Karnataka High Court

Smt Zubaida vs The State Of Karnataka on 3 January, 2024

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                                                           NC: 2024:KHC:295
                                                     CRL.RP No. 554 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.554 OF 2018


                   BETWEEN:

                   SMT ZUBAIDA
                   W/O MAYYADI,
                   R/AT S.M.COMPLEX,
                   1ST BLOCK,
                   NEAR KORDABBU DWARA,
                   KATIPALLA VILLAGE,
                   MANGALURU-575003.
                                                              ...PETITIONER
                   (BY SRI. HALEEMA AMEEN, ADVOCATE)

                   AND:

                   1.    THE STATE OF KARNATAKA
                         SURATHKAL POLICE STATION,
Digitally signed         MANGALORE,
by SANDHYA S
Location: High           REPRESENTED BY
Court of                 STATE PUBLIC PROSECUTOR,
Karnataka
                         HIGH COURT BUILDINGS,
                         BENGALURU-560001.

                   2.    MR ABDULLA B.K
                         S/O MOHAMMED HASSAN,
                         #A.K.MONU HOUSE,
                         KARABALA CROSS ROAD,
                         KUDROLI,
                         MANGALURU TALUK-575003.

                   3.    MRS RASIYATH
                         W/O MUJEEBUR REHAMAMAN,
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                                             NC: 2024:KHC:295
                                      CRL.RP No. 554 of 2018




     #A.K.MONU HOUSE,
     KARABALA CROSS ROAD,
     KUDROLI,
     MANGALURU TALUK 575003.

4.   MRS SURAYYA
     W/O HASSAN MONU,
     #A.K.MONU HOUSE,
     KARABALA CROSS ROAD,
     KUDROLI,
     MANGALURU TALUK 575003.
                                              ...RESPONDENTS
(BY SRI M.R. PATIL, HCGP)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 16.04.2018 MADE IN CRL.A.NO.171/2016 AND
CRL.A.NO.5/2017 BY THE COURT OF IV ADDITIONAL DISTRICT
AND SESSIONS JUDGE, D.K., MANGALORE AND ACQUIT HER
OF THE OFFNECES FOR WHICH SHE WAS CONVICTED BY THE
APPELLATE COURT.

     THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

Accused No.2 has preferred this revision petition against

the judgment of conviction and order of sentence dated 16th

April, 2018 passed in Criminal Appeal No.171 of 2016 clubbed

with Criminal Appeal No.5 of 2017 by the IV Additional District

and Sessions Judge (for short hereinafter referred to as the

"Appellate Court").

NC: 2024:KHC:295

2. For the sake of convenience, the parties in this

revision petition 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 PW1-Abdullah B K, PW3-Raziyal and PW4-

Surayya, 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 and thereby committed offence

punishable under Sections 406 and 420 of Indian Penal Code.

4. After filing charge sheet, a case was registered in CC

No.74 of 2011. 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. Having understood

the same, accused pleaded not guilty and claimed to be tried.

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5. To prove the guilt of the accused, in all, seven

witnesses were examined as PWs1 to 7 and nine documents

were marked as Exhibits P1 to P9 and three material objects

were marked as MOs1 to 3. During the course of cross-

examination of PW7-Investigating Officer, Exhibit D1 is marked.

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 about this case and police have filed false case

against her. Accused No.2 has not chosen to lead any defence

evidence.

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6. 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.171 of 2016 c/w

Crl.A. No.5 of 2017 against CC No.74 of 2011. Same were

allowed by the Appellate Court by order dated 16th April, 2018

respectively, and the judgment of acquittal passed by the I

Additional Senior Civil Judge and CJM, Mangaluru D.K., was 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.

7. Being aggrieved by the impugned judgment of

conviction and order of sentence passed by the IV Additional

District and Sessions Judge, Dakshina Kannada, Mangaluru in

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Criminal Appeals No.171 of 2016 C/w Crl.A. No.5 of 2017, the

accused No.2/revision petitioner is before this Court in this

Revision Petition.

8. Smt. Haleema Ameen, learned Counsel appearing for

the Revision Petitioner submits that the impugned judgment of

conviction and order of sentence passed by the Appellate Court

is 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

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

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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 petition.

9. 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

in accordance with law and there are no grounds to interfere

with the same. Accordingly, he sought to dismiss the revision

petition.

10. 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

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error in reversing the judgment of acquittal

passed by the trial Court?

2. What order?

11. My answer to the above points are:

Point No.1: in the affirmative;

Point No.2: as per final order.

Regarding Point No.1:

12. I have carefully examined the material 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,

have received golden ornaments and money for their business

purpose from PWs1 to 3 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 under Sections 406 and 420 of Indian Penal Code. To

prove the guilt of the accused, Prosecution has examined seven

witnesses as PWs1 to 7 and marked nine documents as Exhibits

P1 to P9 and three material objects as MOs1 to 3. On careful

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examination of the entire evidence on record, the trial Court, at

paragraphs 8 to 12, has discussed about the omissions,

contradictions and material discrepancies in the evidence of

prosecution witnesses. At paragraph 13 of its judgment, the

trial Court has assigned reasons for acquittal which reads as

under:

"13. The appellant in Crl.Ap.No.171/2016 has contended that there is no dispute that the gold ornament belongs to the complainant and the ornaments were seized from the bank which has been identified by the complainant. In spite of the said fact the trial court has acquitted the accused. The order of the trial court is erroneous and liable to be interfered by this court."

13. The Appellate Court, in paragraphs 19 and 20 of its

judgment has wrongly observed that PW3 can identify the gold

ornament, though PW3 has not identified the gold ornaments.

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 finding fault with prosecution case is

erroneous. This observation made by the Appellate Court is

apparently wrong on the ground that accused No.2 has

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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 is accused No.1.

These material aspects have not been considered by the

Appellate Court. Exhibit P3-Seizure mahazar reveals that Loan

No.1575 dated 08th February, 2011 and Exhibit P4 is another

seizure mahazar pertaining to loan No.408 dated 09th February,

2011. It is submitted that the accused were in custody at the

time of recovery of property. The Investigating Officer has not

recorded the voluntary statement of the accused, so also,

Investigating Officer has not explained at whose instance he

has recovered the property.

14. The only accusation, 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. The accused No.2 has not pledged any ornament to

the Bank or any Finance Company. Considering the evidence

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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 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 judgment 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, it is

submitted that the property is already in favour of PWs1 to 3

and the concerned Gokarnanatha Bank 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 Petition is allowed;

2. Judgment of conviction and order of sentence dated 16th April, 2018 passed in Crl.A. No.171 of 2016 c/w Crl.A. No.5 of 2017 by the IV Additional District & Sessions Judge, Dakshina Kannada, Mangaluru, is set aside;

3. Judgment of acquittal dated 19th August, 2016 passed in C.C. No.74 of 2011 by the I Additional Senior Civil Judge and CJM, Mangaluru, D.K., is confirmed;