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2010 DIGILAW 660 (AP)

Parvathaneni Karunakar v. D. V. Suresh

2010-07-23

B.N.RAO NALLA

body2010
JUDGMENT :- This criminal appeal is preferred against the judgment dated 7.2.2006 delivered in CC No.13 of 2002 whereby the learned Judicial Magistrate of First Class for Special Mobile Court, Nellore, acquitted respondent Nos.1 to 3 - accused of the offences punishable under Sections 506(2), 452 and 323 IPC. 2. The case of the appellant - de facto complainant, in brief is that he owns a jewellery shop at Giddangi Street, Nellore, and he is running it by taking loans from other jewellery shop owners, banks and other financiers like A1 to A3 and repay the dues promptly. Now, the complainant has fallen due some amount to A1 to A3 and he could not repay it due to financial crisis. While so, on 12.10.1998, at about 10.00 p.m., when the complainant and his brother - PW4 were closing their shop, A1 to A3 with 10 other gundas and rowdies, being armed with deadly weapons like iron rods, etc., raided the shop, attacked the complainant and his brother, beat them with hands and kicked them, and in spite Lws.3 and 4, who are the employees working in the jewellery shop, tried to rescue them, the accused forcibly snatched away the bunch of keys from the complainant stating that they would kill him and his brother if they do not repay their due amount and also get their shop transferred in their name. After the incident, the complainant lodged a complaint with the police. As no action was taken by the police, the complainant filed a private complaint before II Additional Judicial Magistrate of First Class, Nellore. 3. To substantiate the case of the complainant, he examined PWs.1 to 6 and got marked Exs.P1 to P7. The accused examined OWs.1 to 3 and got marked Exs.01 to 03 on his behalf. 4. The learned Judicial Magistrate of First Class for Special Mobile Magistrate, Nellore, after appreciating the evidence, both oral and documentary, acquitted the accused of the offence punishable under Sections 506(2), 452 and 323 IPC vide judgment dated 7.2.2006. Aggrieved by the same, the de facto complainant filed the present criminal appeal. 5. PW 1 is none other than the de facto complainant. He deposed that he has been running Chinni Jewellery Shop at Giddangi Street, Nellore since 1995. Aggrieved by the same, the de facto complainant filed the present criminal appeal. 5. PW 1 is none other than the de facto complainant. He deposed that he has been running Chinni Jewellery Shop at Giddangi Street, Nellore since 1995. A1 and A2 are also running similar jewellery shops in the name and style "Satya Jewellers" opposite to his shop and PW1 would often raise loans from A1 to A3 and repay the same. Once he borrowed a sum of Rs.1,00,000/- from A1 and A2 by executing a promissory note. On his failure to repay the amount, A1 to A3 entered his jewellery shop on the fateful day at about 10.00 p.m. along with 10 goondas, created havoc and beat him and his brother - PW 4 abusing them in vulgar language. They locked the shop and took away the keys of his shop from him. There was a stock of gold jewellery worth about Rs.6.00 lakhs and interior decoration along with A.C. Machine worth Rs.2.00 lakhs. He further deposed that since the police failed to initiate action against the accused on the complaint, he filed a private complaint - EX.P1 before the Court of II Additional Judicial Magistrate of First Class, Nellore and the same was numbered as CC No.287 of 2000. 6. PW2, who worked in PW1's jewellery shop in 1998, deposed that on 12.10.1998, at about 9.45 or 10.00 p.m., A1 to A3 went to the shop of PW 1, pulled the keys from PW1, closed the shutters, locked the shop and went away and he did not know what happened thereafter. 7. PW3, customer of PW 1, who is alleged to be present in the shop at the time of the incident, deposed that when he came to the shop to purchase a bracelet he saw the accused, and some galata was going on at the shop, and three persons beat PW 1, took away keys from him, closed the shop and went away. He further deposed that he could identify the persons that were present in the Court as the accused. 8. PW 4 is none other than the brother of PW1. He deposed that he was also working along with his brother in the jewellery shop and he was present on the fateful day. He further deposed that he could identify the persons that were present in the Court as the accused. 8. PW 4 is none other than the brother of PW1. He deposed that he was also working along with his brother in the jewellery shop and he was present on the fateful day. He deposed that as they borrowed Rs.l.00 lakh from the accused, but could not repay the amount immediately, as such, the accused along with ten other goondas, armed with iron rods and chain, came to their shop in a drunken, state and forcibly took away the keys from PW1. Al beat him and his brother - PW1. PWs.2, 5, one Nazir Basha. Rasheed and PW3 - K. Vidya Sagar consoled them. When himself and PW1 requested the accused to return the keys of the shop, they did not do so, but demanded repayment of the loan amount. Then, PW4 along with PW1 went to III Town Crime Police Station and lodged a complaint, but as the police did not initiate any action, they approached the Superintendent of Police, thereafter, Additional Superintendent of Police. Inasmuch as there was no action on the part of the police, they filed a private complaint before the Court of law. 9. PW5, who is the proprietor of a Driving School at Nellore, deposed that PW2 is his brother, who worked as a Clerk in the jewellery shop of PW1 from 1997 to 1999. He further deposed that when he came to pick up his brother - PW2 home from the shop, he was not present in the shop and he found a gathering in front of the shop wherein the complainant and his brother were requesting the accused to return the keys, but the accused were abusing them. 10. PW6, the Branch Manager of Karur Vishya Bank was examined to show that PW1 was running the jewellery shop. He deposed that prior to the alleged incident, once PW1 raised a loan of Rs.2,50000/from the Bank towards working capital for jewellery shop. According to him, the jewellery shop of PW1 was in existence for a period of six months. Thereafter, it was closed by the time a suit in as No.10 of 2000 for recovery of Rs.2,50,000/- was filed. 11. DW1 is the proprietor of Janaki Pawn Brokers in Giddangivari Street, Nellore. According to him, the jewellery shop of PW1 was in existence for a period of six months. Thereafter, it was closed by the time a suit in as No.10 of 2000 for recovery of Rs.2,50,000/- was filed. 11. DW1 is the proprietor of Janaki Pawn Brokers in Giddangivari Street, Nellore. He stated that the jewellery shop of PW 1 is located to the left side of his shop. PW1 closed his shop due to dearth of funds since 1998. Normally, gold shops at Nellore work between 10.30 a.m. & 08.30 p.m., and to his knowledge, on the fateful day at 10.00 p.m., no alleged incident took place between PW1 and the accused. Even in cross-examination, this witness stated that PW 1 closed his jewellery shop in or about March or April, 1998, and he did not know about any attack on PW1 by the accused in October, 1998. 12. DW2 is also the proprietor of another gold shop. His father is a Pawn Broker in Giddangivari Street, Ne11ore. He deposed that the shop of PW1 is situated opposite to his shop. PW1's shop remained closed from 1996 to 1998 on account of the fact that he suffered heavy loss in business. PW1 did not open the shop after 1998. No alleged incident took place between PW1 and the accused in October, 199R at the shop of PW1. In cross-examination, he stated that he has business dealings with A2 and their shops are generally closed between 08.30 p.m. and 9.00 p.m. He used to purchase gold from A2. He did not know about any incident between PW 1 and the accused. 13. DW3 is the proprietor of Sri Nirmala Dharma Kanta in Giddangivari Street. He stated that he knew both the complainant and the accused and the complainant runs a gold shop opposite to his shop. According to this witness, PW1, though opened his jewellery shop in 1996, 'closed it in the month of March of April, 1998 due to financial problems. According to him, no galata took place between the complainant and the accused party. He further deposed that all the accused are good and respectable people, and he did not see the accused asking the complainant for repayment of money nor did he see the accused going to the shop of the complainant at any time. 14. According to him, no galata took place between the complainant and the accused party. He further deposed that all the accused are good and respectable people, and he did not see the accused asking the complainant for repayment of money nor did he see the accused going to the shop of the complainant at any time. 14. The learned Counsel for the appellant-de facto complainant submits that as PW1 could not repay the loan amount due to the accused due to financial problems, Al to A3, having grudge against PW1, and due to business rivalry since the jewellery shop of PW1 was the only air-conditioned shop in that area, entered the, shop along with 10 others, being armed with weapons, threatened him and his brother (PW4) in the presence of staff, beat them demanding repayment of the loan amount, took away the keys of the shop from PW 1 and closed the shop. He further submits that PW3, a customer, came to the shop to order a bracelet and PWs.2, 4, 5 are the eye-witnesses to the incident. Therefore, he contended that even though there is sufficient evidence to warrant conviction to respondents-A1 to A3, the trial Court committed an error in acquitting them of the charged offences punishable under Sections 506(2), 452 and 323 IPC, as such, the impugned judgment of acquittal passed by the trial Court is liable to be set aside. 15. Per contra, the learned Counsel appearing for the accused-respondent Nos.1 to 3 argued at length and contended that the judgment of the trial Court is perfectly justified and needs no interference. In support of his arguments, he relied on a decision reported in K. Chinnaswamy Reddy v. State of A.P. and another, AIR 1962 SC 1788 , wherein it is held that: "It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should, in our opinion, be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not, convert the finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may, however, indicate some cases of this kind which would, in our opinion, justify the High Court in interfering with a finding of acquittal in revision. These cases may be; where the trial Court has no jurisdiction to by the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wished to produce or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be admissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4). We have, therefore. We have, therefore. to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles." This view was contim1ed by the Supreme Court in another judgment reported in Vimal Singh v. Khuman Singh and another, 1998 (2) ALD (Crl.) 857 (SC) = AIR 1998 SC 3380 , wherein it is held thus: "Coming to the ambit of power of High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial Court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial Court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial Court has no jurisdiction to try the case or where the trial Court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue have been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Subsection (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. In fact, sub-section (3) of Section 401 of the Code forbids the High Court in converting the order of acquittal into one of conviction. In view of the limitation on the revisional power of the High Court, the High Court in the present case conm1itted manifest illegality in convicting the appellant under Section 304, Part-1 and sentencing him to seven years' rigorous imprisonment after setting aside the order of acquittal." 16. In view of the limitation on the revisional power of the High Court, the High Court in the present case conm1itted manifest illegality in convicting the appellant under Section 304, Part-1 and sentencing him to seven years' rigorous imprisonment after setting aside the order of acquittal." 16. The learned Counsel further relied on a judgment rendered by the Supreme Court reported in Arulvelu and another v. State. rep. by the Public Prosecutor and another, 2009 (2) ALD (Crl.) 784 (SC) = (2009) 10 SCC 206 , wherein it is held as follows: "The real question which falls for our consideration is whether the view which has been taken by the trial Court was a possible or a plausible view. We have carefully perused the judgment of the trial Court and the impugned judgment of the High Court. The trial Court very minutely examined the entire evidence and all documents and exhibits on record. The trial Courts analysis of evidence also seems to be correct. The trial Court has not deviated from the normal norms or methods of evaluation of the evidence. By no stretch of imagination can we hold that the judgment of the trial Court is based on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it and consequently, the judgment of the trial Court is perverse. We also fail to arrive at the conclusion that the discussion and appreciation of the evidence of the trial Court so outrageously defies logic as to suffer from the vice of irrationality including the blame of being perverse and the findings rendered by the trial Court are against the weight of evidence. The law is well settled that in an appeal against acquittal, unless the judgment of the trial Court is perverse, the appellate Court would not be justified in substituting its own view and reversing the judgment of acquittal. The expression "perverse" has been dealt with in a number of cases. In Gaya Din v. Hunuman Prasad, (2001) 1 SCC 501 , this Court observed that the expression "perverse" means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity. In Parry’s (Calcutta) Employees' Union v. Parry & Co. In Gaya Din v. Hunuman Prasad, (2001) 1 SCC 501 , this Court observed that the expression "perverse" means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity. In Parry’s (Calcutta) Employees' Union v. Parry & Co. Ltd., AIR 1992 SC 979 = (1992) 2 SCC 177 , the Court observed that "perverse finding" means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In another case, the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings. Unquestionably, the appellate Court has power to review and re-appreciate the entire evidence on record. The appellate Court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial Court is found to be a perverse judgment. Interfering in a routine manner, where other view is possible is' contrary to the settled legal position crystallised by the aforementioned judgments of this Court. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial Court. The trial Court's acquittal bolsters the presumption that he is innocent. This fundamental principle must be kept in view while dealing with the judgments of acquittal passed by the trial Court." 17. Heard the learned Counsel for the appellant, the leanred Counsel for respondent Nos.1 to 3 - accused, the learned Assistant Public Prosecutor appearing for the 4th respondent-State and perused the material placed on record. 18. Even though PW s.1 and 4 stated in their evidence that on the fateful day at 10.00 p.m., respondents - A1 to A3, being arn1ed with iron rods and chains, along with 10 gundas, entered their shop, abused and assaulted PW 1, but there is no material on record to show that any of the complainant party suffered or received injuries at the hands of the accused. PW2, who worked in the shop of PW1 as Clerk, did not speak of any galata or incident between the complainant and the accused-party and clearly stated that no one was beaten by the accused. PW3, who is one of the customers of PW1, evidenced that he did not remember the name of PW1 shop correctly. If really, he was a customer and friend of PW1, he could have certainly remembered the name of the shop of PW1 correctly. PW3 only referred to A1 to A3 entering the shop, but did not refer to ten gundas as depicted in the prosecution case. The evidence of PW s.1, 3 and 4, to this extent, appears to be contradictory. Further, the story of PW3 that he had been to the jewellery shop of PW1 at 10.00 p.m. on the fateful day to order a bracelet does not appear to be probable since no ordinary prudent man would go to any jewellery shop to order such an ornament at odd time like 10.00 p.m. Therefore, it appears that PW3 is a planted witness whose evidence cannot be taken into consideration. Now, coming to the evidence of PW4, who is none other than the brother of PW1, he admitted having raised finance from Satya Finance Company, of which A1 to A3 are proprietors, and purchased a two-wheeler vehicle, and on his committing default in repaying the loan amount, the vehicle was to be seized by the financiers sensing which PW4 kept the vehicle at his uncle's house in Vijayawada to avoid such seizure. However, after due enquiry, the financiers traced the vehicle in Vijayawada and seized it. Therefore, it appears that out of grudge, PWs.1 and 4 got foisted this false case against the respondent-accused. It is to be seen from the evidence of PW 1 that even though he had raised a loan of Rs.l.00 lakh from the respondent-accused on the foot of promissory note, no material is brought on record to show that such promissory note was executed by PW1 in favour of A1 to A3. It emerges from the evidence of PW6, Branch Manager of Karur Vysys Bank, Nellore, that PW1 had also raised a loan of Rs.2,50,000/- from that bank and on his committing default in repayment of loan, OS No.10 of 2000 was filed before the Senior Civil Judge, Kavali. It emerges from the evidence of PW6, Branch Manager of Karur Vysys Bank, Nellore, that PW1 had also raised a loan of Rs.2,50,000/- from that bank and on his committing default in repayment of loan, OS No.10 of 2000 was filed before the Senior Civil Judge, Kavali. The cross-examination of PW 6 is to the effect that PW 1 is in the habit of raising loans and committing default even in payment of rent. PW5, who is the brother of PW2 and stated to have gone to• the shop of PW1 to pick up PW2 home, deposed that PW1 was not present in the shop at the time of the incident. Therefore, the evidence of PW2 that he was an eyewitness to the incident has no legs to stand. Since there are contradictions in the evidence of PWs.1 to 5, their evidence is not trustworthy and this Court has no scope to interfere with the impugned judgment since it does not suffer from any infirmity, illegality or perversity. 19. Coming to the evidence of the defence witnesses, the learned Counsel for the respondent-accused contended that DW s.1 to 3 categorically stated that even though PW1 opened his shop at Giddangivari Street, Nellore, he closed it much prior to the alleged incident on 10.12.1998 due to financial problems. 20. Moreover, inasmuch as it is a well established principle that has been laid down in the above referred judgments that only if there are substantial and compelling reasons and when the judgment of the trialCow1 is found to be a perverse judgment, then only the appellate Court would be justified in reversing the judgment of acquittal, this Court, after careful analysis of the facts and evidence placed on record, is of the considered opinion that the trial Court very minutely examined the entire evidence and documents on record, and its analysis of evidence seems to be correct. The trial Court has not deviated from the normal norms or methods of evaluation of the evidence. Therefore, by no stretch of imagination can this Court hold that the judgment of the trial Court is based on no evidence or evidence, which is thoroughly unreliable. 21. Hence, in the above facts and circumstances of the case, it cannot be said that the trial Cow1 committed any error or irregularity or that the finding of the trial Court is perverse and not properly reasoned. 21. Hence, in the above facts and circumstances of the case, it cannot be said that the trial Cow1 committed any error or irregularity or that the finding of the trial Court is perverse and not properly reasoned. Therefore, the judgment of the trial Court is not liable to be interfered with. 22. In the result, the criminal appeal fails and the same is accordingly dismissed.