Research › Search › Judgment

Andhra High Court · body

2006 DIGILAW 1011 (AP)

VEERABHADRA RAO v. STATE OF A. P

2006-08-24

B.SESHASAYANA REDDY

body2006
( 1 ) DE facto complainant Adduri Veerabhadra Rao in c. C. No. 4 of 2003 on the file of the Chief Judicial Magistrate-cum-Principal assistant Sessions Judge East Godavari, rajahmundry, has filed this criminal revision case aggrieved by the acquittal of the accused for the offences under sections 3, 4 and 5 of the Prize Chits and Money Circulation schemes (Banning) Act, 1978 (Central Act No. 43 of 1978) (for short the Act) and inadequate sentence for the offence under Section 420 IPC. ( 2 ) HEARD learned counsel appearing for the revision petitioner learned Additional Public Prosecutor appearing for the 1st respondent and learned counsel appearing for the 3rd respcndent-A-2, and perused the material brought on record. ( 3 ) LEA ned counsel for the 3rd respondent has raised preliminary objection with regard to maintainability of the revision at the instance of de facto complainant in a case instituted on a police report. Reliance has been placed on the decision of the Supreme Court in Kishan Swaroop V. Govt. of NCT of Delhi, 1998 Crl L J 409 In the cited case the question came up for consideration was whether the de facto complainant was required to obtain permission from the publjc Prosecutor to file appeal/revision against acquittal. The Supreme Court after referring the earlier judgment in k. Chinnaswamy Reddy v. State of Andhra Pradesh - AIR 1962 S. C. 1788 held that no such permission is necessary from the Public Prosecutor. ( 4 ) A similar question as to the maintainability of the revision at the instance of complainant came up for consideration in K. Pandu Rangan v. S. S. R. Veluswamy, 2003 A. I. R. SCW 4712 wherein the Supreme Court held that revision under Section 401 of Criminal Procedure Code at the instance of complainan is maintainable. Para. 6 of the judgment cited needs to be noted and it is as under: so far as the first question as to the maintainability of the revision at the instance of the complainant is concerned, we think the said argument has only to be noted to be rejected. Para. 6 of the judgment cited needs to be noted and it is as under: so far as the first question as to the maintainability of the revision at the instance of the complainant is concerned, we think the said argument has only to be noted to be rejected. Under the provisions of Code of Criminal Procedure, 1973, the Court has suo motu power of revision, if that be so, the question of the same being invoked at the instance of an outsider would not make any difference because ultimately it is the power of revision which is already vested with the High court statutorily that is being exercised by the High court. Therefore, whether the same is done by itself or at the instance of a third party will not affect such power of the High Court. In this regard, we may note the following judgment of this Court in the case of Nadir Khan v. The state (Delhi Administration), ( AIR 1976 SC 2205 ). 1976 cri LJ 1721" in view of the settled proposition of law, the preliminary objection raised by the counsel for 3rd respondent stands rejectee. ( 5 ) RESPONDENTS 2 and 3 herein, who are A-1 and A-2, were put on trial before the Chief Judicial Magistrate-cum-Principai Assistant Sessions Judge, East Godavari, rajahmundry, for the offences under Section 420 IPC under sections 3, 4 and 5 of the Act. The accusation made against the accused, who are respondents 2 and 3 herein, is that they started the chit fund and chit finance business in the name and style of Tax chits and Yax finance in rajahmundry and they collected amounts from the members of the chit from the year 1986 to 2001 and later filed insolvency petition being I. P. No. 15 of 2001 on the file of the Principal Senior Civil Judge, Rajahmundry. The further accusation made against them is that they collected various amounts from de facto complainant Adduri veerabhadra Rao. When the de facto complainant approached the accused for payment of the amounts, they evaded to pay the amounts and thereby they misappropriated the amounts for their personal gains. ( 6 ) TO substantiate the accusations levelled against the respondents 2 and 3-accused, prosecution examined 8 witnesses as PWs. 1 to 8 and exhibited 50 documents as exs. P1 to P50. ( 6 ) TO substantiate the accusations levelled against the respondents 2 and 3-accused, prosecution examined 8 witnesses as PWs. 1 to 8 and exhibited 50 documents as exs. P1 to P50. On behalf of the accused, they marked 6 documents as Exs. Dl to D6. ( 7 ) THE Chief Judicial Magistrate-cum-Principal Assistant sessions Jidge, Rajahmundry, on considering the evidence brought on record and on hearing the prosecution and the accused, fcund the accused guilty of the offence under section 42) IPC and convicted them accordingly and sentenced each of them to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000. 00, in default, to suffer simple imprisonment for a period of three months. However, the learned Chief Judicial Magistrate found the accused not guilty of the offences under Sections 3, 4 and 5 of the Act, and accordingly, acquitted them of the same. Assailing the acquittal of the respondents 2 and 3-accused for the offences under Sections 3, 4 and 5 of the act as well as inadequacy of the sentence imposed on them for the offence under Section 420 IPC, the de facto complainant, who has been examined as PW. l, has filed this criminal revision case. ( 8 ) SECTION 3 of the Act reads that no person shall promote or conduct any prize chit or money circulation scheme, or enroll as a member to any such chit or scheme, or participate in it otherwise, or receive or remit any money in pursuance of such chit or scheme. Section 4 of the Act deals with penalty for contravention of the provisions of section 3, and Section 5 of the Act deals with penalty for other offences in connection with prize chits or money circulation schemes. ( 9 ) THE trial Court, on thorough appreciation of the evidence brought on record, came to the conclusion that the evidence of the de facto complainant-PW. 1 with regard to the ofiering prizes to the customers by the respondents 2 and 3-accused is an improvement over his complaint as well as his statement before the police, and therefore, refused to place reliance on the testimony of PW. l on the aspect of the respondents 2 and 3 (accused) offering prizes. For better appreciation, it is relevant to refer paras. l on the aspect of the respondents 2 and 3 (accused) offering prizes. For better appreciation, it is relevant to refer paras. 32 and 33 of the judgment of the trial Court and they read as under: "32. On the other hand, the learned counsel for accused 1 and 2 submits that the ingredients under sections 3, 4 and 5 of Prize, Chits, Money Circulation schema (Banning) Act, 1978 are not applicable to the case of! hand as either in 161 Cr. P. C. statements or in the f. I. R. , prosecution side witnesses did not disclose the fact that accused promised them to give any prizes, at the time of chit transaction, therefore, accused are not guilty for the iffence under Sections 3, 4 and 5 of the said Act. 33. Undoubtedly, as seen from Ex. P1 or 161 cr. P. C. statements of witnesses, there is no whisper about the accused offering prizes to their customers to promote their business. Even in Ex. P1, there is no whisper that they would provide prizes to promote their business. Even the I. O. , PW8 who was examined categorically stated in his cross examination that none of the witnesses stated before him at the time of recording statements, that accused promised to pay prizes etc. , to their customers. Surprisingly, PW1 stated during the course of evidence that accused offered prizes during the course of their business to their customers. But the said fact was not mentioned in 161 Cr. P. C. statement or in f. I. R. Therefore, it is a clear omission and the said omission can be treated as contradiction. Therefore, when there is no material on this aspect, that is either from Ex. P49 FIR or from 161 Cr. P. C. statement or other witnesses except PW1, deposed about the offering of prizes by "he accused, I have no hesitation to come to the conclusior that the prosecution failed to prove the offence under Section 3 of prize, chits and money circulation scheme (E. anning) Act, 1978. Therefore, the accused are not found guilty for the offence under Sections 3, 4 and 5 of prize, chits, money circulation scheme (Banning) Act, 1978. " the trial Court by giving cogent and convincing reasons rejected the evidence of PW. l so far as the respondents 2 and 3 accused offering prizes to the customers. Therefore, the accused are not found guilty for the offence under Sections 3, 4 and 5 of prize, chits, money circulation scheme (Banning) Act, 1978. " the trial Court by giving cogent and convincing reasons rejected the evidence of PW. l so far as the respondents 2 and 3 accused offering prizes to the customers. Therefore, i do not see any valid ground to interfere with the finding of the trial Court on this aspect. With regard to the adequacy of sentence for the offence under Section 420 IPC, the trial court has taken into consideration the plea of both the accused and proceeded to impose sentence of rigorous imprisonment for a period of two years each and to pay a fire of Rs. 1,000. 00, in default, to suffer simple imprisonment for a period of three months each. In the circumstances of the case, the quantum of sentence imposed on the respondents 2 and 3-accused for the offence under Section 420 IPC is just and proper. I made myself clear that the validity of the conviction of the respondents 2 and 3-accused for the offence under Section 420 IPC is not e amined in this revision, since the appeal filed by them is slated to be pending before the learned Sessions Judge, rajahmundry. Accordingly, this criminal revision case is dismissed.