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2022 DIGILAW 1299 (AP)

Maddala Dhanalakshmi v. State of Andhra Pradesh

2022-11-16

A.V.RAVINDRA BABU

body2022
ORDER : 1. This Criminal Revision Case came to be filed under Sections 397 and 401 of the Code of Criminal Procedure, 1972 (for short ‘the Cr.P.C.’) by the petitioner herein, who was the appellant in Criminal Appeal No. 358 of 2006, on the file of the Court of XI Additional District and Sessions Judge (Fast Track Court), Guntur at Tenali (for short ‘the learned Additional Sessions Judge’) challenging the judgment, dated 14.11.2008; where under the learned Additional Sessions Judge, allowed the Criminal Appeal in part, filed by the petitioner, setting aside the conviction imposed against the petitioner for the offence under Section 419 of the Indian Penal Code, 1860 (for short ‘the IPC’) while confirming the conviction imposed under Section 420 IPC by the learned First Additional Munsif Magistrate, Tenali (for short ‘the trial Court’) in C.C. No. 158 of 2005, dated 07.08.2006. The petitioner faced trial in C.C. No. 158 of 2005 on the file of the Court of First Additional Munsif Magistrate, Tenali. The learned Magistrate found the petitioner guilty of the offences under Sections 419 as well as 420 IPC and accordingly convicted and sentenced her to suffer Simple Imprisonment for three months and to pay a fine of Rs. 500/- in default to suffer Simple Imprisonment for 15 days for the offence under Section 419 IPC and sentenced her to suffer Simple Imprisonment for six months and to pay a fine of Rs. 500/- in default to suffer Simple Imprisonment for 15 days for the offence under Section 420 IPC. Felt aggrieved of the same, the petitioner filed Criminal Appeal No. 358 of 2006 on the file of the Court of XI Additional District and Sessions Judge (Fast Track Court), Guntur at Tenali and the learned Additional Sessions Judge allowed the Criminal Appeal in part, as above. Aggrieved of the same, the petitioner filed this Criminal Revision Case. 2. The parties to this Criminal Revision Case will hereinafter be referred to as described before the trial Court, for the sake of convenience. 3. The State represented by Station House Officer, Tenali II Town Police Station, filed charge sheet in Crime No. 36 of 2005 for the offences under Sections 419 and 420 IPC alleging in substance that the accused is a housewife and resident of Lecturers Colony, Tenali. 3. The State represented by Station House Officer, Tenali II Town Police Station, filed charge sheet in Crime No. 36 of 2005 for the offences under Sections 419 and 420 IPC alleging in substance that the accused is a housewife and resident of Lecturers Colony, Tenali. On 28.03.2005 at about 08:00 P.M. she entered into the shop of LW-1 Chimakurthy Ramachandra Rao and introduced herself that she is the Vigilance Officer from Hyderabad and wanted to check the stocks and records of his shop. She demanded him to give some items at free of cost saying that she would leave the shop without checking else she would call for office squad by phone and will arrest him by issuing Non Bailable Warrant. Then, LW-1 gave the goods demanded by her from his shop. At that time, LW-2 Grandhi Chandramouleeswara Rao, went to the shop of LW-1 and learnt about the version of the accused from LW-1 and questioned her about her particulars. The accused told her name, husband name and caste and abruptly went away from the shop of LW-1 by taking the items along with her, without paying for the same. So, LW-1 suspecting the behaviour of the accused telephoned to the Police. By the time the Police went to the shop of LW-1, accused went to Sri Rameswaraswamy temple and informed LW-6 Nagabhairava Saibabu, Executive Officer, that she is Vigilance Officer and asked him to arrange for pooja. LW-6 believed the version of the accused and arranged for pooja. Accused also went to the shop of LW-3 Kaminahalli Ramaswami Aiyangar Janardhan and demanded for some bakery items to her for free of cost, after informing him that she is the Vigilance Officer. In the meantime, LW-7 S.V. Rajasekhar Reddy, Sub-Inspector of Police, II Town Police Station, Tenali after receipt of information from LW-1 went to the shop of LW-1 and on his information, took the accused into his custody at the shop of LW-3. On the same day at 10:00 P.M. LW-1 appeared in Police Station and presented the report. LW-7, the Sub-Inspector of Police registered the aforesaid Crime on receiving report from LW-1 and, after completion of investigation, he filed charge-sheet. 4. On the same day at 10:00 P.M. LW-1 appeared in Police Station and presented the report. LW-7, the Sub-Inspector of Police registered the aforesaid Crime on receiving report from LW-1 and, after completion of investigation, he filed charge-sheet. 4. The learned Magistrate took the case on file for the offences under Sections 419 and 420 IPC and, after appearance of the accused and after completing the formalities under Section 207 Cr.P.C. subjected her to examination under Section 239 Cr.P.C. She denied the allegations in the case of the prosecution. The learned Magistrate framed charges against the petitioner under Sections 419 and 420 IPC, read over and explained to her in Telugu, for which she pleaded not guilty and claimed to be tried. 5. During course of trial, on behalf of the prosecution, to prove the guilt of the accused, PWs. 1 to 7 were examined and Exs.P-1 to P-9 and MOs.1 to 5 were marked. After closure of the evidence of the prosecution, the accused was examined under Section 313 Cr.P.C and denied the incriminating circumstances and reported no evidence. 6. On hearing both sides and on considering the oral as well as documentary evidence on record, the learned Magistrate found the accused guilty of the charges under Sections 419 and 420 IPC and after questioning her about the quantum of sentence, sentenced her as above. 7. Aggrieved of the same, the unsuccessful accused filed Criminal Appeal No. 358 of 2006 before the appellate Court and the learned Additional Sessions Judge, on hearing both sides and after considering the material available on record, allowed the Appeal in part setting aside the conviction under Section 419 IPC but confirming the conviction under Section 420 IPC. 8. Further aggrieved of the same, unsuccessful appellant in the Criminal Appeal filed the instant Criminal Revision Case challenging the judgment of the appellate Court. 9. Now, in deciding this Criminal Revision Case, the point that arises for consideration is whether the judgment, dated 14.11.2008, in Criminal Appeal No. 358 of 2006, passed by the learned Additional Sessions Judge suffers with any illegality, irregularity and impropriety and whether it is sustainable under law and facts? 10. 9. Now, in deciding this Criminal Revision Case, the point that arises for consideration is whether the judgment, dated 14.11.2008, in Criminal Appeal No. 358 of 2006, passed by the learned Additional Sessions Judge suffers with any illegality, irregularity and impropriety and whether it is sustainable under law and facts? 10. Sri M.S.P. Reddy, learned counsel, representing Sri Challa Srinivasa Reddy, learned counsel for the petitioner, would contend that the learned trial Judge convicted the petitioner under Sections 419 and 420 IPC without there being any evidence and the learned Additional Sessions Judge, allowed the Appeal in part only and confirmed the conviction and judgment of the trial Judge which is illegal. The Courts below relied upon the evidence of PW-7, who is the Investigating Officer. The prosecution failed to establish the ingredients of the offences alleged against the petitioner. The evidence of PW-7 has no support from independent sources. The evidence of PW-7 is interesting in nature and other witnesses did not support the case of the prosecution. The trial Court instead of acquitting but convicted the petitioner. PWs. 2 to 6 turned hostile and PW-1 failed to identify the accused. Hence, the judgments of the Courts below are not sustainable under law and facts as such the Criminal Revision Case is liable to be allowed. 11. Sri Y. Jagadeeswara Rao, learned counsel, representing learned Public Prosecutor, would contend that though some of the prosecution witnesses turned hostile but they supported the case of the prosecution to the extent that one lady claiming to be the Vigilance Officer unlawfully obtained items from the shops of PW-1 as well as other shops and it is a case where the accused was caught hold red-handedly by the Investigating Officer and the evidence of the Investigation Officer is consistent and believable and there is cogent evidence adduced before the trial Court by the prosecution to prove the guilt and there are no merits in the Revision, as such the Criminal Revision Case is liable to be dismissed. 12. 12. The substance of the case of the prosecution is that the petitioner went to the shop of PW-1 by introducing herself as the Vigilance Officer and expressed her intention to check the registers and stock and further demanded to part with some items so that she would not check the registers and stock as such she would let off the PW-1 and then PW-1 entertained a suspicion and telephoned to the Police and in the meantime the accused visited several shops and ultimately the Police came there and caught hold of her red-handedly. 13. For better appreciation, it is pertinent to look into Ex.P-1 report lodged by the PW-1 which reads in substance that he is running Vinayaka Metals Shop for the last three years and on 28.03.2005 evening at 08:00 P.M. one female person came there styling herself as Vigilance Officer from Hyderabad and that she wanted to verify the books of accounts for which he agreed and asked her to show the identify and then she told that she is on leave and she needs some items at free of cost and if it is done, she would leave otherwise the office squad would come and arrest him. In the meantime, one Grandhi Chandramouleeswari (LW-2) came there and he intimated the same to him. He questioned her and then she revealed her name as Maddala Dhanalakshmi W/o Venkateswara Rao and took away the articles worth Rs. 200/- and he revealed the same to the Sub-Inspector of Police. The Sub-Inspector of Police came there and took the accused into his custody. This is the substance of the case of the prosecution. 14. Coming to the evidence of PW-1, who is maker of Ex.P-1 report, he deposed to the effect that on 28.03.2005 at about 09:00 P.M. one lady came there stating that she is Vigilance Officer from Hyderabad and asked him to produce account books and cash before her. He asked her to produce the identity card then she stated that she is on leave and she did not bring identity card and that she needs some articles from his shop and if he gives them she will not inspect the shop and will leave him. Then he gave 4 articles to her worth Rs. 200/-. She did not disclose her name. LW-2 Grandhi Chandramouleeswara Rao came to the shop then. Then he gave 4 articles to her worth Rs. 200/-. She did not disclose her name. LW-2 Grandhi Chandramouleeswara Rao came to the shop then. LW-2 enquired her name and she stated that her name but he does not remember her name. She took the articles and went away from the shop. Then he followed her. She went to Sivalayam. After she went into the temple, Executive Officer of the Temple told him that the lady threatened him by saying that she is a Vigilance Officer. Again he followed her. She went to Bakery where she threatened the shop owner saying that she is the Vigilance Officer. The shop owners and surrounding people came there and telephoned to the Police. Then the Police took the accused to the Police Station. Later, other persons went to Police Station. He gave report to Police. Ex.P-1 is the said report. Police examined him and recorded his statement. He does not know the accused because he never saw her at any time. The prosecution sought to cross-examine him in respect of the identity of the accused and during the cross-examination he deposed that he does not remember whether he stated before the Police the name of the accused. He denied that he stated as in Ex.P-2 (161 Cr.P.C. statement of PW-1). 15. Coming to the evidence of PW-2, he knows PW-1. He does not remember whether he saw the accused or not. In the month of March, 2005 at 07:00 or 08:00 P.M. he went to the shop of PW-1 to purchase goods. Then PW-1 asked him by showing one lady, whether he knows her as Vigilance Officer. He stated that he does not know. Then he (PW-2) asked her about her details but she could not give the details and stated that she came to the shop to purchase and has taken some articles from the shop of PW-1 but he does not know whether she purchased or not. Later, she went away and along with her PW-1 followed. He came to know that the Police took her to the Police Station. Prosecution sought permission of the trial Court to cross-examine him as he did not speak the identity and during the course of cross-examination, he denied that she stated before Police as in Ex.P-3 (161 Cr.P.C. statement of PW-2). 16. He came to know that the Police took her to the Police Station. Prosecution sought permission of the trial Court to cross-examine him as he did not speak the identity and during the course of cross-examination, he denied that she stated before Police as in Ex.P-3 (161 Cr.P.C. statement of PW-2). 16. PW-3 turned hostile to the case of the prosecution totally and he does not know about the case filed against the accused. Accused never visited his shop. During cross-examination by the learned Assistant Public Prosecutor, Ex.P-4 (161 Cr.P.C. statement of PW-3) was marked. 17. PW-4 was the Executive Officer of Sri Rameswaraswamy Temple in Gangannammapet, Tenali. According to him, on 23.08.2005 at 08:30 P.M. he was in the office of the temple. One lady who is aged about 42 to 45 years came to him and stated that she is from Vigilance Department and wanted to perform pooja. Then he told her that the temple was closed but she insisted that she has to perform pooja. He stated that as he saw the said lady about one year ago, he cannot identify whether the accused is above lady or not. Prosecution cross-examined him as regards the identity and during cross-examination he denied that he stated as in Ex.P-5 (161 Cr.P.C. statement of PW-4). 18. Turning to the testimony of PW-5, about 5 or 6 months ago, he was called by owners of the shop beside his shop, who informed him that somebody came and took away the articles from the shop. He does not know the details. He did not see who came to the shop and he never saw the accused. The prosecution cross-examined PW-5 and during the cross-examination, he denied that he stated to police as in Ex.P-6 (161 Cr.P.C. statement of PW-5). 19. PW-6 totally turned hostile to the case of the prosecution. According to him, he never saw the accused. During the course of cross-examination by the learned Assistant Public Prosecutor, he denied that he stated before Police as in Ex.P-7 (161 Cr.P.C. statement of PW-6). 20. Coming to the evidence of PW-7-the Investigating Officer, on 28.03.2005 at about 09:15 P.M. he received a call from PW-1 informing that one lady claiming herself as Vigilance Officer demanded goods from his shop. Then he left the Police Station and went to the shop of PW-1. He enquired about the phone call and the lady. 20. Coming to the evidence of PW-7-the Investigating Officer, on 28.03.2005 at about 09:15 P.M. he received a call from PW-1 informing that one lady claiming herself as Vigilance Officer demanded goods from his shop. Then he left the Police Station and went to the shop of PW-1. He enquired about the phone call and the lady. PW-1 informed him that she went to the shop of PW-6. Then he went to that shop along with PW-1 and found the accused in that shop. She is in possession of cell phone and some other luggage. He asked her about her identity and she informed him that she is a Vigilance Officer working at Guntur. He asked for her identity card and she failed to produce the same and she informed that she did not bring it. On suspicion, he took her to the Police Station. At about 10:00 P.M. he kept under surveillance. In the meantime, PW-1 along with PWs. 2, 3, 5 and 6 came to the Police Station and PW-1 presented the report under Ex.P-1 and he registered it as a case in Crime No. 36 of 2005 for the offences under Sections 419 and 420 IPC and issued F.I.R. Ex.P-5 is the F.I.R. He examined PWs. 1 to 3, 5 and 6 during investigation, who stated before him as in Exs.P-2 to P-5. He further deposed that he interrogated the accused about her identity particulars and she admitted that she is a housewife and not the Vigilance Officer and her husband is working at C.T.O office at Vijayawada. He then arrested the accused at 11:45 P.M. He seized cell phone and other stolen articles which were collected from the shop of PW-1, which are MOs.2 to 5. He visited the shop of PW-1 on 29.03.2005, drafted rough sketch, Ex.P-9. He examined PW-4 and recorded his statement, who deposed as in Ex.P-5. After completion of investigation, he filed charge-sheet. During cross-examination, he deposed that he and another woman P.C. went to the shop of PW-1. It is a busy locality. He did not examine the purohith, who performed the pooja. He denied that he foisted a false case. 21. It is no doubt true that PW-1, for obvious reasons, did not specify the identity particulars of the accused and he did not identify the accused. It is a busy locality. He did not examine the purohith, who performed the pooja. He denied that he foisted a false case. 21. It is no doubt true that PW-1, for obvious reasons, did not specify the identity particulars of the accused and he did not identify the accused. There is no dispute that PW-1 lodged Ex.P-1, which discloses the name of the accused. So, it is crystal clear that though PW-1 supported the case of the prosecution to some extent but he deliberately omitted to identify the accused. Similar is the situation in respect of the evidence of PW-2. PW-3 totally turned hostile to the case of the prosecution. PW-4 supported the case of the prosecution to some extent and did not identify the accused. PW-5 did not support the case of the prosecution. PW-6 did not support the case of the prosecution. It is well settled that simply because some of the witnesses turned hostile to the case of the prosecution, case of the prosecution cannot be thrown out. It is well settled legal position that even the evidence of the hostile witnesses to the extent they supported the case of the prosecution can be relied upon. So, a look at the evidence of PWs. 1, 2 and 3 goes to reveal that in the month of March, 2005, one woman claiming to be a Vigilance Officer visited the shop of PW-1 and it was witnessed by PW-2 and she also visited the Temple, where PW-4 was working as Executive Officer. So, the evidence of PWs. 1, 2 and 4 can be considered to that extent. Apart from that, if the evidence of PW-7, Investigating Officer is trustworthy, it can be relied upon. Now, the fact remained is that it is a case where according to the case of the prosecution and according to the evidence of PW-7, the Investigating Officer, accused visited the shop of PW-1 claiming to be a Vigilance Officer and wanted to verify the registers and stocks and later she put forth a condition to part with certain items and that she would not check the shop. Insofar as the identity aspect is concerned, the evidence available on record is that of PW-7. Even according to PW-1, he telephoned to the Police about the act of so called woman claiming to be the Vigilance Officer. Insofar as the identity aspect is concerned, the evidence available on record is that of PW-7. Even according to PW-1, he telephoned to the Police about the act of so called woman claiming to be the Vigilance Officer. It is the specific evidence of PW-1 that he followed her to several shops and in the meantime Police came there and took her into custody and later he lodged Ex.P-1 report. So the evidence on record goes to show that on receiving a phone call from PW-1, PW-7 proceeded to the shop of PW-1 and by then PW-1 left the shop following the woman and ultimately she visited several places and it was witnessed by PW-1 and then Police came there acting upon the phone call of PW-1 and took her into custody. So, insofar as the identity aspect is concerned, there is a categorical evidence of PW-7, Investigating Officer. Insofar as the act of the accused is concerned, there is categorical evidence of PWs. 1, 2 and 4. The accused did not dispute the incident that was happened at the shop of PW-1, which was witnessed by PW-2 and at the temple of PW-4. In other words, accused did not dispute the fact that one woman claiming to be the Vigilance Officer went to the shop of PW-1 and demanded PW-1 to part with certain items etc. Though PWs. 1, 2 and 4 did not testify the identity aspects of the accused, for obvious reasons, which are within their knowledge but there is a categorical link in the evidence to prove that acting upon the phone call of PW-1, PW-7, the Investigating Officer rushed there and caught hold of the accused. Now, coming to the cross-examination of PW-7, there remains nothing to disbelieve his evidence. When it is the evidence of PW-7 that he took into custody of the accused and thoroughly interrogated her and, in the meantime, PW-1 came to the Police and presented Ex.P-1 report, no contra version is suggested to PW-1 during cross-examination. 22. In the light of the above, this Court is of the considered view that insofar as the appreciation of the evidence is concerned, the learned Magistrate appreciated the evidence in proper perspective. A look at the judgment of the appellate Court reveals that the learned Additional Sessions Judge rightly looked into the evidence on record and rightly appreciated the same. In the light of the above, this Court is of the considered view that insofar as the appreciation of the evidence is concerned, the learned Magistrate appreciated the evidence in proper perspective. A look at the judgment of the appellate Court reveals that the learned Additional Sessions Judge rightly looked into the evidence on record and rightly appreciated the same. It is to be noticed that Section 415 IPC defines as to what is cheating. It contemplates whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property, to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat.” 23. Here coming to the case of the prosecution, the evidence on record goes to prove that the accused claimed that she is the Vigilance Officer and dishonestly induced PW-1 to part with certain items from his shop and PW-1 believing the inducement parted with certain items to the accused. So, it is a clear case of cheating contemplated under Section 420 IPC. Though the learned trial Judge recorded conviction under Sections 419 and 420 IPC, the learned Additional Sessions Judge, set-aside the conviction under Section 419 IPC for which there is no Revision before this Court. So, the scope of this Court before the Revision is very limited as to whether the evidence on record prove the offence of cheating under Section 415 IPC punishable under Section 420 IPC. 24. In view of the above, this Court is of the considered view that the prosecution before the trial Court was able to establish the charge under Section 420 IPC against the accused beyond reasonable doubt and the learned Additional Sessions Judge rightly confirmed the same. Hence, I hold that the judgment in Criminal Appeal No. 358 of 2006, on the file of the Court of XI Additional District and Sessions Judge (Fast Track Court), Guntur at Tenali, is sustainable under law and facts and there are no grounds to interfere with the same. 25. Hence, I hold that the judgment in Criminal Appeal No. 358 of 2006, on the file of the Court of XI Additional District and Sessions Judge (Fast Track Court), Guntur at Tenali, is sustainable under law and facts and there are no grounds to interfere with the same. 25. Coming to the quantum of sentence, the learned Magistrate took a lenient view and let off the petitioner with Simple Imprisonment for six months and to pay a fine of Rs. 500/- in default to suffer Simple Imprisonment for 15 days for the offence under Section 420 IPC. As the sentence imposed against the petitioner is not at all harsh and it is lenient, I see no grounds to interfere with the sentence. 26. In the result, the Criminal Revision Case is dismissed. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the petitioner/appellant in C.C. No. 158 of 2005, dated 07.08.2006 and to report compliance to this Court. 27. Consequently, Miscellaneous Applications pending, if any, shall stand closed.