Nagarajan vs State Rep. By Inspector Of Police
2022 Latest Caselaw 11440 Mad

                                                                                     Crl.R.C.No.480 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 29.06.2022

                                                             CORAM :

                       THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
                                                     Crl.R.C.No.480 of 2019

                    Nagarajan                                              ..     Petitioner

                                                               Vs

                    State rep. by Inspector of Police
                    C.B.C.I.D., Vellore
                    Vellore District.
                    (Crime No.319 of 2019)                                 ..     Respondent


                    Prayer: Criminal Revision Case filed under Section 397 read with 401

                    Cr.P.C, to call for records on the file of the learned Additional District and

                    Sessions Judge (Fast Track Court), Vellore, Vellore district in Crl.A.No.126

                    of 2017 dated 05.02.2019 by confirming the conviction and sentence in

                    C.C.no.136 of 2013 on the file of the learned Judicial Magistrate No.III,

                    Vellore, Vellore District dated 07.12.2017 and set aside the judgment dated

                    05.02.2019.


                                    For Petitioner       :      Mr.E.Kannadasan

                                    For Respondent       :      Mr.S.Vinoth Kumar
                                                                Government Advocate (Crl. Side)
https://www.mhc.tn.gov.in/judis

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                                                                                Crl.R.C.No.480 of 2019



                                                    ORDER

On 17.05.2011, when P.W.19, one Sreenivasan was on duty at the

Gudiyatham Town Police Station, P.W.1 Rajendran appeared before the

police station and lodged a complaint to the effect that the accused one

Nagarajan is the owner of the lorry bearing Registration No.KA-07-7855

and is running a goods carrier service and through one T.G. Logistics (P)

Ltd., TMT bars, which were to be transported to one Delanco Home and

Resorts (P) Ltd., Punjim, Goa, was entrusted to the carrier. However,

without supplying the said goods to the consignee, the first accused Ameer

Hussain, being the driver and the second accused, being the owner of the

lorry, have misappropriated the same for their personal use. On the strength

of the said complaint, a case in Crime No.319 of 2011 under Sections 406

and 408 of the Indian Penal Code was registered and was taken up for

investigation. Thereafter, the investigation was completed and a charge sheet

was filed by the Deputy Superintendent of Police (CBCID), against first

accused alone, namely Nagarajan, who was the owner of the lorry, while the

driver was made as a witness in the case. Upon appearance of the accused

and furnishing of copies as per Section 207 of the Code of Criminal

Procedure and upon questioning after framing of the charges for offence

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Crl.R.C.No.480 of 2019

under Section 407 of the Indian Penal code, the accused denied charges and

stood trial.

2. The prosecution to bring home the charges, examined P.W.1 to

P.W.22 and marked Exhibit P.1 to Exhibit P.15 and produced M.O.1,

being the lorry seized in this case. Upon being questioned on the evidence on

record and the incriminating circumstances under Section 313 of the Code of

Criminal Procedure, the accused denied the same as false, thereafter, no

evidence was let in on behalf of the defense. Thereafter, the Trial Court

proceeded to hear the learned Assistant Public Prosecutor on behalf of the

prosecution and learned counsel for the accused and by the judgment dated

07.12.2017, found the accused guilty for the offence under Section 407 of

the Indian Penal Code and sentenced him to undergo two years simple

imprisonment and a fine of Rs.5000/- and in default of payment of fine, to

undergo three months simple imprisonment. Aggrieved by the same, the

petitioner accused filed Crl.A.No.126 of 2017 and by the judgment dated

05.02.2019, the learned Additional District Judge (Fast Track Court),

Vellore, confirmed the conviction and sentence imposed by the Trial court.

Aggrieved by the same, the present revision is laid before this Court.

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Crl.R.C.No.480 of 2019

3. Heard Mr.E.Kannadasan, learned counsel for the petitioner

accused and Mr.S.Vinoth Kumar, learned Government Advocate (Crl. Side),

on behalf of the prosecution.

4. Learned counsel appearing on behalf of the petitioner would submit

that the petitioner is convicted for a charge under Section 407 of the Indian

Penal Code. According to learned counsel, the fact that the petitioner is a

carrier is admitted. However, the prosecution have to prove that there was a

criminal breach of trust. In order to prove the criminal breach of trust, the

prosecution has to prove two ingredients, namely, the entrustment and

consequential misappropriation to his own personal use. According to

learned counsel, the evidence of P.W.1 and P.W.17 coupled with the invoice

produced by the prosecution, even though may be considered as proof

entrustment, in this case, there is absolutely no evidence to prove the factum

of misappropriation. According to learned counsel, the prosecution did not

examine the consignee and confirm the fact that the consignment did not

actually reach the consignee. The prosecution did not recover the TMT bars

which is alleged to have been misppropriated by the accused. The

prosecution did not also was able to establish as to how the petitioner

accused misappropriated the TMT bars. According to learned counsel, the https://www.mhc.tn.gov.in/judis

Crl.R.C.No.480 of 2019

petitioner had given a complaint on 07.05.2011 itself, in which, the case in

Crime No.295 of 2011 is registered for theft of lorry under Section 379 of

the Indian Penal Code. Admittedly, the said complaint was also pending

before the same Police Station and the Investigating Officer in the cross

examination has admitted that the said case was not taken up together for

investigation and it is also however admitted that this case was pending as

on date of his examination. Therefore, learned counsel would submit that

firstly, in this case, there is a procedural error in not investigating the case

and counter together. Secondly, the case is still pending and investigation

has not come to an end, therefore, there is a reasonable doubt as to the out

come of the complaint of the petitioner accused in this case.

5. He would submit that, the cumulative reading of all the evidence of

the case of the prosecution, the defense theory that there was no driver and

therefore, the vehicle was parked in front of the house of the accused and

that it was stolen on the night of 05.05.2011, cannot be ruled out. Therefore,

when doubt is probable, then the petitioner should be given the benefit of

doubt and he should be acquitted in the case. Learned counsel would further

submit that in this case, the recovery of lorry is firstly of no consequence and

secondly, the recovery is proved to be artificial and the case of the https://www.mhc.tn.gov.in/judis

Crl.R.C.No.480 of 2019

prosecution is falsified by the prosecution witness P.W.11, one Prakash

himself. As a matter of fact, if the lorry would have been recovered at an

earlier occasion, the Investigating Officer categorically admits that on later

date he examined Prakash and that would clearly and categorically falsify

the case of the prosecution, probablising the case of the accused that the

lorry which was actually stolen from the accused was parked in the way-

bridge in Karnataka and therefore, this gives rise to a probable doubt in the

case of the prosecution and therefore, he would pray that this is a fit case for

grant of benefit of doubt and the petitioner should be acquitted in the case.

6. Per contra, learned Government Advocate (Crl.Side) would submit

that to prove the misappropriation, firstly, he would submit that the conduct

of the accused has to be taken into account. Even as per his case, that if the

vehicle was kept for want of driver, he did not inform the P.W.1, who is the

owner of the goods. After keeping the vehicle with goods for five days in

front of his house, when the lorry was actually stolen, it was expected of any

reasonable man to have informed the owner of the goods, which also he did

not do so which is evident from the evidence of the P.W.2. Thirdly, it may be

seen that P.W.7 has been examined in this case, who actually say that after

two days of the parking of the lorry the accused was seen driving the lorry https://www.mhc.tn.gov.in/judis

Crl.R.C.No.480 of 2019

near the place called Palamaneri. If the case is that the lorry has been parked

for five days for non availability of driver, there was no necessity for the

petitioner accused to have driven the lorry to some other place. This apart,

even though in this case, the prosecution was unable to recover the TMT

bars, P.W.4 is the eye witness for removing the goods from the lorry and

loading it in another vehicle for the use of a third party and therefore, P.W.4

was examined before the learned Judicial Magistrate and his statement given

under Section 164 was admittedly marked as Exhibit P.4 and the said

person was also examied as P.W.4 who stated in the examination that the

contents of Exhibit P.4 are true and correct and that he gave that statement

voluntarily and learned Judicial Magistrate who recorded the statement was

also examined as P.W.20, who had also deposed to the fact that due

procedure has been followed. Therefore, the evidence of P.W.4 directly and

conclusively proves the misappropriation and therefore, the Trial court as

well as the First Appellate Court has rightly convicted and sentenced the

petitioner.

7. I have considered the rival submissions made on either side and

gone through the material records of this case.

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Crl.R.C.No.480 of 2019

8. As rightly contended by learned counsel for the revision petitioner,

the question is whether the prosecution has proved the offence under Section

407 as against the petitioner accused. The fact that the petitioner is the

owner of the lorry and it was used as a carrier as evidenced by producing

M.O.1 lorry, along with the invoice cum delivery challan, which was marked

as Exhibit P.14 and delivery note, which was marked as Exhibit P.15. The

factum of entrustment of the iron bars is evident from the evidence of P.W.1

Rajendran and as corroborated by P.W.14, one Adhulpande, who was

there on the spot when the goods were loaded. Even as per the defense

version, the petitioner has given complaint that the lorry was stolen along

with the said goods belonging to the company of the P.W.1. Therefore, there

can be no quarrel about the fact of entrustment of the goods to the petitioner

accused. Now, as far as the misappropriation is concerned, as rightly

contended by learned counsel for the petitioner, on the strength of the

evidence of P.W.11, read with the cross examination of the Investigating

Officer namely P.W.21, I hold that the version of the prosecution as if they

have recovered the lorry from Palamaneri forest area, cannot be believed and

seems to be artificial. Be that as it may, the said factor is not fatal to the case

of the prosecution and in this case, we are concerned only about the

misappropriation of the iron bars. As far as the same is concerned, the https://www.mhc.tn.gov.in/judis

Crl.R.C.No.480 of 2019

evidence of P.W.1, read with the defense's own case, it is clear tht the iron

bars did not reach the consignee. Secondly, P.W.4 has clearly in Exhibit

P.4, 164 statement has deposed as follows:

                                         ''brd;wha;d;     gs;spapy;     Xdh;    tPl;oy;    yhhpapy;

                                  ,Ue;j fk;gpfis nrj;J tz;oapy; Rkhh; 1 ld;

                                  ,Ue;jij           ghh;j;njd;/          nrj;J            tz;oapy;

                                  fk;gpfis        ghh;j;jnghJ           fk;gp      tpahghuj;ij

                                  Muk;gpj;jPh;fhsh        vd;W        oiuth;      kfhnjtdplk;

                                  ehd;     nfl;lnghJ         mjw;F       mth;      rghprutzd;

                                  tPl;ow;F     fk;gpfs;      njitg;gLtjhy;            brd;whad;

                                  gs;s[papy;   ,Ue;j        yhhpap;y;     ,Ue;j       fk;gpfis

                                  vdf;F          njitahd                fk;gpfis            ,';nf

                                  ,wf;fptpl;L           kPzL
                                                           ; k;       yhhpia          brd;whad;

                                  gs;spf;F      mDg;gptpl;ljhf           kfhnjtd;           vdf;F

                                  brd;dhh;/ ehd; m';F epd;wnghJ ehfuhI; me;j

,lj;jpw;F rptg;g[ fyh; gy;rh; tz;oapy; te;jhh;/

rghprutddplk; gzk; nfl;lhh;/''

9. Therefore, this one piece is uncontroverted evidence, in the sense

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Crl.R.C.No.480 of 2019

that when P.W.4 was in the box, the defense did not even cross examine him

on this aspect. Further the evidence of P.W.7 to the effect that the accused is

seen driving the lorry after two days of the parking, also lends credence to

the version. Therefore, even though the prosecution has failed and omitted to

recover the TMT bars or finally bring on record as to what happened to the

entire consignment, still they have categorically established the fact that the

said TMT bars is being delt with by the petitioner accused for his personal

use without taking it to the consignee. That itself proves the offence under

Section 407 and therefore I have no hesitation in upholding the conviction of

the Trial Court and as confirmed by the Lower Appellate Court.

10. And now, coming to the sentence, the occurrence is of the year

2011. At that time, the petitioner was 37 years of age. Now, he is 48 years

old. It is seen that already the petitioner was under incarceration for a period

of about two months in this case. Learned counsel would submit that in the

teeth of the findings of this Court that the recovery of the lorry is doubtful,

he would submit that the lorry was atleast not in use from 11.05.2011 to

07.02.2012, till it was found from the way-bridge. The petitioner is still

carrying on business but no other complaint is against the petitioner.

Therefore, taking into account the petitioner belonging to a law abiding https://www.mhc.tn.gov.in/judis

Crl.R.C.No.480 of 2019

family and except this complaint, there is no other complaint as against the

petitioner and his age, allegation and on the totality of the circumstances, I

am inclined to reduce the sentence from a period of two years into a period

of four months and the petitioner shall pay a fine of Rs. 25,000/- and in

default of payment of fine, to undergo simple imprisonment for further

period of two months. It will be open for the petitioner to adjust the sum of

Rs.5,000/-, already paid by him and pay the balance of Rs.20,000/-.

Accordingly, this revision is partly allowed.

11. It is represented that the petitioner is now at large on bail, four

weeks' time from the date of this judgment is given to the petitioner to

surrender and to undergo the rest of the sentence.

29.06.2022 Index : yes/no Speaking/Non-speaking order drm

To

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Crl.R.C.No.480 of 2019

1. The Inspector of Police C.B.C.I.D., Vellore Vellore District.

(Crime No.319 of 2019)

2. The Public Prosecutor, High Court of Madras.

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Crl.R.C.No.480 of 2019

D.BHARATHA CHAKRAVARTHY, J.

drm

Crl.R.C.No.480 of 2019

29.06.2022

https://www.mhc.tn.gov.in/judis