Karnataka High Court
Ashok D Mello vs The State on 26 July, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:29720
CRL.RP No. 495 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 495 OF 2020
BETWEEN:
ASHOK D'MELLO,
S/O. XAVIER D'MELLO,
AGED ABOUT 42 YEARS,
R/AT P.D'SOUZA COMPOUND,
PAIS HILL ROAD,
BEJAI, KAPIKAD,
MANGALURU - 565 004.
...PETITIONER
(BY SRI. MUHAMMED IRSHAD M.A., ADVOCATE FOR
SRI.DILRAJ JUDE ROHIT SEQUEIRA., ADVOCATE)
AND:
THE STATE,
Digitally REPRESENTED BY
signed by
MALATESH STATE PUBLIC PROSECUTOR,
KC HIGH COURT OF KARNATAKA,
Location: BANGALORE - 560 001.
HIGH
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI.VINAY MAHADEVAIAH, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C.,
PRAYING TO a. SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE OF FINE DATED 23.06.2020
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
D.K., MANGALURU IN CRL.A.NO.77/2018 AND TO UPHOLD THE
-2-
NC: 2024:KHC:29720
CRL.RP No. 495 of 2020
JUDGMENT DATED 10.10.2017 PASSED BY THE PRINCIPAL
SENIOR CIVIL JUDGE AND C.J.M., MANGALURU IN
C.C.NO.87/2010.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri Mohammad Irshad M.A., learned counsel
appearing on behalf of Sri Dilraj Rohit Sequeira for the revision
petitioner and learned HCGP for the respondent- State.
2. The accused was charged for the offences
punishable under Sections 420, 468 and 406 of IPC and by a
considered judgment passed in CC No.87/2010 dated
10.10.2017, he was acquitted of all the offences. The State
has preferred an appeal before the District Court challenging
the order of acquittal in Crl.A.No.77/2018.
3. The learned Judge in the First Appellate Court
secured the presence of the accused as well as the trial Court
records and after hearing the parties in detail, re-appreciated
the material evidence on record and by the judgment dated
NC: 2024:KHC:29720
23.06.2020, convicted and sentenced the accused for the
aforesaid offences as under;
"The accused is sentenced to undergo rigorous
imprisonment for a period of one year for the offence
punishable under Section 406 of IPC and rigorous
imprisonment for a period of three years each for the
offences punishable under Sections 420 and 468 of IPC.
Further, the accused is directed to pay a sum of
Rs.2,00,000/- to PW-1 by way of compensation for the
loss suffered by him under Section 357(3) of Cr.PC."
4. Being aggrieved by the same, the accused is before
this Court in this revision.
5. Sri Mohammad Irshad M.A., learned counsel for the
revision petitioner reiterating the grounds urged in the revision
petition, vehemently contended that the judgment passed by
the First Appellate Court consists of legal errors as well as
factual defects resulting in the judgment of the First Appellate
Court to be termed as perverse and sought for admitting the
revision petition for consideration.
6. Learned High Court Government Pleader per contra
opposes the revision grounds.
NC: 2024:KHC:29720
7. By consent of both the parties, the matter is taken
up for final disposal.
8. Having heard the parties in detail, this Court notices
that the power of the First Appellate Court is not limited as is
held in the decision of the Hon'ble Apex Court in Chandrappa
& Ors. Vs. State of Karnataka1. Therefore, even though an
accused is acquitted and the innocence of the accused gets
doubled by an order of acquittal, if there is a patent defect in
appreciation of the material on record placed by the
prosecution, it is always open for the Appellate Court to re-
appreciate the evidence to achieve the cause of justice in
setting aside the order of acquittal.
9. Keeping those principles in the background and
analysing the material on record, the learned Judge in the First
Appellate Court while reversing the order of acquittal passed by
the learned trial Judge, in paragraph Nos.28 to 35 has held as
under;
"28. As already stated the case of the prosecution is that
the accused has received a sum of Rs.2,00,000/- from
PW-1 under the guise of attending to the works entrusted
(2007) 4 SCC 415
NC: 2024:KHC:29720
to him and thereafter cheated PW-1 by forging certain
documents for the purpose of cheating and thereby
committed breach of trust.
29. Illustration No.(e) to Section 405 of IPC makes it clear
that when certain amount is entrusted with specific
understanding and if the receiver holds such amount for
himself and dishonestly appropriates the money, then it is
a case of criminal breach of trust. Section 420 of IPC
comes into play when a person cheats somebody by
dishonestly inducing delivery of property. Section 468 of
IPC would attract when a person uses any document for
the purpose of cheating.
30. During his evidence PW-1 has categorically stated
about he having paid a sum of Rs. 1.60.000/- to the
accused for the purpose of depositing the same with
MESCOM for the purpose of getting electricity supply 1.e.
additional power supply, transfer of electric meter to his
name, etc. He has also spoken about the accused having
given the documents marked at Ex.P3 to Ex.P7 in that
connection, which found to be forged documents. It is to
be noted that during his cross-examination the accused
has not made any attempt to dispute above statements of
PW-1.
31. The above version of PW-1 is supported by the
statements of PW-12 1.e.. the Investigating Officer. PW-
12 in his evidence has stated about having collected
details regarding the payments made by PW-1 to the
accused from Bank of Baroda, Chilimbi Branch and Canara
Bank of Balmatta Branch. The accused has not disputed
NC: 2024:KHC:29720
such statements of PW-12. Further, during his cross-
examination PW-12 has stated in detail about the
documents collected from concerned banks. On the other
hand, during the cross-examination of PW-12 the aceused
has tried to contend that those cheques were not account
payee cheques and that one cannot make out the person,
who has encashed those cheques. PW- 12 has denled
such suggestion of the accused.
32. It is true that during the trial of the case, the
documents collected by PW-12 from concerned banks
have not been marked in evidence. It seems the trial
court lost sight of marking those relevant documents
though same are available in the record. The letters.
received from Bank of Baroda and Canara Bank as well as
true copies of cheques enclosed to those letters prima-
facie go to show that out of six payments from PW-1 to
the accused through cheques, the accused has received
four payments Le.. Rs.20.000/-, Rs.30.000/-. Rs.50.000/-
and Rs.1,00,000/- by way of credit to his bank account in
Alahabad Bank. Hamilton Circle. Mangaluru and remaining
two payments 1.e.. Rs.21.370/- and Rs.50,000/- by way
of encashment. The endorsement found in corresponding
cheques prima-facie go to show that the accused has
received such amounts in cash by putting his signature.
This Court opines that the said aspect can certainly be
taken note by the Court for appreciating other legal
evidence on record, particularly reliability and
trustworthiness of the testimony of PW-1 and probability
of defense putforth by the accused. Thus based on the
materials available on record this Court holds that there
NC: 2024:KHC:29720
are sufficient cogent, consistent and acceptable evidence
on record to prove the guilt of the accused beyond
reasonable doubt.
33. As already discussed, the materials on record clearly
go to show that the trial court has not properly
appreciated the evidence placed on record by the
prosecution to prove the guilt of the accused and
erroneously recorded acquittal in the case. The trial court
has not only ignored some portion of the evidence but
also misread the portion of the evidence considered by it.
Thereby the approach of the trial court has resulted in
miscarriage of justice. In view of the same. this Court
holds that the impugned judgment needs to be interfered
with. Accordingly, this Court holds that the accused is
guilty of the offences punishable under Sections 406, 420
and 468 of IPC.
34. In Meersab Vs Mohammad Shiraj and others Criminal
Appeal No.100167/2014 DD: 16.02.2018] the Diyision
Bench of Hon'ble High Court of Karnataka relying on
decision in Shankar Kerba Jadav and others Vs State of
Maharashtra [AIR 1971 SC 840] has held that no
opportunity of hearing need be afforded to the accused by
the Appellate Court in case of reversal of the acquittal into
conviction and that when the accused has taken part in
the appeal all through out, he is well aware that the
Appellate Court hearing the appeal is within its
competence to award a sentence according to law. In
view of the same. this Court holds that there is no
necessity of hearing the accused regarding the sentence.
NC: 2024:KHC:29720
35. The offence under Section 406 of IPC is punishable
with imprisonment of either description for a term which
may extend to 3 years, or with fine, or with both. The
offence under Section 420 of IPC is punishable with
imprisonment of either description for a term which may
extend to 7 years, and shall also be liable to fine. The
offence under Section 468 of IPC is punishable with
imprisonment of either description for a term which may
extend to 7 years, and shall also be liable to fine."
10. On close reading of the above paragraphs, in light
of the grounds urged on behalf of the revision petitioner, the
learned Judge in the First Appellate Court not only discussed
the evidentiary value of the documentary evidence placed on
record by the prosecution but also re-appreciated the probative
value of those documents, especially, the report received from
the Forensic Science Laboratory as well as non-finding of
signature of the Assistant Executive in four receipts which are
marked at Ex.P3.
11. The Forensic Science Laboratory report is at Ex.P20
which has also been culled out by the learned trial Judge in
para No.25 of the judgment and has commented upon. But did
not accept the report in toto. The learned trial Judge has also
NC: 2024:KHC:29720
considered the argument putforth on behalf of the prosecution
that the signature of the Assistant Executive Engineer,
Electrical Sub Division, Mangalore being not available and only
seal is available, the accused cannot be convicted for the
aforesaid offences.
12. It is pertinent to note that the official seal is not a
freely available commodity. How the seals on Ex.P3
(4 receipts) got affixed is a question that remains unanswered
on behalf of the revision petitioner.
13. It is also pertinent to note that no explanation is
forthcoming from the accused in the accused statement
recorded under Section 313 of Cr.PC. It is a denial by the
accused in toto.
14. All these aspects of the matter have been properly
re-appreciated by the learned Judge in the First Appellate Court
in the aforesaid paragraphs of the impugned judgment.
15. As could be seen from the judgment of the First
Appellate Court, the learned Judge has applied his mind
keeping in view the ingredients to attract the offences as
referred to supra and thereafter, analysed the material
- 10 -
NC: 2024:KHC:29720
evidence placed on record by the prosecution and then,
recorded the finding of guilt of the accused, convicted the
accused for the aforesaid offences and sentenced him as
referred to supra.
16. On re-appreciation of the material on record and in
light of the revision grounds, this Court is of the considered
opinion that the grounds urged in the revision petition are
hardly sufficient to annul the findings recorded by the learned
Judge in the First Appellate Court, especially, having regard to
the fact that the case of the prosecution hinges, particularly, on
the documentary evidence rather than the oral testimony of the
prosecution witnesses.
17. Therefore, the order of conviction passed by the
First Appellate Court needs no interference.
18. Having said thus, the learned Judge in the First
Appellate Court did consider the role of the Court while passing
the appropriate sentence.
19. In para No.36, the learned Judge in the First
Appellate Court has discussed that while passing an appropriate
sentence in a given case, totality of the circumstances and
- 11 -
NC: 2024:KHC:29720
seriousness of the crime should be taken into account. But the
First Appellate Court failed to note the age of the accused and
the fact that the accused petitioner is not having any criminal
antecedents. It is an isolated incident. In such circumstances,
instead of sentencing the accused to undergo simple
imprisonment at once, the trial Court ought to have considered
the grant of probation by calling for report from the Probation
Officer. No doubt, the material on record before the First
Appellate Court shows that such a contention was not urged on
behalf of the revision petitioner.
20. It is settled principles of law and requires no
emphasis that even in the absence of plea of grant of probation
on the part of the accused, it is the duty of the Court to
consider the grant of probation wherever it is applicable, if the
accused is a first time offender.
21. In the absence of any criminal antecedents of the
revision petitioner, the First Appellate Court ought to have
considered the same but in the impugned judgment, no such
discussion is forthcoming in the impugned judgment.
- 12 -
NC: 2024:KHC:29720
22. Taking note of the fact that the accused/revision
petitioner is now aged 58 years and he is a family person
settled in life, modifying the sentence by directing the accused
to undergo simple imprisonment for a day till the rising of Court
by enhancing the fine amount in a sum of Rs.1,00,000/-
(Rupees One Lakh Only) excluding the fine amount already
imposed by the trial Court would meet the ends of justice in the
peculiar facts and circumstances of the case on hand.
Accordingly, the following;
ORDER
i. Revision petition is allowed-in-part.
ii. While maintaining the conviction of the accused for
the offences punishable under Sections 406, 420
and 468 of IPC passed by the First Appellate Court,
the sentence ordered by the First Appellate Court is
modified as under;
iii. The accused-revision petitioner shall undergo
simple imprisonment for the day for the aforesaid
offences till the rising of Court.
- 13 -
NC: 2024:KHC:29720
iv. In addition, the revision petitioner is directed to pay
fine of Rs.1,00,000/- (Rupees One Lakh only) apart
from the fine already imposed by the learned Judge
in the First Appellate Court on or before
31.08.2024, failing which, the accused shall
undergo simple imprisonment for one month.
Office is directed to return the trial Court records along
with copy of this order.
Sd/-
(V SRISHANANDA)
JUDGE
PN
