Karnataka High Court
Sri Lakshminarayana Shetty vs State Of Karnataka on 4 November, 2020
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Crl.R.P.No.520/2011 C/W
Crl.R.P.No.518/2011,
Crl.R.P.No.519/2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4th DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL REVISION PETITION No.520/2011
C/W
CRIMINAL REVISION PETITION No.518/2011,
CRIMINAL REVISION PETITION No.519/2011
BETWEEN:
1. SRI LAKSHMINARAYANA SHETTY
AGED ABOUT 44 YEARS
S/O K V RANGAIAH SHETTY
NO.73/A, 17TH 'E' MAIN
KORAMANGALA LAYOUT
R/AT NO.1887, 4TH MAIN
12TH CROSS, VIJAYANAGAR
BANGALORE - 560 040
2. SRI RAVISHANKAR
AGED ABOUT 46 YEARS
NO.6, SANNIDHI ROAD
BASAVANAGUDI
BANGALORE - 560 004
3. SRI SHASHIDHAR
S/O PARAMESHWARA
AGED ABOUT 44 YEARS
NO.185, KADIRAPPA ROAD
DODDAGUNTE, COX TOWN
BANGALORE - 560 005
...PETITIONERS
(COMMON)
(BY SRI.C.V.NAGESH, SENIOR COUNSEL FOR
SRI. K RAGHAVENDRA, ADVOCATE FOR
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Crl.R.P.No.520/2011 C/W
Crl.R.P.No.518/2011,
Crl.R.P.No.519/2011
M/S C.V.NAGESH & ASSOCIATES)
PETITION AGAINST PETITIONER NO.1 IS ABATED
V/O DATED 15/09/2020)
AND:
STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER
COMMERCIAL STREET POLICE STATION
BANGALORE
RESPONDENT
(COMMON)
(BY SRI.H.R.SHOWRI, HCGP )
CRIMINAL REVISION PETITION NO.520/2011 IS
FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED 19.03.2011 PASSED
BY THE DISTRICT AND SESSIONS JUDGE AND
PRESIDING OFFICER, FAST TRACK COURT-IV,
BANGALORE IN CRL.A.NO.698/09 AND ORDER
DATED:31.07.09 PASSED BY THE IV ADDL. C.M.M.,
BANGALORE IN C.C.NO.8621/1999.
CRIMINAL REVISION PETITION NO.518/2011 IS
FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED 19.03.2011 PASSED
BY THE DISTRICT AND SESSIONS JUDGE AND
PRESIDING OFFICER, FAST TRACK COURT-IV,
BANGALORE IN CRL.A.NO.696/09 AND ORDER
DATED:31.07.09 PASSED BY THE IV ADDL. C.M.M.,
BANGALORE IN C.C.NO.8619/1999.
CRIMINAL REVISION PETITION NO.519/2011 IS
FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED 19.03.2011 PASSED
BY THE DISTRICT AND SESSIONS JUDGE AND
PRESIDING OFFICER, FAST TRACK COURT-IV,
BANGALORE IN CRL.A.NO.697/09 AND ORDER
DATED:31.07.09 PASSED BY THE IV ADDL. C.M.M.,
BANGALORE IN C.C.NO.8620/1999.
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Crl.R.P.No.520/2011 C/W
Crl.R.P.No.518/2011,
Crl.R.P.No.519/2011
THESE CRIMINAL REVISION PETITIONS HAVING
BEEN HEARD AND RESERVED FOR ORDERS ON 14TH
OCTOBER 2020, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE MADE THE FOLLOWING:
ORDER
Since these petitions arise out of the common judgment and order passed by the first appellate Court and involve common questions of law and facts, they are taken up together for disposal by this common order.
2. Petitioners were accused Nos.2 to 4 in Crime No.119/1995 of Commercial Street Police Station. The parties will be referred to henceforth with their ranks before the trial Court.
3. Cr. No.119/1995 was registered against the petitioners and first accused K.Prabhakar Rao for the offences punishable under Section 408 of IPC on the basis of the complaint of PW.1 Roy Mathew as per Ex.P1.
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4. The case of the prosecution in brief is as follows:
During 1993 to 1995, accused No.1 was the Manager, accused Nos.2 to 4 were the clerks in Muthoottu Mini Bankers which was running the Pawn Brokers' Business. PWs.1 and 3 were the partners of the said firm. Accused Nos.1 to 4 on the pledge of fake gold jewellery in the names of fictitious persons, purportedly lent loan of Rs.20,00,000/-. But, the accused themselves received that money, cheated the employer, committed misappropriation and criminal breach of trust. The offence was revealed when the audit of the accounts of the firm was conducted.
5. CW.5 said to have received the complaint filed by PW.1, registered the FIR and conducted the investigation. It appears having regard to Section 219 of Cr.P.C., Investigating Officer filed three separate charge sheets regarding the offence relating to the years 1993, 1994 and 1995 before the IV A.C.M.M., Bengaluru. The learned Magistrate took cognizance on 5 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 the basis of three separate charge sheets and registered the cases in C.C.Nos.8619/1999, 8620/1999 and 8621/1999 as per the table below:
Sl. C.C. No. Year of Amount of
NO. misappropriation misappropriation
1 8619/1999 1993 3,67,100
2 8620/1999 1994 4,34,700
3 8621/1999 1995 12,70,100
In all the accused allegedly committed
misappropriation of a sum of Rs.20,71,900/-.
6. In the aforesaid cases the Magistrate framed the charge to the effect that accused No.1 being the Manager and accused Nos.2 to 4 being clerks in the Muthoottu Mini Bankers situated at Infantry Road, Bengaluru on the basis of pledge of fake jewelleries purportedly disbursed loan of Rs.3,67,100/- in the year 1993, Rs.4,34,700/- in the year 1994 and Rs.12,70,100/- in the year 1995 to their own benefit and without repaying the said loan cheated the bank and committed misappropriation.
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7. The accused denied the charges and claimed to be tried. Therefore, the trial Court tried the accused in all the cases. The complainant-Managing partner of Muthoottu Mini Bankers was examined as PW.1, the auditor whose audit allegedly revealed the offence was examined as PW.2, another partner - Saramma Memon was examined as PW.3 and ASI who apprehended accused Nos.1 to 4 and produced them before the Investigating Officer was examined as PW.4.
8. Before the examination of accused under Section 313 of Cr.P.C, accused No.1 died. Therefore, case against him abated before the trial Court itself. The trial Court examined accused Nos.2 to 4 under Section 313 of Cr.P.C. The accused did not lead any defence evidence. But on their behalf Ex.D1 (only the first page of the copy of the plaint in O.S.No.2956/1996 on the file of the City Civil Judge, Bengaluru) was marked.
9. The prosecution got marked Exs.P1 to P162. The original documents were produced and marked in 7 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 C.C.No.8619/1999. In the remaining two cases, the Magistrate received the records from C.C.No.8619/1999, purportedly marked with the same exhibit numbers and returned those documents to the file of C.C.No.8619/1999. The records show that not even the copies of the documents were retained in C.C.Nos.8620 and 8621 of 1999.
10. Then the trial Court by three separate judgments dated 31.07.2009 convicted accused Nos.2 to 4 for the offence punishable under Section 408 of IPC and sentenced them to simple imprisonment of one year and fine of Rs.5,000/- each in default to pay fine, to undergo simple imprisonment for five months.
11. The order of conviction and sentence of the trial Court was based on the following grounds:
i) The appointment letters Exs.P5 to P8 prove the entrustment to the accused.
ii) In Exs.P9 to Ex.P11 the replies of accused Nos.2 to 4 to the memo issued to them imputing breach 8 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 of trust and misappropriation, they have admitted the commission of misappropriation.
iii) Ex.P2 the audit report proves misappropriation.
12. Accused Nos.2 to 4 challenged the said order of conviction and sentence before the District and Sessions Judge and Fast Track Court-IV, Bengaluru in Crl.A.Nos.696, 697 and 698 of 2009. Learned Appellate Judge concurring with the trial Court by the impugned common judgment and order dated 19.03.2011 dismissed the appeals. Assailing the same accused Nos.2 to 4 have filed the above revision petitions.
13. When the matters were pending before this Court under the memo dated 02.09.2020, learned counsel for the petitioners reported the death of the first petitioner/second accused. Along with the memo the death certificate was produced which shows that accused No.2 died on 18.04.2015. Therefore, the petitions relating to accused No.2/petitioner No.1 stood abated.9
Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011
14. The challenge to the impugned orders in the above petitions is on the following grounds:
i) Entrustment of properties to the petitioners was not proved;
ii) The trial Court contravened the provisions of Cr.P.C and Indian Evidence Act, 1872 ('the Evidence Act' for short) in recording the depositions of the witnesses and admitting the documents in evidence.
That vitiated the whole trial;
iii) While recording the deposition and rendering the judgment, the trial Court has acted in a highly mechanical manner;
iv) The recording of the statements of the accused under section 313 Cr.P.C. jointly was contrary to Section 313 of Cr.P.C., which vitiated the trial.
v) Non examination of the Investigating Officer and the Appraiser was fatal to the prosecution.
15. Reiterating the same grounds, Sri C.V.Nagesh, learned senior counsel appearing for Sri K.Raghavendra, Advocate on record for the petitioners vehemently 10 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 submits that the whole trial was highly mechanical and prejudicial to the defence of the accused. He further submits that having regard to the illegality in recording the statements of the accused under Section 313 Cr.P.C. jointly, the impugned orders of conviction and sentence are liable to be set aside.
In support of his arguments he relied upon the following judgments:
i) Vaijinath vs. State of Karnataka1
ii) State of Karnataka vs. Sharanahalli Revanna and others2
iii) LIC of India vs. Rampal Singh Bisen3
16. Per contra Sri Showri, learned HCGP seeks to justify the impugned orders of conviction and sentence on the following grounds:
i) The concurrent findings of the Courts below which are based on appreciation of evidence cannot be interfered by this Court under revisional jurisdiction; 1
ILR 1993 KAR 543 2 ILR 1997 KAR 337 3 (2010)4 SCC 491 11 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011
ii) Accused Nos.2 to 4 in Exs.P9 to P11 unequivocally confessed about the offence.
iii) The appointment letters Ex.P5 to P8 were not disputed and they showed that the accused were entrusted with the work of appraising the jewellery;
iv) The auditor PW.2 was the independent witness. There was no reason to disbelieve his evidence and his report Ex.P2;
v) Since Navarathna Jewellers was the Government approved Appraiser, its report falls under Sections 293 and 294 Cr.P.C. Therefore, the trial Court could rely on the same without marking that in evidence and examination of the Appraiser; and
v) The non examination of Investigating Officer was not fatal in the light of the other evidence available on record.
In support of his arguments he relied upon the following judgments:
i) State of Karnataka vs. Jagadisha and ors4 4 ILR 2002 KAR 3472 12 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011
ii)Boraiah @ Shekar vs. State of Karnataka5 6
iii) Nar Singh vs. State of Haryana
17. This Court is conscious of the fact that in the revisional jurisdiction the scope of interference in the concurrent findings of the Courts below which is based on appreciation of evidence is very limited. However, if it is shown that the judgments of the Courts below suffer perversity, illegality or impropriety, it is open to this Court to interfere with the concurrent findings of the Courts below.
18. In Prem Kaur vs. State of Punjab7 the Hon'ble Supreme Court held that, if the judgment is rendered acting upon the inadmissible evidence or without considering the relevant evidence or contrary to the statutory provisions and the precedents, the same suffers perversity. Therefore the impugned judgments are to be examined on the basis of that test.
19. There was no dispute that Muthoottu Mini Bankers - complainant was running pawn broker 5 2003 Crl.L.J.1031 6 (2015)1 SCC 496 7 (2013)14 SCC 653 13 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 business and the said Muthoottu Mini Bankers was opened in Bengaluru in 1984. There was no dispute that during the alleged period of misappropriation, accused No.1 was the Manager and accused Nos. 2 to 4 were working in the said establishment as clerks.
20. The allegation in the complaint and the charge sheet was that the accused indulged in farce lending on the pledge of fake gold jewelleries and borrowers were fictitious persons and accused themselves availed the said loan amount and did not repay the same to the bank. As per the alleged norms of the bank the gold loan was to be recovered within one year 7 days, otherwise the jewellery were to be auctioned and the accused allegedly did not take steps for auctioning of the jewellery.
21. As per the prosecution, the fraud played by the accused was unfolded when the audit team of PW.2 conducted audit in the bank in 1995. In fact the allegations made against the accused in the complaint and the charge sheet attracted the offence of 14 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 impersonation under Section 419 of IPC, cheating under Section 420 IPC and criminal breach of trust under Section 408 IPC. The case was registered and charge sheet was filed and charges were framed only for the offence punishable under Section 408 IPC.
22. To sustain the charge under Section 408 of IPC, the prosecution was expected to prove the following aspects:
i) The entrustment of the properties to accused Nos.1 to 4.
ii) The Extra-judicial confession of accused Nos.2 to 4 under Exs.P9 to P11.
iii) That the jewelleries pledged were fake jewelleries;
iv) Further to sustain the impugned order of conviction and sentence, it should have been shown that the accused were tried in accordance with law.
Regarding Entrustment
23. To hold that accused Nos.1 to 4 were entrusted with the jewelleries, the trial Court relied 15 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 upon Exs.P5 to P8 the alleged appointment letters of accused Nos.1 to 4 respectively. To prove Exs.P5 to P8 the prosecution relied upon the evidence of PW.1 the complainant and PW.3 another partner of the business. PW.3 does not speak about Exs.P5 to P8.
24. In the cross-examination of the witnesses, the issuance of Exs.P5 to P8 the appointment letters was disputed. Exs.P5 to P8 were only the notarized copies and not the original appointment letters. While marking those documents, the defence counsel objected the marking on the ground that they are secondary evidence. Therefore, they were marked subject to production of the original.
25. PW.1 did not say where were the originals of Exs.P5 to P8. If they were with the accused, Investigating Officer did not seize them from the accused. In those documents the other terms of the employment are mentioned. The space meant for the salary package of the appointed person was left blank. To admit the secondary evidence, no foundation was 16 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 laid as required under Section 65 of the Evidence Act. Therefore, in admitting those documents and relying on them the trial Court acted contrary to Section 64 and 65 of the Evidence Act.
26. The ocular evidence also does not inspire the confidence of the Court with regard to the entrustment as tried to be set up under Ex.P5 to 8. PW.1 in the cross-examination at page 17 states that he does not have the personal knowledge of day today transactions. He admits that the Manager was the person who was receiving the gold pledged by the customers, disbursing the loan amount, signing and issuing the receipts.
27. PW.2 in his chief examination itself unequivocally admitted that customers were approaching accused No.1 the Manager and he used to assess and verify the purity of gold jewellery to be pledged and fix the loan amount. He states thereafter accused No.1 used to send the customers to the clerks and they used to make documentation. No attempt was made to clarify such statements of PWs.1 and 2. 17
Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011
28. Even as per chief examination of PW.1, accused No.1 was experienced in testing the gold and he had to maintain cash book, day book and pawn broker ledger. Accused Nos.2 to 4 were only writing the ledgers.
29. PW.3 another partner in her chief examination itself states that accused No.1 was responsible for day- to-day affairs and accused Nos.2 to 4 were only assisting him. She does not depose about entrustment to accused under Exs.P5 to P8. As per the evidence of PWs.1 and 2, Accused No.1 along with the management was the custodian of the pledged jewelleries.
30. Therefore, as per prosecution's own evidence, the duty of accused Nos. 2 to 4 was only the documentation and not appraisal of the jewellery or receiving the custody of the same. Despite such admission, the trial Court holds that the entrustment of the properties to accused Nos.2 to 4 was proved which finding is contrary to the evidence on record. 18
Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 Regarding Extra Judicial Confession-Ex.P9 to P11.
31. According to the prosecution, on learning about the misappropriation through the auditor the management issued memo to accused No.1 and accused No.1 in turn issued memos to accused Nos.2 to 4, accused Nos.2 to 4 submitted the replies as per Exs.P9 to P11 conceding the misappropriation. In the cross-examination of PW.1 accused Nos.2 to 4 disputed the genuineness of Exs.P5 to 11 and claimed that they were concocted in collusion with the auditor.
32. Exs.P9 to P11 were in the nature of Extra Judicial confession of accused Nos.2 to 4. Therefore, they were required to be proved in the standards required for the proof of Extra Judicial confession. To prove them the prosecution was expected to examine the person before whom they were made. Further the prosecution was expected to prove the circumstances under which the alleged extra judicial confessions were made.
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Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011
33. Accused seriously disputed the execution of Exs.P9 to 11. Accused Nos.2 to 4 purportedly addressed those letters to the Branch Manager of Muthoottu Mini Bankers on 21.03.1995 in response to the alleged memo dated 21.03.1995 issued by accused No.1. The said memo was not produced in the charge sheet records.
34. PW.1 in his cross-examination states that on 21.03.1995 they issued notice to accused No.1 calling upon his explanation and produced that notice before Police. But that was not produced in the charge sheet and marked. There was no proof of service of notice to accused No.1 or accused No.1's memo to accused Nos.2 to 4. Replies Exs.P9 to 11 were also dated 21.03.1995.
35. The accused disputed the entire case of the prosecution. PW.1 in his evidence stated that after the misappropriation was revealed the accused stopped coming to the bank. Then how accused No.1 issued the memos to accused Nos.2 to 4 was not explained. The service of the alleged memo on accused Nos.2 to 4 was 20 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 not proved. PW.1 in his cross-examination states that he has not stated before Investigating Officer that they issued memo to accused No.1 on 21.03.1995 and on the same day, accused Nos.2 to 4 submitted Exs.P9 to P11, a material omission.
36. Nobody was examined to prove the hand writing and signatures of accused Nos.2 to 4 on Exs.P9 to 11. It was not the case of PWs.1 to 3 that accused Nos.2 to 4 submitted Exs.P9 to 11 to them. The seal and signature of the bank for having received Ex.P9 to Ex.P11 in the office of Muthoottu Mini Bankers was not forthcoming on those documents. Except the self serving statement by PW.1 absolutely there was nothing in proof of Exs.P9 to P11. Still the trial Court holds that accused Nos.2 to 4 under Exs.P9 to P11 admitted the commission of the offence which is unsustainable. Reg. Proof of misappropriation:
37. In convicting accused Nos.2 to 4, in addition to Exs.P5 to P11, the trial Court relied on Ex.P2 Audit report, the evidence of PW.2 and alleged Appraiser's 21 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 report. PW.2 said to have visited the bank and on verification found that fake gold ornaments were pledged. But again PW.2 in his cross-examination admits that for the purpose of conducting the audit, initially the chartered accountants employed by his firm visited the organization, prepared preliminary report of audit and on that basis Ex.P2 was drawn. Thus it is clear that Ex.P2 was not a primary document and it was based on the preliminary report prepared by the audit team of firm of PW.2. That preliminary report was not made part of the charge sheet records. None of those chartered accountants who prepared preliminary report were cited as charge sheet witnesses.
38. Further, PW.2 in his cross-examination unequivocally admitted that he has no expertise to test the purity of the gold, neither he nor his team of audit verified the purity of the gold. But the report says that the fake gold ornaments were pledged. Therefore, in accepting Ex.P2 and the evidence of PW.2, the trial Court acted contrary to Sections 64 and 65 of the Evidence Act.
22
Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 Reg. Appraiser's report
39. In holding that the accused got pledged fake ornaments, the Courts below relied upon the Appraiser's report said to have been submitted by Navarathna Jewellers. However, the said report was not marked in evidence. The appraiser or the author of the report was not examined.
40. Learned HCGP relying on Sections 293 and 294 of Cr.P.C. and the judgment of this Court in Boraiah's case referred to supra submitted that even without examining the Appraiser and without marking his report in evidence, the Courts below could rely upon the same.
41. To read a document in evidence invoking Section 294 of Cr.P.C., first sub-Section (1) & (2) of Section 294 of Cr.P.C. have to be complied. Section 294(1) of Cr.P.C. says that the prosecution should make the list of such documents and call upon the accused or his pleader to admit or deny the genuineness of the said document. The prosecution did not make any such 23 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 exercise before the trial Court with regard to the Appraiser's report. Thus, the procedure contemplated under Section 294 (1) & (2) of Cr.P.C. was not complied. Therefore, Section 294 of Cr.P.C. was not applicable.
42. Though Section 293(1) of Cr.P.C. permits using the report of a Government Scientific Expert in evidence, Sub-Section (4) of Section 293 of Cr.P.C. specifies those reports. The reports contemplated under Section 293(4) of Cr.P.C. are as follows:
"293(4).- This Section applies to the following Government scientific experts, namely:-
(a) any Chemical Examiner or Assistant Chemical examiner to Government;
(b) the Chief Controller of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, (Deputy Director or Assistant Director) of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government;
(g) any other Government scientific expert specified by notification, by the Central Government for this purpose."24
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43. Learned HCGP tried to bring the Appraiser's report under Section 293(g) of Cr.P.C. But, even to invoke that, the said scientific expert should be the one specified by notification of the Central Government for that purpose. But, in this case, no evidence was lead to show that the Central Government had notified Navarathna Jewelers as the expert in appraising the gold ornaments. Therefore, Section 293 of Cr.P.C. and the judgment in Boraiah's case relied upon by the learned HCGP are not applicable. Therefore, the findings of the trial Court and the first appellate Court that accused had received the fake jewellery were unsustainable in law.
Reg. 313 of Cr.P.C.
44. The records show that the trial Court did not examine accused Nos.1 to 4 distinctly under Section 313 of Cr.P.C. with reference to the incriminating evidence. The trial Court conducted the joint examination of accused Nos.2 to 4 and took their signatures. By the time, the trial Court examined the 25 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 accused under Section 313 of Cr.P.C., accused No.1 was dead.
45. The trial Court made a common format of examination of all the accused that shows accused Nos.1 to 4 at serial No.1 to 4 for recording the reply. In the place meant for recording the reply of accused, against accused No.1 mentions as 'dead'. Against accused No.2, it records as 'PÉýzÉÝêÉ' means 'heard' and accused No.3 '---"---' means ditto. In the rest of the questions against accused No.1's answer the trial Court simply draws a line. For question Nos.2 to 10 in the place meant for recording the answer of the accused, the trial Court just draws a line. So far as accused Nos.2 to 4, it recorded joint reply.
46. In question No.5, against accused No.3 it records his reply as '---"---' means ditto. In question No.11, in the place meant for recording the answer of accused No.1, the trial Court draws a line, records answer of accused No.2 as 'vÀ¥ÀÄà ªÀiÁr®è', means 'not 26 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 committed mistake' and for accused Nos.3 to 4 it records as '----"----' means ditto.
47. The Division bench of this Court in Vaijinath's case referred to supra while considering the legality of joint statement of accused under Section 313 of Cr.P.C. in para 2 of the judgment held as follows:
"The Parliament thought it necessary to add the word "personally" while replacing the Code of 1898 by the Code of 1973. Section 313 in the present Code corresponds to Section 342 in the old Code in which the word "personally" was not appearing. The object of Section 313 is to give opportunity to each and every one of the accused persons to offer their own explanation regarding any circumstances that may appear against them in the evidence. An accused person cannot be called upon to enter the box to give evidence unless he himself chooses to enter the box with the leave of the Court. But, Sub- section (4) of Section 313 particularly lays down that the answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into or trial for other offence. Therefore, the importance of the questions to be put to the accused and his answers thereto under Section 313 Cr.P.C. cannot be minimised. A plain reading of Section 313 Cr.P.C. makes it amply clear that each and everyone of the accused persons where there are more accused than one should be separately and 27 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 distinctly questioned on every one of circumstances appearing against him in evidence. If the trial Court to save labour or for reasons which cannot be made out adopts a short- cut and puts the questions to the accused persons in a joint statement, it is a clear infringement of the mandatory provisions of Section 313 Cr.P.C."
(Emphasis supplied)
48. Ultimately, in that case, this Court remanded the matter. While taking similar view regarding the legality of joint examination of accused under Section 313 of Cr.P.C., this Court in Sharanahalli's case referred to supra held that such joint examination of the accused contravenes Section 313 of Cr.P.C. It was further held that since the matter was 7 years old, no purpose will be served by remanding the matter and ultimately the accused were acquitted.
49. Repelling the challenge to the judgment on the ground of error in recording statement of the accused under Section 313 Cr.P.C., the learned HCGP relying on the judgment of the Supreme Court in Nar 28 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 Singh's case contended that such error does not vitiate the trial.
50. In Narsingh's judgment the Hon'ble Supreme Court expounding on the importance and sanctity attached to the examination of the accused under Section 313 Cr.P.C in para 11 of the judgment held as follows:
"11. The object of Section 313 (1)(b) Cr.P.C. is to bring the substance of accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him. The examination of accused under Section 313 (1)(b) Cr.P.C. is not a mere formality.
Section 313 Cr.P.C. prescribes a procedural safeguard for an accused, giving him an opportunity to explain the facts and circumstances appearing against him in the evidence and this opportunity is valuable from the standpoint of the accused. The real 29 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 importance of Section 313 Cr.P.C. lies in that, it imposes a duty on the Court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby, an opportunity is given to him to explain any such point."
(Emphasis supplied)
51. Though it was held that the mere defect in recording the statement under Section 313 Cr.P.C. does not vitiate the entire trial unless it is shown that such defect has caused prejudice to the accused, it was also held that such prejudice may be implicit and the Court may draw an inference of such prejudice.
52. Narasingh's case was not a case involving the joint examination of the accused. In the said case the Court had not examined the accused with reference to FSL report on which the conviction was based. However, in the case on hand as already pointed out the accused were not examined personally as required under Section 313 Cr.P.C. Therefore the accused did not get individual opportunity to meet the 30 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 incriminating circumstances against them which certainly has caused material prejudice to them.
53. Further in Narasingh's case the Supreme Court itself held that the facts of each case have to be examined to determine whether actually any prejudice has been caused to the appellant due to omission in putting such incriminating circumstance to the accused. Having regard to the facts of the present case and discussion made above, the judgment in Narasingh's case does not advance the case of the prosecution.
54. In this case, apart from contravention of Section 313 of Cr.P.C., as discussed above the trial Court and the first appellate Court in relying on the auditor's report Ex.P2, the alleged appointment letters Exs.P5 to P8, the alleged extra judicial confessions Exs.P9 to P11 and the Appraiser's report acted contrary to the provisions of Sections 64 and 65 of the Evidence Act, Sections 293 and 294 Cr.P.C. and the law relating to Principles of extra judicial confession. Therefore, the impugned orders of conviction and sentence against 31 Crl.R.P.No.520/2011 C/W Crl.R.P.No.518/2011, Crl.R.P.No.519/2011 petitioners are liable to be set aside on those grounds also.
55. Apart from that, the records show that the evidence recorded in C.C.No.8619/1999 was virtually copied in the other two cases. Similarly the judgment drawn in one case was virtually copied in other two cases. The said facts show non-application of mind. The judgments are liable to be set aside on that count also. Therefore, the petitions are allowed.
The impugned orders of conviction and sentence recorded by the trial Court in C.C.Nos.8619, 8620 and 8621 of 1999 and confirmed by the first appellate Court in Crl.A.Nos.696, 697 and 698 of 2009 are hereby set aside. Petitioners are hereby acquitted of the charges brought against them. The order regarding disposal of the properties is maintained.
Sd/-
JUDGE akc