Karnataka High Court
Ramesh M Gandhi S/O Mangilal vs A Sendilkumar S/O Veluswamy on 20 February, 2017
Equivalent citations: 2017 (2) AKR 658
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL REVISION PETITION NO.321/2010
BETWEEN:
Ramesh M Gandhi
S/o Mangilal
Aged about 45 years
Share Sub-Broker
M/s Vardhaman Shares
And Securities and
M/s Davanagere Shares and
Securities Ltd. No.678
1st Floor, Chowkipet
Davanagere. .. PETITIONER
(By Sri M.S. Rajendra Prasad, Sr. Adv.
a/w Sri Vipin Kumar Jain, Adv.)
AND:
1. A. Sendilkumar
S/o Veluswamy
Aged about 34 years
Bank Employee
D.No.138, 5th Izardar
2
Galli, Chowkipet
Davanagere.
2. Town Police Station
Davanagere
Represented by State Public Prosecutor
High Court Building
Bangalore. .. RESPONDENTS
(By Sri Naveed Ahmed, Adv. for R-1
Sri B J Eshwarappa, HCGP for R-2)
This Criminal Revision Petition is filed under
Section 397 read with Section 401 Cr.P.C praying to set
aside the conviction and sentence dated 03.04.2007
passed by the JMFC-II at Davanagere in
C.C.No.2050/2003 and set aside the order of
confirmation passed by the I Addl. District and Sessions
Judge, Davanagere in Crl.A.No.49/2007 and the
petitioner be acquitted.
This Criminal Revision Petition having been heard
and reserved for orders, coming on for pronouncement
of order this day, the Court made the following:
ORDER
This revision petition is filed challenging the legality and correctness of the judgment and order of 3 conviction dated 3.4.2007 passed by the JMFC-II, Davanagere, in C.C. No.2050/2003 and also the judgment and order dated 31.12.2009 passed by the I Additional District and Sessions Judge, Davanagere in Crl. Appeal No.49/2007.
2. Brief facts of the case of prosecution are that, the respondent-complainant is a resident of Davanagere City and employed in State Bank of Mysore, Harihara Branch. The revision petitioner-accused is carrying on Share Brokerage business under the name and style of M/s. Vardhaman Shares and Securities and M/s. Davanagere Shares and Securities Pvt. Ltd., Chowkipete, Davanagere City. The revision petitioner- accused in the month of August 1998 had met the respondent-complainant and told the respondent- complainant that he is a broker in Mumbai Share Market and that he had got a direct contact and he 4 assured the respondent-complainant to get more profits. If the respondent-complainant invests money, the revision petitioner-accused will do business on behalf of respondent-complainant and get profit to the respondent-complainant. So saying, the petitioner induced and made the respondent to believe his words. The respondent started paying money to the petitioner, as demanded by the petitioner from September 1998, which money was hard earned out of agriculture by the father of the respondent. The respondent-complainant in total had paid Rs.1,45,000/- to the petitioner and that for having received the amount, the petitioner had issued number of receipts to the respondent. Excluding this, the petitioner had also received from the respondent, 22 Shares of Hindustan Lever Company worth about Rs.50,000/- and its market value is about 45,000/- and also 100 shares of Reliance Petroleum worth in market about Rs.6,000/- for sale. The 5 petitioner issued confirmation note which was prepared by him in favour of the respondent with regard to the investments made by him on behalf of the respondent- complainant.
3. In the complaint, it is further stated that the petitioner had issued duplicate receipts, which were prepared by him to the respondent stating that in the aforesaid shares, the shares belong to Moser Bear Company was purchased in an auction conducted by Mumbai Share Market, as the shares of Moser Bear Company was not available in the market on that day. Whenever the respondent-complainant demanded the petitioner-accused to give him original share certificates, the petitioner used to reply to the respondent stating that the same has not come from Mumbai brokers and he will hand it over to the respondent when he receives the same. But according to 6 the confirmation note issued by the petitioner, the petitioner has not purchased the shares in the name of the respondent. The petitioner-accused had cheated the respondent-complainant by creating false documents and also by making the respondent-complainant to believe him. The confirmation note issued by the petitioner-accused was prepared by himself and it does not contain the order number, time of purchase, (Sebi) Registration number, name of main broker with whom the petitioner-accused to deal with, address, all these are not mentioned in the confirmation note and even it does not contain the signature of the petitioner- accused. It is further case of the complainant that the revision petitioner-accused by creating false documents committed breach of trust, cheating, making wrongful loss to the respondent. The said offences are punishable under Sections 409, 417, 420, 465 and 468 of Indian Penal Code.
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4. When the matter was referred by the JMFC Court to the police for investigation, the police investigated the matter and filed the charge sheet.
5. The prosecution, in order to prove its case, examined two witnesses as P.Ws.1 and 2 and produced the documents as per Exs.P.1 to P.27 and on the side of the accused, D.Ws.1 to 3 were examined and the documents Exs.D1 to D.276 and a material object were got marked. After considering the materials both oral and documentary, the JMFC convicted the revision petitioner-accused for the said offence. When the accused preferred an appeal before the first appellate Court, the said Court after, re-appreciating the materials placed before it, dismissed the appeal. Hence, the revision petitioner-accused is before this Court in this revision petition.
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6. Heard the arguments of learned Senior Advocate Sri M.S. Rajendra Prasad appearing for the revision petitioner-accused, learned counsel Sri Naveed Ahmed appearing for respondent No.1-complainant and also the arguments of learned HCGP appearing for respondent No.2 - State.
7. Sri M.S. Rajendra Prasad, learned Senior Advocate appearing for the revision petitioner-accused made submission that looking to the materials produced by the prosecution, they will not make out a case for the alleged offences as against the petitioner. There is delay in filing the complaint, which has not been properly explained by the prosecution with acceptable materials. He submitted that there is a civil dispute which has also not been taken into 9 consideration by the Courts below. Referring to the documents at Exs.D-4 and D-5 marked on the side of the defence, he made submission that these documents are maintained in the regular course of business and they are having the presumptive value and there is nothing on record to show that the complainant side has placed the material to rebut the presumption in respect of the said documents. It is also the submission of the learned Senior Advocate that no material has been produced by the prosecution to show the offences of forgery and cheating. Even in the complaint and in the evidence of the prosecution witnesses, no details are furnished so as to attract the offence of forgery and cheating. The revision petitioner-accused had also produced the documents, but the same were not properly considered and appreciated by the trial Court and first appellate Court. The learned Senior Advocate further submitted that D.W.2 is an accountant and he 10 has given his evidence which supports the defence of the revision petitioner-accused (D.W.3) wherein D.W.2 has deposed that the documents produced by the revision petitioner-accused were having bearing on the issues, which were not properly considered. Learned Senior Advocate further submitted that though it is the contention of the prosecution that the receipts are forged, but looking to the receipts, no details are furnished in proof of the same. The counsel made further submission that the alleged offence are not at all attracted in the case on hand. So far as the transaction of shares is concerned, there is no question of committing the offences of forgery, cheating and misappropriation. These material aspects were not at all considered by the Courts below. Therefore, looking to the entire materials placed on record, it cannot be said that the prosecution has proved its case beyond reasonable doubt. He has also submitted that so far as 11 the defence of the revision petitioner-accused is concerned, he need not prove it beyond the reasonable doubt and the preponderance of probability is sufficient in proving the defence of the accused person. Hence the learned Senior Advocate submitted that the judgment and orders of conviction passed by the trial Court so also the judgment of the first appellate Court are illegal and they are not sustainable in law. Accordingly, he submitted to allow the revision petition by setting aside the judgment and orders of the Courts below and acquit the revision petitioner-accused from all the charges. In support of his arguments, the learned Senior Advocate has relied upon the following judgments.
1. S.N. Palanitkar and others Vs. State of Bihar and another - AIR 2001 SC 2960
2. M/s. Indian Oil Corporation Vs. M/s. NEPC India Ltd. And others - AIR 2006 SC 2780
3. Hasan Ali Vs. State of M.P. - AIR 1983 SC 352(2) 12
8. Per contra, Sri Naveed Ahmed, learned counsel appearing for respondent No.1-complainant made submission that in the early stage of proceedings before the trial Court, the revision petitioner-accused filed an application seeking his discharge from the said proceedings and said application came to be dismissed and the said order has attained finality. He also submitted that there are concurrent findings of the Courts below. In the revision petition, this Court cannot go into the factual aspects and hence, submitted that there is no merit in the revision petition and the same is to be dismissed by confirming the judgments and orders of the Courts below. Learned Counsel for respondent No.1-complainant has relied upon the decision reported in (2012) 9 SCC 416.
9. Learned HCGP appearing for respondent No.2- State has supported the judgment and orders of the 13 Courts below and submitted to dismiss the revision petition.
10. I have perused the grounds urged in the revision petition, the judgment and order of conviction passed by the trial Court, the judgment and order passed by the first appellate Court dismissing the appeal and confirming the judgment of the trial Court. I have also perused the decisions relied upon by learned Senior Advocate appearing for the revision petitioner- accused and the decision relied upon by learned Counsel for the respondent No.1-complainant so also considered the oral submission made by both sides at the Bar.
11. The sum and substance of the case of prosecution before the trial Court is that the complainant was working in State Bank of Mysore at 14 Davanagere. During the year 1998, when the complainant was travelling from Davanagere to Hubli by train, he came into contact with the revision petitioner- accused. The revision petitioner-accused told the complainant that he is working as a share broker in M/s.Vardhaman Shares and Securities Private Limited and that, he is having direct contact with the brokers in the Bombay Share Market and asked the complainant to invest his money in the shares, so that the complainant will get profit out of the said business. It is also the case of prosecution that believing the words of the petitioner, the complainant invested money from time to time totalling to Rs.1,45,000/- by cash and handed over 52 shares of Hindustan Lever Company worth Rs.50,000/- and 22 shares of Reliance Petroleum Company shares worth Rs.6,000/-. It is the further case of prosecution that after receiving the said money so also the abovementioned shares from the 15 complainant, the accused has not made purchase of the shares in the name of the complainant and thereby, he has committed the breach of trust and he has also cheated the complainant by committing fraud. In that process, the revision petitioner-accused created and issued the false documents to the complainant.
12. Accordingly, the charges were framed by the trial Court as against the revision petitioner for the said offences and he was tried by the trial Court. The complainant himself was examined as P.W.1 and examined one independent witness as P.W.2 and got marked the documents at Exs.P.1 to P.27 and on the side of the defence, D.Ws.1 and 2 were examined as the witnesses and the revision petitioner-accused himself was examined as D.W.3 and produced the documents Exs.D.1 to D.276 and one material object (audio cassette) got marked as M.O.1. After considering the 16 materials, the revision petitioner was convicted for the said offences and when he preferred an appeal, the first appellate Court dismissed the appeal confirming the judgment and order of conviction of the trial Court. Hence, the revision petitioner-accused is before this Court.
13. Learned Counsel for respondent No.1- complainant during the course of arguments made submission that the scope of revision petition is very limited and hence, this Court cannot interfere into the factual aspect of the case either to modify or to set aside the judgment and orders of the Courts below. He has also relied upon the decision of the Hon'ble Apex Court in support of the said contention in case of AMIT KAPOOR VS. RAMESH CHANDER AND ANOTHER reported in (2012) 9 SCC 460. Para No.12 of the said 17 decision is relevant for the purpose of our discussion and it reads as under:
" 12. 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 18 is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. "
14. In view of the submission made by the learned Counsel for respondent No.1-complainant and the principles enunciated in the aforesaid decision of the Hon'ble Apex Court, let me consider as to whether the judgment and orders of the Courts below suffer from grave illegality and whether the Courts below have not at all read the evidence properly and whether the Courts below have wrongly read the evidence adduced and whether the Courts below have not considered the relevant materials while coming to such conclusion or 19 whether they have taken into consideration the irrelevant aspects while coming to such conclusion.
15. Looking to the judgment and order passed by the trial Court, it has referred to the oral evidence of P.Ws.1 and 2 and D.Ws.1 to 3 so also it referred to the documentary evidence produced on the side of the prosecution so also on the side of the defence in detail. The trial Court referring to the oral evidence of the witnesses has observed that the case of prosecution has been established by way of cross examination of the defence witnesses (D.Ws.1 to 3) wherein the witnesses including D.W.3-revision petitioner have virtually admitted the case of respondent No.1-complainant. The trial Court has also referred to the evidence of P.Ws.1 and 2 and the documents produced by the complainant side. Looking to the judgment of the trial Court, it goes to show that the revision petitioner (D.W.3) has clearly 20 and unequivocally admitted the receipt of Rs.1,45,000/- from time to time from the complainant and in this regard, the complainant has produced the documents- Exs.P.1 to 8 which are referred by the trial Court. The evidence of D.Ws.1 to 3 also goes to show that even there is evidence of the complainant in respect of handing over the shares of Hindustan Lever Company worth Rs.50,000/- and Reliance Petroleum company shares worth Rs.6,000/- to the revision petitioner- accused. So far as the receipt of cash and shares of the respective companies from the complainant is concerned, it is the contention of the defence that the same were invested in purchasing the shares in the name of the complainant and issued certificates so also the letters to the complainant as per Exs.P.2 to P.267. Hence, it is the defence of the revision petitioner- accused that he has not committed the alleged offence and the complainant himself has sustained loss and in 21 fact, the complainant is due to pay the amount to the revision petitioner-accused. But by making a false allegation, the complainant has filed the false complaint against the revision petitioner-accused.
16. So far as the certificates said to have been issued by the accused to the complainant is concerned, the trial Court, at page No.14 of its judgment, has observed the submission of the learned Counsel for the respondent-complainant that production of the documents at Exs.D.1 to D.275 are not the original documents, they were generated from the computer system and the original bills will be having the signature of the main broker, which also bears the seal of SEBI. At page No.15 of its judgment, the trial Court has also observed the submission of the learned Counsel for the respondent-complainant that in Exs.D.6 to D.267, there is no signature of the main broker, no 22 registered number and even no name of the broker is mentioned and they were created for the purposes of the case. When the same was put to the witness (D.W.1) by the counsel for the complainant, the witness admitted about these things. The trial Court in its judgment referred to the relevant portion of the evidence of D.W.1 at page No.15 of the judgment which reads as under:
" Exs.D.6 to D.267 are not the printed forms, they were generated from the computer. It is true that the documents generated from the computer are not having the signature of the customer. It is true that in Exs.D.6 to D.267, there is no mention regarding the name of the main broker and its registration number. "
17. It is an admitted fact that even according to the evidence of the defence witnesses, the confirmation notes were not having the signatures of the 23 complainant. The trial Court has also referred to the document at Ex.P.22. As observed by the trial Court, the contents of the said document show that M/s. Davanagere Shares and Securities was not registered. The trial Court made reference to the document at Ex.P.17 and in this connection, the trial Court has also referred to SEBI Rules and observed in its judgment as follows:
" No stock broker or sub broker, shall buy, sell, deal in securities, unless he holds a certificate granted by the Board under the regulations:
Provided that such person may continue to buy, sell or deal in securities if he has made an application for such registration till the disposal of such application. "24
18. It is no doubt true that as per the contention of the defence, the documents at Exs.P.6 to P.267 were not properly considered and appreciated by the trial Court as well as the first appellate Court. But looking to the judgments of the Courts below, those documents were taken into consideration and in view of the evidence of the defence witnesses themselves, both the Courts below have observed that the said documents are not the valid documents, they were computer generated copies and not bearing the signature of the complainant to those confirmation notes. In view of this evidence, the Courts below have disbelieved the documents at Exs.P.6 to 267 that they are the valid and genuine documents.
19. Further, the trial Court has referred to the oral evidence of P.Ws.1 and 2, D.Ws.1 to 3 so also referred to the documents placed on record, in detail, 25 and came to the conclusion that looking to the materials placed on record, the prosecution has established its case with cogent and acceptable materials and accordingly, convicted the revision petitioner-accused.
20. I have also perused the judgment of the first appellate Court. The first appellate Court being the last Court of facts considered even the factual aspects in detail and re-appreciated the entire factual aspects of the case. Only after making elaborate discussion in its judgment, the first appellate Court held that there is no illegality committed by the trial Court in convicting the revision petitioner-accused. Accordingly, the first appellate Court has dismissed the appeal confirming the judgment of the trial Court.
21. I have also referred to the judgments relied upon by learned Senior Advocate appearing for the 26 revision petitioner-accused which are referred above. It is no doubt true that in para No.10 of the judgment reported in AIR 2006 SC 2780, the Hon'ble Apex Court has observed as under:
" 10. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by 27 applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri V. State of U.P. [2000 (2) SCC 636], this Court observed:
'It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.' 28 While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the Court, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.
22. I have also perused the other two judgments relied upon by the learned Senior Advocate in support 29 of the case of the revision petitioner-accused. Looking to the concurrent findings of the Courts below so also the materials placed on record, it clearly shows that the revision petitioner-accused has committed the alleged offence. Therefore, the contention of the revision petitioner-accused that the matter is purely civil in nature and the Courts below ought not to have entertained the criminal case filed by the complainant cannot be accepted. Therefore, the judgment reported in AIR 2006 SC 2780 cannot come to the aid and assistance of the case of the revision petitioner-accused as the facts and circumstances of the case in the reported decision and the facts and circumstances of the case in the case on hand are not exactly one and the same. Therefore, looking to the entire materials placed on record, the revision petitioner fails to make out the case that there is illegality committed by the Courts below in coming to such conclusion nor it is established 30 by the revision petitioner-accused that the relevant materials were ignored by the Courts below or the irrelevant material has been taken into consideration while passing the conviction order as against revision petitioner-accused.
23. It is rightly submitted by learned Counsel for the respondent No.1-complainant that the scope of the revision petition is limited and the revisional Court cannot go into the factual aspect unless and until a case is made out for such interference by the revisional Court. I do not find illegality in the judgment and orders of the Courts below. The revision petitioner- accused has not made out the case either to modify or to set aside the judgment and orders of the Courts below.
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24. I have also perused the judgment and orders of the Courts below regarding the sentence imposed on the revision petitioner-accused in respect of each offences. The sentence imposed is proportionate and reasonable and hence, even the aspect of it does not call for interference by this Court.
The revision petition fails and it is accordingly dismissed.
Sd/-
JUDGE Cs/-