Karnataka High Court
Smt. Zubaida vs The State Of Karnataka on 3 January, 2024
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CRL.RP No. 551 of 2018
C/W CRL.RP No. 552 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO.551 OF 2018
C/W
CRIMINAL REVISION PETITION NO.552 OF 2018
BETWEEN:
1. SMT. ZUBAIDA
AGED ABOUT 53 YEARS,
W/O MAYYADI
R/AT S.M.COMPLEX
1ST BLOCK, NEAR KORDABBU DWARA,
KATIPALLA VILLAGE
MANGALURU - 575 003.
...PETITIONER
COMMON IN BOTH PETITIONS
(BY SMT. HALEEMA AMEEN, ADVOCATE)
Digitally signed
by SANDHYA S AND:
Location: High
Court of
Karnataka 1. THE STATE OF KARNATAKA
SURATHKAL POLICE STATION
DAVANAGERE
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU - 560 001.
...RESPONDENT
COMMON IN BOTH PETITIONS
(BY SRI. M.R. PATIL, HCGP)
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CRL.RP No. 551 of 2018
C/W CRL.RP No. 552 of 2018
CRL.RP 551 OF 2018 IS FILED U/S.397 R/W 401 CR.P.C
BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED 16.04.2018
MADE IN CRL.A.NO.4/2017 BY THE COURT OF IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE,D.K., MANGALORE AND
ACQUIT HER OF THE OFFENCES FOR WHICH SHE WAS
CONVICTED BY THE APPELLATE COURT;
CRL.RP 552 OF 2018 IS FILED U/S.397 R/W 401 CR.P.C
BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED 19.04.2018
MADE IN CRL.A.NO.6/2017 BY THE COURT OF IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE,D.K., MANGALORE AND
ACQUIT HER OF THE OFFENCES FOR WHICH SHE WAS
CONVICTED BY THE APPELLATE COURT;
THESE PETITIONS, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Revision Petitioner-Smt. Zubaida, who was accused No.2
in both cases, has preferred these revision petitions against the
judgment of conviction and order of sentence dated 16th April,
2018 passed in Criminal Appeal No.4 of 2017 and judgment of
conviction and order of sentence dated 19th April 2018 passed
in Criminal Appeal No.6 2017 by IV Additional District and
Sessions Judge, Dakshina Kannada, Mangaluru (for brevity,
hereinafter referred to as the "Appellate Court").
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2. For the sake of convenience, the parties in this appeal
are referred to as per their status and rank before the Appellate
Court.
3. Brief facts of the prosecution case are that, accused 1
and 2, with an intention to commit criminal breach of trust,
have received golden ornaments and money for their business
purpose from PWs1 to 3 (in Crl.RP No.551 of 2018) from CW1
and CW4 to 6 (in Crl.RP No.552 of 2018) with a promise to
return the same. Instead of returning the gold ornaments and
money, the accused have dishonestly pledged the gold
ornaments with several Banks and Finances and borrowed loan;
thereby committed offence under Sections 406 and 420 of
Indian Penal Code.
4. After filing charge sheet, case was registered in CC
No.64 of 2011 (pertaining to Crl.RP No.551 of 2018); CC No.75
of 2011 (pertaining to Crl.RP No.552 of 2018). In pursuance of
summons, accused appeared before the trial Court and were
enlarged on bail. On hearing the arguments, the trial Court has
framed charges against the accused for the alleged commission
of offences. Same was read over and explained to the accused.
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Having understood the same, accused pleaded not guilty and
claimed to be tried.
5. To prove the guilt of the accused, in all, nine
witnesses were examined as PWs1 to 9 and fifteen documents
were marked as Exhibits P1 to P15 and seven material objects
were marked as MOs 1 to 7 (in CC No.64 of 2017) and in C
No.74 of 2011, in all, ten witnesses were examined as PWs1 to
10 and marked sixteen documents as Exhibits P1 to P16 and
nineteen material objects were marked as MOs1 to 19. During
the pendency of the case accused No.1 reported to be dead,
Hence, case against accused No.1 was abated. After closure of
prosecution side evidence, statement of accused No.2 under
Section 313 of Code of Criminal Procedure was recorded and
accused denied all incriminating evidence appearing against her
and has filed written statement in which she has stated that
she has not received gold ornaments or money from the
complainant or anybody. She does not know the transaction of
her husband and her husband is no more. In her written
statement, she has further stated that Police have taken her to
custody and took her to the Suratkal Police Station and
obtained signatures on blank papers and she is not concerned
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about this case and police have filed false case against her.
Accused No.2 has not chosen to lead any defence evidence. On
hearing arguments, the trial Court acquitted the accused
No.2/Revision Petitioner. Being aggrieved by the judgment of
acquittal, the Prosecution preferred appeals before the IV
Additional District and Sessions Judge, Dakshina Kannada,
Mangaluru in Criminal Appeal No.4 of 2017 against CC No.64 of
2011 and Criminal 6 of 2017 against CC No.75 of 2011. Same
were allowed by the Appellate Court by order dated 16th and
19th August, 2016 respectively, and the judgment of acquittal
passed by the I Additional Senior Civil Judge and CJM,
Mangaluru D.K., were set aside and the accused No.2 was
convicted for commission of offence punishable under Sections
406 and 420 read with Section 34 of Indian Penal Code and
sentenced to undergo simple imprisonment for three months
and to pay fine of Rs.15,000/- for offence punishable under
Section 406 of Indian Penal Code and further accused No.2 was
sentenced to undergo simple imprisonment for a period of one
year with fine of Rs.50,000/- for the offence punishable under
Section 420 of Indian Penal Code in Criminal Appeal No.4 of
2011. In Criminal Appeal No.6 of 2017, the accused was
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sentenced to undergo simple imprisonment for a period of
three months along with fine of Rs.15,000/- for the offence
punishable under Section under 406 of Indian Penal Code and
further sentenced the accused No.2 to undergo simple
imprisonment for a period of one year along with fine of
Rs.50,000/- for the offence punishable under Section 420 of
Indian Penal Code.
6. Being aggrieved by the impugned judgments of
conviction and order of sentence passed by the IV Additional
District and Sessions Judge, Dakshina Kannada, Mangaluru in
Criminal Appeals No.4 and 6 of 2017, the accused No.2/revision
petitioner is before this Court in these Revision Petitions.
7. Smt. Haleema Ameen, learned Counsel appearing for
the Revision Petitioner submits that the impugned judgments of
conviction and order of sentence passed by the Appellate Court
are highly illegal, unreasonable and opposed to law and facts.
The Appellate Court has committed serious irregularity and
illegality while appreciating the material on record and has
reversed the well-reasoned judgment of acquittal passed by the
trial Court. The Appellate Court has failed to appreciate the
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evidence on record in its proper perspective. The Appellate
Court has ignored the cardinal principle of law that the
prosecution has to prove its case not only beyond all
reasonable doubts but also as alleged by itself and hence, the
Appellate Court has committed illegality and irregularity which
resulted in conviction of the petitioner even without there being
any incriminating material against her. The Appellate Court
has failed to consider the material discrepancies, omissions and
contradictions in the evidence of prosecution witnesses. The
Appellate Court has ignored the provisions Section 27 of Indian
Evidence Act. During the course of cross-examination, PW3
has clearly stated that the seized property does not belong to
her. The trial Court has properly appreciated the evidence on
record in accordance with law and facts. On all these grounds
sought to allow the revision petitions.
8. As against this, Sri M.R. Patil, learned High Court
Government Pleader, submits that the trial Court has not
properly appreciated the case on record in accordance with law
and facts. The Appellate Court properly appreciating the
evidence on record had passed the impugned judgment of
conviction and order of sentence which is sound and proper and
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in accordance with law and there are no grounds to interfere
with the same. Accordingly, he sought to dismiss the revision
petitions.
9. Having heard the learned counsel for the parties and
on perusal of records, the following points would arise for my
consideration:
1. Whether the Revision Petitioner has made out a
ground that the Appellate Court has committed an
error in reversing the judgment of acquittal
passed by the trial Court?
2. What order?
10. My answer to the above points are:
Point No.1: in the affirmative;
Point No.2: as per final order.
Regarding Point No.1:
11. I have carefully examined the materials placed before
this Court. It is the case of the prosecution that the accused 1
and 2, within an intention to commit criminal breach of trust,
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have received gold ornaments and money for their business
purpose from PWs1 to 3 and CW1 and CWs4 to 6 with a
promise to return the same. Instead of returning the gold
ornaments and money, the accused have dishonestly pledged
the same with several Banks and Finances and borrowed loan
and thereby committed offence punishable under Sections 406
and 420 of Indian Penal Code. To prove the guilt of the
accused, Prosecution has examined nine witnesses as PWs1 to
9 and marked fifteen documents as Exhibits P1 to P15 and
seven material objects as MOs 1 to 7 (pertaining to Crl.RP 551
of 2018) and in all, ten witnesses were examined as PWs1 to
10 and marked sixteen documents as Exhibits P1 to P16 and
nineteen material objects were marked as MOs1 to 19
(pertaining to Crl.RP 552 of 2018). On careful examination of
the entire evidence on record, the trial Court, at paragraphs 9
to 17, has discussed about the omissions, contradictions and
material discrepancies in the evidence of prosecution witnesses.
At paragraph 18 of its judgment in CC No.64 of 2011, the trial
Court has assigned reasons for acquittal which reads as under:
"18. On perusal of the above evidence it is quite
clear that the evidence of PW1 is not at all corroborating
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with the contents of Ex.P1 complaint so also with the
evidence of PW9. The contents of Ex.P1 disclose that the
accused Mayyadi and his wife Zubaida have taken golden
ornaments for their urgent need. The need stated to be
had has not been disclosed in the complaint. Further the
contents of Ex.P1 discloses that the accused have taken
`3 Lakhs from CW1 but in the course of the evidence,
the PW1 contended that the accused have taken amount
of `2 Lakh from her husband. Admittedly, the complaint
as well as evidence of PW1 does not disclose on which
date the accused have taken golden ornaments as well
as amount, it appears to be bald allegation made against
the accused. The PW 1 to 3 in their examination in chief
itself they have categorically contended that the accused
have approached them and requested to give golden
ornaments as well as amount for the purpose of
marriage of their daughter. The Investigating officer in
his evidence has categorically contended that the
complainant as well as other witnesses have not stated
about the alleged marriage of the daughter of the
accused. So the CW1 to 3 have made improvement in
their version and tried to set up a new plea about alleged
marriage of the daughter of the accused. If really the
accused have approached the CW1 to CW3 for financial
assistance to solemnize the marriage of their daughter,
the witnesses though contended that they are close
relatives of the accused might have known the name of
the daughter of the accused of whose marriage the
golden ornaments have been given to the accused. The
evidence of PW2 and PW3 is also contrary to the
statements given before the police. If they are close
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relatives of the accused they might have attended the
said marriage. So, nothing is brought on record about
the alleged marriage of the daughter of the accused.
Even the I.O has not collected any material about the
alleged allegation argument appears to be reasonable.
Though the CW5 supported the case of the prosecution
but in her cross-examination she has categorically
admitted that she is not remembering the date on which
the Police have visited the spot. According to her CW2
has also signed Ex.P2 mahazar but in fact the signature
of the CW2 is not at all available on Ex.P2. So also she
has not deposed before the court about her presence at
the time of drawing Ex.P2 mahazar. So the doubt arises
about her presence at the time of drawing the spot
mahazar argument holds to be good. Even the
prosecution is able to prove the spot mahazar with the
evidence of PW4 that itself not sufficient to prove the
charges levelled against the accused. That except oral
testimony of PW1 to PW3, no other evidence or material
have been colleted by the I.O about the entrustment of
golden ornaments as well as money to the accused. The
evidence of PW1 to PW3 is not corroborating with the
evidence of PW9, though the evidence of PW5 to 8
supported the case of the prosecution and deposed about
the seizure of the articles, none of the witnesses in their
examination in chief deposed about the presence of the
accused at the time of the alleged seizure of golden
ornaments. Even the PW9 has also not stated that in the
presence of the accused No.1 he has seized the golden
ornaments. If really the accused with malafide intention
have received valuable golden ornaments as well as
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money from the CW1 and her husband, thereafter with
dishonest intention to defraud the CW1 to CW3 and has
pledged the golden ornaments with several banks as
contended by the prosecution. Further as per the case of
the prosecution, on the alleged voluntary statement of
the accused he has recovered those golden ornaments
from various banks. He required to be recovered those
golden ornaments in presence of the accused argument
holds to be good. No such circumstances establishing in
this case. Therefore, the contention of the prosecution
that the golden ornaments have been dishonestly
pledged by the accused with the bank has not been
proved. None of the witnesses except PW8, have
deposed about the presence of the accused at the time
of the alleged recovery of the property. Further the
Investigation officer in his cross-examination has
categorically admitted that he has not collected single
documents from the complainant to show that golden
ornaments stated to be recovered in the present case are
belonged to CW1 to CW3. So also the PW1 to PW3 have
contended that they have not given any documents to
the I.O in proof of their ownership of the golden
ornaments. Further the PW9 in his cross-examination has
categorically deposed that he has not collected any
documents from the bank and the finance to verify from
how many years the golden ornaments were pledged
with the bank. During the course of the cross-
examination of the bank Managers i.e., PW6 to 8 have
categorically contended that golden ornaments seized by
the police were lying in the bank since from several
years. Such being the facts of the case to ascertain the
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nature of transactions stated to be held between the
complainant and the accused, it is very much necessary
for the Investigation officer to collect the pledged
documents pertaining to the golden ornaments seized by
him. It shows that the Investigation Officer has not
investigated the matter fairly. If at all the I.O would have
collected the pledged documents from the bank it would
have helped the court to know about the genuiness of
the transaction. Hence, non collection of material
evidence from the bank is fatal to the case of the
prosecution, argument holds to be good. Mere based on
loan chit stated to be recovered by the I.O from the
accused cannot be a sole basis for coming to a
conclusion about the commission of offences levelled
against the accused. In this case it appears that the I.O
has erred in conducting investigation. The material
placed on record is totally insufficient to come to a
conclusion that the accused have committed the offences
levelled against them. During the course of the cross-
examination the defence counsel made certain
suggestions to the PW1 to PW3 stating that since they
are pardanashin ladies cannot go outside the home.
Therefore, they themselves have handed over the golden
ornaments to the accused No.1 with an intention to
obtain loan from the various banks and finances in their
day to day need. Accordingly, as per their instructions he
had borrowed loan and used to pay loan installments as
per their instructions. Since the evidence of PW1 to PW3
and evidence of other witnesses of the prosecution have
miserably failed to prove the purpose for which the
accused have received golden ornaments, the contention
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set up in the suggestion appears to be reasonable to
accept. On the other hand, the suggestions made by the
learned counsel for the accused about the availment of
the loan from the banks by pledging the golden
ornaments by the CW1 to CW3 through accused No.1
appears to be probablise the case. Therefore, the
accused with dishonest intention have taken golden
ornaments and pledged them with the bank has not been
proved with cogent and convincing evidence. The
evidence placed by the prosecution is totally insufficient
to prove the charges levelled against the accused. In my
view the prosecution has miserably failed to bring home
the guilt of the accused. Even the prosecution has not
placed single piece of documents to show that the
accused have received cash of Rs.3 Lakh from the CW1
or husband of the CW1. Even the I.O has not recorded
the statement of the husband of the CW1 about the
alleged money transactions. Taking into consideration all
these facts and circumstances, in my view the
prosecution has miserably failed to prove points No.1
and 2. Accordingly, I have answered the points No.1 and
2 in the negative."
12. In CC No.75 of 2011, at paragraph 17 of its judgment,
the trial Court has observed as under:
"17. On perusal of the entire evidence of the
prosecution it clearly reveals that the evidence of PW1 is
not corroborating with the contents of the documents i.e.,
Ex.P1 complaint, so also it is not corroborating with the
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evidence of other witnesses, they are having full of
contradictions. If at all the documents under Exs.P10 to
13 have been seized from the custody of the accused,
they must be either original or carbon copy. On the other
hand the above documents are appears to be Xerox
copies. So it is for the I.O to explain with whom the
original are lying. In the course of his cross-examination
he has deposed that while investigating the matter he had
verified original loan documents with the bank. If at all he
has verified the original loan documents he ought to have
been seized those documents under the mahazar. It has
not been done and he has not given explanation for non
seizing the original documents. If the original loan
document was seized from the bank it would disclosed
about the correct date of transaction, it would have been
help the court for deciding the case. Non securing the
material documents from the concerned bank is fatal to
the case of the prosecution, argument holds to be good.
Even the I.O has deposed contrary to the version of the
PW1. NO corroboration is available in their evidence. The
evidence placed on behalf of the prosecution to prove the
charges leveled against the accused are totally
insufficient. No corroboration is brought as well as
documentary evidence placed on record that itself gives
room for doubtful circumstances about the commission of
offence, involvement of the accused in commission of the
offences. The I.O has not secured the document about
many transactions stated to be held between the
complainant and the accused. Since the contents of the
Ex.P1 discloses about the business of the accused, the I.O
has not secured material documents to prove his
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business. Hence, in my view the prosecution has
miserably failed to bring home the guilt of the accused.
They have failed to prove points No.1 and 2. Accordingly,
I have answered them in the negative."
13. The Appellate Court, in paragraph 17 of its judgment
in Crl.A. 4 of 2017 has wrongly observed that PW3 can identify
gold ornaments which are shown in Exhibits P6 to P8 though
PW3 has not identified the gold ornaments shown in Exhibits P6
to P8. Further, in paragraph 18 of its judgment, the Appellate
Court has observed that the prosecution has not produced
documents to show that the gold ornaments belong to
complainant. When there is no dispute that the gold
ornaments belong to PWs1 to 3, the trial Court committed an
error finding fault with prosecution case. This observation
made by the Appellate Court is apparently wrong on the ground
that accused No.2 has specifically denied as to the transaction
between PWs 1 to 3 and accused No.1. She has pleaded not
guilty of the alleged commission of offence. Apart from this,
she has filed written statement under Section 313 of Code of
Criminal Procedure denying all the accusations made against
her. Further, she has clearly stated that she does not know
about the transaction between PWs1 to 3 and her husband who
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is accused No.1. These material aspects have not been
considered by the Appellate Court.
14. The only accusation made against accused No.2, as
averred in complaint-Exhibit P1 is that, the accused 1 and 2
have received gold ornaments. But the exact date of
transaction has not been disclosed in Exhibit P1. Even the
Investigating Officer has not collected any material as to the
transaction between the accused 1 and 2 and the complainant.
It is averred in complaint-Exhibit P1 that the accused took an
amount of Rs.3.00 lakh. But she has not disclosed on which
date she has handed over Rs.3.00 lakh to the accused.
Whereas in the evidence of PW1, she has stated that accused
have received an amount of Rs.2.00 lakh only (pertaining to CC
No.64 of 2011). In CC No.75 of 2011, it is averred that
accused have received Rs.3,65,000/-, Rs.4,20,000/- and
Rs.25,000/-. The date of alleged transaction is not disclosed.
The accused No.2 has not pledged any ornament to Bank or
any Finance Company. Considering the evidence placed by the
prosecution, the trial Court has properly appreciated the
evidence on record in accordance with law and facts and
acquitted the accused No.2. The Appellate Court has not
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properly appreciated the evidence on record in accordance with
law and convicted the accused No.2 for commission of offence
punishable under Sections 406 and 420 read with Section 34 of
Indian Penal Code, which is not sustainable under law.
15. On re-appreciation/re-examination and re-
consideration of entire evidence on record, I do not find any
illegality or legal infirmity in the judgments of acquittal passed
by the trial Court. Accordingly, the revision petitioner has
made out a ground to interfere with the impugned judgment of
conviction and order of sentence passed by the Appellate Court.
Hence, I answer point No.1 in the affirmative.
16. With regard to release of property is concerned, the
Appellate Court has passed an order to release the property in
favour of PWs1 to 3 in Crl.A. No.4 of 2017 and to PWs1, 3 to
PW5 in Crl.A. No.6 of 2017. It is submitted that the property is
already released as per the order of the Court. The
Gokarnanatha Co-operative Society or Muthoot Finance have
not claimed the property. Therefore, there is no need to pass
any orders in this regard.
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Regarding Point No.2:
17. For the aforestated reasons and discussions, I proceed
to pass the following:
ORDER
1. Criminal Revision Petitions are allowed;
2. Judgment of conviction and order of sentence
dated 16th April, 2018 passed in Criminal
Appeal No.4 of 2017 and judgment of
conviction and order of sentence dated 19th
April 2018 passed in Criminal Appeal No.6 of
2017 by IV Additional District and Sessions
Judge, Dakshina Kannada, Mangaluru are set
aside;
3. Judgment of acquittal dated 19th August, 2016
passed in CC No.64 of 2011 and in CC.No.75 of
2011 by the I Additional Senior Civil Judge and
CJM, Mangaluru, Dakshina Kannada, is
confirmed;
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4. Order passed by the Appellate Court with
regard to disbursal of property is concerned, is
confirmed;
5. Send the copy of this order along with trial
Court records to the concerned court.
Sd/-
JUDGE
LNN
