Karnataka High Court
K Halappa vs State By on 20 December, 2021
Author: V. Srishananda
Bench: V. Srishananda
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.66/2017
BETWEEN
1. K. HALAPPA
S/O KESHAVAPPA
AGED ABOUT 47 YEARS
R/O AKKITHIMMAIAHNAHATTI VILLAGE
HOSADURGA TALUK
CHITRADURGA DISTRICT-577 527
2. PRAKASHA
S/O MANJUNATHA
AGED ABOUT 37 YEARS
AGRICULTURIST
R/O MAVINAKATTE VILLAGE
HOSADURGA TALUK
CHITRADURGA DISTRICT-577 527
3. VIJAYANNA
S/O CHANDRAPPA
AGED ABOUT 37 YEARS
AGRICULTURIST
R/O MADHURE VILLAGE
HOSADURGA TALUK
CHITRADURGA DISTRICT-577 527
...PETITIONERS
(BY SRI GOPALAKRISHNA MURTHY, ADVOCATE)
AND
STATE BY HOSADURGA P.S.
REP BY ITS SPP
2
BENGALURU-560 001
HIGH COURT BUILDING.
...RESPONDENT
(BY SRI V.S. VINAYAKA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C. PRAYING TO SET
ASIE THE ENTIRE IMPUGNED JUDGMENT AND ORDER DATED
20.10.2015 PASSED BY THE PRINCIPAL C.J. AND JMFC.,
HOSADURGA IN C.C.NO.409/2013 AND ORDER DATED
15.12.2016 PASSED BY THE I ADDL. DISTRICT AND S.J.,
CHITRADURGA IN CRL.A.NO.72/2015 AND ACQUIT THE
PETITIONERS.
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THROUGH PHYSICAL HEARING/VIDEO
CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Gopalakrishna Murthy, learned counsel appearing for the revision petitioners and learned HCGP for the respondent-State and perused the records.
2. A memo of withdrawal is filed by learned counsel for the revision petitioners in Court today, to permit petitioner No.1 to withdraw the petition, which reads as under;
"Memo of withdrawal The undersigned counsel appearing for the petitioners respectfully prays that this Hon'ble Court may be pleased to permit the petitioner No.1 to 3 withdraw the above petition since he has already deposited fine amount of Rs.2,000/- before the Hon'ble Court and hence kindly dismiss the same to meet the ends of justice.
Place:Bengaluru Sd/-
Date:20.12.2021. Advocate for petitioners"
3. Memo is taken on record.
4. In view of the memo, the revision petition as against petitioner No.1 is dismissed as withdrawn.
5. Heard on merits.
6. The brief facts of the case are as under;
The accused persons faced trial for the offence under Section 420 read with 34 of IPC on the ground that they have cheated the Insurance Company. On 14.10.2010, at about 5.30 p.m., when accused No.1 was standing by the side of the road near Government Lower Primary School, Akkithimmaiahnahatti Village, the driver of a Tractor drove the same in a negligent manner and dashed against 4 accused No.1 thereby caused the accident and therefore, they sought for a suitable compensation by approaching the MACT stating that the vehicle bearing KA 16 S 3910 was involved in the accident is what has been alleged by the accused persons. On enquiry by the Insurance Company, it appears that no such accident has taken place and the accused persons, in collusion, have laid a false claim and therefore, a criminal case was filed, which was investigated resulting in filing of the charge sheet. The accused persons pleaded not guilty and trial was held. The prosecution in all examined 11 witnesses as PWs.1 to 11 and got marked 12 documentary evidence exhibited as Exs.P.1 to P.12. Upon conclusion of the trial, the accused statement as contemplated under Section 313 of Cr.P.C. were recorded and the accused persons denied all the incriminating circumstances found against them, but did not place on record their version of evidence. The learned Trial Magistrate convicted the accused persons for the offence punishable under Section 420 of IPC and ordered them to undergo simple imprisonment for a period of one 5 year each and to pay fine of Rs.2,000/- each. Being aggrieved by the same, the accused persons preferred an appeal in Crl.A.No.72/2015 before the First Appellate Court. Learned Judge in the First Appellate Court after securing the records and after hearing the parties, modified the judgment and order of conviction only in respect of accused No.1 taking note of his health condition that he was suffering from bedsores and ordered only fine as against him. In so far as the other accused persons, the judgment of conviction and sentence was confirmed by the First Appellate Court. Being aggrieved by the same, the accused persons are in revision before this Court.
7. Learned counsel for the revision petitioners reiterating the grounds urged in the revision petition contended that both the Courts have wrongly appreciated the material evidence on record and have passed the order of conviction resulting in miscarriage of justice and thus, sought for allowing the revision petition. 6
8. Alternatively, learned counsel for the revision petitioners contended that in the event of this Court maintaining the order of conviction, since accused Nos.2 and 3 are first time offenders, they may be granted probation by enhancing the fine amount.
9. Per contra, learned High Court Government Pleader supported the impugned judgment and contended that the accident said to have taken place on 14.10.2010 and later claimed before the MACT has not at all taken place on a thorough investigation by the Insurance Company and the entire incident as alleged by the accused persons is fake and therefore, the complaint was lodged. Learned Trial Magistrate after considering the oral and documentary evidence on record, recorded the finding that no such accident has taken place involving the vehicle bearing No.KA 16 S 3910 and only with an intention to cheat the Insurance Company for the purpose of avoiding the claim, the motorcycle bearing No.KA 16 S 3910 has been implanted in the case. Therefore, the judgment of the 7 learned Trial Magistrate and the learned Judge in the First Appellate Court is on sound and logical reasons and thus, sought for dismissing the revision petition.
10. In so far as the alternate plea is concerned, learned High Court Government Pleader contended that there was no material or mitigating circumstances placed by the accused before the learned Trial Magistrate or the learned Judge in the First Appellate Court. In so far as accused Nos.2 and 3 are concerned, they are not entitled for any leniency by this Court and sought for dismissal of the revision petition in toto.
11. In view of the rival contentions and the findings of the Courts below, the following points would arise for consideration;
"i) Whether the findings recorded by the learned Trial Magistrate confirmed by the First Appellate Court against the accused persons for the offences punishable under Section 420 of IPC suffers from legal infirmity, patent factual defect, perversity and thus, calls for interference?8
ii) Whether the sentence is excessive?"
12. In the case on hand, the accident has taken place involving the tractor and some other motorcycle other than the motorcycle bearing No.KA 16 S 3910 stands established by placing necessary oral and documentary evidence on record. As borne out by the records, the accident has taken place on 14.10.2010 at 5.40 p.m. However, in order to avoid liability, the motorcycle bearing KA 16 S 3910 came to be implanted by accused Nos.2 and 3 and ultimately wanted to cheat the Insurance Company. The Insurance Company on a private investigation noticed that the motorcycle bearing No.KA 16 S 3910 has been falsely implanted in the case and lodged a complaint, which has been thoroughly investigated by the Police and after thorough investigation, the charge sheet came to be filed. The material on record depicts that motorcycle bearing No.KA 16 S 3910 was not at all involved in the accident. Therefore, action of the accused persons in falsely implanting the motorcycle bearing KA 16 S 3910 in 9 order to avoid the liability of the owner of the motorcycle itself amounts to cheating. The learned Trial Magistrate was justified in convicting the accused for the offence under Section 410 of IPC, which is properly appreciated by the learned Judge in the First Appellate Court. Having regard to the limited scope of revision and considering the materials on record, this Court does not find any legal infirmity or patent factual defect or perversity in the order of conviction passed by the learned Trial Magistrate and confirmed by the learned Judge in the First Appellate Court. Accordingly, point No.1 is answered in the 'negative'.
13. In so far as the sentence is concerned, admittedly, accused Nos.2 and 3 are first time offenders and they are entitled for grant of the benefit of probation as is held in Chandreshwar Sharma v. State of Bihar, (2000) 9 SCC 245 and Gulzar v. State of M.P., (2007) 1 SCC 619. 10
i. In the case of Chandreshwar Sharma v. State of Bihar reported in (2000) 9 SCC 245 at paragraph No.3, it has been held as under:
"3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 11 360 of the Cr.P.C. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the CrPC. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly."12
ii. In the case of Gulzar v. State of M.P reported in (2007) 1 SCC 619, at paragraph 12, it has been held as under:
"12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the PO Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the courts in relation to supervision and other matters while the PO Act does make such a provision. While Section 12 of the PO Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the PO Act shall not 13 suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the PO Act, as applicable at the same time in a given area, cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable."
Applying the legal principles laid down in the afore-quoted decisions, if the revision petitioner Nos.2 and 3/accused Nos.2 and 3 are directed to execute a personal bond for a sum of Rs.25,000/- each with one surety for the likesum, which shall be in force for a period of two years and 14 ordered to pay fine of Rs.50,000/- each would meet the ends of justice. Accordingly, point no.2 is answered.
14. In the result, the following:
Order
i) The Criminal Revision Petition as against revision petitioner No.1/accused No.1 stands dismissed as withdrawn.
ii) The Criminal Revision Petition as against revision petitioner Nos.2 and 3/accused Nos.2 and 3 stands allowed-in-part.
iii) While maintaining the conviction of the accused Nos.2 and 3 who are revision petitioner Nos.2 and 3 for the offence under Section 420 of IPC, they are directed to execute a personal bond for a sum of Rs.25,000/- each with one surety for the likesum, which shall be in force for a period of two years and ordered to pay fine of Rs.50,000/-
each, with default sentence of one year simple imprisonment.
15
iv) Time is granted till 31.01.2022, to execute the bond and to pay the fine amount.
v) In the event of breach of any of the conditions or default in payment of fine amount, the order of the learned Trial Magistrate stands restored. Ordered accordingly.
Office is directed to return the Trial Court Records with a copy of this order, forthwith.
Sd/-
JUDGE mv