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2023 DIGILAW 649 (KAR)

Anil v. State of Karnataka

2023-04-21

ANIL B.KATTI

body2023
JUDGMENT 1. Appellants-accused Nos.2 to 4 filed Crl.R.P.No.2301/2013, challenging the judgment of First Appellate Court in Crl.A.No.52/2004. Appellant-Accused No.1 filed revision petition No.2144/2013, challenging the judgment of First Appellate Court in Crl.A.No.23/2004. Appellant-Accused No.1 filed revision petition No.2145/2013, challenging the judgment of First Appellate Court in allowing the state appeal in Crl.A.No.52/2004, wherein extending the benefit of P.O.Act was challenged. Hence, all these three revision petitions are arising out of common judgment passed by First Appellate Court in Crl.A.No.23/2004 and Crl.A.No.52/2004, dtd. 19/2/2013 are taken for disposal by this common judgment. 2. Parties to the revision petitions are referred with their ranks as assigned in the trial Court for the sake of convenience. 3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that accused Nos. 1 to 4 entered into Criminal conspiracy to cheat Vijaya Bank. In pursuance of such conspiracy, accused No.1 fraudulently produced two blank demand drafts bearing Nos. 435654 and 435655 along with their advise from Vijaya Bank, Keshwapur Branch, Hubballi with help of Devidas Shetty, who was working as temporary peon in the said branch. Accused Nos. 2 and 4 have opened fictitious saving bank accounts and got encashed demand drafts. Due to above said act, accused Nos. 1 to 4 have caused wrongful loss to Vijaya Bank to the tune of Rs.2, 17, 800.00 and corresponding wrongful gain to themselves by their above said acts. On all these allegations investigation was carried out by investigating officer and charge sheet came to be filed for the offences punishable under Ss. 120(B), 420, 419, 468, 471 R/w. Sec. 34 of IPC. Accused No. 1 to 4 were charge sheeted on the file of JMFC II, Hubballi in CC.No.84/1993. 4. Prosecution to prove the allegations made against accused relied on the evidence of Pws.1 to 23 and documents Ex.Ps.1 to 83. The accused have denied all the incriminating material evidence appearing against them during the course of their statement under Sec. 313 of Cr.P.C. and claimed that false case is filed against them. Accused have not laid any defence evidence. 5. The Trial Court, after appreciating oral and documentary evidence placed before it has found that accused Nos. 1 to 4 were guilty of the offences charged against them. Accused have not laid any defence evidence. 5. The Trial Court, after appreciating oral and documentary evidence placed before it has found that accused Nos. 1 to 4 were guilty of the offences charged against them. On hearing about quantum of sentence, the Trial Court has extended benefit of Sec. 4 of the Probation of Offenders Act, 1958 (for short 'P.O.Act') and called for report from the Probation officer. Accused Nos. 2 to 4 have not filed any appeal challenging their conviction. The State filed Crl.A.No.52/2004 challenging the order of Trial Court in extending benefit of Sec. 4(1) of P.O. Act, whereas accused No.1 filed Crl.A.No.23/2004 challenging judgment of conviction passed by the Trial Court. The First Appellate Court, by judgment dtd. 19/2/2013 has allowed the state appeal and set aside the order of Trial Court in extending benefit of P.O.Act to accused and remanded the matter to Trial Court to hear both sides and to impose proper sentence. The First Appellate Court is of the view that, in view of allowing the state appeal, the appeal filed by accused No.1 in Crl.A.No.23/2004 does not survive for consideration. The said order of the First Appellate Court are challenged in these three revision petitions. 6. The revision petitioner-accused Nos. 2 to 4 in Crl.R.P.No.2301/2013 have challenged the order of the First Appellate Court in allowing State appeal in Crl.A.No.52/2004 and setting aside the order of Trial Court in extending benefit of P.O Act to accused. Indisputably, accused Nos. 2 to 4 have not filed any appeal challenging the judgment of conviction passed by the Trial Court. It is contended that order of First Appellate Court setting aside the order of Trial Court in extending the benefit of P.O.Act to accused cannot be legally sustained and no any proper reasons have been recorded by the First Appellate Court in setting aside the benefit of P.O.Act extended by the Trial Court. 7. Accused No.1 filed Crl.R.P.No.2144/2013 in dismissing the appeal in Crl.A.No.23/2004 holding that same does not survive for consideration in view of allowing the state appeal in Crl.A.No.52/2004. The accused No. 1 has also challenged the order of First Appellate Court in allowing Crl.A.No.52/2004. 7. Accused No.1 filed Crl.R.P.No.2144/2013 in dismissing the appeal in Crl.A.No.23/2004 holding that same does not survive for consideration in view of allowing the state appeal in Crl.A.No.52/2004. The accused No. 1 has also challenged the order of First Appellate Court in allowing Crl.A.No.52/2004. The accused No.1 in both the revision petitions has contended that First Appellate Court ought not to have dismissed the appeal of accused No.1 in Crl.A.No.23/2004 without re-appreciating the evidence on record when the judgment of conviction is challenged. The First Appellate Court has committed serious error in holding that appeal field by accused No.1 does not survive for consideration in view of allowing the state appeal in Crl.A.No.52/2004. 8. Heard the arguments of both sides. 9. On careful perusal of the Trial Court records and judgment of the First Appellate Court, it would go to show that accused Nos. 1 to 4 were tried before JMFC II, Hubballi in CC.No.84/1993 for the offences punishable under Ss. 120B, 120, 419, 468, 471 R/w. Sec. 34 of IPC. The Trial Court, after appreciating the evidence on record convicted the accused for the aforesaid offences. Further, the Trial Court on hearing about the sentence was of the opinion that it would be appropriate to extend the benefit of Sec. 4 of P.O.Act and called for report of Probation officer and listed the matter on 26/5/2004 awaiting the report of Probation officer. 10. Accused No.1 in Crl.A.No.23/2004 has challenged the judgment of conviction and order of the Trial Court in extending benefit of P.O.Act. Whereas the state in Crl.A.No.52/2004 is only aggrieved by order of the Trial Court in extending the benefit under Sec. 4 of P.O.Act. Therefore, the question that requires consideration is as to whether the First Appellate Court was justified in dismissing the appeal of accused No.1 in Crl.A.No.23/2004 as it does not survive for consideration in view of allowing the state appeal in Crl.A.No.52/2004. 11. Sri.N.D.Gunde, special counsel for State has contended that Criminal Revision Petition filed by accused Nos. 2 to 4 in Crl.Revision Petition No.2301/2013 is not maintainable, since accused Nos. 2 to 4 have not questioned their judgment of conviction by filing the appeal. It is true that accused Nos.2 to 4 have not challenged their judgment of conviction and they were happy of being extending benefit of P.O. Act. Indisputably, accused Nos. 2 to 4 in Crl.Revision Petition No.2301/2013 is not maintainable, since accused Nos. 2 to 4 have not questioned their judgment of conviction by filing the appeal. It is true that accused Nos.2 to 4 have not challenged their judgment of conviction and they were happy of being extending benefit of P.O. Act. Indisputably, accused Nos. 2 to 4 are respondent Nos.2 to 4 in the appeal filed by State in Crl.A.No.52/2004 and they have appeared through their counsel and contested the claim of State in seeking to set aside extending benefit under PO Act. 12. On plain reading of Sec. 397 of Cr.P.C. it is evident that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. The powers of revision conferred by Sub-Sec. (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. If, an application under this Sec. has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. 13. In the latest judgment of Apex Court in Honnyya T.H. V/s. State of Karnataka, reported in live law SC 672 wherein the question of maintainability of revision petition before High Court against the order of Trial Court in refusing to mark complaint as Exhibit filed by complainant was under consideration. It has been observed and held that revision petition filed by third party/defacto complainant is maintainable, power of revision can be exercised by High Court even suo moto. In the present case, revision petitioners were party as respondents in state appeal and crl.A.No.52/2004. They are aggrieved by the order of the First Appellate Court in setting aside the benefit of P.O.Act extended by the Trial Court. In the present case, revision petitioners were party as respondents in state appeal and crl.A.No.52/2004. They are aggrieved by the order of the First Appellate Court in setting aside the benefit of P.O.Act extended by the Trial Court. Therefore, in view of principles enunciated in the aforesaid decision and proviso of Sec. 397 of Cr.P.C. empower this Court to entertain the revision against the order passed by any inferior Criminal Court, more particularly when revision petitioners are parties to the State appeal under Crl.A.No.52/2004. There is no further remedy of appeal against the judgment of the First Appellate Court in Crl.A.No.52/2004. Hence, revision petition filed by accused Nos. 2 to 4 in Crl.R.P.No.2301/2013 is maintainable. Therefore, objections of learned counsel for respondent that Crl.R.P.No.2301/2013 is not maintainable cannot be legally sustained. 14. Crl.R.P.No.2301/2013 is filed by accused No.1, challenging order of First Appellate Court in Crl.A.No.52/2004, wherein order of the Trial Court in extending benefit of P.O.Act came to be set aside on the premises that benefit of P.O.Act cannot be extended where the accused has committed socio economic offence. In support of such view, First Appellate Court referred to judgment of Hon'ble Apex Court State of Gujarath V/s. V.A.Chauhan, reported in AIR 1983 SC 359 . In the present case punishment prescribed for the offence punishable under Sec. 419 of IPC is 3 years or with fine or with both. The offences under Secs. 420, 468 and 471 punishment may be extend to 7 years or fine. Indisputably, aforesaid offences are punishable with fine and imprisonment. The Court has power to extend benefit of P.O.Act keeping in mind the facts and circumstances of the case. The offences under Secs. 420, 468 and 471 punishment may be extend to 7 years or fine. Indisputably, aforesaid offences are punishable with fine and imprisonment. The Court has power to extend benefit of P.O.Act keeping in mind the facts and circumstances of the case. The Power of court to release certain offenders after admonition is governed in terms of Sec. 3 of P.O.Act reads as under: "When any person is found guilty of having committed an offence punishable under Sec. 379 or Sec. 380 or Sec. 381 or Sec. 404 or Sec. 420 of the Indian Penal Code, or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Sec. 4 release him after due admonition. Explanation.-For the purposes of this Sec., previous conviction against a person shall include any previous order made against him under this Sec. or Sec. 4." 15. If the Court is satisfied looking to the facts of the case and evidence on record that benefit under Sec. 3 of P.O.Act can be extended then may order for release of offender on probation of good conduct in terms of Sec. 4 of P.O.Act. In the present case, the First Appellate Court has set side extending of benefit of P.O.Act by the Trial Court on the premises that accused has committed socio economic offences. This observation and finding of the First Appellate Court is without deciding Crl.A.No.23/2004 filed by accused No.1 challenging judgment of convocation. When the judgment of conviction passed by the Trial Court has not attained finality the question of considering the P.O.Act does not arise. 16. The First Appellate Court has disposed of appeal field by accused No.1 in Crl.A.No.23/2004 as does not survive for consideration in view of allowing the state appeal filed in Crl.A.No.52/2004. When the judgment of conviction passed by the Trial Court has not attained finality the question of considering the P.O.Act does not arise. 16. The First Appellate Court has disposed of appeal field by accused No.1 in Crl.A.No.23/2004 as does not survive for consideration in view of allowing the state appeal filed in Crl.A.No.52/2004. Learned counsel for the revision petitioner in support of his contention regarding duty of First Appellate Court in deciding the appeal against conviction relied on the judgment of Hon'ble Apex Court in Kalmesh Prabhudas other V/s. State of Gujarath, reported in (2013) 15 SCC 263 , wherein it has been observed and held that it is sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper reassessment, re-appreciation and re-scrutiny of the material on record. Learned counsel for the revision petitioner also places reliance on judgment of Hon'ble Apex Court in Shaimajafari V/s. Irfan alias Gulfam and others, reported in (2013) 14 SCC 348, wherein it has been observed and held that disposal of appeal without assigning reasons and without considering material facts, impropriety of, reiterated that procedure adopted by appellate Courts must reflect consideration of facts in proper perspective and reasons for their decisions. There must be application of mind and reasons must be given methodically and logically. Reasons are the essential foundation on which conclusion can be rested and giving reason is essential requirement of law without reason any conclusion become lifeless and through it is not necessary for reasons to be lengthy but reasons must be cogent. On the same principle reliance is also placed on another judgment of Hon'ble Apex Court in LAl Mandi V/s. State of West Bengal, reported in 1995 (3) SCR 134 keeping in mind principle enunciate in the aforementioned judgments of Hon'ble Apex Court, reasons assigned by the First Appellate Court for dismissal of appeal field by accused No.1 in Crl.A.No.23/2004 as it does not survive for consideration in the light of allowing the state appeal under Crl.A.No.52/2004 cannot be legally sustained when judgment of conviction is challenged, the First Appellate Court is duty bound to re-assess and re-appreciate the material evidence on record and has to arrive at independent conclusion. The reasons so recorded must be justified with evidence on record. The reasons so recorded must be justified with evidence on record. In the present case, reasons recorded by the First Appellate Court for disposal of appeal field by accused in Crl.A.No.23/2004 as it does not survive for consideration cannot be legally sustained. 17. Revision petition filed by accused No.1 in Crl.A.No.2144/2013 is requires to be allowed and matter has to be remanded to the First Appellate Court for deciding the appeal on merits. Therefore, Crl.R.P.No.2145/2013 filed by accused No.1 in challenging the order of First Appellate Court in setting aside the order of Trial Court to extend the benefit of P.O.Act does not survive for consideration since the said issue has to be decided on the decision to be arrived while deciding Crl.A.No.23/2004. 18. In view of the reasons stated above it has been held that the question of considering extending benefit of P.O.Act does not arise without deciding the appeal of accused No.1 challenging the judgment of conviction. Therefore, revision petition filed by accused No.1 in Crl.RP.2145/2013 does not survive for consideration. When that being the factual position, the order of the Trial Court in extending the benefit of P.O.Act cannot be set aside only against accused No.1. Therefore, revision petition filed by accused Nos. 2 to 4 in challenging setting aside of extending P.O.Act by the Trial Court requires to be re-heard. Consequently, proceed to pass the following: ORDER Crl.R.P.No.2144/2013 filed by accused No.1 is hereby allowed and judgment of the First Appellate Court in Crl.A.No.23/2004, dtd. 19/2/2013 is hereby set aside. The matter is remanded to First Appellate Court for deciding the appeal of accused No.1 in Crl.A.No.23/2004 on merits, in accordance with law. Consequently, Crl.R.P.No.2145/2013 is dismissed as does not survive for consideration. Crl.R.P.No.2301/2013 field by accused Nos. 2 to 4 is hereby allowed. The parties shall appear before the First Appellate Court on 30/5/2023 without there being any notice for seeking further instructions. Registry is directed to send back records to the First Appellate Court with intimation to Trial Court with copy of this judgment.