRAYING TO SET ASIDE BOTH JUDGMENT AND ORDER DATED
16.08.2019 PASSED BY THE LXIII ADDITIONAL CITY CIVIL AND
SESSIONS      JUDGE     (CCH-64),     BENGALURU       IN
CRL.A.NO.355/2015 AND ALSO THE JUDGMENT AND ORDER OF
CONVICTION DATED 06.02.2015 PASSED BY IV ADITIONAL
CHIEF METROPOLITAN MAGISTRATE, BENGALURU CITY IN
C.C.NO.16387/2004 AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 13.07.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:-
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                                        CRL.RP No. 1303 of 2019



                            ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the judgment of conviction and

order of sentence dated 06.02.2015 in C.C.No.16387/2004 on

the file of the Court of IV Additional Chief Metropolitan

Magistrate, Bengaluru and its confirmation judgment and order

dated 16.08.2019 in Crl.A.No.355/2015 on the file of the Court

of the LXIII Additional City Civil and Sessions Judge (CCH-64)

at Bengaluru, seeking to set aside the concurrent findings

recorded by the Courts below, wherein the petitioner / accused

was convicted for the offence punishable under Section 409 of

Indian Penal Code (for short 'IPC').

2. The petitioner is the accused before the Trial Court

and appellant before the Appellate Court.

Brief facts of the case are as under:

3. It is the case of the prosecution that, the petitioner

herein was working as Bus Conductor at Bangalore Metropolitan

Transport Corporation (for short 'BMTC') situated at

Puttenahalli, Yelahanka Hobli, Bengaluru. He was deputed to

Route No.276/2, which was plying from Kempegowda Bus

CRL.RP No. 1303 of 2019

Station to Vidyaranyapura. It is stated that, on 22.06.2004, he

was the Conductor of the bus bearing registration No.KA-05-C-

2201 and he was entrusted the tickets worth of Rs.7,744/- by

the Depot Manager and it was the duty of the petitioner to

remit the amount along with unsold tickets, if any, to the

concerned Depot after duty was over. It is stated that, even

after completion of his duty, the petitioner has neither returned

the balance tickets nor deposited the amount collected by him

after selling the tickets to the passenger. Thereafter, the

complainant-Depot Manager filed a complaint before the

jurisdictional police for not remitting the amount to the Depot

by the petitioner. The jurisdictional police have registered a

case under Section 409 of IPC, after conducting investigation,

submitted the charge sheet.

4. To prove the case of the prosecution, the

prosecution examined, in all, 11 witnesses namely PWs.1 to 11

and got marked Exhibits P1 to P12 and also marked Ex.D1-

complaint of the petitioner. The Trial Court after appreciating

the oral and documentary evidence on record, convicted the

petitioner for the offence punishable under Section 409 of IPC

and sentenced him to undergo simple imprisonment for six

months and also to pay a fine of Rs.8,000/-, in default of

CRL.RP No. 1303 of 2019

payment of fine, he was ordered to undergo simple

imprisonment for two months. Being aggrieved by the same,

the petitioner preferred an appeal before the Appellate Court,

the Appellate Court confirmed the judgment of conviction

rendered by the Trial Court. Being aggrieved by the same, the

petitioner has preferred this revision petition seeking to set

aside the concurrent findings.

5. Heard Shri C Jagadish, learned counsel for the

petitioner and Shri Rahul Rai K, learned High Court Government

Pleader for the respondent - State.

6. It is the submission of learned counsel for the

petitioner that, the judgment of conviction and order of

sentence passed by the Trial Court and its confirmation order

passed by the Appellate Court require to be set aside as the

concurrent findings are perverse, illegal and opposed to facts

and law.

7. It is further submitted that, the Courts below failed

to appreciate the complaint given by the petitioner herein

against the ticket collector. The specific contention of the

petitioner is that, the bag along with the tickets were taken

CRL.RP No. 1303 of 2019

away by the concerned ticket collector and took all the tickets

and money and did not hand over to the petitioner. Hence, the

petitioner did not remit the balance tickets along with money to

the concerned Depot. The said aspect should have been

considered by the Courts below while appreciating the evidence

on record.

8. It is further submitted that, the petitioner had filed

complaint before the Authority as per Ex.D1 on 23.06.2004,

however, the said document was not considered by the Courts

below, resultantly, the impugned judgment is passed, which is

required to be set aside. The petitioner had filed complaint

before the jurisdictional police regarding not returning the cash

bag and unsold tickets to him, the jurisdictional police

registered C.Mis. on 29.06.2004 and closed the matter.

9. It is further submitted that, during the pendency of

the criminal case, certain documents were produced by the

petitioner. Those documents were not considered by the Trial

Court and passed the impugned judgment, which is required to

be set aside.

CRL.RP No. 1303 of 2019

10. It is further submitted that, even though,

complaint was lodged against PWs.9, 10 and 11 on 23.06.2004

by the petitioner, the Authority has not taken any action

against the witnesses. Since there was a complaint made

against PWs.9, 10 and 11, their evidence should not have been

considered by the Trial Court. These witnesses are interested

witnesses and law demands independent corroboration while

appreciating the evidence of interested witnesses. The Trial

Court and the Appellate Court failed to notice that, there were

no independent witnesses who supported the case of the

prosecution. Making such submission, learned counsel for the

petitioner seeks to set aside the concurrent findings recorded

by both the Courts below.

11. Per contra, learned High Court Government Pleader

(for short 'HCGP') justifying the concurrent findings and

submits that, as per the evidence of PWs.3 and 4 and also

Exs.P3 and P5, the work was entrusted to the petitioner along

with tickets worth of Rs.7,744/-. After completion of his work,

he had to remit the amount and the unsold tickets to the

Depot. However, neither the amount nor the tickets were

remitted to the Depot. Hence, the Trial Court and Appellate

Court after appreciating the oral and documentary evidence on

CRL.RP No. 1303 of 2019

record concluded that, the petitioner found guilty of the offence

as stated supra and interference with the well reasoned order

passed by the Courts below may not be warranted. As such,

the learned HCGP prays to dismiss the petition.

12. Having heard the rival contentions urged by the

learned counsels for the respective parties and also perused the

judgments of the Courts below, the points which arise for my

consideration are:

i) Whether the concurrent findings recorded by

both the Courts below in convicting the petitioner

for the offence under Section 409 of IPC is

sustainable?

ii) Whether the petitioner has made out

grounds to interfere with the concurrent findings

recorded by both the Courts below for conviction?

13. This Court being a Revisional Court, having regard

to the scope and ambit envisaged to appreciate the facts and

law, it is necessary to have a cursory look upon the evidence

and also the law, to ascertain as to whether any illegality or

CRL.RP No. 1303 of 2019

perversity or error committed by the Courts below in recording

the conviction.

14. On perusal of the entire findings recorded by the

Courts below in convicting the petitioner, the Courts below

erred in considering the defence of the petitioner. Even though

Ex.D1 and Ex.P9 are marked, the contents thereof were not

considered by the Courts below. On perusal of those

documents, it appears that, the petitioner made allegations

against PWs.9, 10 and 11 and further, the averments of Ex.D1

and Ex.P9 indicates that, these witnesses have took the cash

bag and unsold tickets from the petitioner. Even though, all

these witnesses consistently deposed that, they have returned

the cash bag and unsold tickets to the petitioner, none of the

independent witnesses supported their contention.

15. It is needless to say that, the petitioner is the

conductor of the said bus. However, the prosecution has not

examined the driver of the bus to substantiate the case. On

perusal of the entire records and evidence, all the witnesses

PWs.1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 are the official witnesses

of BMTC. No independent witnesses have been examined to

support the case of the prosecution. As per the evidence of

CRL.RP No. 1303 of 2019

PWs.9, 10 and 11, they took the cash bag and tickets and

compared the sold tickets and money, they stated to have

found that there was excess of Rs.59/- and asked the petitioner

to sign the document. In the absence of independent

corroboration, it cannot be presumed that, these witnesses

have returned the cash bag and unsold tickets to the petitioner.

16. On careful perusal of the entire records, the

petitioner soon after the incident, had filed a complaint before

the Authority against PWs.9, 10 and 11 for not having returned

the cash bag and unsold tickets. It is also noticed here that,

before filing of the present complaint by the Authority against

the petitioner, the petitioner had lodged a complaint before

Vidyaranyapura Police to take action against PWs.9, 10 and 11

for not returning the cash bag and unsold tickets. However,

the jurisdictional police did not take any action against the

Ticket Collectors. On the contrary, the said Ticket Collectors

have been cited as witnesses to the case and examined as

PWs.9, 10 and 11, which is untenable, their evidence ought not

to have been considered by the Courts below.

17. The prosecution failed to establish that, the

petitioner is found guilty of the offence under Section 409 of

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CRL.RP No. 1303 of 2019

IPC. Mere entrustment of property may not be sufficient to

prove the ingredients of breach of trust, unless, the defence of

the petitioner is not considered. In the present case, it appears

that, the Investigating Officer was not conducted investigation

impartially and the investigation appears to be tainted. The

Trial Court and the Appellate Court appreciated the evidence

arbitrarily and did not consider Ex.D1 and Ex.P9 of the

petitioner, thereby, the impugned judgments have been

passed, which requires to be set aside.

18. In the light of the observations made above, the

points which arose for my consideration are answered as

under:-

       Point No.(i)       - "Negative"

       Point No.(ii)      - "Affirmative"

19. Hence, I proceed to pass the following:

ORDER

(i) The Criminal Revision Petition is allowed.

       (ii)      The   judgment     of    conviction   and    order    of

                 sentence,     dated      06.02.2015     passed        in

C.C.No.16387/2004 by the Court of IV Additional

Chief Metropolitan Magistrate, Bengaluru and the

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CRL.RP No. 1303 of 2019

judgment and order dated 16.08.2019 passed in

Crl.A.No.355/2015 by the Court of the LXIII

Additional City Civil and Sessions Judge (CCH-

64) at Bengaluru, are set aside.

(iii) The petitioner is acquitted for the offence under

Section 409 of IPC.

(iv) Bail bonds executed, if any, stand cancelled.

Sd/-

JUDGE

UN