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2025 DIGILAW 559 (AP)

Jala Mohana Raju v. State Of A P Rep By PP

2025-04-01

Y.LAKSHMANA RAO

body2025
ORDER : Y. LAKSHMANA RAO, J. The Criminal Revision Case has been filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’) challenging the judgment dated 11.08.2008 in Crl.A.No.135 of 2006 on the file of the learned X Additional District and Sessions Judge (Fast Track Court), of Guntur at Narasaraopet, confirming the conviction for the offence under Section 409 of the Indian Penal Code, 1860 (for brevity ‘the I.P.C’) and sentencing the petitioner to Simple Imprisonment for two (2) years while setting aside the conviction for the offence punishable under Section 420 of ‘the IPC.,’ passed by the learned II Additional Munsiff Magistrate, Gurazala, in C.C.No.42 of 2004 vide judgment dated 02.03.2006. 2. I have heard the arguments of the learned counsel for the petitioner and learned Assistant Public Prosecutor. 3. Mr. S.Dilip Jaya Ram, the learned counsel for the petitioner submits that the evidence of P.Ws.1 to 3 was inconsistent with the contents of the Ex.P-1; the prosecution could not prove the ingredients under Section 409 of ‘the IPC.,’ beyond all reasonable doubt; there is inconsistency in between the evidence of P.Ws.3 and 4 vis-a-vis P.W.5. Exs.D1 to D3 was sufficient to falsify the story of the prosecution. Ex.P-2 receipt was found missing and Ex.P-4 was not in handwriting of the petitioner and urged to allow the Criminal Revision Case. 4. Alternatively, he submitted that the petitioner is aged about more than 67 years right now. He was a linemen and aged about 50 years and the alleged offence was committed in the year 2001. Nearly 24 years have passed. The petitioner was removed from the service, but later on his appeal before the appropriate authority, he was asked to retire voluntarily; right of speedy justice guaranteed in favor of the petitioner by Article 21 of the Constitution of India is being violated. The petitioner was already in the incarceration for more than 18 days as convict prisoner. The alleged amount involved in misappropriation was only Rs.12,331/- and urged to show leniency in sentencing the petitioner. It is volunteered that the petitioner may be directed to pay an amount of Rs.5,000/- as a measure of penance. The petitioner was not even paid subsistence allowance during his suspension period as per the rules; and he is also not getting any pension. 5. Per contra Ms. It is volunteered that the petitioner may be directed to pay an amount of Rs.5,000/- as a measure of penance. The petitioner was not even paid subsistence allowance during his suspension period as per the rules; and he is also not getting any pension. 5. Per contra Ms. P. Akila Naidu, the learned Assistant Public Prosecutor argued that the prosecution has proved the guilt of the petitioner beyond reasonable doubt for the offence under Section 409 of ‘the IPC’. The learned Trial Court and also the Appellate Court felt that the evidence of prosecution witnesses inspired confidence. There was no inconsistency in between the evidence of the prosecution witnesses and urged to dismiss the Criminal Revision Case, inasmuch as there were no material irregularities or misreading of evidence. 6. Thoughtful consideration is bestowed on the arguments advanced by the learned counsel for the petitioner and the learned Assistant Public Prosecutor. I have perused the record. 7. Now the point for consideration is: “Whether the judgment in Crl.A.No.135 of 2006, dated 11.08.2008, passed by the learned Additional District and Sessions Judge (Fast Track Court) of Guntur at Narasaraopet, is correct, legal and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?” 8. The prosecution in order to prove the guilt of the petitioner got examined P.Ws.1 to 5 and marked Exs.P-1 to P-6 and on behalf of the petitioner/accused Ex.D1 to D3 were marked. On careful perusal of the contradictions marked under Exs.D1 to D3 in the 161 of ‘the Cr.P.C.,’ statements of P.W.4 are not material contradictions which would smash the case of the prosecution. 9. As per Ex.P-1 complaint the Divisional Electrical Engineer Operations, Macherla (PW-1) mentioned that receipts bearing serial Nos.146471 to 146490 were found missing from the book and that the Assistant Accounts Officer had instructed the accused not to operate the book No.293 and proceed with collection by another PRO. However, the accused issued receipt for Rs.12,331/- in favor of D.V.Subbaiah on 11.04.01, but when the corresponding duplicate receipt for the said receipt dated 11.04.01 bearing No.146485 was perused it was not filled. So, it goes to show that said receipt was issued without keeping the carbon paper on the respective duplicates. However, the accused issued receipt for Rs.12,331/- in favor of D.V.Subbaiah on 11.04.01, but when the corresponding duplicate receipt for the said receipt dated 11.04.01 bearing No.146485 was perused it was not filled. So, it goes to show that said receipt was issued without keeping the carbon paper on the respective duplicates. Admittedly, accused was working as Sub-Inspector of Revenue collection in Electricity Revenue Office having jurisdiction over the service connection of D.V.Subbaiah who is the brother of P.W.4 herein. 10. P.W.4 is running New Swagath hotel under the service connection bearing No.3694 of Dachepalli. So, the custody of Ex.P-2 bill book bearing No.293 containing bill Nos.146601 to 156500 vide Ex.P-3 should be with the accused on 12.02.01 and the accused as per the acknowledgement made by the accused as per P.W.1, who worked as Divisional Engineer (Operations) APSPDCL, Macherla, during the relevant time. So, any entries made in said Ex.P-2 bill book must be within the knowledge of the petitioner only as he is in custody of the said Ex.P-2 PR bill book. Under Ex.P-5 petitioner acknowledged the receipt of the bill collector revenue collection bearing No.67451 to 67500. 11. In Ex.P-4 bill collectors Revenue collection of the accused dated 11.04.01, he had not shown any amount No.12,331/- pertaining to service connection No.3694 of D.V.Subbaiah brother of P.W.4. When the payment received by the petitioner for an amount of Rs.12,331/- dated 11.04.01 with bill No.146485 is not reflected in the corresponding records, it clearly shows that the accused cheated the exchequer and misappropriated the said amount. The misappropriation and cheating done by the accused is borne out by the documentary records covered by Exs.P2 to P5 documents. 12. Section 409 of ‘the IPC.,’ deals with Criminal breach of trust by a public servant or agent. It lays down that whoever being in any manner entrusted with property or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, broker, attorney or agent, commits criminal breach of trust of that property shall be punished with imprisonment for life or imprisonment for either description for a term and shall also liable for fine. In the present case the occupation of the petitioner as a public servant is not in dispute. In the present case the occupation of the petitioner as a public servant is not in dispute. He was entrusted with dominion over property in his capacity as sub-inspector of Revenue collection in the way of his business as an agent of the APSEB and committed criminal breach of trust with that property. Hence, he is liable to be punished for the offence under Section 409 of ‘the IPC’. 13. As per the evidence of P.W.4, it is clear that the petitioner indulged in misappropriation to an amount of Rs.12,331/-vide Ex.P-2. There is no misreading of evidence. There are no irregularities much less material irregularities in conducting the trial. This Court cannot appreciate the evidence of the witnesses of the prosecution like a Second Appellate Court as per the following Judgments. 14. The Hon’ble Apex Court in Bindeshwari Prasad Singh v State of Bihar, (2002) 6 SCC 650 at Paragraph Nos.12 & 13 held as under: “12. … We have carefully considered the material on record and we are satisfied that the High Court was not justified in re-appreciating the evidence on record and coming to a different conclusion in a revision preferred by the information under Section 401 of the Code of Criminal Procedure, Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional Court, prohibiting it from convert a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of the conviction directly, it could not do so indirectly by the method of ordering a re-trial. If the High Court could not convert a finding of acquittal into one of the conviction directly, it could not do so indirectly by the method of ordering a re-trial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice.The High Court will not be justified in interfering with an order of acquittal merely because the trial Court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. 13. ...In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.” 15. The Hon’ble Supreme Court in D. Stephens v Nosibolla, AIR 1951 SC 196 at Paragraph No.10 held as under: “The revisional jurisdiction conferred on the High Court under S. 439, Cr.P.C., is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Govt. has o right of appeal under S. 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or mis-appreciated the evidence on record.” 16. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or mis-appreciated the evidence on record.” 16. The Hon’ble Apex Court in K.Chinnaswamy Reddy v State of AP, [ AIR 1962 SC 1788 ] , at Paragraph No.7 held as under: “7. 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 S. 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 try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce. These cases may be: where the trial court has no jurisdiction to try 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 inadmissible, 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; an 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 S. 439 (4). 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.” 17. Therefore, the conviction recorded by the learned Trial Court and convicted the learned Appellate Court under Section 409 of ‘the IPC.,’ shall be maintained. 18. Regarding the sentence of Simple Imprisonment of two (2) years imposed on the petitioner by the learned Trial Court and confirmed by the learned Appellate Court for the offence under Section 409 of ‘the IPC.,’ the petitioner is aged about more than 67 years. In the year 2001, the offence was committed by the petitioner. Nearly 24 years have passed. The petitioner was in incarceration for a period of 18 days. In the departmental proceedings, in the appeal preferred by the petitioner, his punishment was reduced. He was asked to retire voluntarily. This Court examined the petitioner and found that he is of old age and suffers from illness. He was not even paid subsistence allowance during the suspension period, even though he was entitled as a statutory right. Because of ignorance, he could not file necessary case before this Court seeking for grant of subsistence allowance. 19. Right to a speedy trial, including the speedy disposal of appeals and revision casesas per the decision of the Hon’ble Supreme Court in Hussainara Khatoon (IV) v. Home Secretary State of Bihar, AIR 1979 SC 1360 . This right includes speedy disposal of appeals. 19. Right to a speedy trial, including the speedy disposal of appeals and revision casesas per the decision of the Hon’ble Supreme Court in Hussainara Khatoon (IV) v. Home Secretary State of Bihar, AIR 1979 SC 1360 . This right includes speedy disposal of appeals. In addition to the appeals, the right to a speedy trial also includes criminal revisions as per the decision of the Hon’ble Apex Court in Rajdeo Sharma v. State of Bihar,[2000 (1) BLJR 37] . The petitioner himself volunteered to pay an amount of Rs.5,000/- as fine towards penance, the said voluntary statement is recorded and approved. 20. In the obtaining peculiar facts and circumstances of the case, the conviction for the offence under Section 409 of ‘the IPC.,’ shall be maintained while sentencing the petitioner to the period already undergone and directing the petitioner to pay an amount of Rs.5,000/- towards fine within two (2) months from the date of receipt of copy of this order. If the petitioner fails to pay an amount of Rs.5,000/- towards fine, he shall undergo Simple Imprisonment for a period of three (3) months. The petitioner shall pay fine of Rs.5,000/- before the learned II Additional Munsiff Magistrate, Gurazala, failing which the learned Magistrate may take appropriate steps. 21. In the result, the Criminal Revision Case is disposed of. There shall be no order as to costs. As a sequel, Miscellaneous petitions, if any pending, shall stand closed.