Burle Mallesham, vs State Of A.P., Rep By Pp.,
2021 Latest Caselaw 3172 Tel

        THE HON'BLE Dr. JUSTICE G. RADHA RANI

         CRIMINAL REVISION CASE No.1782 of 2006

ORDER:

This revision case is filed by the petitioner-accused against the

order of the III-Additional Sessions Judge (FTC-II), Khammam in

Criminal Appeal No.23 of 2005, dated 30.10.2006.

2. The petitioner-accused is tried for the offence under Sections

420 and 506 IPC by the I-Additional Judicial Magistrate of First

Class, Khammam in CC No.646 of 2001. On 02.05.2001, the de-facto

complainant Smt. C. Suryakala lodged a report with the police

alleging that the accused being the agent of Asra India, persuaded her

to make deposits with the company and believing his words, she made

deposits of Rs.20,000/- in her name, Rs.40,000/- in the name of her

daughter Dhanalaxmi and recurring deposit of Rs.5,000/- in the name

of her another daughter Kalyani. Even after maturity of the fixed

deposits, the amounts were not paid and when she asked the accused,

he kept on postponing the same. On 01.02.2001, she along with

accused went to Asra India office at Hyderabad and she was informed

by the neighbouring shop people that the company was closed three

and half years ago. The complainant submitted that the accused

cheated her and collected amounts till September, 2000 although the

company had been closed. She further stated that when she demanded

the accused for the amount, the accused threatened her with dire

consequences. The said report was registered as Crime No.108 of Dr.GRR,J

2001 under Sections 420 and 506 IPC and after recording the

statements of witnesses, collecting the documents, and arresting the

accused, the Investigating Officer filed charge sheet against the

accused under Sections 420 and 506 IPC. The I-Additional Judicial

Magistrate of First Class, Khammam had taken cognizance of the case

for the above offences, framed charges under Sections 420 and 506

IPC, explained to the accused and when the accused pleaded not

guilty, proceeded with the trial.

3. The prosecution examined PWs.1 to 3 and marked Exs.P1 to

P40. The evidence of PW.4 - Investigating Officer was eschewed

from consideration as he failed to appear before the Court inspite of

receiving the summons for facing the cross-examination.

4. On considering the oral and documentary evidence on record

the learned Magistrate convicted the accused for the offence under

Section 420 IPC and sentenced him to undergo rigorous imprisonment

for one year and to pay a fine of Rs.5,000/- and convicted him for the

offence under Section 506 IPC and sentenced him to undergo rigorous

imprisonment for six months. The fine amount is directed to be paid

to PW.1 towards compensation. Aggrieved by the said judgment, the

petitioner-accused preferred an appeal before the III Additional

Sessions Judge (FTC-II), Khammam. The learned III Additional

Sessions Judge on re-appreciating the evidence of the witnesses,

confirmed the conviction and sentence passed by the I Additional Dr.GRR,J

Judicial Magistrate of First Class on both counts for the offences

under Sections 420 and 506 IPC.

5. Aggrieved further, the petitioner-accused preferred this

revision contending that the learned Judge failed to see that the

ingredients to constitute the said offences were not made out, the

learned Judge erred in placing reliance on the testimony of PWs.1 to 3

which was highly interested and discrepant in material particulars.

The learned Judge ought to have seen that the petitioner was only an

employee and was not responsible for repayment of the amounts

collected by the company. The learned Judge ought to have seen that

pursuant to the agreement between the parties, any dispute should be

referred for arbitration, the learned Judge failed to see that non-

examination of the Investigating Officer was fatal to the prosecution

case and prejudice was caused to the accused The learned Judge

ought to have seen that the matter was purely civil in nature and erred

in holding that the accused collected the amounts after the company

was closed and committed error in relying upon Exs.P3 and P4.

6. Heard the learned counsel for the revision petitioner and the

learned Public Prosecutor.

7. A perusal of the record would disclose that PW.1 was the

complainant, PW.2 was her husband and PW.3 was the daughter of

the complainant. Ex.P1 was the report given by PW.1, Ex.P.2 was the

certified copy of the Fixed Deposit receipt for Rs.10,000/-, Ex.P.3 was Dr.GRR,J

the certified copy of the fixed deposit receipt for Rs.10,000/-. Ex.P.4

was another fixed deposit receipt for Rs.40,000/-. Ex.P.5 was the pass

book for the recurring deposit opened in the name of Kalyani, another

daughter of PW.1, dated 12.04.1999. Exs.P6 to P40 were the receipts

for the amount in all to Rs.5,500/- collected as against the recurring

deposit in the name of Kalyani. Ex.P.41 was the FIR. The trial Court

as well as the appellate Court discussed the evidence of the witnesses

in detail and after considering the oral and documentary evidence on

record, answered all the grounds raised by the petitioner-accused in

this revision.

8. The evidence of PW.1, being a victim, cannot be considered

as interested. The trial Court discussed the discrepancies in the

evidence of witnesses also and as they were not material to discredit

their evidence, considered them in proper perspective and placed

reliance upon them. The contention of the learned counsel for the

petitioner that the petitioner was only an employee and was not

responsible for repayment of the amounts collected by the company,

cannot be considered as valid as the petitioner failed to adduce any

defence evidence to prove that he deposited the amounts collected by

him to the company and that he received salary from the company till

the date of his collection of the amounts from PW.1 till September,

2000.

9. The trial Court rightly pointed out the said aspects and

observed that it was hard to believe that the accused was not aware of Dr.GRR,J

the closure of the company in which he was working. The accused

knowing fully well that the company was closed, collected the

amounts from Pw.1 with an intention to gain wrongfully and not

repaid the amounts to PW.1 even on her demand and threatened her

with dire consequences as revealed from the evidence of PWs.1 to 3.

10. The ground raised by the learned counsel for the petitioner

that the dispute ought to have been referred to the Arbitrator, also was

answered by the Courts below. It was rightly observed that it was not

a civil dispute so as to refer the matter for arbitration. It was the

accused, who collected the money in the name of the closed company

with dishonest intention to cause wrongful loss to the victims and

wrongful gain for himself. As such, the question of referring the

matter to the Arbitrator would not arise. It was not a civil matter as

contended by the learned counsel for the petitioner. The contention of

the learned counsel for the petitioner that non-examination of

Investigating Officer was fatal to the prosecution case and caused

prejudice to the accused is not acceptable as none of the witnesses

turned hostile and as rightly observed by the trial Court, the evidence

of the Investigating Officer was material only to the extent of the

investigation conducted by him and even if he had been examined, he

would only have spoken about the arrest of the accused and collection

of documents on record, as such, his non-examination was not fatal to

the prosecution case and it would not affect the otherwise reliable

evidence on record. The order passed by the trial Court, as confirmed Dr.GRR,J

by the appellate Court, was in accordance with law and there was

nothing to interfere with the said orders. As such, I agree with the

concurrent findings of the Courts below.

11. Learned counsel for the petitioner alternatively pleaded to

reduce the sentence of imprisonment to the fine amount already

awarded and to award compensation to the victim from the said fine

amount. However, on perusal of the judgments, the trial Court rightly

convicted the petitioner/accused with the sentence which is

proportionate to the offence committed by him and I find no necessity

to interfere even with the sentence awarded by the trial Court, as

confirmed by the appellate Court.

12. In the result, the Criminal Revision Case is dismissed,

confirming the judgment, dated 24.03.2005, passed in CC No.646 of

2001 by the I-Additional Judicial Magistrate of First Class,

Khammam, as confirmed by the III Additional Sessions Judge (FTC-

II), Khammam, vide judgment dated 30.10.2006 in Crl.A. No.23 of

2005. The trial Court is directed to take consequential steps in

pursuance of the dismissal of the present revision.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J November 02, 2021 KTL