Karnataka High Court
Mr Mohammed Asif Shaik vs State Of Karnataka By on 23 October, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 1117 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 1117 OF 2016
BETWEEN:
MR. MOHAMMED ASIF SHAIK,
AGED ABOUT 37 YEARS,
S/O MOHAMMED @ SHAIK,
RESIDENT OF MARATHI KOPPA ROAD,
SIRSI TOWN - 581 401,
UTTARA KANNADA DISTRICT.
...PETITIONER
(BY SRI. MALLIKARJUNA. N.K, ADVOCATE)
AND:
STATE OF KARNATAKA BY
STATION HOUSE OFFICER,
SRINIVASAPURA POLICE STATION,
Digitally
signed by SRINIVASAPURA,
MALATESH KOLAR DISTRICT - 563 102.
KC
...RESPONDENT
Location:
HIGH (BY SRI. VINAY MAHADEVAIAH, HCGP)
COURT OF
KARNATAKA THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 16.11.2015
PASSED BY THE PRL. S.J., KOLAR IN CRL.A.NO.67/2014 WHICH
IS CONFIRMED THE JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE DATED 17.10.2014 PASSED IN C.C.NO.92/2011
BY THE PRL. CIVIL JUDGE AND JMFC, SRINIVASAPURA.
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CRL.RP No. 1117 of 2016
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri.Mallikarjuna, learned counsel for the petitioner
and learned High Court Government Pleader.
2. Accused who suffered an order of conviction for the
offence punishable under Section 406 of IPC and ordered to
undergo simple imprisonment for a period of three years and to
pay a fine of Rs.7,20,000/- and the entire sum of Rs.7,20,000/-
was ordered to be paid as compensation to the CW.4, who is
examined as P.W.4-Abdul Kareem, confirmed in
Crl.A.No.67/2014, has preferred this revision petition.
3. Facts in brief, it is the outmost necessary for disposal
of the revision petition as under:
A complaint came to be lodged with Srinivasapura police
contending that on 09.06.2004 at about 3.30 p.m. near
Polytechnic road in front of Sri Sai Tele Links, accused and
CWs.1 to 3 went to purchase mango fruits in a Mahendra
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Bolero jeep bearing No.KA-31 M-2508 for and on behalf of their
owner, namely, Abdul Kareem, who is examined as PW.4. While
CWs.1 to 3 got down from the jeep, CWs.2 and 3 handed over
cash of Rs.7,20,000/- in a bag to the custody of the accused till
they negotiate the rate for the purchase of the mangoes in
Srinivasa Fruits Mandi. After negotiation, CWs. 1 to 3 returned
to the place where the jeep was parked and they noticed that
the Bolero Jeep was not found, so also the accused person was
not found. They kept searching for the said Bolero jeep in and
around the place where it had been got parked and they did not
find the same. They intimated the incident to PW.4. PW.4 in
turn directed them to lodge the complaint with the jurisdictional
police. Therefore, on 10.06.2004, a complaint came to be
lodged with Srinivasapura police alleging the above incident.
4. Police registered the case and investigated the
matter. Despite investigating the matter in detail, the police
were not able to trace the accused and therefore, a 'C' report
came to be filed by the Srinivasapura police.
5. After seven years of the incident, when police
personnel were in the Kolar bus stand for patrolling, they found
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a person with suspicious movement. Immediately they
apprehended him and enquired. On enquiry, he revealed his
name and also about the incident. Therefore, CW.8 and CW.9
produced him before the investigation officer, and the
investigation officer took the accused to custody and enquired
him. During the course of the enquiry, the accused said to have
given a voluntary statement. After obtaining voluntary
statement, the investigation agency collected bank statements
of PW.4 to find out whether he had drawn a sum of
Rs.7,20,000/- for the purchase of the mangoes and on
conclusion of the investigation, filed the charge sheet against
the accused for the offence punishable under Section 406 of
IPC.
6. Accused was produced before the Trial Magistrate
and the charge was recorded. The accused pleaded not guilty.
Therefore, a trial was held.
7. In order to prove the case of prosecution. And all
nine witnesses were examined as PWs.1 to 9. Among the
prosecution witnesses, PWs.1 to 3 partly supported the case of
the prosecution. PW.4 supported the case of the prosecution in
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toto. PWs.7 to 9 are the police witnesses who have
apprehended the accused in kolar bus stand and PW.9 is the
person who filed the charge sheet. PW.5 is an independent
witness who has deposed about the prosecution case and
supported the case of the prosecution in toto.
8. Cross-examination of the prosecution witnesses did
not yield any positive materials so as to disbelieve the case of
the prosecution.
9. Thereafter, accused statement was recorded as is
contemplated under Section 313 of Cr.P.C, wherein the accused
has denied all the incriminating circumstances and did not
furnish any written submissions as is contemplated under
Section 313(4) of Cr.P.C. and did not place any defence
evidence. There was no explanation whatsoever furnished by
the accused for the long abscondance of the accused for seven
years after the date of the incident.
10. Taking note of this aspect of the matter, learned
Trial Magistrate after hearing the arguments on both sides,
convicted and sentenced the accused as referred to supra.
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11. Being aggrieved by the same, the accused
preferred an appeal before the district Court in
Crl.A.No.67/2014.
12. Learned Judge in the First Appellate Court secured
the records from the trial Court and after hearing the
arguments on both sides, believed the prosecution case on re-
appreciation of the material evidence on record and has noted
that PW.4 had drawn a sum of Rs.8,00,000/- earlier to the
incident and oral evidence of PW.9 who apprehended the
accused on 26.01.2011 in Kolar bus stand and dismissed the
appeal. In paragraph Nos.25 and 26, the learned judge in the
First Appellate Court has held as under:
"25. Further PWs. 1 to 3 and 7 have identified the
accused and specifically deposed that, accused was
working as a driver with CW.4. The vehicle in question
was seized within the jurisdiction of Kolar and admittedly
accused and all the witnesses except PW.7 hail from Sirsi.
If at all they intended to fix the accused in a false case
because of some personal rivalry, they could have
choosen a nearby place but not a far away place at
Srinivaspur, which is situated at a long distance from
Sirsi. The evidence all material witnesses is consistent and
their evidence clearly disclose that, the accused was the
driver of Bolero vehicle and CWs. 1 to 3/PWs. 1 to 3 while
proceeding to fruit market they entrusted the amount to
accused. It is also evident from their evidence that, the
accused has fled with that amount and vehicle and
thereby he has committed the offence of criminal breach
of trust. There is chain of circumstances and the financial
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status of CW.4 is also undisputed. All these facts and
circumstances clearly establish that, the accused has
committed the alleged offence. No doubt there is no
recovery, but it is not important to note here that, the
alleged offence was committed in 2004 and initially 'C'
report has been submitted and later on, the accused was
apprehended in 2011 after lapse of almost 7-8 years.
Hence it is hard to expect the recovery at a belated stage.
However the evidence clearly discloses that, the
prosecution has discharged its burden by proving the guilt
of the accused beyond all reasonable doubt. The
prosecution has successfully proved that, the accused was
entrusted with the amount of Rs. 7,20,000/- belonging to
CW.4/PW.4, which he has misappropriated and thereby
committed criminal breach of trust. Under these
circumstances, looking to the facts and circumstances of
the case in hand, I answer the point under consideration
in the affirmative.
Point No.2:-
26. The learned Magistrate has appreciated the oral as
well as documentary evidence in proper perspective. He
has analyzed the oral and documentary evidence in detail
and considered the defence of the accused also. Further
the accused even during statement U/s.313 Cr.P.C., did
not disclose the reason for giving false complaint or false
implication except bald denial. The learned Magistrate was
also liberal in imposing sentence of imprisonment for 3
years and compensation of Rs.7,20,000/-. At no stretch of
imagination, it can be said that, the said imprisonment is
exorbitant as the learned Magistrate has imposed
reasonable sentence considering the gravity and nature of
the offence. Under these circumstances, looking to the
facts and circumstances of the case, the learned
Magistrate has appreciated the oral and documentary
evidence in proper perspective and has also arrived at a
just conclusion by convicting the accused. Further he has
also imposed reasonable sentence as well as
compensation. Under such circumstances, the judgment
of conviction and order of sentence passed by the learned
Magistrate cannot be said to be illegal, perverse and
capricious so as to call for interference by this Appellate
Court. Hence question of interference with the said
judgment of the trial court does not arise at all and hence
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I am constrained to answer the point under consideration
in the negative."
13. Being further aggrieved by the dismissal of the
appeal, the accused is before this Court in this revision on the
following grounds:
"(a) The Trial Court failed to consider that the evidence
of the complainant was not trustworthy in as much
as there were several omissions and contradictions
in the deposition of PW1. In addition the evidence of
PW2 does not corroborate with the evidence of PW1.
The evidence of PW4 who is the owner of the
business of HKH did not corroborate the evidence of
the other witnesses.
(b) The Courts below failed to consider that except the
self serving statement of the complainant and the
other witnesses, there was nothing on record to
show that the complainant being the Manager of
PW4 had handed over a sum of Rs7,20,000/- and
that thereafter PW1 entrusted the sum to the
petitioner for safe keeping. There is also nothing on
record to show that the petitioner was employed
with PW4. Consequently, the petitioner could not
have been guilty of an offence under section 406
IPC.
(c) The proceedings initiated was barred by time and the
trial court commotted a serious mistake of not
noticing this.
(d) Viewed from any angle of the matter, the impugned
judgment of conviction passed by the courts below is
unreasonable, unjust and is opposed to evidence on
record and the courts below have failed to take note
of the apparent contradiction in the case of the
prosecution."
14. Sri.Mallikarjuna, learned counsel representing
Sri.A.Sampath, learned counsel for the petitioner, reiterating
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the grounds urged in the revision petition, vehemently
contended that the prosecution evidence is not sufficient
enough to establish the fact of entrustment of a sum of
Rs.7,20,000/- by CWs.1 to 3 before they got down from the
Jeep near Srinivasa Fruits Mandi, and therefore, the very
conviction of the accused for the offence under Section 406 of
IPC itself is incorrect, and in this regard, the trial magistrate as
well as the learned judge in the First Appellate Court have not
properly appreciated the material evidence and sought to allow
the appeal.
15. It is also contended that mere abscondance of the
accused for a period of seven years itself would not be a
ground to hold that the prosecution case stands proved beyond
all reasonable doubt and sought for allowing the revision
petition.
16. Per contra, learned High Court Government Pleader
supports the impugned judgment by contending that after the
date of incident, i.e., on 09.06.2004, the accused was found
absconding. The prosecution witnesses, namely CWs.1 to 3
intimated the incident to their owner, Sri.Abdul Kareem, who is
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examined as PW.4. PW.4, in turn has directed to lodge
complaint and a complaint came to be lodged on 10.06.2004.
17. He further pointed out that from 10.06.2004
despite the best investigation, the accused was not found till
26.01.2011, which shows that accused after stealthily taking
away the sum of Rs.7,20,000/-, absconded from the place of
incident and he was only apprehended on 26.01.2011 that to in
the Kolar Bus stand. The voluntary statement given by the
accused further resulted in the investigation of the case and the
'C' report earlier filed by the police was recalled by the police
and a charge sheet came to be filed based on the material
collected by the investigation agency, which would establish
that the accused and accused alone, who has ran away with the
cash of Rs.7,20,000/- on 09.06.2004, and therefore, the
conviction of the accused by the Trial Court and First Appellate
Court is just and proper.
18. He further pointed out that the accused did not
offer any explanation as to his long abscondance from the
native place on and from 09.06.2004 till he was apprehended
by the PW.8 on 26.01.2011 and therefore, the accused is guilty
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of the offence alleged against him coupled with the evidence
placed on record with the prosecution and thus sought for
dismissal for the revision petition.
19. Having heard the parties in detail, this Court
perused the material on record meticulously.
20. On such perusal of the material on record, the
following points would arise for consideration:
(i) Whether the accused/revision petitioner,
establishes that the impugned judgments
are suffering from patent factual errors or
errors of jurisdiction resulting in the
judgments having perverse judgment and
thus call for interference in this revision
petition?
(ii) Whether the sentence is excess?
(iii) What order?
In the case on hand, admittedly, the complaint came to
be filed on 10.06.2004 against the accused. CWs.1 to 3 along
with the accused said to have been to Srinivasa Fruits Mandi on
09.06.2004 to procure mango for and on behalf of PW.4.
Prosecution witnesses consistently deposed about the said
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aspect of the matter. After registering the case on 10.06.2004,
despite the best search, the investigation agency could not
trace the accused. Therefore, admittedly the investigation
agency filed a 'C' report.
21. However, when PW.8 along with CW.9 was in Kolar
bus stand on patrolling duty, they noticed a person with
suspicious movement. Immediately, they apprehended the said
person. On enquiry, they came to know that he is the accused
in the case registered by Srinivasapura police station based on
the complaint dated 10.06.2004. Accordingly, they produced
the accused before the Investigation Officer of Srinivasapura
Police Station.
22. On further inquiry conducted by the investigation
officer, they found that the accused had ran away with the
money on 09.06.2004 and spent the same. Since the entire
amount was spent by the accused for a period of more than
roughly seven years, the investigation agency could not recover
any money based on the voluntary statement.
23. After apprehending the accused, police conducted
further investigation and also collected the bank statement of
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PW.4 for the relevant period, whereunder the police was able to
notice that PW.4 had drawn a sum of Rs.8,00,000/- from the
Bank for the purchase of the mango and the same was
entrusted to CWs.1 to 3. CWs.1 to 3 had further handed over
the bag with cash before they went for negotiation for the
purchase of the mango to the hands of the accused, who took
away the money and absconded on and from 09.06.2004.
24. Based on such evidence collected by the
investigation agency, a charge sheet came to be filed by the
Srinivasapura police station in place of the 'C' report, which
was filed earlier. Learned Trial Magistrate took cognizance of
the aforesaid offence and framed the charge as against the
accused for the offence punishable under Section 406 of IPC.
Accused pleaded not guilty. Therefore, trial was held.
25. The prosecution examined nine witnesses to
substantiate the charge levelled against the accused. In the
cross-examination of the prosecution witnesses, as rightly
noticed by the trial Magistrate and learned judge in the First
Appellate Court. Accused is unable to elicit any positive
material so as to rebut the case of the prosecution.
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26. Further, while recording the accused statement, the
accused did not offer any explanation whatsoever as to the long
abscondance from 09.06.2004 till 26.01.2011. Mere non-
recovery of cash from the hands of the accused that too after a
period of roughly seven years, could not ipso facto cause any
dent to the case of the prosecution, in the opinion formed by
the learned Trial Magistrate confirmed by the First Appellate
Court in the impugned judgment. Therefore, this Court is of the
considered opinion that the conviction order recorded by both
the Courts is just and proper.
27. As a feeble attempt, learned counsel for the
revision petitioner tried to impress upon this Court that the
prosecution evidence suffers from the fact that there is no
proper evidence for entrustment of the money to the hands of
the accused. In fact, the cross-examination of the prosecution
witnesses and non-explanation with regard to the incriminating
circumstances found in prosecution evidence is sufficient
enough in not countenancing such submission of the counsel on
behalf of the revision petitioner.
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28. Having regard to the scope of the revisional
jurisdiction as is held in the case of Amit Kapoor Vs. Ramesh
Chander and Another reported in (2012) 9 SCC 460, even
after re-appreciation of the material on record, this Court does
not find any patent factual error or error of jurisdiction so as to
interfere with the well-reasoned orders passed by the learned
trial Magistrate and learned Judge in the First Appellate
Court. Accordingly, point No.1 is answered in the negative.
29. With regard to the sentence, learned Trial
Magistrate has ordered three years of simple imprisonment and
also ordered to pay a fine of Rs.7,20,000/- which is to be paid
as compensation to the PW.4. Admittedly, no amount is paid
by the revision petitioner, except the security amount before
the First Appellate Court in a sum of Rs.1,00,000/-.
30. Learned Judge in the First Appellate Court while
dismissing the appeal, has directed the Registry of the First
Appellate Court to transfer the amount of Rs.1,00,000/- to the
office of the Trial Magistrate, so as to disburse the same
towards the compensation amount. Even after the disbursal of
the said sum of Rs.1,00,000/- as per the orders of the Court,
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the accused is still required to pay a sum of Rs.6,30,000/-
towards the fine amount. Admittedly, the said amount was
misappropriated by the accused in the year 2004.
31. Therefore, this Court does not find any grounds
whatsoever, much less good grounds, to interfere with the
sentence. Even before this Court, time was granted to find out
whether the accused is in a position to pay fine amount so as to
consider the question of reducing the sentence, but the accused
has failed to utilize such an offer granted by this Court. Under
such circumstances, point No.2 is also answered in negative.
32. Regarding point No.3, in view of the point Nos.1
and 2 being answered in negative by this Court as above, the
following order is passed:
ORDER
Revision Petition is meritless and is hereby dismissed
and no order as to costs.
Sd/-
(V SRISHANANDA)
JUDGE
rv
CT: BHK
