Karnataka High Court
Thippeswamy @ Bandi Thippeswamy vs The State Of Karnataka on 16 May, 2024
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CRL.RP No. 869 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 869 OF 2016
BETWEEN:
1. THIPPESWAMY @ BANDI
THIPPESWAMY
S/O ERAPPA
AGED VABOUT 35 YEARS
RESIDING AT BEDARASHIVANAKERE
BHARAMASAGARA HOBLI
CHITRADURGA TALUK - 577 501.
2. SRI. MANJUNATHA
S/O SANJEEVAPPA
AGED ABOUT 41 YEARS
RESIDING AT KODIRANGAVVANAHALLY
VADDARAHATTY, NEAR BHARAMASAGARA
CHITRADURGA TALUK - 577 501.
3. SRI. ERAPPA
S/O ERAPPA
AGED ABOUT 45 YEARS
RESIDING AT KODIRANGAVVANAHALLY
VADDARAHATTY, NEAR BHARAMASAGARA
CHITRADURGA TALUK - 577 501.
4. SRI. RAJA @ HANUMANTHA
S/O THIMANNA
AGED ABOUT 30 YEARS
RESIDING AT BEDARASHIVANAKERE
BHARAMASAGARA HOBLI
CHITRADURGA TALUK - 577 501.
...PETITIONERS
(BY SRI. GOPALAKRISHNAMURTHY C, ADVOCATE)
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CRL.RP No. 869 of 2016
AND:
THE STATE OF KARNATAKA
BY KOTE POLICE STATION, CHITRADURGA
REP BY THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 1.
...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 THE JUDGMENT DATED 06/02/2013
PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC CHITRADURGA IN C.C.NO.522/2011 AND JUDGMENT
DATED 16/06/2016 PASSED BY THE 1ST ADDITIONAL DISTRICT
AND SESSIONS JUDGE CHITRADURGA IN CRIMINAL APPEAL
NO. 19/2013 AND ETC.,
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 23.02.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
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CRL.RP No. 869 of 2016
ORDER
1. This Criminal Revision Petition is filed by the
petitioners / accused Nos.1, 3, 4 and 5, being aggrieved by the
judgment of conviction and order of sentence dated 06.02.2013
in C.C.No.522/2011 on the file of II Additional Senior Civil
Judge and JMFC at Chitradurga and its confirmation judgment
and order dated 16.06.2016 in Crl.A.No.19/2013 on the file of
the I Additional District and Sessions Judge, Chitradurga.
2. The ranks of the parties in the Trial Court will be
considered henceforth for convenience.
Brief facts of the case are as under:
3. It is the case of the prosecution that, on
07.02.2008 at about 12.00 noon at Chitradurga Town near
APMC yard, the accused with their common intention, to
deceive the complainant, induced the said complainant that
they are intending to sell the gold which is stated to have found
at the time of digging the place at Hampi for constructing the
house.
4. It is further stated in the complaint that the
complainant believing their promise of selling the gold
approached the accused. At the first instance, the accused
gave two gold bits to make the complainant believe the
transaction and also to restore the confidence.
5. It is further stated in the complaint that the
complainant after verifying the said gold bits and confirmed
that the said gold bits are genuine, proceeded further to deal
with them. Accordingly, as per the averments of the complaint
on 07.02.2008 at about 12.00 noon, the complainant and his
brother went to Chitradurga to meet the accused. After
meeting the accused, the complainant said to have advanced a
sum of Rs.8,00,000/- and said to have obtained 4 Kgs of gold
bits and went back to their places. The complainant after
coming back to his place approached the gold appraiser and
verified the gold bits. After verifying the same, he learnt that
he has been cheated by the accused. Hence, he lodged a
complaint on 22.07.2008. Based on the complaint, the
jurisdictional police have registered a case and conducted the
investigation and submitted the charge sheet.
6. To prove the case of the prosecution, the
prosecution examined 10 witnesses as PWs.1 to 10 and got
marked 20 documents as Exhibits P1 to P20 and identified
material objects which are marked as M.O.1 to M.O.3. The
accused Nos.1, 3 to 5 have been convicted for the offence
under Section 420 r/w 34 of IPC.
7. Heard Shri Gopalakrishnamurthy, learned counsel
for the petitioners and Shri Rahul Rai K., learned High Court
Government Pleader for the respondent - State.
8. It is the submission of learned counsel for the
petitioners that the judgment of conviction and order of
sentence passed by the Trial Court is erroneous and not proper,
hence, it is liable to be set aside.
9. It is further submitted that the prosecution has not
proved the ingredients of Section 420 of IPC. None of the
independent witnesses have deposed regarding selling of the
gold bits to P.W.1. Moreover, there is a delay in lodging a
complaint in respect of the offence stated supra. These two
crucial aspects have to be considered as material illegalities and
the Courts below should have acted upon such illegalities and
recorded the acquittal.
10. It is further submitted that mere making allegation
against the accused that they had sold the gold bits without
having any proof regarding the same is not sufficient to hold
that the accused are guilty of the said offences. In fact, the
alleged recovery from the accused indicates that the accused
have not received any money from the complainant.
11. It is further submitted that to constitute an offence
of cheating, there must be an intention to cheat from the
beginning of the said transaction. In this case, some of the
accused were working with PW.2 and there were some disputes
in respect of wages, the complainant along with his brother
deliberately, in order to implicate them in a false case, filed this
case.
12. It is further submitted that the Trial Court and the
Appellate Court failed to take note of the alleged transaction
and also the recovery made at the instance of the accused.
The prosecution even though failed to establish the intention of
cheating, both the Courts have erred in recording the
conviction, therefore, the said conviction is required to be set
aside. Making such submission, learned counsel for the
petitioners prays to allow the revision petition.
13. Per contra, learned High Court Government Pleader
(for short 'HCGP') justified the findings of the Courts below and
submitted that the accused Nos.1 to 5 have induced P.W.1 to
purchase gold bits said to have obtained at the time of digging
the earth for the purpose of construction, near Hampi. The
evidence of P.W.1 clearly indicates that he purchased the said
gold bits weighing 4 Kgs., after having paid a sum of
Rs.8,00,000/-. After purchasing the same, it was verified
through an appraiser. The said appraiser had informed him
that it was duplicate. Having heard the said information, he
made necessary arrangements in searching of the accused.
After obtaining the details, PW.1-complainant said to have
lodged a complaint.
14. It is further submitted that the accused are not
strangers to P.W.1, in fact, some of the accused were working
as labourers under P.W.2, therefore, their identity has not been
disputed. The Courts below after appreciating both oral and
documentary evidence on record, recorded the conviction which
is appropriate and relevant. Therefore, it is not necessary to
interfere with the said findings. Making such submission, the
learned HCGP prays to dismiss the petition.
15. After having heard the learned counsels for the
respective parties and also perused concurrent findings, it is
relevant to refer to the provision under Section 420 of IPC
which reads thus:
"420. Cheating and dishonestly inducing
delivery of property.-- Whoever cheats
and thereby dishonestly induces the person
deceived to deliver any property to any
person, or to make, alter or destroy the
whole or any part of a valuable security, or
anything which is signed or sealed, and
which is capable of being converted into a
valuable security, shall be punished with
imprisonment of either description for a term
which may extend to seven years, and shall
also be liable to fine."
16. On careful reading of the above said provision, to
prove the ingredients of the above said provision, the
prosecution must establish that the accused had a dishonest
intention from the very beginning which is sine qua non to hold
them guilty for the above said offence.
17. Now it is relevant to analyze the evidence for the
purpose of determining as to whether any error committed by
the Courts below in recording the conviction. According to
P.W.1, his brother P.W.2 was entrusted some civil works by
KPTCL and it was being carried out by the workers. The
accused No.1 was working along with P.W.2 and he used to
bring workers from his native and assigned them for working.
According to him, some of the accused have informed him that
they intended to sell some gold bits which they found at Hampi
when they were working there. Initially, two gold bits were
handed over to PWs.1 and 2 and asked them to verify about its
genuineness. After verifying its genuineness, both PWs.1 and 2
were satisfied and asked the accused to bring the rest of the
gold bits for the purpose of purchasing. Further, he deposed
that there were five accused who were present in Chitradurga
at the time of transaction, out of which, three were acquainted
to them. PWs.1 and 2 stated to have purchased 4 Kgs of gold
after having paid Rs.8,00,000/-. After purchasing the same,
they got the gold bits verified through proper appraiser. The
appraiser clarified that the gold bits which they had purchased
were duplicate. Thereafter, P.W.1 is said to have lodged a
complaint and he has explained the reason for causing the
delay in making the complaint.
18. When a particular question was put to him
regarding the amount which P.W.1 paid to the accused, he
deposed that the said amount was withdrawn from the bank,
however, he did not produce any documents for having
withdrawn the said amount. In fact, neither P.W.1 nor P.W.2
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have produced any documents to show that they were having
Rs.8,00,000/- at the time of transaction.
19. On reading of the entire evidence, none of the
witnesses have deposed regarding the transaction of sale and
purchase of gold bits between the accused to PWs.1 and 2.
When the prosecution failed to collect any documents for
having either sold the gold bits or for having purchased the said
gold bits, it cannot be presumed that the accused have sold the
said gold bits which are marked in this case. In the absence of
proper documents for having sold the gold bits, the Trial Court
and the Appellate Court ought to have arrived at a conclusion
that the accused had made transaction with PWs.1 and 2 and
they had intention to deceive them.
20. On careful reading of the findings of the Courts
below, I am of the opinion that both the Courts have committed
error not only in appreciating the evidence but also in applying
the principle of law in respect of cheating. Therefore,
interference is justified and the findings of the Courts below are
required to be set aside.
21. In the light of the observation made above, I
proceed to pass the following:-
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ORDER
i) The criminal revision petition is allowed.
ii) The judgment of conviction and order of
sentence dated 06.02.2013 passed in
C.C.No.522/2011 by the II Additional Senior
Civil Judge and JMFC at Chitradurga and the
judgment and order dated 16.06.2016
passed in Crl.A.No.19/2013 by the I
Additional District and Sessions Judge,
Chitradurga, are set aside.
are acquitted for the offence punishable
under Section 420 r/w Section 34 of IPC.
iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE
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