Karnataka High Court
Sri R S Anantharamu vs State By Kibbanahalli Police on 16 November, 2021
Author: V.Srishananda
Bench: V.Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE V.SRISHANANDA
CRIMINAL REVISION PETITION NO.771/2017 C/W
CRIMINAL REVISION PETITION NO.808/2017
IN CRL.RP.NO.771/2017
BETWEEN :
SRI R.S.ANANTHARAMU,
S/O SANNATHIMMEGOWDA,
AGED ABOUT 53 YEARS,
R/AT RAMANAHALLI VILLAGE,
KANDIKERE HOBLI,
C.N.HALLI TALUK-572224,
TUMKURU DISTRICT.
...PETITIONER
(BY SRI. V.B.SIDDARAMAIAH, ADVOCATE) (PH)
AND :
STATE BY KIBBANAHALLI POLICE,
TIPTUR TALUK-572201,
TUMKUR DISTRICT,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA BUILDING,
BANGALORE-560001.
... RESPONDENT
(BY SRI. V.S.VINAYAKA, HCGP)(PH)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 01.06.2017 PASSED BY THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, TIPTUR
IN CRL.A.NO.10012/2016 AND ALLOW THE APPEAL AND
PLEASED TO SET ASIDE THE JUDGMENT AND ORDER
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OF CONVICTION DATED 21.01.2016 PASSED BY THE
PRINCIPAL CIVIL JUDGE AND J.M.F.C., TIPTUR IN
C.C.NO.949/2009 AND ACQUIT THE ACCUSED NO.1
FOR THE OFFENCES CHARGED AGAINST THEM AND
ETC.,
IN CRL.RP.NO.808/2017
BETWEEN :
SRI NAGARAJU A.B,
S/O BASAPPA,
AGED ABOUT 41 YEARS,
R/O NO.509, 14TH MAIN,
4TH BLOCK, NANDINI LAYOUT,
BENGALURU-560096.
...PETITIONER
(BY SRI. LEELADHAR H.P, ADVOCATE) (PH)
AND :
STATE BY KIBBANAHALLI POLICE STATION,
TUMKUR DISTRICT,
REP. BY STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE-560001.
... RESPONDENT
(BY SRI. V.S.VINAYAKA, HCGP)(PH)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
CONVICTION AND SENTENCE DATED 21.01.2016
PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C.,
TIPTUR IN C.C.NO.949/2009 AGAINST THE PETITIONER
HEREIN AND ETC.,
THESE CRIMINAL REVISION PETITIONS COMING
ON FOR FURTHER HEARING THIS DAY, THE COURT
MADE THE FOLLOWING:-
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ORDER
These two revision petitions are filed by the accused persons who were convicted for the offences punishable under Sections 468, 471, 420 read with Section 34 of IPC in C.C.No.949/2009 and C.C.No.533/2011 which were confirmed in Crl.A.No.10012/2016 by judgment dated 01.06.2017.
2. Brief facts of the case are as under:
Accused persons were charge sheeted for the offences punishable under Sections 468, 471, 420 read with Section 34 of IPC. Upon investigating the complaint it is contended that on 29.09.2008 CPI, Tiptur Rural Police received credible information that accused persons were selling fake and forged trip sheets and permitted the lorries which were indulging in transporting iron ore near Mayura Hotel, K.B.Cross by defrauding the Government Authority. CPI of Tiptur Rural Police went near Mayura hotel and caught hold of accused No.1 and seized seven fake and forged trip sheets and drew the mahazar between 9.00 am to 11.00 am on the same day and on 21.10.2008, his sub staff caught hold of accused No.2 and seized fake trip sheets and permits. On enquiry with -4- the accused persons, it is learnt by the raid party that accused Nos.3 and 4 are the persons who handed over the fake trip sheets and permits to accused Nos.1 and 2 in order to facilitate the illegal transport of iron ore and thorough investigation, charge sheet came to be filed.
3. Learned Magistrate took cognizance of the aforesaid offence and framed the charge. Accused persons pleaded not guilty and therefore, trial was held in order to prove the case of the prosecution. Prosecution in all examined eight witnesses as PWs.1 to 8 and relied on the documentary evidence which were exhibited and marked as Exs.P.1 to 25.
4. On conclusion of the prosecution evidence, the learned trial Magistrate recorded the accused statement as contemplated under Section 313 of Cr.P.C. The accused persons denied all the incriminatory materials and evidence found against them in prosecution evidence but did not choose to place their version to the case nor examined themselves as defence witnesses. learned trial Magistrate after hearing the arguments of both the parties, convicted the accused persons for the -5- aforesaid offences and passed an order of sentence under Sections 170 and 171 of Cr.P.C. Being aggrieved by the same, accused persons together filed a common appeal in Crl.A.10012/2016 on the file of V Additional District and Sessions Judge, Tiptur. Learned judge in the First appellate Court after securing the records and hearing the parties, confirmed the order passed by the learned Magistrate by judgment dated 01.06.2017. Being aggrieved by the same, the accused Nos.1 and 2 are before this Court in these revision petitions.
5. Learned counsel representing the accused persons Sri.V.B.Siddarmaiah and Sri.Leeladhar H.P, vehemently contended that both the Courts have wrongly convicted the accused persons for the aforesaid offences based on surmises and conjectures. They further contended that material evidence available on record did not establish all ingredients to attract the offences alleged against the accused persons. They further contended that the materials available on record did not conclusively establish that there was loss caused to the Government, what is the tune to which the monetary loss was caused to the Government and in such circumstances mere -6- possession of photocopies of the permits itself would not prove the charges leveled against the accused persons beyond reasonable doubt and therefore, sought for allowing the revision petition. Alternatively, learned counsel for the revision petitioners vehemently contended that the accused persons are the first time offenders and this Court may consider grant of probation by enhancing the fine amount.
6. Per contra, learned HCGP vehemently, contended that the materials available on record clearly indicates that the raid party was able to seize the fake permits from the custody of accused persons Nos.1 and 2 on two different dates. The said raid party had credible information that the accused Nos.1 and 2 were in the process of dealing with the fake permits so as to facilitate the illegal transport of the iron ore and therefore, it should be presumed that there is a monetary loss caused to the extent of the fake permits that has been dealt with by the accused persons and therefore, all ingredients required to attract the offences alleged against the accused persons stood prove beyond all reasonable doubt -7- and therefore, sought for dismissal of the revision petition.
7. Insofar as the alternate submission made on behalf of the revision petitioners, learned HCGP vehemently contended that in a matter of this nature, Court should not usually take lenient view as it would encourage similarly placed persons in the society and especially when economic loss is caused to the Government, Court should be slow in extending the benefit of probation and sought for dismissal of the revision petitions.
8. In view of the rival contentions and having regard to the scope of the revision petitions, following points would arise for consideration.
(i) Whether the finding recorded by the trial Magistrate that accused persons are guilty of the offences punishable under sections 468, 471, 420 r/w Section 34 of IPC and confirmed by the First appellate Court is suffering from legal infirmity, perversity and thus calls for interference ?
(ii) Whether the sentence is
excessive ?
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9. In the case on hand, in order to prove the case of the prosecution, prosecution relied on the oral testimony of PW.1 Sri.Krishnamurthy and also PW.8 K.Prabhakara. They are the two people who captured accused Nos.1 and 2 (revision petitioners) and seized fake permits. Trip sheets are at Exs.P.4 to 6 and copies of permits were marked as Exs.P.18 to 21. Admittedly, none of these documents are denying documents. The revision petitioners claim that they are the poor farmers. What made the revision petitioners to keep in custody Exs.P.4 to Ex.P.6 and Exs.P.14 to 21 is not explained by the revision petitioners. In a matters of this nature, after the prosecution establishes its case with cogent and convincing evidence on record, a chance must be provided for the accused to explain the circumstances under which such possession of the documents found at Exs.P.4 to 21.
In fact, such a chance was provided to the accused persons while recording the accused statement as contemplated under Section 313 of Cr.P.C. The purpose of recording the accused statement is not an empty formality. In the first place it is for the accused to explain about the incriminatory materials found against them and -9- in the second place to place their version on record. In this regard, this Court gainfully places its reliance on the judgment of Hon'ble Apex Court in the case of Ravi Kapur Vs. State of Rajasthan reported in (2012) 9 SCC 284 in paragraph of 39 which has held as under:
"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 CrPC are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."
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10. Relying on the above principles of law enunciated to the case on hand, the accused persons have failed to explain their version at the time of recording the accused statement or at least examine themselves before the Court. Having deliberately failed to avail such an opportunity, accused persons cannot now canvas that they were innocent and mere possession of Exs.P.4 to 21 itself did not result in the offences alleged against them. From the above discussion, it is clear that since Exs.P.4 to 21 the documents that were seized from the custody of accused Nos.1 and 2, this Court is of the considered opinion that the finding recorded by the learned Magistrate confirmed by the First Appellate Court that accused persons are guilty of the offences punishable under Sections 468, 471, 420 r/w Section 34 of IPC requires no interference and accordingly point No.1 is answered in negative.
11. Insofar as sentence is concerned, admittedly, accused persons are first time offenders. There is no criminal antecedents placed by the prosecution on record. It is well established principle of law that the role played by a judge while recording an order of conviction is
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altogether different from the role to be played while sentencing the accused. Whenever a Court passes an order of conviction, it is the bounden duty of the Court to consider the grant of probation wherever, Probation of Offenders Act is applicable either under Section 360 of Cr.P.C. or resorting to the provisions of Probation of Offenders Act. In the case on hand, in the absence of any criminal antecedents placed by the prosecution, trial Magistrate was bound to consider the grant of probation. The same is not done by the trial Magistrate and ignored by the First Appellate Court while confirming the judgment.
12. In this regard, this Court gainfully places the reliance on the following decisions:
i. In the case of Chandreshwar Sharma v. State of Bihar reported in (2000) 9 SCC 245 at paragraph No.3, it is 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
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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 360 of the CrPC. 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
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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."
ii. In the case of Gulzar v. State of M.P reported in (2007) 1 SCC 619, it has been held as under:
"(A)........
(B) Probation of Offenders Act (20 of 1958), S.4 - Criminal P.C. (2 of 1974), S.360
- General Clauses Act (10 of 1897), S.8(1) -
PROBATION OF OFFENDERS - GENERAL CLAUSES - OBJECT OF AN ACT - JUDGMENT
- Benefit of probation - Scope of S. 4 of 1958
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Act and S. 360 of Code - Different - Both statutes cannot co-exist at same time in same area.
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 P.O. 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 P.O. Act does make such a 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...."
13. Applying the above legal principles
enunciated to the case on hand, it is the mandatory duty of the learned Magistrate to bestow its attention to the grant of probation to the accused persons. Failure to do
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so by the learned Magistrate and the First Appellate Court ignoring to grant the benefit, has resulted in miscarriage of justice. Therefore, this Court is of the considered opinion that the accused persons are entitled for grant of probation. Having said thus, by use of the fake document definitely there is a monetary loss to the Government. Therefore, on one hand while granting the probation to the revision petitioners it is necessary that accused persons are to be saddled with heavy fine Accordingly, if the accused persons are directed to pay fine of Rs.75,000/- each and ordered to execute a bond in a sum of Rs.1,00,000/- with one surety for the likesum, which shall be in force for a period of two years for their good behavior, ends of justice would be met. Accordingly, the point is answered and pass the following:
ORDER
(i) Revision petition is allowed in part.
(ii) While maintaining the order of conviction passed by the trial Magistrate confirmed by the First Appellate Court against the revision petitioners/accused persons for the offences punishable under Sections 468, 471, 420 r/w Section 34 of
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IPC, the accused persons are liable to pay a fine of Rs.75,000/- each and also directed to execute a bond in a sum of Rs.1,00,000/- with one surety for the likesum to the satisfaction of the trial magistrate, which shall be in force for a period of two years from the date of execution.
(iii) Time is granted to the accused persons to pay the fine amount and to execute the bond till 31.12.2021, including the fine which was already imposed in a sum of Rs.10,000/-.
(iv) It is made clear that in the event of any breach of the conditions of the bond or failure to pay the fine amount, the order of the learned Magistrate confirmed by the First Appellate Court stands automatically restored.
(v) Ordered accordingly.
Sd/-
JUDGE
rv