HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.1270 OF 2007 Dated 6-8-2014 Between:
Boddu Jayachandra Reddy.
..Petitioner.
And:
The State of A.P. through the Station House Officer, Singarayakonda Police Station, Prakasam District, represented by Public Prosecutor, High Court, Hyderabad.
…Respondent.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.1270 OF 2007 ORDER:
This revision is filed challenging judgment dated 14-9-2007 in Criminal Appeal No.135 of 2006 on the file of VII Additional District and Sessions Judge, Ongole, whereunder judgment dated 24-11-2006 in C.C.No.383 of 2001 on the file of Additional Munsif Magistrate, Kandukur, is confirmed.
Brief facts leading to this revision are as follows:
Sub-Inspector of Police, Singarayakonda filed charge sheet against revision petitioner alleging that he did business under the name and style “Laxmi Ready Made Matching Centre” at Pattabhivari Street, Singarayakonda and he was indebted to number of persons, on that, he closed the shop and escaped from the village and later filed I.P.No.2 of 2001 on the file of Additional Senior Civil Judge, Ongole, to adjudicate him as insolvent and his properties are kept under the control of Official Receiver, Ongole for administration. The revision petitioner gave paper delivery of properties available in his shop worth of Rs.48,500/- and when Official Receiver opened the shop on 1-9-2001 in order to conduct auction, found that the shop was vacant without any properties and on that, he lodged a report to the police, on the basis of which, investigation is conducted and charge sheet is filed against the petitioner for the offences under Sections 379 and 420 I.P.C. and on the basis of which, Additional Munsif Magistrate, Kandukuru took cognizance and conducted trial, during which, five witnesses are examined and thirteen documents are marked on behalf of prosecution and no witness is examined and no documents are marked on behalf of accused. On an overall consideration of oral and documentary evidence, trial court found the accused guilty for the offence under Section 417 I.P.C. and found him not guilty for the offences under Sections 379 and 420 I.P.C. and sentenced him to suffer with three months imprisonment and fine of Rs.500/-. Aggrieved by the same, he preferred appeal to the court of Sessions, Ongole and VII Additional District and Sessions Judge, Ongole, on a reappraisal of evidence confirmed both conviction and sentence. Aggrieved by the same, present revision is preferred.
Heard both sides.
The main contention of the advocate for revision petitioner is that petitioner filed Insolvency Petition and as per the provisions of Insolvency Act, official receiver has no right to give any complaint and only Insolvency Court alone has power to give any complaint as per the provisions of Section 70 of the Provincial Insolvency Act. 1920 (herein after referred to as “the Act”) and therefore, the report of the official receiver is not in accordance with law. He submitted, for that reason, conviction and sentence imposed by the trial court is liable to be set aside.
Learned Public Prosecutor submitted that the very same objection was raised before appellate court and the appellate court, on a consideration of provision held that there is no bar or prohibition under Section 70 of the Act for official receiver to give any police report and negatived the objection of the revision petitioner and that there are no grounds to interfere with the concurrent findings of the courts below.
Now the point that would arise for my consideration in this revision is whether the Judgments of the courts below are legal, correct and proper?
POINT:
According to prosecution, the accused gave paper delivery of B.Schedule property in insolvency petition to the official receiver worth about Rs.48,500/- and when official receiver visited the shop on 1-9-2001 in order to auction the articles, he found that movables shown in the schedule are not available in the shop on that, he lodged a complaint with the police and police after investigation found that the accused is responsible and filed the charge sheet against him.
Now the main objection of the revision petitioner is that Section 69 of the Act deals with the offence of debtor but and the procedure is contemplated under Section 70 of the said Act and as official receiver has no right to give complaint, therefore entire investigation and trial is vitiated.
On the other hand, it is the contention of learned Public prosecutor that the very same objection is raised before the appellate court and the appellate court rightly negatived the said objection and that there are no grounds to interfere with the concurrent findings.
In order to appreciate contentions and rival contentions, I feel it is necessary to refer to Sections 69 and 70 of the Act respectively which reads as follows:
Section 69 of the Act:
“If a debtor, whether before or after the making of an order of adjudication:
a) willfully fails to perform the duties imposed on him by Section 22 or to deliver up possession of any part of his property which is divisible among his creditors under this Act, and which is for the time being in his possession or under his control to the Court or to any person authorized by the Court to take possession of it, or
(b) fraudulently with intent to conceal the state of his affairs or to defeat the objects of this Act,--
(i) has destroyed or otherwise wilfully prevented or purposely withheld the production of any document relating to such of his affairs as are subject to investigation under this Act, or
(ii) has kept or caused to be kept false books, or
(iii) has made false entries in or withheld entries from or wilfully altered or falsified any document relating to such of his affairs as are subject to investigation under this Act, or
(c) fraudulently with intent to diminish the sum to be divided among his creditors or to give an undue preference to any of his creditors,--
(i) has discharged or concealed any debt due to or from him, or
(ii) has made away with, charged, mortgaged or concealed any part of his property of any kind whatsoever,
he shall be punishable on conviction (x x x) with imprisonment which may extend to one year.”
Section 70 of the Act:
“Where the Court is satisfied, after such preliminary inquiry, if any, as it thinks necessary, that there is ground for inquiring into any offence referred to in Section 69 and appearing to have been committed by the insolvent, the Court may record a finding to that effect and make a complaint of the offence in writing to a Magistrate of the first class having jurisdiction, and such Magistrate shall deal with such complaint in the manner laid down in the Code of Criminal Procedure, 1898 (5 of 1898.) Section 69 of the Act deals with the offences by debtors whether before or after making order of adjudication.
Admittedly, the revision petitioner filed I.P. before the Insolvency Court and the same was pending by the date of giving F.I.R. to the police. In Section 69, several instances or acts are referred which attract offence committed by debtor and present incident does not fall under any of the above referred instances or examples. If the offences referred in Section 69 are committed, then, the procedure under Section 70 of the Act is to be followed. But here, the allegation against the revision petitioner that he handed over keys to the official receiver informing him that moveables mentioned in B.schedule are in the shop premises and trusting the petitioner, the Official Receiver took the keys without making physical verification on the date of delivery of the case.
It is clear from the evidence that only paper delivery is made but not physical delivery. So the official receiver having noticed that there are no such moveables in the shop when he opened it on 1-9-2001 for the purpose of conducting auction, lodged a complaint to the police, on the basis of which, investigation is conducted. Section 38 of Cr.P.C. empowers any citizen to give information relating to certain offence. In respect of criminal breach of trust, or misappropriation against any property, any person who is in the knowledge of commission of those offences can give a complaint to police. Here, petitioner is convicted for the offence under Section 417 I.P.C. which is punishment for cheating and cheating is defined in Section 415 I.P.C. according to which, any person with fraudulent and dishonest intention induces a person with regard to delivery of any property and if the person so deceived can make a complaint. Here, the Official Receiver is made to believe that moveables are kept in the shop but when he verified the shop on 1-9-2001, those movables are not there and on investigation, police found that petitioner is responsible for that. Now both the trial court and appellate court on appreciation of evidence found that petitioner is liable for offence of cheating.
As rightly pointed out by learned Public prosecutor, learned appellate judge has elaborately considered objection with regard to Section 70 of the Act and has rightly negatived the objection and I do not find any illegality in the judgment of the appellate court with reference to the objection raised on behalf of the revision petitioner.
On a scrutiny of material on record, I am of the view that there are no grounds to interfere with the concurrent findings of the courts below for the conviction imposed against the revision petitioner.
Coming to the sentence part, advocate for revision petitioner submitted that the petitioner was in jail for one month and the period already undergone may be treated as punishment.
Here, as seen from the record, the trial court imposed only three months simple imprisonment with a fine of Rs.500/-.
Considering the gravity of offence, I feel that the trial court has already taken a lenient view and that there are no grounds or compelling circumstances to take a further lenient view.
For these reasons, this Criminal Revision Case is dismissed confirming the conviction and sentence. The trial Court shall take steps to apprehend the accused to undergo the unexpired portion of the sentence.
As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 6-8-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CRIMINAL REVISION CASE No.1270 OF 2007 Dated 6-8-2014