Madras High Court
Baby @ Pusphavathy vs The State on 6 July, 2022
Crl.R.C.No. 459 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2022
CORAM:
THE HON'BLE MR. JUSTICE D. BHARATHA CHAKRAVARTHY
Crl.R.C.No. 459 of 2019
Baby @ Pusphavathy ... Petitioner
Versus
The State,
Represented by
The Inspector of Police,
City Crime Branch
Coimbatore
[Crime No. 57 of 2004] ... Respondent
Criminal Revision Case is filed under Section 397 read with Section
401 of Cr.P.C., to set aside the judgment dated 22.07.2019 in Crl.A.No. 461
of 2018 on the file of the I Additional District and Sessions Judge,
Coimbatore, confirming the Judgment dated 28.09.2018 passed in C.C.No.
746 of 2017 on the file of the Judicial Magistrate, Sulur, Coimbatore.
For Petitioner : Mr.C.D. Johnson
For Respondent : Mr.Vinoth Kumar
Government Advocate (Criminal Side)
---
1/11
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Crl.R.C.No. 459 of 2019
ORDER
On 27.10.2004, PW1-Sudha went to the Coimbatore City Crime
Branch and lodged a complaint to the effect that she knew the
petitioner/accused being the wife of one Head Constable and all of them are
residing nearby and belonging to the family of the Police Fraternity. She had
invested amount in the unauthorized chit run by the petitioner/accused. But,
however, upon maturity, the same was not repaid by the petitioner/accused
and hence the complaint.
2. Upon such complaint, a case in Crime No. 57 of 2004 for the
offences under Sections 406 and 420 of IPC read with Section 109 of the
Indian Penal Code, was registered against the petitioner/accused and her
husband. After completion of the investigation, a final report was also filed
proposing the accused guilty and the case was taken on file in C.C.No. 1565
of 2005. The petitioner's husband filed a discharge application and was
discharged as there was no material to proceed against him. As far as the
petitioner/accused is concerned, she denied the offence upon questioning and
stood trial. The prosecution to bring home the charges, examined PW1 to
PW25 and Exs.P1 to Ex.P23 have also been marked. During cross-
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Crl.R.C.No. 459 of 2019
examination, on behalf of the defence, Ex.D1 was marked. Upon
questioning about the material evidence on record, the petitioner denied the
same as false. Thereafter, since there was no further evidence on behalf of
the defence, the Trial Court proceeded to hear the learned counsel for the
petitioner/accused and the learned Public Prosecutor and by judgment dated
21.10.2018, found the petitioner guilty for the offences under Sections 406
and 420 IPC and imposed a punishment of three years rigorous
imprisonment in respect of each of the offences and also directed payment of
compensation of Rs.6,54,000/- to the victims.
3. Aggrieved by the same, the petitioner/accused has preferred an
appeal before the learned I Additional District and Sessions Judge,
Coimbatore in Crl.A.No. 99 of 2018 and by judgment dated 27.02.2019, the
Appellate Court partly allowed the appeal by acquitting the
petitioner/accused for the offence punishable under Section 420 of the Indian
Penal Code and setting aside the direction issued by the trial Court to pay
the compensation of Rs.6,54,000/-, but, however, the Appellate Court
confirmed the finding of guilty for the offence under Section 406 IPC and
reduced the punishment to one year simple imprisonment. Aggrieved by the
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Crl.R.C.No. 459 of 2019
same, this Revision is filed before this Court.
4. Heard Mr.C.D. Johnson, learned counsel appearing for the
petitioner and Mr.Vinoth Kumar, learned Government Advocate [Criminal
Side] appearing on behalf of the prosecution and perused the materials
available on record.
5. The learned counsel appearing for the petitioner took this Court
through the evidence on record and submitted that it is clear from the
evidence that the petitioner alone was not involved in the conduct of "chit"
and as a matter of fact, in the cross-examination of some of the victims, they
have identified the other persons who introduced them and requested them to
join in the chit transaction and therefore, it is clear that the prosecution
simply made the petitioner as a scapegoat while number of persons were
involved in the conduct of "chit". He would further submit that this is a case
in which the wired of the Police personnel joined together in a commercial
venture which failed. There was no intention to cheat or misappropriate the
money. The prosecution did not let in any positive evidence for
misappropriation of the chit amount by the petitioner. The learned counsel
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Crl.R.C.No. 459 of 2019
further submitted that, even during cross-examination of the Investigation
Officer, it is admitted that the petitioner had earlier undertaken before the
Commissioner of Police to return the money actually to pay compensation of
20 persons to the tune of Rs.2,75,500/- and without considering the same,
the other prosecution witnesses whose money is not due, also came before
the Court and let in false evidence. He further submitted that, only
considering the same, while the Lower Appellate Court has rightly rejected
the plea of the case of the prosecution about chit and also upturned the
direction to pay the compensation, the same logic should be extended for the
offence under Section 406 IPC.
6. Per contra, the learned Government Advocate [Criminal Side]
appearing for the respondent submitted that, in this case, the Lower
Appellate Court has convicted the petitioner for the offence under Section
406 of the Indian Penal Code. To prove the offence under Section 406 of
IPC, there should have been criminal breach of trust. As per Section 406
IPC, the prosecution has to establish the entrustment of the property to the
petitioner, and the petitioner was misappropriating or converting to use the
property dishonestly. In this case, PW1 to PW25 who are the victims, have
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Crl.R.C.No. 459 of 2019
deposed that they paid money to the petitioner/accused. Therefore, the
entrustment is proved. It is clear from their evidence there was no return of
the maturity amount. The petitioner/accused miserably failed to return the
same and he has converted the amount paid for her own use dishonestly to
the loss of the PWs and to undue gain, of the petitioner. Therefore, when the
offence under Section 406 IPC had been proved, there is no reason to
interfere with the same.
7. I have considered the rival submissions made on behalf of both
sides and perused the materials placed on record.
8. As seen from the facts narrated above, the Lower Appellate
Court itself had upturned the finding of the guilt, in as much as, under
Section 420 IPC, is concerned and the appeal was allowed partly while also
setting aside the direction for payment of compensation. Therefore, this
Court has to consider as to whether the offence under Section 406 IPC is
made out or not. In this regard, even though the learned counsel for the
petitioner made a valiant attempt by taking this Court through the evidence
of the various victims, a perusal of their evidence only show that the other
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Crl.R.C.No. 459 of 2019
persons had only canvassed to join the "chit" but they have clearly
mentioned that it is only the petitioner who conducted the "chit". Therefore,
the said contention is without any merit. The other contention that there is
no positive evidence for misappropriation is without any merit and it is the
clear case of the victim that the amount has not been returned to them. In
view of the same, the finding of the guilt by the Court below for the offence
under Section 406 IPC cannot be upturned in exercise of the powers under
the revisional jurisdiction.
9. But however, while considering the question of sentence, the
following aspects have to be taken into account. All the victims as well as
the petitioner/accused were all the wives of the Police personnel, involved in
the incident. Considering that they were involved in the transaction, even
though the petitioner/accused was responsible for the conduct of the "chit",
therefore, for the offence under Section 406 IPC, imprisonment of either
description for a term which may extend to three years, or with fine, or with
both, shall be imposed. Considering the fact that the occurrence had
happened in the year 2004 and the petitioner/accused being a lady, now aged
about 60 years, I am of the view that instead of imposing the sentence of
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Crl.R.C.No. 459 of 2019
imprisonment, an appropriate sentence can be imposed and the victims can
also be paid out. In this regard, when this Court enquired the same to the
learned counsel for the petitioner, he has produced a letter dated 06.04.2004,
which was put to the Investigation Officer during cross-examination and the
said copy was furnished to the learned Government Advocate (Criminal
Side) and after verification of the letter, he has also confirmed the same. It
may be seen that as per the same, admittedly a sum of Rs.2,07,500/- is due
to the following 20 persons. Therefore, considering the instructions given to
the learned Government Advocate (Criminal Side) and considering the over-
all facts and circumstances of the case, this Criminal Revision Case is partly
allowed and disbursed as follows:-
(i) The conviction of the petitioner/accused for the offence under
Section 406 of IPC is sustained;
(ii) The petitioner has also undergone imprisonment for a period of 29
days, the sentence of one year simple imprisonment is reduced and modified
as period already undergone; and
(iii) The petitioner is imposed with a fine of Rs.2,10,000/- and out of
the said fine amount, the sum of Rs.2,07,500/- shall be disbursed to the
witnesses as follows:
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Crl.R.C.No. 459 of 2019
ehd; rPl;L gzk; juntz;oa bjhif tpguk;
t/vz;/ bgah; bjhif
1. 10,000
jpUkjp/ gHdpak;khs;. br';fhL (PW-7)
2. 10,000
jpUkjp/ tp$p. br';fhL (PW-16)
3. 10,000
jpU/ unk!;. br';fhL (PW-5)
4. 10,000
jpU/ unk!;. br';fhL (PW-15)
5. jpUkjp/ ntYkzp. br';fhL 10,000
6. jpUkjp/ rpj;jh (v) rpj;uh. br';fhL 12,000
7. 30,000
jpUkjp/ rhtpj;jphp. br';fhL (PW-5)
8. 7,500
jpUkjp/ ghf;fpah. br';fhL (PW-9)
9. jpUkjp/ F";rhs;. br';fhL 5,000
10. jpUkjp/ ghg;ghj;jp. br';fhL 15,000
11. 3,000
jpUkjp/ yl;Rkp. br';fhL (PW-14)
12. 4,000
jpUkjp/ gHdpak;khs;. br';fhL (PW-22)
13. 4,000
jpUkjp/ fyh. br';fhL (PW-3)
14. 6,000
jpUkjp/ uhzp. br';fhL (PW-2)
15. jpUkjp/ ikjpyp. gp.Mh;/v!;/ fhtyh; FoapUg;g[ 4,000
16. jpUkjp/ knf!;. gp.Mh;/v!;/ fhtyh; FoapUg;g[ 4,000
17. 20,000
jpUkjp/ tp$ah. Mthuhk;ghisak; (PW-6)
18. jpUkjp/ ghak;khs;. tlts;sp 10,000
19. jpUkjp/ Rnyhrdh. fhkehaf;fd;ghisak; 15,000
20. 18,000
jpUkjp/ rhe;jh. gp/Mh;/v!;/ (PW-11)
bkhj;jk; 2,07,500
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Crl.R.C.No. 459 of 2019
10. Accordingly, this Criminal Revision Case is partly allowed.
06.07.2022
Speaking Order: Yes/No.
Index : Yes/No
msm
To
1. The I Additional District and Sessions Judge, Coimbatore.
2. The Judicial Magistrate, Sulur, Coimbatore.
3. The Inspector of Police, City Crime Branch, Coimbatore
4. The Public Prosecutor, High Court, Madras.
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Crl.R.C.No. 459 of 2019
D. BHARATHA CHAKRAVARTHY, J.
msm
Crl.R.C.No. 459 of 2019
06.07.2022
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