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2024 DIGILAW 643 (AP)

Chikati Abraham Linkan v. State of Andhra Pradesh

2024-06-19

V.SRINIVAS

body2024
ORDER : 1. Assailing the judgment dated 24.09.2009 in Crl. A. No. 332 of 2008 on the file of the Court of learned Sessions Judge at Guntur, confirming the conviction and sentence passed against the petitioner/accused by the judgment dated 14.10.2008 in C.C. No. 227 of 2003 on the file of the Court of learned Judicial Magistrate of First Class at Vinukonda, for the offences under section 409 and 420 of Indian Penal Code (hereinafter referred to as “IPC”) the petitioner/accused filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973. 2. The revision case was admitted on 09.10.2009 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl. R.C.M.P. No. 2346 of 2009. 3. The shorn of prosecution case is that: (i) The petitioner being clerk-cum-cashier in State Bank of India at Vinukonda Branch, obtained cash from the customers of Agricultural Market Committee of Vinukonda, Ipur, Government Degree College at Vinukonda and issued challans to them. But he did not enter the same in scroll sheets of the Bank, misappropriated those amounts and destroyed the original challans as well. (ii) Typist of Agricultural Market Committee of Vinukonda remitted Rs.1,87,584/- through twenty (20) challans into State Bank of India at Vinukonda. Similarly, the Junior Assistant of Agricultural Market Committee of Ipur remitted Rs.39,443/- through ten (10) challans. Government Degree College, Vinukonda remitted Rs.2,226/- by two (2) challans through its Office Subordinate. Petitioner, who was in cash counter as cashier, received the said amounts by issuing challans to them and later on failed to remit the same into the Bank by making necessary entries in the scrolls. While reconciling the payments with STO at Vinukonda, the officials of Agricultural Market Committee of Vinukonda Ipur and Government Degree College came to know that the amounts paid into the Bank were not sent to STO office. (iii) Based on the report of PW-1 Bank Manager, Vinukonda Police registered a case in Cr. No. 171 of 2002 and investigated into. 4. After completion of investigation, PW-8-S.I. of Police, Vinukonda Police Station filed charge sheet. (iii) Based on the report of PW-1 Bank Manager, Vinukonda Police registered a case in Cr. No. 171 of 2002 and investigated into. 4. After completion of investigation, PW-8-S.I. of Police, Vinukonda Police Station filed charge sheet. The same was taken on file and numbered as C.C. No. 227 of 2003 on the file of the Court of learned Judicial Magistrate of First Class at Vinukonda, after full-fledged trial, vide judgment dated 14.10.2008, found the accused guilty of the offences under Section 409 and 420 of IPC, sentenced him to undergo rigorous imprisonment for one (1) year and to pay fine of Rs.1,000/- in-default to suffer simple imprisonment of three (3) months and also sentenced him to undergo rigorous imprisonment of one (1) year and to pay fine of Rs.1,000/-, in-default to suffer simple imprisonment of three (3) months, for the respective offences. All the sentences shall run concurrently. 5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl. A. No. 332 of 2008, before the Court of learned Sessions Judge at Guntur and the same was dismissed, vide judgment dated 24.09.2009, by confirming the conviction and sentence passed by the trial Court. 6. Against the said judgment of the Appellate Court, the present criminal revision case was preferred by the petitioner/accused. 7. Heard learned Senior Counsel Sri Posani Venkateswarlu appearing for Sri Posani Akash, learned counsel for the petitioner/accused and Sri S. Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent-State. 8. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?” 9. Learned Senior Counsel Sri Posani Venkateswarlu appearing for the petitioner/accused submits that the prosecution utterly failed to establish that who among the six cashiers in the Bank, exactly received the cash from PWs. 2 to 4 and issued challans; that the signatures on Exs.P.2 to P.33 are not that of petitioner; that PW-8 failed to send the alleged challans to handwriting expert for verification of signatures with the signatures of the petitioner; that the said challans are fabricated and forged one; that it is not the testimony of PWs. 2 to 4 and issued challans; that the signatures on Exs.P.2 to P.33 are not that of petitioner; that PW-8 failed to send the alleged challans to handwriting expert for verification of signatures with the signatures of the petitioner; that the said challans are fabricated and forged one; that it is not the testimony of PWs. 2 to 4 that they handed over the cash to the petitioner only; that no identification parade was conducted to establish the same and thereby, prosecution failed to establish the offences alleged against the petitioner beyond all doubt. 10. In support of the above contentions, learned Senior Counsel relied upon certain pronouncements of Hon’ble Supreme Court as well various High Courts in Amit Kapoor v. Ramesh Chandar, (2002) 9 SCC 460 judgment of Privy Council in Prahlad Rai v. Emperor, 1944 (11) Laws (PV) 92 judgments of Allahabad High Court in Mohar Ali v. State of U.P. 1973 SCC Online All 248, Rang Bahadur Singh v. Kapil Deo, 1983 SCC Online All 272 and Radhey Shyam v. State, 2019 SCC Online All 4962 judgment of Calcutta High Court in Dipali Mallick v. Nirmal Mallick, 1992 (12) Laws (Cal) 22 judgments of Gauhati High Court in Sudip Ghosh v. State of Tripura, 1993 (5) Laws (Gau) 13 and Mahindra and Mahindra Financial Services v. Delta Classic (P) Ltd. (2011) 6 Gau. L.R. 604 and judgment of Delhi High Court in Wolfgang Reim v. State, 2012 SCC Online Del 3341. 11. As against the same, Sri S. Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent-State submits that the oral and documentary evidence produced by the prosecution proved the offences against the petitioner; that Exs.P.2 to P.33 original challans returned to the concerned departments, goes to show that they contain cash received seal and endorsement made by the petitioner being cash counter clerk with regard to the amount received by him; that Exs.P.34 to 48 scroll sheets does not contain the entries pertaining to payments made under Exs.P.2 to P.33, thereby, the petitioner with fraudulent and dishonest intention misappropriated the amounts paid under Exs.P.2 to P.33; that prosecution categorically established the guilt of the petitioner beyond all doubt; that the Courts below rightly appreciated the material on record, convicted the petitioner for the said offences and that there is no material on record to discard the findings recorded by both the Courts below. 12. 12. In view of the above rival contentions, this Court perused the entire material available on record. It is an admitted fact that as per the testimony of PW-1 Branch Manager as well PWs. 2 to 4, who said to be remitted the amounts into the Bank on behalf of Market Committee, PW-5 Assistant Manager and PW-6 Senior Assistant of the Sub-Treasury, there was misappropriation of an amount nearly Rs.2,29,293/- in the Bank under Exs.P.2 to P.33 challans and that petitioner was working as one of the cashier in the said Bank at the relevant point of time. However, it is the burden on the prosecution to prove that petitioner/accused has committed criminal breach of trust with fraudulent and dishonest intention, and they have to establish the same beyond all doubt. 13. Now, it is required to make a mention certain observations made by the Hon’ble Supreme Court in Amit Kapoor case (referred to supra) that “Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely.” 14. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely.” 14. As well the Hon’ble Supreme Court made certain observations with regard to the revisional power of the High Court under Section 439 read with section 435 of the Code in a judgment in State of Orissa v. Makula Sahu, AIR 1979 SC 663 which was referred in a judgment of Allahabad High Court in Rang Bahadur Singh case (referred to supra), as follows: “........Although the revisional power of the High Court under section 439 read with section 435 of the Code of Criminal Procedure, 1898 is as wide as the power of Court of Appeal under section 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice......” (Emphasis supplied) 15. With regard to the above settled legal principle, it is also relevant to refer the observations of Gauhati High Court in Sudip Ghosh case (referred to supra), wherein at paragraph No. 11 held that “In the case of Queen Empress v. Chagan Dayaram, (1900) ILR 27 Cal 144 Hon’ble Justice Bird wood held this Court can, in the exercise of its revisional jurisdiction, examine the records of cases for the purpose of satisfying itself as to the correctness or propriety as well as the legality of any findings, sentence or order; and where there are very exceptional grounds for its interference, it will, in the interests of justice, exercise the powers of a Court of appeal, in dealing with them.” 16. In the present case on hand, it is the specific contention of the petitioner/accused that the alleged challans under Exs.P.2 to P.33 are no way concerned with him, they are fabricated, the same was suggested to PWs. 1 and 5 and they denied the said suggestions. 17. On perusal of testimony of PWs. In the present case on hand, it is the specific contention of the petitioner/accused that the alleged challans under Exs.P.2 to P.33 are no way concerned with him, they are fabricated, the same was suggested to PWs. 1 and 5 and they denied the said suggestions. 17. On perusal of testimony of PWs. 2 to 4, who said to be remitted the amount under Exs.P.2 to P.33, they categorically testified that they came to know from PW-1-Manager that petitioner received the cash from them and issued the said challans. In particular, it is not the testimony of PWs. 2 to 4 that they had handed over the cash to the petitioner alone. Even it is not the prosecution case that test identification parade was conducted with regard to identity of the accused as cashier, who received the amounts from PWs. 2 to 4 at the relevant point of time. 18. On the other hand, PW-1 in his testimony admitted that the Bank had been maintaining six cash counters. As well PW-8 investigating officer admitted that he did not observe how many cash counters were in the bank. Further, during cross examination, it is suggested to PW-1 that PW-1 has a dispute with the accused with regard to sanction of loan to the staff of the Bank and accused has given a complaint against him to the Zonal Officer, as such, a false case is foisted against the accused. 19. At this juncture, it is relevant to make note that, PW-8 investigating officer did not choose to send the alleged challans under Exs.P.2 to P.33 for verification of signatures with admitted signatures. When the petitioner taken specific defence that the alleged challans are fabricated against him, it is the duty caste upon the prosecution to prove the same beyond all doubt. As discussed supra, it is not the testimony of PWs. 2 to 4 that they have remitted the amount to the petitioner alone among the six cash counters in the Bank. 20. As discussed supra, it is not the testimony of PWs. 2 to 4 that they have remitted the amount to the petitioner alone among the six cash counters in the Bank. 20. Now, it is appropriate to refer certain observations made by the Hon’ble Supreme Court in Sukhdeo Jha Utpal v. State of Bihar, AIR 1957 SC 466 and S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 which are referred in the judgment of Delhi High Court in Wolfgang Reim (referred to supra), wherein it was held that: “On charge of cheating, the fact that the accused made a false representation with the knowledge, that it was false and that he had a dishonest intention to induce the person deceived to part with his property, at the very time when he made a false representation, is an essential ingredient of the offence. On such a charge, the burden lies on the prosecution to prove affirmatively, not only that the accused has made a false representation, but also, he made it with a dishonest intention, knowing that the representation he was making was false.” “.......In order to constitute an offence of cheating the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.” 21. It is also required to be noted certain observations made by Gauhati High Court in Mahindra and Mahindra Finance Services Ltd. case (referred to supra) at paragraph Nos. 16 and 17 that: “16. Contrary to what happens in “criminal breach of trust” the intention of the accused, in a case of “cheating” is dishonest from the very commencement of the transaction. There is really no consent by the person, who is intentionally induced by deception to deliver the property or allow any person to retain the property or is intentionally induced, as a result of deception, to do or omit to do anything, which he would not do or omit to do 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. In short, thus, while in “criminal breach of trust” the accused comes into possession of the property without dishonest intention and develops dishonest intention subsequent to his coming into possession of the property, the offence of ‘cheating’ is one, wherein the accused has dishonest intention from the very commencement of the transaction. 17. In the light of the distinction, which exist between an offence of ‘criminal breach of trust’ and an offence of ‘cheating’ it becomes clear that if a person is accused of having committed an offence of ‘criminal breach of trust’, he cannot, on the same facts and in the same breath, be accused to have committed the offence of ‘cheating’ too. In the present case, the learned Magistrate has taken cognizance of offences under both penal provisions, namely sections 420 and 409, IPC. Having taken cognizance of both the offences aforementioned, the learned Magistrate has accordingly directed issuance of processes. This reflects non-application of mind inasmuch as the accused must know as to whether he is summoned to defend himself against the accusation of ‘criminal breach of trust’ or ‘cheating’ for, he cannot be, in one and the same breath, be accused of having committed both the said offices.” (Emphasis supplied) 22. It is settled law that a person cannot be charged with the offence of cheating (Section 420 IPC) and criminal breach of trust (Section 409 IPC) simultaneously for the same transaction because for the offence of cheating, it is a prerequisite that dishonest intention must exist at the inception of any transaction whereas in case of criminal breach of trust, there must exist a relationship between the parties whereby one party entrusts another with property as per law, therefore, for commission of criminal breach of trust, the dishonest intention comes later, i.e. after obtaining dominion over the property by the accused person whereas for commission of cheating, dishonest intention of the accused has to be present at the inception of the transaction. 23. In the present case on hand, the petitioner alleged to have committed cheating as well criminal breach of trust being cashier in Bank. But, as discussed supra, PWs. 23. In the present case on hand, the petitioner alleged to have committed cheating as well criminal breach of trust being cashier in Bank. But, as discussed supra, PWs. 2 to 4, who said to be remitted the amounts in the bank, not even testified that petitioner received the cash from them and moreover, they came to know by PW-1 that petitioner was the cashier at the relevant point of time among five other cash counters in the Bank, who received the said amounts from them. If that is so, it is indeed to say that the cash might be received from PWs. 2 to 4 by anyone of the cashier among the six counters in the Bank, but not exactly petitioner herein. More so, as stated supra, prosecution failed to send the alleged challans to the handwriting expert to verify the signatures thereon with the signatures of the petitioner and failed to identify the accused as cashier by that time through PWs. 2 to 4 to connect him for the said offences. Thereby, the prosecution utterly failed to prove the entrustment of property (cash) by PWs. 2 to 4 to the petitioner to constitute the offences alleged against him. Consequently, there is no material on record to prove any fraudulent or dishonest intention on the part of the petitioner in the entire incident to constitute the offence under Section 420 of IPC. 24. The Trial Court as well as the first Appellate Court failed to appreciate the above said aspects, mechanically proceed with the prosecution version and erroneously made the findings against the petitioners Thereby, viewing from any angle, the Trial Court as well first Appellate Court miserably failed to appreciate the lacunas in the prosecution case, which cut the root of the case and convicted the petitioner for the said offences, which is not tenable under law. 25. Having regard to the above discussion, this Court is of the considered opinion that the Trial Court as well first Appellate Court failed to appreciate the material on record in proper perspective, there is manifest error of law and flagrant miscarriage of justice in the findings recorded by the trial Court as well first Appellate Court, thereby, the present criminal revision has merits and liable to be considered. 26. In the result, the Criminal Revision Case is allowed. 26. In the result, the Criminal Revision Case is allowed. The conviction and sentence passed against the petitioner/accused, vide judgment dated 14.10.2008 in C.C. No. 227 of 2003 on the file of the Court of learned Judicial Magistrate of First Class at Vinukonda, as confirmed in the judgment, dated 24.09.2009 in Crl. A. No. 332 of 2008 on the file of the Court of learned Sessions Judge at Guntur, are hereby set aside. The revision petitioner/accused is acquitted of the offences under Section 409 and 420 of IPC. The fine amount paid by the petitioner/accused, if any, shall be refunded to him. 27. Interim orders granted earlier if any, stand vacated. 28. As a sequel, miscellaneous applications pending, if any, shall stand closed.