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2009 DIGILAW 751 (KAR)

G. N. Chandraiah v. State by Malebannur Police

2009-10-01

V.G.SABHAHIT

body2009
Judgment :- V.G. Sabhahit, J. This revision petition is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 by the appellant in Criminal Appeal No. 314 of 2005 on the file of the Additional District Judge, Fast Track Court (I), Davanagere, being aggrieved by the judgment dated 19-4-2006, wherein the learned Fast Tract Judge has dismissed the appeal and confirmed the judgment of conviction and sentence passed by the Court of Civil Judge (Junior Division) and Judicial Magistrate First Class, Harihar, in CC. No. 574 of 1999, dated 22-11-2005, convicting the accused-petitioner herein of having committed the offence punishable under Section 409 of the IPC and sentencing the accused to undergo simple imprisonment for three years and to pay a fine of Rs. 5,000/-and in default of payment of fine, undergo further simple imprisonment for six months, for the offence punishable under Section 409 of the Indian Penal Code, 1860. 2. The essential facts of the case leading upto this appeal re as follows:- 2.1 It is the case of the prosecution that the petitioner herein while working as Secretary of Vyavasaya Seva Sahakara Sangha (hereinafter to as ‘the VSSN Society’), Kadaranayakanahalli Village, Harihara Taluk, during the period from 30-6-1995 to 30-7-1996, in his capacity as a public servant, who had been entrusted with the work of the said society, including the Bank remittance and cash transactions has misappropriated a sum of Rs. 1,38,239.44 ps., in cash and stocks. As per the audit report for the year 1996-97, during the period from 30.6.1995 to 30.7.1996, the accused, as the Secretary of the Society, has misappropriated: Rs. 80,300/- towards sale of the fertilizers; green card wheat work Rs. 136; Butaclore insecticides worth about Rs. 1,632/-; Rs. 1854.40 ps. Towards kerosene; Rs. 507/- towards empty gunny bags; cash of Rs. 40,500/-; cash of Rs. 6,300/- without voucher on 24.5.1996; Rs. 2.000/- by showing the same as salary of the staff on 23.7.1996; Rs. 6,549/- by showing it as salary of the peon for the period from May 1996 to July 1996 and has used the said amounts for his personal use and thereby, has committed the offence punishable under Section 409 of the IPC. 2.2 After completing investigation, charge-sheet was filed against the accused. The accused pleaded not guilty to the charge framed against him. The prosecution examined P.Ws. 1 to 9 and got marked Exs. 2.2 After completing investigation, charge-sheet was filed against the accused. The accused pleaded not guilty to the charge framed against him. The prosecution examined P.Ws. 1 to 9 and got marked Exs. P.1 to P.27. The statement of the accused under Section 313 of the Criminal Procedure Code, 1973, was recorded. The defence of the accused is one of denial. The accused examined himself as D.W. 1 and he also examined D.W. 2 and got marked Exs. D. 1 to 9 and closed his side evidence. Learned Civil Judge (Junior Division) and Judicial Magistrate First Class, after hearing the learned Counsel appearing for the parties and after appreciating the oral and documentary evidence adduced by the prosecution and the accused, by his judgment dated 22.11.2005, held that the prosecution has proved beyond reasonable doubt that the accused while working as Secretary of the VSSN Society of Kadaranayakanahalli Village, has misappropriated Rs. 1,38,239.44 ps., during the year 1995-96 and thereby, has committed the offence punishable under Section of 409 of the IPC and accordingly, held that the prosecution has proved that the accused has committed the offence punishable under Section 409 of the IPC. Learned Judicial Magistrate First Class, after hearing the accused on the question of sentence, sentenced him to undergo simple imprisonment for three years and to pay a fine of Rs. 5,000/-and in default of payment of fine, to undergo simple imprisonment for three years and to pay a fine of Rs. 5,000/-and in default of payment of fine, to undergo further simple imprisonment for six months, for the offence punishable under Section 409 of the IPC. Being aggrieved by the said judgment of conviction and sentence passed by the Trial Court dated 22.11.2005, the accused-petitioner herein filed Criminal Appeal No. 314 of 2005 on the file of the Sessions Judge, Davanagere, which was made over to Additional Sessions Judge, Fast Tract Court-I, Davanagere, Fast Tract Judge, after re-appreciating the material on record, by judgment dated 19.4.2006, upheld the judgment of conviction and sentence passed by the Trial Court and accordingly, dismissed the appeal. Being aggrieved by the said order of the Additional Sessions and Fast Tract Judge dated 19.4.2006 dismissing the appeal and confirming the judgment of conviction and sentence passed by the Trial Court, the accused has preferred this revision petition. 3. Being aggrieved by the said order of the Additional Sessions and Fast Tract Judge dated 19.4.2006 dismissing the appeal and confirming the judgment of conviction and sentence passed by the Trial Court, the accused has preferred this revision petition. 3. I have heard the learned Counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent. 4. Learned Counsel appearing for the petitioner-accused submitted that the Courts below have not properly appreciated the oral and documentary evidence on record and the prosecution has miserably failed to prove that the accused has misappropriated the amounts as alleged by the prosecution. The evidence adduced by the prosecution does not prove beyond reasonable doubt that the accused has committed the offence punishable under Section 409 of the IPC and even assuming that the prosecution has proved the guilt of the accused for the said offence) the sentence imposed upon the petitioner is excessive and wherefore, the revision petition may be allowed and the petitioner-accused may be acquitted of the charge of having committed the offence punishable under Section 409 of the IPC. Learned Counsel further submitted that the Appellate Court has not all re-appreciated the evidence adduced before the Trial Court and hence, the judgment passed by the Appellate Court is unsustainable and the matter may be remitted to the Appellate Court. 5. Learned High Court Government Pleader appearing for the respondent-State submitted that the prosecution has proved beyond reasonable doubt that the petitioner-accused has committed the offence punishable under Section 409 of the IPC and the same has been confirmed by the Appellate Court and the sentence imposed upon the petitioner-accused cannot at all be said to be excessive, having regard to the proved misconduct of having committed the offence punishable under Section 409 of the IPC. Therefore, there is no merit in this revision and the revision petition is liable to be dismissed. 6. I have given careful consideration to the contentions of the learned Counsel appearing for the parties. Having regard to the contentions urged, the points that arise for determination in this appeal are: 1. Whether the finding of the First Appellate Court in Criminal Appeal No. 314 of 2005, disposed of on 19.4.2006, confirming the judgment of conviction and sentence passed by the Trial Court impugned in the appeal is justified or calls for interference in this revision petition? 2. What order? Whether the finding of the First Appellate Court in Criminal Appeal No. 314 of 2005, disposed of on 19.4.2006, confirming the judgment of conviction and sentence passed by the Trial Court impugned in the appeal is justified or calls for interference in this revision petition? 2. What order? I answer the above points for determination as follows:- Point No. 1: The judgment of conviction and sentence passed by the First Appellate Court in Criminal Appeal No. 314 of 2005, dated 19.4.2006 impugned in this revision is liable to be set aside and Criminal Appeal No. 314 of 2005 is liable to be restored and remitted to the First Appellate Court for fresh disposal in accordance with law. Point No. 2: As per the final order for the following: REASONS 7. Point Nos. 1 and 2: These points are considered together since they are interconnected and to avoid repetition. 8. Learned Counsel appearing for the petitioner has taken me through the evidence of P.Ws. 1 to 9 and the contents of the documents Exs. P. 1 to P. 27 and the evidence of the petitioner-accused, who is examined as D.W. 1 and his witness=-D.W. 2 and the contents of the documents Exs. D. 1 to D. 9. 9. I have given careful consideration to the contentions of the learned Counsel appearing for the petitioner and the learned. High Curt Government Pleader appearing for the respondent and scrutinised the material on record. 10. The material on record would clearly show that the Additional Sessions Judge, Fast Tract Court-I, Davanagere, before whom, Criminal Appeal No 314 of 2005 was filed being aggrieved by the judgment of conviction and sentence passed by the Trial Court in C.C. No. 574 of 1999, dated 22.11.2005 was duty-bound to consider the appeal in accordance with law. It is well-settled that the First Appellate Court, in a criminal appeal, is required to re-appreciate the oral and documentary evidence adduced before the Trial Court. It is well-settled that the First Appellate Court, in a criminal appeal, is required to re-appreciate the oral and documentary evidence adduced before the Trial Court. However, perusal of the judgment of conviction and sentence passed by the First Appellate Court in the present case impugned in this revision would clearly show that the First Appellate Court has proceeded on the basis that the main question that would arise for determination in the appeal is as to whether the petitioner-accused was working as Secretary of the VSSN Society from 1.4.1996 to 31.3.1997 and as to whether he has misappropriated the amount of Rs. 1,38,239.44 ps., during the said period as alleged by the prosecution. The First Appellate Court has proceeded on the basis that if the prosecution is able to prove that the petitioner-accused was working as Secretary and was entrusted with the duty of writing cash books and account books of the said society and had misappropriated the amount in discharge of his function during the said period, the same would prove the case of the prosecution. However, to arrive at the said finding as to whether the prosecution had proved beyond reasonable doubt the guilt of the accused of having committed the offence punishable under Section 409 of the IPC, the First Appellate Court ought to have considered the oral and documentary evidence adduced by the prosecution as also the defence in the present case. On behalf of the prosecution, witnesses-P.Ws. 1 to 9 have been examined and the documents-Exs. P. 1 to P. 27 have been got marked. The petitioner-accused has examined himself as D.W. 1 and he has also examined D.W. 2 and got marked Exs. D. 1 to D. 9. It is clear from a perusal of the judgment passed by the First Appellate Court that apart from mentioning the number of witnesses, the evidence of witnesses adduced by the prosecution or the accused has not been considered by referring to their evidence in examination-in-chief and their cross-examination. The First Appellate Court seems to have been swayed by the fact that P.W. 2-Auditor has narrated in detail in 8 pages about the details of the misappropriation of the amounts of the petitioner-accused and the Trial Court has accepted the said evidence and there is no reason to interfere with the said finding. The First Appellate Court seems to have been swayed by the fact that P.W. 2-Auditor has narrated in detail in 8 pages about the details of the misappropriation of the amounts of the petitioner-accused and the Trial Court has accepted the said evidence and there is no reason to interfere with the said finding. Apart from stating that P.W. 2 has given detailed evidence regarding the misappropriation committed by the petitioner-accused, the First Appellate Court has not even chosen to refer to the evidence of P.W. 1 regarding the facts spoken to by him in the examination-in-chief regarding the various items of misappropriation alleged against the petitioner-accused in order to appreciate the said evidence in the light of the facts elicited in the cross-examination of P.W. 2. P.W. 2 is the Auditor, who audited the accounts of the VSSN Society, in which the petitioner-accused was working as Secretary. The First Appellate Court has proceeded on the basis that the evidence of P.W. 5, who has narrated the facts of misappropriation committed by the petitioner-accused in the examination-in-chief, cannot be thrown to winds because of the fact that he could not be cross-examined as he expired after his examination-in-chief before the Trial Court. The prosecution is mainly relying on the evidence of P.Ws. 2 and 5 to bring home the guilt of the accused along with the documents produced by the said witnesses. The evidence of the other witnesses is not of much help to the prosecution to prove the guilt of the accused only if the evidence of P.Ws.2 and 5 is held to be truthful and reliable so as to bring home the guilt of the accused and if the evidence of P.Ws. 2 and 5 is not held be truthful and reliable, the evidence of the other witnesses would assume importance. Therefore, it is clear that the First Appellate Court has failed to appreciate the evidence of P.Ws. 2 and 5 in proper perspective and the order passed by the First Appellate Court cannot at all be sustained. 2 and 5 is not held be truthful and reliable, the evidence of the other witnesses would assume importance. Therefore, it is clear that the First Appellate Court has failed to appreciate the evidence of P.Ws. 2 and 5 in proper perspective and the order passed by the First Appellate Court cannot at all be sustained. This Court in exercise of its revisional power, cannot re-appreciate the evidence and it is but, appropriate that the matter is remitted to the First Appellate Court for passing fresh orders in the appeal in accordance with law, after re-appreciating the oral and documentary evidence adduced by the prosecution and the petitioner accused before the Trial Court and to find out as to whether the judgment of conviction and sentence passed by the Trial Court against the petitioner-accused is justified and also to find out as to whether the sentence imposed upon the petitioner-accused is proportionate to the proved facts. Accordingly, I answer the points for determination and pass the following order. The criminal revision petition is allowed in part. The judgment passed by the Additional Sessions Judge, Fast Track Court-I, Davanagere, in Criminal Appeal No. 314 of 2005, dated 19-4-2006 is set aside and Criminal Appeal No. 314 of 2005 is restored and remitted to the file of the Additional Sessions Judge, Fast Tract Court-I, Davanagere, for fresh disposal in accordance with law in the light of the observations made in the body of this order. Let Lower Court records be transmitted to the First Appellate Court forthwith.