B.Venkateshwara Rao, vs The State Of A.P., Rep By Pp.,
2023 Latest Caselaw 1355 Tel

         THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

          CRIMINAL REVISION CASE No.1544 OF 2008

ORDER:

This Criminal Revision Case, under Sections 397 and 401 of

Cr.P.C., is filed by the petitioner/A.1, challenging the judgment,

dated 16.07.2008, passed in Criminal Appeal No.30 of 2007 by

the learned I Additional Metropolitan Sessions Judge, Hyderabad,

whereby, the conviction of the petitioner/A.1 of the offence under

Section 406 of IPC and the sentence to undergo rigorous

imprisonment for a period of one year and to pay a fine of

Rs.3,000/-, in default, to undergo simple imprisonment for a

period of three months vide judgment, dated 18.12.2006 passed in

C.C.No.193 of 2002 by the XIII Additional Chief Metropolitan

Magistrate (Mahila Court) at Hyderabad, was set aside and the

matter was remitted to the trial Court with a direction to the

petitioner/A.1 to appear before the trial Court on 01.08.2008 and

with a further direction to the trial Court to frame appropriate

charges afresh in view of the directions contained in the said order

and dispose of the case on merits afresh by giving opportunity to

both parties to adduce evidence as early as possible.

Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008

2. Heard Sri Mohd. Muzaffer Ullah Khan, learned counsel for

petitioner/A.1, learned Assistant Public Prosecutor representing the

respondent/State and perused the record.

3. The case of the prosecution, in brief, is as follows:

PW.1-Smt.B.Vijay Laxmi was married to one B.Srikanth son

of A.2 in this case on 14.11.1999 with sufficient dowry in the form

of cash and kind. The petitioner/A.1 is the elder son of A.2. After

the marriage, PW.1 joined the company of her husband in his joint

family, wherein, the petitioner/A.1 and A.2 also used to reside.

During the wed lock, PW.1 gave birth to a male child. After the

marriage, the business of the husband of PW.1 and petitioner/A.1

got separated, but they lived together in the house bearing No.12-

1-827, Asifnagar, Hyderabad. Unfortunately, the husband of PW.1

died in an accident on 19.11.2000. The petitioner/A.1 took undue

advantage of the sudden death of husband of PW.1 and he broke

open Almirah of the husband of PW.1 and took away the pronote

executed by him for Rs.7,50,000/- in favour of the deceased

B.Srikanth. The petitioner/A.1 also shifted the goods from the

shop of the deceased Srikanth to his shop and collected the debt

amount to a tune of Rs.9 Lakhs. Further, the petitioner/A.1, with

the active support of A.2, subjected PW.1 to cruelty and

Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008

misappropriated the property of his late brother Srikanth and

deprived PW.1 of her rights.

4. Basing on the Court referred complaint of the complainant,

LW.8-Mohd.Sardaruddin, Sub Inspector of Police, Women Police

Station, CCS, Hyderabad registered a case in Crime No.317 of

2001 for the offence under Sections 498A and 406 of IPC and after

completion of investigation, PW.7-Smt.G.Sheshu Kumari, Sub

Inspector of Police, laid charge sheet against the accused persons

for the offence under Sections 498A and 406 of IPC.

5. Cognizance was taken against the petitioner/A.1 and A.2 for

the offence under Section 406 of IPC and on their appearance,

copies of the documents were furnished to them under Section 207

of Cr.P.C. They were examined under Section 239 of Cr.P.C. and

heard. Charge under Section 406 of IPC which was framed against

them, read over and explained to them, for which, they pleaded

not guilty and claimed to be tried.

6. To substantiate the charges, the prosecution got examined

PWs.1 to 7 and got marked Ex.P1 and P2. PW.1 is complainant,

PW.2 is her mother, PW.3 is her father, PWs.4 to 6 are

independent witnesses and PW.7 is the Investigation Officer.

Ex.P1 is the complaint and Ex.P2 is the FIR.

Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008

7. After closure of evidence of prosecution, the accused persons

were examined under Section 313 of Cr.P.C. confronting the

incriminating material appearing against them. A.1 and A.2 denied

the prosecution allegations and adduced defense evidence. A.1

got himself examined as DW.1 and on his behalf, Ex.D1 is the

Certified Copy of Affidavit given by PW.1 in O.P.No.141 of 2003

and Ex.D2 is the Certified copy of judgment in C.C.No.483 of 2002

were marked. The trial Court after adverting to the submissions

made and the material placed on record, acquitted A.2 of the

offence under Section 406 of IPC and convicted the petitioner/A.1

of the offence under Section 406 of IPC and sentenced him to

undergo rigorous imprisonment for a period of one year and to pay

fine of Rs.3,000/-, in default, to undergo simple imprisonment for

a period of three months. Challenging the same, the

petitioner/A.1 filed the subject Crl.A.No.30 of 2007 before the

Court below and the Court below, while setting aside the

conviction and sentence passed against the petitioner/A.1,

remitted the matter to the trial Court with a direction to the

petitioner/A.1 to appear before the trial Court on 01.08.2008 and

directing the trial Court to frame appropriate charges afresh in

view of the directions contained therein and also directed the trial

Court to dispose of the case on merits afresh by giving opportunity

Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008

to both parties to adduce evidence as early as possible. Aggrieved

by the same, the petitioner/A.1 preferred this Criminal Revision

Case.

8. Learned counsel for the petitioner/A.1 would submit that the

judgment of the Court below is contrary to law, weight of evidence

and probabilities of the case. The Court below erred in directing

the trial Court to frame charge against the petitioner/A.1 for the

offence under Section 498A of IPC. The Court below failed to

appreciate that the appeal was filed by the petitioner/A.1 under

Section 386 of Cr.P.C. and no petition was filed by the State or the

defacto complainant challenging the order of taking cognizance

under Section 406 of IPC or against the order framing a charge

under Section 406 of IPC only. The Court below also erred in

directing the trial Court to frame charge under Section 498A of IPC

instead of acquitting petitioner/A.1 of the offence under Section

406 of IPC. The power of the Court below is confined only to

confer or modify or acquit the accused, but it has no power to

direct the trial Court to frame charges. Neither the complainant

nor the Public Prosecutor filed any application aggrieved by the

framing of charge under Section 406 of IPC, so also there is no

petition filed by either the defacto complainant or by the police for

framing of additional charge under Section 498A of IPC. The trial

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Court acquitted A.2 in this case and now the charges has to be

framed against the petitioner/A.1 only under Section 498A of IPC

and not against other accused in the absence of any appeal by the

State. The judgment under challenge is perverse, ex facie, illegal

and is liable to be set aside and ultimately prayed to allow the

Criminal Revision Case as prayed for. In support of his

contentions, learned counsel had relied upon the following

decisions.

1. State of W.B. Vs. Laisal Haque and another etc. Mohd.

Abu Bakar Siddique Molla v. Laisal Haque and others1

2. Deepak Kumar v. State of Karnataka2

3. Dwarka Das and others v. State of Haryana3

9. On the other hand, the learned Assistant Public Prosecutor

representing the respondent/State supported the impugned

judgment and would submit that there is nothing to interfere with

the impugned judgment for this Court by exercising Revisional

jurisdiction under Sections 397 and 401 of Cr.P.C.

10. In view of the above submissions, the point that arises for

determination in this Criminal Revision Case is as follows:

1989 CRI.L.J.865

2004 CRI.L.J.1316

2003 CRI.L.J.414

Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008

"Whether the judgment, dated 16.07.2008, passed in Criminal Appeal No.30 of 2007 by the I Additional Metropolitan Sessions Judge, Hyderabad, is illegal, improper or irregular and is liable to be side aside by exercising power under Sections 397 and 401 of Cr.P.C.?

POINT:-

11. I have given thoughtful consideration to the above rival

submissions and meticulously gone through entire material on

record. This Court is aware of the settled legal position that this

Court, in exercise of its Revisional jurisdiction under Sections 397

and 401 of Cr.P.C., cannot interfere with the concurrent findings of

fact recorded by the Courts below, unless they are perverse or

arrived at ignoring material evidence. Further, the Revisional

power of this Court under Sections 397 and 401 of Cr.P.C., cannot

be equated with that of an appeal. But however, when the

decision of the Court below is perverse or untenable in law or

grossly erroneous or glaringly unreasonable or based on no

material or where the material facts are wholly ignored or where

the judicial discretion is exercised arbitrarily or capriciously, this

Court can interfere with the said decision in exercise of its

Revisional jurisdiction. Section 401 of Cr.P.C. enables the High

Court to exercise all powers of appellate Court, if necessary, in aid

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of power of superintendence or supervision, as a part of Revisional

power. Section 397 of Cr.P.C. confers power on the High Court or

Sessions Court, as the case may be, for the purpose of satisfying

itself or himself as to the correctness, legality or propriety of any

finding sentence or order, recorded or passed, and as to the

regularity of any proceeding of such inferior court. Thus, a duty

rests on the High Court under Sections 397 and 401 of Cr.P.C. to

correct manifest illegality resulting in gross miscarriage of justice.

12. In the instant case, admittedly, the marriage between the

defacto complainant and the brother of the petitioner/A.1 took

place on 14.11.1999. On 19.11.2000, the husband of the defacto

complainant, who is the brother of the petitioner/A.1, filed a

private complaint under Section 200 of Cr.P.C. before the trial

Court. On 06.07.2001 a case was registered in Crime No.317 of

2001 for the offences under Sections 498A and 406 of IPC against

the petitioner/A.1 and A.2. After investigation, charge sheet was

filed before the trial Court on 30.07.2001 and the same was

numbered as C.C.No.193 of 2002. Thereafter, a charge was

framed against the petitioner/A.1 and A.2 for the offence under

Section 406 of IPC on 23.11.2004. The trial Court, vide judgment,

dated 18.12.2006, while acquitting the A.2, convicted the

petitioner/A.1 of the offence under Section 406 of IPC and

Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008

sentenced him to undergo rigorous imprisonment for a period of

one year and to pay a fine of Rs.3,000/-, in default, to undergo

simple imprisonment for a period of three months. Assailing the

same, the petitioner/A.1 filed the subject Criminal Appeal No.30 of

2007 before the Court below. Vide order, dated 16.07.2000, the

Court below had set aside the conviction and sentence recorded

against the petitioner/A.1 and remitted the matter to the trial

Court directing the petitioner/A.1 to appear before the trial Court

on 01.08.2008 and the trial Court was directed to frame

appropriate charges afresh in view of the directions given in the

appeal and dispose of the case on merits afresh by giving

opportunity to both parties to adduce evidence as early as

possible. Challenging the same, the petitioner/A.1 filed this

Criminal Revision Case. As rightly contended by the learned

counsel for the petitioner/A.1, though the charge against the

petitioner/A.1 and A.2 was framed on 23.11.2004, neither the

complainant nor the State had filed any petition against framing of

charge only under Section 406 of IPC against the petitioner/A.1

and A.2, meaning thereby that the charge had become final. A.2

in this case was acquitted by the trial Court and no appeal has

been preferred challenging the acquittal either by the State or by

the complainant, meaning thereby that the acquittal of A.2 had

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also became final and thus, setting aside the judgment of the trial

Court would amount to setting aside acquittal of A.2 also.

13. In Laisal Haque's case (1 supra) the Hon'ble Apex Court

held that there cannot be a piecemeal trial. Retrial of the case

must necessarily revise the prosecution and result in a trial

denovo; In the absence of appeal preferred by the State against

acquittal of an accused, the High Court could not, under Section

386(b) of Cr.P.C. on a appeal by the respondents against their

conviction, alter the acquittal nor can there be a splitting of trial.

14. Further, in the instant case, though the trial Court framed an

issue as to whether the prosecution has established the guilt of the

A.1, A.2, A.4 and A.5 for the offence under Section 498A of IPC

and Sections 4 and 6 of Dowry Prohibition Act beyond all

reasonable doubt, acquitted the A.2 of the offence under Section

406 of IPC and convicted and sentenced the petitioner/A.1 of the

offence under Section 406 of IPC. In similar circumstances, the

Hon'ble Apex Court, in Deepak Kumar's case (2 supra) held as

follows:

"The contention of the S.P.P. that accused could be convicted under Section 397, IPC in appeal by exercise of powers under Section 396, IPC is untenable against the acquittal of Accused 2 and partial acquittal of Accused-1 from the charge under Sections 394 and 397, IPC. There is

Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008

no appeal preferred by the State. Therefore the order of acquittal becomes conclusive and binding even though it is erroneous. In a case where there is a charge of commission of higher offence by the accused and conviction is rendered for lesser offence and for higher offence accused is acquitted in an appeal by an accused against the conviction, the State cannot argue for reversal or modification of the order of acquittal granted in respect of such of the offence without a specific appeal in that behalf. So also on the sentence without an appeal by the State against the sentence the appellate Court cannot alter the nature and extent of sentence so as to enhance the same. "

Thus, in the absence of any appeal preferred by the State, the

order of acquittal becomes conclusive and binding even though it is

erroneous. Further, in a case where there is a charge of

commission of higher offence by the accused and conviction is

rendered for lesser offence and for higher offence accused is

acquitted, in an appeal by accused against the conviction, the

State cannot argue for reversal or modification of the order of

acquittal granted in respect of such of the offence without a

specific appeal in that behalf. Further, in the absence of any

appeal by the State against the sentence, the Appellate Court

cannot alter the nature and extent of sentence, so as to enhance

the same.

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15. In Dwarka Das's case (3 supra), 20 people died by

consuming illicit country liquor. The Sessions Court therein, upon

appreciation of evidence convicted seller and vendor of illicit liquor

and acquitted others. Under those circumstances, the Hon'ble

Apex Court observed that the High Court was swayed away by the

nature of the incident and directed the State Government to file

appeal against the persons acquitted and accordingly set aside the

order of the High Court holding that the same is without

jurisdiction.

16. In the instance case, admittedly, no petition was filed either

by the complainant or by the State for framing of additional charge

under Section 498A of IPC by the trial Court even though the

charge was framed by the trial Court on 23.11.2004. Hence, in the

considered opinion of this Court, the Court below erred in directing

the trial Court to frame a charge under Section 498A of IPC.

Considering the totality of the circumstances, the Court below had

fallen in a grave error in remitting the matter to the trial Court to

frame appropriate charges afresh.

17. Now the question that requires answer is whether the

prosecution has proved the guilt of the petitioner/A.1 of the

offence under Section 406 of IPC?

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18. Section 406 of IPC reads as follows:

406. Punishment for criminal breach of trust.-Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extent to three years, or with fine, or with both.

The phrase "criminal breach of trust" is defined in Section

405 of IPC which reads as follows:

..."Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own USB that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust or willfully suffers any other person so to do commits 'criminal breach of trust'."

To prove the offence under Section 406 of IPC, the prosecution

shall prove (I). that the accused was entrusted with property or

with dominion over it (II) that he

(a) Misappropriated it, or

(b) Converted it to his own use, or

(c) Use it, or

(d) Dispose of it

19. In the instant case, there was no entrustment of property in

favour of the petitioner/A.1 by any one, which is a sine qua non for

the offence under Section 406 of IPC. It is essential that the

prosecution must prove first of all that the accused was entrusted

Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008

with same property or with any dominion or power over it. It has

to be established further that in respect of the property so

entrusted, there was dishonest misappropriation or disposal in

violation of a direction of law or by someone else which he willingly

suffered to it. So, it falls almost axiomatically from the defense of

Section 406 of IPC that the ownership or beneficial interest in the

property in respect of which criminal breach of trust is alleged to

have been committed, must be in some person other than the

accused and the later must hold at on account of some person or

in some way for his benefit. In the instant case, PWs.1 to 3 have

categorically stated in their evidence that the accused persons

returned of other things except Rs.1,25,000/- and gold. PW.1

further stated that she is in possession of 11 tulas of gold and the

accused persons have to give other 10 tulas of gold. Further, PW.1

has categorically stated in her cross-examination that she did not

give any complaint when the petitioner/A.1 broke open the

almirah. Further she categorically stated that her deceased

husband and the petitioner/A.1 executed pronote in favour of her

father and that she has not filed the said pronote. Under these

circumstances, there is no evidence to hold that the property

alleged to be misappropriated by the petitioner/A.1 was entrusted

to him, that he has dishonestly misappropriated the same or

Justice Juvvadi Sridevi Crl.R.C.No.1544 of 2008

converted the property to his own use or that while dishonestly

using or disposing of the same, caused any willful suffering to the

complainant. Hence this Court is of the considered opinion that

none of the ingredients of Section 406 of IPC are made out against

the petitioner/A.1. The petitioner/A.1 is entitled for benefit of

doubt and is liable to be acquitted of the offence under Section 406

of IPC. Viewed thus, the judgment under challenge suffers from

illegality, impropriety and irregularity warranting interference of

this Court by exercising power under Sections 397 and 401 of

Cr.P.C.

20. Accordingly, the Criminal Revision Case is allowed by setting

aside the judgment, dated 16.07.2008, passed in Criminal Appeal

No.30 of 2007 by the I Additional Metropolitan Sessions Judge,

Hyderabad. Consequently, the petitioner/A.1 is acquitted of the

offence under Section 406 of IPC. The bail bonds of the

petitioner/A.1 shall stand discharged. Fine amount, if any, paid by

the petitioner/A.1, shall be refunded to him.

Miscellaneous applications, if any, pending in this Criminal

Revision Case, shall stand disposed of in terms of this order.

________________ JUVVADI SRIDEVI, J 23rd March, 2023 Ksk