H.M. Shantha vs State of Karnataka

Budihal R.B., J.—This petition is filed by the petitioner/accused under Section 397(1) read with Section 401 of the Code of Criminal Procedure being aggrieved by the judgment and order of conviction passed by the Trial Court dated 13.08.2008 passed in C.C. No. 341/2006 on the file of the Civil Judge (Jr. Dn.) & JMFC at Huvinahadagali, which was confirmed by the Appellate Court in Criminal Appeal No. 148/2008 dated 31.03.2010 passed by the Fast Track Court-III, Hospet, dismissing the appeal confirming the judgment and order of conviction passed by the trial Court.

The brief facts of the prosecution case, as per the complaint averments made before the Trial Court, are that the petitioner herein made the complaint to believe that petitioner wanted to start a Mahila Sangha and assured the complainant to nominate her as a second representative of the Sangha and also assured to secure government service to the complainant through said sangha. Accordingly the accused started Mahila Sangha in the name of Goni Basaveswara Swasahaya Mahila Sangha. The complainant and her mother invested sum of Rs. 500/- each in the said society. Further the accused assured others to invest money and get Rs. 5,000/- from them for providing suitable job and also assured to get Godrej Almirah worth Rs. 1,800/- investing sum of Rs. 65/-. On the basis of the said assurances made by the petitioner/accused, complainant, her mother and other persons invested their money, but the accused did not return the money nor got them godrej almirah and thereby cheated the complainant and others and committed the offence punishable under Section 420 of IPC. Before the Trial Court, 44 witnesses were examined as P.Ws. 1 to 44 and the documents Exs. P.1 to P.58 were got marked on the side of the prosecution. On the basis of the said material, the Trial Court ultimately convicted the accused for the offence under Section 420 of IPC. Being aggrieved by the same, the accused preferred an appeal before the first Appellate Court in Crl. A. No. 148/2008. The first Appellate Court after re-appreciating the materials dismissed the appeal confirming the judgment and order of conviction passed by the Trial Court. Being aggrieved by the same, the accused/petitioner is before this Court in this revision petition.

Heard the arguments of the learned counsel appearing for the petitioner/accused and also the learned Government Pleader for the respondent-State.

Learned counsel for the petitioner made the submission that there is no allegation either in the complaint or any other material to show that the petitioner intended to cheat the complainant and others. He also made the submission that though the complainant was taken as a Secretary in the said sangha and though she was working along with the petitioner herein, she kept mum for a quite number of years, and subsequently, she came up with the false complaint. He also made the submission that insofar as the panchnama-Ex. P.23 for the seizure of the books of accounts and the books containing the resolution is concerned, the panchas turned hostile and not supported the case of the prosecution. Therefore, the very seizure of the materials were not established by the prosecution. He also made the submission that except the oral testimony and self-serving evidence of the complainant and other prosecution witnesses, no documents were produced to show that they have paid the amount into the hands of the petitioner/accused. He also submitted that the complainant, even according to the complaint averments, has stated that she was also working with the present petitioner as the second representative in the said sangha and as such, she also ought to have been arrayed as second accused in the case, but, only on the basis of the complaint made by her, the prosecution has treated her as the complainant. Learned counsel also made the submission that looking to the oral and documentary evidence produced in the case, they will not make out a case of cheating and the requirement of Section 420 of IPC are not at all complied with. Hence, in this connection, he made the submission that both the Courts below have not appreciated the evidence on record properly and they wrongly read the evidence and convicted the accused person, which is illegal and not sustainable in law. Hence, he submitted to allow the revision petition and set aside the judgment and order of conviction passed by the Courts below. In support of his contentions, learned counsel for the petitioner herein relied upon the decisions of the Hon''ble Supreme Court rendered in the case of Ajay Mitra Vs. State of M.P. and Others, and in the case of Hari Prasad Chamaria Vs. Bishun Kumar Surekha and Others, .

Per contra, the learned Government Pleader made the submission that sofar as forming the sangha is concerned the prosecution has placed the material. He made the submission that the books containing resolutions, the application forms to become a member and the resolutions of the said society were seized during the course of investigation by the investigating officer in the presence of panch witnesses which documents clearly go to show about the formation of the society by the present petitioner and on the basis of which, the present petitioner went on collecting the money from the complainant and other persons. It is also his submission that even according to the petition averments, the complainant went even to the extent of putting signatures on the documents using the seal of the president even though she was only a Secretary of the said organisation this itself shows the intention on the part of the petitioner that she wanted to cheat other persons by collecting money from them. Hence, he submitted that the courts below have properly appreciated the materials placed on record and have recorded their findings. In this connection, explaining the scope of the revisional court when there are concurrent findings, learned Government Pleader submitted that the revisional Court is having only limited scope and it cannot come to its own conclusion when there are concurrent findings of the courts below based on the evidence on record. In this connection, he relied upon the decisions of the Hon''ble Supreme Court in the case of Hema Vs. State, thr. Inspector of Police, Madras, , State of Kerala Vs. Putthumana Illath Jathavedan Namboodiri, and State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Others, , which are produced by the Government Pleader. Hence, he submitted that there is no merit in the petition and the same may be rejected.

I have perused the grounds urged in the revision petition, the judgment and order of conviction passed by the trial Court and so also the judgment and order passed by the first Appellate Court.

Looking to the materials placed on record, it goes to show that before the Trial Court 44 witnesses were examined by the prosecution and 58 documents were produced. The Trial Court after referring to the evidence placed on record, both oral and documentary, had opined that even though the panch witnesses turned hostile sofar as recovery of the books of the said society as per Ex. P.23, the investigating officer who was examined as P.W. 42 had clearly deposed on oath regarding seizure of those books containing the resolutions, membership forms and other particulars. Hence, the Trial Court relied upon those documents seized under Ex. P.23. The Trial Court considering the oral evidence of the parties who were examined before it, found that except 4 to 5 witnesses who turned hostile, all other witnesses had deposed that they had given the amount into the hands of the petitioner/accused herein. Taking into consideration the oral evidence of all the prosecution witnesses coupled with the documents i.e., the books seized during the investigation, ultimately the trial Court recorded its finding that the prosecution proved its case beyond all reasonable doubt that the present petitioner committed the offence under Section 420 of IPC and thereby convicted him and imposed sentence on him. Coming to the judgment of the first Appellate Court, the first Appellate Court appreciated the evidence both oral and documentary and it has also come to the conclusion that there is material to show about the collection of the amount by the present petitioner from the witnesses who have been examined before the Trial Court, which the first Appellate Court has narrated in detail in para 11 of its judgment, and ultimately, the first Appellate Court recorded a finding that the Trial Court had rightly convicted the accused person on the materials placed on record and confirmed the judgment and order of conviction passed by the Trial Court. Therefore, sofar as the factual aspect of the case is concerned there are concurrent findings of the Courts below. To succeed in the revision petition, the petitioner/accused has to show what is the illegality committed by the Courts below in coming to such a conclusion. I have perused the decisions relied upon by the learned counsel appearing for the petitioner herein which are referred to above. In the case of Han Prasad Chamana (supra), the appeal before the Supreme Court was against the quashing of the proceedings, whereas in the case on hand, it is a revision petition challenging the judgments of the courts below which have rendered concurrent findings, and this Court is not sitting in appeal over the judgments of the courts below. Another decision relied upon by the learned counsel for the petitioner also goes to show that it was case for quashing of the proceedings invoking Section 482 of the IPC. Looking to these decisions relied upon by the petitioner/accused, I am of the clear opinion that since this Court is dealing with the revision petition under the provisions of Section 397 of the Code of Criminal Procedure, the decisions relied upon by the learned counsel for the petitioner/accused while invoking Section 397 of Cr.P.C. will not come to the aid and assistance of the petitioner/accused. Considering the entire materials placed on record, I do not find any illegality in the judgments and orders passed by the Trial Court, which is confirmed by the first Appellate Court; they are in accordance with the material placed on record. There are no justifiable and valid grounds to interfere with the judgment and order of conviction passed by the Courts below. There is no merit in the revision petition and accordingly, the same is hereby rejected.