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2022 DIGILAW 280 (KAR)

Fairoj Ahamed v. State of Karnataka

2022-03-02

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the State. 2. The factual matrix of the case is that on 14.05.2008, on receipt of the credible information that this revision petitioner/accused had indulged in distributing the amount on behalf of the BJP party to the voters, the raid was conducted on the same day at 1.30 p.m. and this petitioner was apprehended and an amount of Rs. 11,200/- was seized from the conscious possession of this revision petitioner and mahazar was drawn and the case was registered for the offence punishable under Section 171E of IPC and the matter was investigated and charge-sheet has been filed. 3. The prosecution in order to substantiate its case examined PW1 to PW6 and also got marked Ex.P1 to P5 and MO1 to MO3 i.e., cash, ballet paper of BJP party and voters' list. The revision petitioner/accused also examined one witness as DW1 and marked the document at Ex.D1 i.e., Raghavendra Beedi works letter. The Trial Court after considering both the oral and documentary evidence, convicted the revision petitioner for the offence punishable under Section 171E of IPC for a period of one year with a fine of Rs. 5,000/- in default, the accused shall undergo simple imprisonment for a period of one month. Being aggrieved by the said order, the revision petitioner preferred an appeal in Crl.A. No. 153/2011. The Appellate Court also reconsidered the material available on record and came to the conclusion that the prosecution has proved the case against the revision petitioner and there are no grounds to set aside the judgment of conviction and sentence passed by the Trial Court and confirmed the same. 4. Being aggrieved by the order of both the Courts, the present revision petition has filed before this Court. The learned counsel for the revision petitioner vehemently contend that this petitioner has denied the charges leveled against him and seizure of the amount from the hands of this petitioner is not disputed by the petitioner but the seizure of the election ballet paper, voters' list is disputed by the petitioner. The learned counsel for the revision petitioner vehemently contend that this petitioner has denied the charges leveled against him and seizure of the amount from the hands of this petitioner is not disputed by the petitioner but the seizure of the election ballet paper, voters' list is disputed by the petitioner. PW1 and 2 who are the mahazar witnesses turned hostile to the case of the prosecution and PW3, 5 and 6 are the eye-witnesses and they are the police constables and they have deposed that they have seized the ballet papers, voters list and amount from the revision petitioner and in the cross-examination of PW5, he specifically deposed that the accused was identified in BJP party and also admitted that accused was working in Beedi works factory. The counsel vehemently contend that the petitioner has taken a specific defence before the Trial Court that he was brought a sum of Rs. 20,000/- from the Raghavendra Beedi Works to distribute the same to the Beedi Workers. When such being the case, the burden lies on the prosecution to prove the same. In support of his contention, he had examined the Proprietor of Raghavendra Beedi Works as DW1 and he has issued one endorsement sating that the petitioner had received a sum of Rs. 20,000/- from him on 14.05.2008 for distribution to the Beedi Workers. Inspite of the said specific defence taken, the Trial Court erred in convicting the revision petitioner and also the Appellate Court committed an error in re-appreciation of the evidence available on record. 5. The learned counsel for the petitioner would vehemently contend that according to the prosecution, information was received on 14.05.2008 at 7.30 a.m. and the said information was not reduced in writing and alleged raid was conducted at 1.00 p.m. on the same day, hence, there was a long gap between the receipt of information and to the alleged raid. PW1 and 2 have not supported the case of the prosecution and there was non-compliance of procedure established under law and apart from that interested witnesses are police witnesses and due to political rivalry, a false case has been registered against the revision petitioner. 6. PW1 and 2 have not supported the case of the prosecution and there was non-compliance of procedure established under law and apart from that interested witnesses are police witnesses and due to political rivalry, a false case has been registered against the revision petitioner. 6. Per contra, the learned High Court Government Pleader for the State would submit that both the Courts have not committed any error in convicting the revision petitioner and the Trial Court after considering the material on record, in detail, discussed with respect to the seizure as well as Material Objects and also taken note that this petitioner has not disputed the seizure of the amount from the conscious possession of the petitioner but he only taken the defence before the Trial Court that he had received the amount of Rs. 20,000/- from the Beedi company to distribute the same to the Beedi workers but the said defence is not substantiated by DW1 in his cross-examination and no documents are forthcoming for having received the said amount by the petitioner and also not produced any document for having paid the amount to this petitioner to distribute the same for Beedi workers. 7. In reply to the arguments of the learned High Court Government Pleader for the State, the learned counsel for the revision petitioner submit that none of the voters have been examined before the Trial Court and also even their names are not found in the voters' list and hence, it is a case for invoking revisional jurisdiction. 8. Having heard the respective counsel appearing for the parties and also on perusal of the materials available on record, the point that would arise for consideration is: 1. Whether the order passed by the Trial Court as well as the Appellate Court suffers from any illegality and it requires correctness of the order invoking revisional jurisdiction? 2. What order? Point No. 1: 9. Having heard the respective counsel appearing for the parties and on perusal of the materials available on record it discloses that the charges leveled against this petitioner is that he had indulged in distributing the amount to the voters on behalf of the political party belonged to BJP. The Ballet paper as well as the amount was seized by drawing the mahazar and the prosecution mainly relied upon the evidence of PW1 to 6. The Ballet paper as well as the amount was seized by drawing the mahazar and the prosecution mainly relied upon the evidence of PW1 to 6. PW1 and 2 are the independent witnesses who have turned hostile to the case of the prosecution but the fact is that the seizure of amount has not been disputed by the petitioner and he also admits the seizure of the amount and hence, the evidence of PW1 and 2 is not a material when the petitioner himself admits the seizure of the amount. The main defence of the petitioner before the Trial Court is that he had received the amount of Rs. 20,000/- from the Raghavendra Beedi company to distribute the same to its workers and in order to substantiate his contention, he had examined one witness as DW1 and DW1 also relies upon the endorsement issued by him to show that he had paid the amount of Rs. 20,000/- on 14.05.2008 in order to distribute the amount to the workers. The said document is marked as Ex.D1. But the fact is that in the cross-examination of DW1, he categorically admitted that his Beedi Work's company is registered one. Further he admits before the Trial Court that on 14.05.2008, the revision petitioner has not received any amount from the said company. It is also admitted that there is an account extract for receipt of amount by the petitioner but he also categorically admits in the cross-examination that he does not know the contents of Ex.D1 and considering DW1's cross-examination, the Trial Court came to the conclusion that the defence set up by the petitioner is false and also taken note of the evidence of prosecution witnesses. No doubt, the other witnesses are police witnesses. No doubt, the other witnesses are police witnesses. But in order to came to the conclusion that the police have enmity against this petitioner is concerned, nothing is elicited and the very contention of the petitioner's counsel is that there is non-compliance of Section 155 and the fact that the offence is non-cognizable is not disputed but the contention of learned counsel for the petitioner is that when the information was received, the same ought to have been reduced in writing and it is bound on the Investigating Officer to register the case whenever he has received the information and the same is also held in the judgment of the Apex Court in the case of Lalitha Kumari v. Government of U.P. reported in (2014) 2 SCC 1 . Hence, the very contention of the learned counsel for the petitioner is that the case has not been registered by the Investigating Officer after receipt of the information cannot be accepted. 10. The other contention of the learned counsel for the petitioner is that the witnesses are the official witnesses and their evidence cannot be relied upon. But in the case on hand, the fact that the amount has been seized is not disputed by the revision petitioner and this fact is also considered by the Appellate Court particularly in paragraph 11 regarding seizure of amount and also came to the conclusion that the burden lies on the defence to establish the fact that the revision petitioner had brought that amount from the beedi company on the date of the alleged incident and to prove the said fact, the prosecution had relied upon the cross-examination of DW1 who categorically admitted that he had no document to show that the amount had been paid to the revision petitioner to distribute the same to its workers and the said fact is also discussed in paragraphs 12 and 13 of the order of the Appellate Court with regard to the seizure is concerned. I have already pointed out that the seizure of the amount is not disputed by the petitioner himself and when such being the factual aspects of the case and the material on record shows that though the specific defence is taken by the revision petitioner and the same is not proved and the evidence of PW1 and 2 had not supported the case of the prosecution, the evidence of DW1 establishes that no amount was given to the revision petitioner. When such being the circumstances, I do not find any perversity or illegality committed by the Trial Court as well as the Appellate Court in convicting the revision petitioner and confirms the same. Hence, there is no merit in the revision petition to invoke the revisional jurisdiction under Section 401 of Cr.P.C. to set aside the order of the Trial Court as well as the Appellate Court as both the Courts have given the reasons regarding conviction as well as confirmation. 11. The learned counsel for the petitioner vehemently contend that the sentence imposed by the Trial Court is maximum i.e., one year and this Court has to take note of the said fact into consideration and set aside the sentence and at the most, this Court can impose the fine. Having considering the said fact, the very allegations against this petitioner is that he had indulged in distributing the amount to the voters and he had already distributed the amount at the time of his apprehension and an amount of Rs. 11,200/- was remained out of Rs. 20,000/- and I have already pointed out that DW1 came to rescue the petitioner but no material is placed before the Court to show that the said amount was given to distribute to the workers of the beedi factory. When such being the facts and circumstances of the case, when the petitioner had indulged in distributing the amount to the voters on behalf of the political party, it is not a fit case to exercise the powers to reduce the sentence or fine amount. The fine amount imposed is also only Rs. 5,000/-, the learned Magistrate have power even to impose the fine of Rs. 10,000/- in view of the amended provision, however, the Trial Court imposed fine of Rs. 5,000/-. The fine amount imposed is also only Rs. 5,000/-, the learned Magistrate have power even to impose the fine of Rs. 10,000/- in view of the amended provision, however, the Trial Court imposed fine of Rs. 5,000/-. When such being the factual aspects of the case, it is not a fit case to interfere with the sentence imposed by the Trial Court and hence, Point No. 1 is answered as Negative. Point No. 2: 12. In view of the discussions made above, I pass the following: ORDER The revision petition is dismissed.