Madras High Court
Subbiah Konar vs State By The on 18 September, 2019
Author: P.N.Prakash
Bench: P.N.Prakash
CRL.R.C.No.273 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.09.2019
PRONOUNCED ON : 18.09.2019
CORAM
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
CRL.R.C.No.273 of 2014
Subbiah Konar .. Petitioner
Vs
State by the
Inspector of Police,
District Crime Branch,
Coimbatore.
(Cr.No.3 of 2005) .. Respondent
Criminal Revision preferred under Section 397 and 401 Cr.P.C. to
set aside the judgment dated 17.12.2013 made in Crl.A.No.65 of 2013 on the
file of the V Additional District and Sessions Judge, Coimbatore confirming the
judgment of conviction and sentence dated 25.04.2013 made in C.C.No.675
of 2005 on the file of the Judicial Magistrate No.I, Pollachi.
For Petitioners : Mr.T.Saikrishnan
for M/s.Sai Bharath and Ilan
For Respondent : Mrs.P.Kritika Kamal,
Govt. Advocate (Crl. Side)
ORDER
This Criminal Revision has been preferred challenging the judgment dated 17.12.2013 passed by the V Additional District and Sessions Judge, Coimbatore confirming the conviction and sentence dated 25.04.2013 passed http://www.judis.nic.in 1/18 CRL.R.C.No.273 of 2014 by the Judicial Magistrate No.I, Pollachi in C.C.No.675 of 2005 .
2. It is the case of the prosecution that the petitioner was conducting a chit without registration and had collected Rs.1,80,000/- from 04.04.2002 to 03.04.2003 and Rs.1,20,000/- from 04.04.2003 to 06.10.2003, totally Rs.3,00,000/-, from P.W.1 to P.W.30 and when they started demanding the return of the amounts, he decamped without a trace.
3. On these allegations, a case in Crime No.3 of 2005 was registered by the District Crime Branch and after completing the investigation, the police filed a single final report in C.C.No.675 of 2005 before the Judicial Magistrate No.I, Pollachi for the offence under Section 406 IPC.
4. To prove the case, the prosecution examined 31 witnesses and marked 29 exhibits. When the petitioner was questioned under Section 313 Cr.P.C., about the incriminating circumstances appearing against him, he denied the same. No witness was examined nor any document marked on the side of the petitioner.
5. After considering the evidence on record and after hearing either side, the trial Court, by judgment and order dated 25.04.2013 in C.C.No.675 of 2005, convicted and sentenced the petitioner as under.
http://www.judis.nic.in 2/18 CRL.R.C.No.273 of 2014 Provision under Sentence which convicted Section 406 IPC 2 years rigorous imprisonment and fine of Rs.2,000/-, in default to undergo 1 month simple imprisonment
The appellate Court, while confirming the conviction imposed on the petitioner of the offence under Section 406 IPC, reduced the sentence of 2 years rigorous imprisonment awarded by the trial Court to 1 year rigorous imprisonment, by its judgment and order dated 17.12.2013 in C.A.No.65 of 2013. Challenging the judgments and orders passed by the Courts below, the petitioner is before this Court under Section 397 and 401 Cr.P.C. While granting suspension of sentence and bail, on 11.03.2014, this Court had directed the petitioner to deposit Rs.1,50,000/- before the trial Court and accordingly, the petitioner has deposited the same in the Indian Overseas Bank on 29.04.2014.
6. Heard Mr.T.Saikrishnan, learned counsel for the petitioner and Mrs.P.Kritika Kamal, learned Government Advocate (Crl. Side) appearing for the respondent State.
7. Before adverting to the rival submissions, it may be necessary to state here that, a three Judge Bench of the Supreme Court in Girish Kumar Suneja Vs. CBI [(2017) 14 SCC 809], has held that the revisional jurisdiction is a discretionary one and can be exercised only if the High Court finds that there http://www.judis.nic.in 3/18 CRL.R.C.No.273 of 2014 is an error apparent on the face of the record. For better appreciation, the relevant extract runs as under :
“27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and in any event, the High Court is under no obligation to entertain a revision petition - such a petition can be rejected at the threshold. If the High Court is inclined to accept the revision petition it can do so only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. As we see it, there appear to be only two such eventualities of a revisable order and in any case only one such eventuality is before us. Consequently the result of paragraph 10 of the order passed by this Court is that the entitlement of the appellants to file a revision petition in the High Court is taken away and thereby the High Court is deprived of exercising its extraordinary discretionary power available under Section 397 Cr.P.C.” 7.1. While exercising revisional powers under Section 397 r/w 401 Cr.P.C., this Court is required to find out, if there is any illegality or impropriety in the findings of the trial Court and the appellate Court warranting interference and it is not open to this Court to exercise the revisional power as a second appellate forum. In this context, it is profitable to allude to the following paragraphs in the judgment of the Supreme Court in State of Maharashtra Vs Jagmohan Singh Kuldip Singh Anand and Others, etc. [(2004)7 SCC 659]:
“22.The revisional court is empowered to exercise all http://www.judis.nic.in 4/18 CRL.R.C.No.273 of 2014 the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, “for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court”.
It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.
(emphasis supplied)
8. Learned counsel for the petitioner submitted that the petitioner did not have the intention to cheat anyone and that, some successful bidders had failed to repay the chit amount with interest and that had resulted in a cascading effect, leading to the failure of the petitioner to repay the prosecution witnesses. It is seen that the prosecution has examined 30 witnesses (P.W.1 to P.W.30), who had paid monies to the petitioner on various dates and the savings book given to each of them were marked as Ex.P2 to http://www.judis.nic.in 5/18 CRL.R.C.No.273 of 2014 Ex.P28. Thus, the oral testimony of these witnesses were corroborated by the entries in the savings book. The petitioner did not produce any material to show that the chit was registered with the Registrar of Chits, even when he was examined under Section 313 Cr.P.C. to show that it was lawful.
9. The amounts deposited by the witnesses as disclosed in paragraph 6 of the trial Court judgment are as under :
Name and rank of prosecution witnesses Amount Dhiraviyam (P.W.1) Rs.15,000/-
Sudalaimani (P.W.2) Rs.15,000/-
Vadivambal (P.W.3) Rs.10,080/-
Pandiyan (P.W.4) Rs.19,000/-
Luca Jebaraj (P.W.5) Rs.14,450/-
Velliangiri (P.W.6) Rs.3,610/-
Anthonyammal (P.W.7) Rs.10,000/-
Sakthi @ Ganesh (P.W.8) Rs.4,750/-
Lingammal (P.W.9) some amount
Valliyammal, D/o.Pechimuthudevar (P.W.10) Rs.8,000/-
Valliyammal, D/o.Ponnusamy (P.W.11) Rs.5,610/-
Sabariganesh (P.W.12) Rs.8,000/-
Arulraj (P.W.13) Rs.3,220/-
Chinnasamy (P.W.14) Rs.2,500/-
Rangammal (P.W.15) Rs.8,500/-
Krishnan (P.W.16) Rs.10,000/-
Palaniammal (P.W.17) Rs.5,000/-
Panneerselvam (P.W.18) Rs.10,500/-
Panneerselvam, S/o.Subramanianadar (P.W.19) Rs.25,000/-
Shankar (P.W.20) Rs.14,700/-
Dhanraj (P.W.21) Rs.9,100/-
http://www.judis.nic.in
6/18
CRL.R.C.No.273 of 2014
Name and rank of prosecution witnesses Amount
Suganya (P.W.22) some amount
Ponrani (P.W.23) Rs.14,150/-
Santhamani (P.W.24) Rs.5,000/-
Latha (P.W.25) Rs.7,000/-
Kaveri (P.W.26) Rs.4,500/-
Sakthivel (P.W.27) Rs.3,000/-
Dhanalakshmi (P.W.28) Rs.88,000/-
Rajagopal (P.W.29) Rs.28,700/-
Poonkodi (P.W.30) Rs.5,000/-
10. In the cross-examination of these witnesses, the petitioner did not deny that he had taken the money from them. But, it was his defence that the successful bidders had failed to repay the chit amount with interest. In the opinion of this Court, this can only be a mitigating circumstance for deciding the quantum of sentence and cannot be a justifiction for not returning the entrusted amount.
11. Learned counsel for the petitoner submitted that a single trial should not have been conducted against the petitioner, in respect of 30 instances of criminal breach of trust that is alleged to have been committed in the span of 2 years in violation of Section 219 Cr.P.C. It is true that the charge against the petitioner was that he had committed 30 counts of criminal breach of trust qua 30 victims viz. P.W.1 to P.W.30. However, each instance cannot be taken as an isolated offence because, in this case, the petitioner conducted http://www.judis.nic.in 7/18 CRL.R.C.No.273 of 2014 a chit transaction and induced the victims to join the chit, on the promise of rich dividends and thereafter, did not return their monies. In this context, it may be apposite to refer to Section 212 (2) Cr.P.C. which reads as under :
“212.Particulars as to time, place and person (1) ... ....
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219 :
PROVIDED that the time included between the first and last of such dates shall not exceed one year.”
12. A reading of Section 212 (2) Cr.P.C. shows that when an accused is charged with criminal breach of trust, it will be sufficient to specify the gross sum that was appropriated by the accused and the proviso states that the time included between the first and the last of such dates shall not exceed one year. Section 212 (2) Cr.P.C. also states that such a gross sum for a specified period of one year would be within the limitations prescribed by Section 219 Cr.P.C. Now, it becomes necessary to extract Section 219 Cr.P.C.:
"219.Three offences of same kind within year may be charged together http://www.judis.nic.in 8/18 CRL.R.C.No.273 of 2014 (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860 ) or of any special or local laws:
PROVIDED that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.“ In other words, under normal circumstances, an accused can be tried in one trial only in respect of three offences of the same kind committed within one year. Section 219 Cr.P.C. will apply only for sole accused cases and not to cases, where there are more than one accused [see State of A.P. Vs. Chemalapati Ganeswara Rao and Another (AIR 1963 SC 1850)]. That apart, even in respect of a sole accused, each offence of the same kind exceeding three in number, committed within a span of one year, should be a standalone offence. For example, 'A' commits robbery on 01.01.2018 in Anna Nagar; 02.02.2018 in Kilpauk; 03.03.2018 in Mylapore; 04.04.2018 in Triplicane; 05.05.2018 in Perambur and 06.06.2018 in Periamet, each is an offence of the http://www.judis.nic.in 9/18 CRL.R.C.No.273 of 2014 same kind but, is a standalone offence. Hence, in one trial, he can be prosecuted only for three offences. Thus, in the given example, there should be two trials, each for three occurrences. The two trials can be before the same Judge. If the offences of the same kind exceeding three in number is committed within a span of one year in the course of the same transaction, Section 219 Cr.P.C. will not apply. The expression “same transaction” has been lucidly expounded by the Supreme Court in Chemalapati Ganeswara Rao (supra) as under.
“ ... ... What is meant by “same transaction” is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. ... ...“
13. However, Section 212 (2) Cr.P.C. carves out an exception for the offence of criminal breach of trust (Section 406 IPC) and dishonest http://www.judis.nic.in 10/18 CRL.R.C.No.273 of 2014 misappropriation of money (Section 403 IPC genus). Monies appropriated by the accused either solely or with others, via criminal breach of trust or misappropriation, for a period of one year, can be consolidated, the gross amount determined and the gross amount so determined, will be construed as one offence. That is why, in the final report, the police had consolidated the amounts for one year, from 04.04.2002 to 03.04.2003 at Rs.1,80,000/- and for the period from 04.04.2003 to 06.10.2003 at Rs.1,20,000/- and two charges were framed by the trial Court under Section 406 IPC. Unlike Section 219, Section 212 Cr.P.C. does not contemplate two trials for each consolidated offence.
14. Section 220 Cr.P.C deals with the case of a single accused committing more offences. Section 220 Cr.P.C. reads as follows :
“220.Trial for more than one offence (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of section 212 or in sub-
section (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, http://www.judis.nic.in 11/18 CRL.R.C.No.273 of 2014 every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person, accused of them may be charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code, 1860 (45 of 1860). The expression “more offences” used in Section 220(1) Cr.P.C. ibid, would in a given case include more offences of the same kind committed in the course of the same transaction or more offences of different kind committed in the course of the same transaction. Section 220(5) saves Section 71 IPC, which reads as follows :
“71. Limit of punishment of offence made up of several offences Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such offences, unless it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which http://www.judis.nic.in 12/18 CRL.R.C.No.273 of 2014 one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.“ At this juncture, it may be profitable to refer to the judgment of the Supreme Court in Banwarilal Jhunjhunwala and Others Vs. Union of India and Another (AIR 1963 SC 1620), where Section 71 IPC qua the offence of misappropriation has been extensively dealt with. The Court opined as under :
“12.There is another way of looking at the same question. The obtaining of money for each bill supported by false inspection note, amounted to the offence of cheating in pursuance of the conspiracy. All such individual offences, on the basis of the various bills, were of the same kind as the single offence of obtaining the total amount as a result of the presentation of the various bills and in view of Section 71 IPC, the accused could not be punished for more than one of such offences it being provided that “‘where anything which is an offence is made up of parts any of which’ is itself an offence, the offender shall not be punished for more than one such offence unless it be so expressly provided”. Illustration (a) explains this provision and is:
“A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for http://www.judis.nic.in 13/18 CRL.R.C.No.273 of 2014 fifty years, one for each blow. But he is liable only to one punishment for the whole beating.” It is to be noted that the whole beating is considered to constitute one offence while each of the blows also amounted to the offence of voluntarily causing hurt. It can be said therefore, that while the obtaining of money by cheating on the presentation of an individual bill did constitute the offence of cheating the obtaining of the entire money in pursuance of the terms of the single contract and the single conspiracy entered into also constituted the offence of cheating. When the accused could not be punished with the punishment for more than one such offence, it cannot be the intention of law that the accused be charged with each of the offences which were in a way included in the complete offence made up by the entire course of conduct of the accused in pursuance of the conspiracy.“ Though there is no conspiracy in the case at hand, the principle laid down in Jhunjhunwala's case, where the application of Section 71 IPC has been exhaustively discussed in relation to an offence of misappropriation can be profitably imported into the present discussion.
15. As alluded to above, all the 30 victims joined the chit scheme floated by the petitioner and therefore, the monies recieved by the petitioner from all of them were in the course of the same transaction and therefore, Section 219 Cr.P.C. will not apply and Section 220 Cr.P.C. will apply. However, in view of Section 212 Cr.P.C. read with Section 71 IPC, there cannot be 30 http://www.judis.nic.in 14/18 CRL.R.C.No.273 of 2014 charges under Section 406 IPC and the petitioner punished for each charge. The amounts collected from various victims for the period of one year from 04.04.2002 to 03.04.2003 was Rs.1,80,000/- and the amount collected for the period of one year from 04.04.2003 to 06.10.2003 from various persons amounts to Rs.1,20,000/-. Thus, the charge can only be for the gross amount for each year. Therefore, the trial Court was right in framing two charges comprising 30 occurrences in the aggregate. The first charge under Section 406 IPC was for the gross amount of Rs.1,80,000/- for the period from 04.04.2002 to 03.04.2003 and the second charge was for the gross amount of Rs.1,20,000/- for the period from 04.04.2003 to 06.10.2003.
16. Strangely, the trial Court has given the following finding in paragraph 13 of the judgment, which in the opinion of this Court may not be correct.
“... ... Though the prosecution has charged the accused for two counts under Section 406 IPC for different periods, they have not proved the offence separately to convict the accused for two counts. Therefore, this Court holds that the accused herein is convicted for the commission of offence under Section 406 IPC.” The trial Court has erroneously held that the prosecution has not proved the offences separately. It is seen that two of the victims viz. Lingammal (P.W.9) and Suganya (P.W.22) were not able to tell the Court the actual amount paid by them to the petitioner. That by itself will not mean that the prosecution had failed to prove those two occurrences. The gross amount relating to the two http://www.judis.nic.in 15/18 CRL.R.C.No.273 of 2014 counts are Rs.1,80,000/- and Rs.1,20,000/-. To convict the petitioner under Section 406 IPC, it is not necessary for the prosecution to prove the whole gross amount mentioned in each count. During trial, the prosecution would not have been able to examine all the victims because, some of them would have died or the whereabouts of some of them would not have been available etc. For instance, in the first count relating to Rs.1,80,000/-, if the prosecution was able to establish Rs.1,00,000/- only, then it cannot be stated that the prosecution has failed to prove the charge. Evidence on record in this case shows that, though the prosecution was not able to prove the gross amounts viz. Rs.1,80,000/- and Rs.1,20,000/-, the prosecution has adduced sufficient evidence under each count. Therefore, the trial Court should have convicted the petitioner for the charge under Section 406 IPC for both counts. Since there is no appeal by the State, this Court cannot interfere with the order of the trial Court on this aspect. This Court does not find any infirmity in the finding of facts arrived at by the Courts below.
17. Learned counsel for the petitioner submitted that the petitioner has already deposited Rs.1,50,000/- and now, he has deposited another sum of Rs.2,50,000/- in the trial Court vide receipt No.10343 dated 13.09.2019 and therefore, pleaded for leniency in sentence.
18. Accepting the submission, the sentence is reduced to 3 months http://www.judis.nic.in 16/18 CRL.R.C.No.273 of 2014 rigorous imprisonment. The petitioner will be entitled to set off under Section 428 Cr.P.C.
In the result, this Criminal Revision is partly allowed. The conviction stands confirmed but the sentence is reduced to 3 months rigorous imprisonment. The trial Court is directed to secure the petitioner to undergo the remaining period of sentence, if any. The trial Court is directed to disburse the sum of Rs.4,00,000/- with the accrued interest that has been deposited by the petitioner, proportionately to the 30 victims or to their legal heirs, as the case may be. The police is directed to produce the 30 victims/their legal heirs before the trial Court for disbursement. Registry is directed to send the original records to the Sessions Court and the trial Court forthwith.
18.09.2019 gya To
1.The V Additional District and Sessions Judge, Coimbatore.
2.The Judicial Magistrate No.I, Pollachi.
3.The Public Prosecutor, High Court, Madras.
4.The Deputy Registrar, Criminal Section, High Court, Madras.
P.N.PRAKASH, J.
http://www.judis.nic.in 17/18 CRL.R.C.No.273 of 2014 gya CRL.R.C.No.273 of 2014 18.09.2019 http://www.judis.nic.in 18/18