HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.286 OF 2010 Dated 8-7-2014 Between:
Konda Chandra Sekhar Reddy.
Petitioner.
And:
The States of Telangana and Andhra Pradesh, represented by its Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh and another.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.286 OF 2010 ORDER:
This revision is against judgment dated 11-2-2010 in Criminal Appeal No.37 of 2007 on the file of V Additional District and Sessions Judge, Kadapa at Rayachoty whereunder judgment dated 8-5-2007 in C.C.No.108 of 2007 on the file of Judicial First Class Magistrate, Lakkireddipalli is confirmed.
Brief facts leading to this revision are as follows:
Judicial First Class Magistrate, Kamalapur filed a private complaint by way of a protest petition against the final report filed by police in Cr.No.112 of 2004 of Kamalapuram police station against the revision petitioner for the offences under Sections 403 and 409 I.P.C. According to complainant, accused was working as Criminal Bench Clerk and Property Clerk in the court of Judicial First Class Magistrate, Kamalapuram. Yerraguntla Police seized cash of Rs.3,33,000/- and a car in Cr.No.61 of 2004 of their Station and when the seized property was produced before the In-charge Magistrate said property was returned with a direction to produce before regular officer and on that, court constable P.C.No.857 of Yerraguntla Police produced the property before regular Magistrate on 6-5-2004 and as entire property was not produced, the learned Magistrate returned the property form with a direction to produce property at the time of filing of the charge sheet. Again the property was produced on 15-5-2004 through the same was returned with endorsement “charge sheet was not filed”, the accused being Bench Clerk received cash of Rs.3,33,000/-from the Court Constable without the knowledge and consent of Presiding Officer and issued a receipt in token of receipt of Rs.3,33,000/-. When a petition under Section 452 Cr.P.C.was filed seeking interim custody, the accused in the capacity of Criminal Bench Clerk put up a note on 2-8-2004 on the said petition under Section 452 Cr.P.C. which is Criminal M.P.No.775 of 2004 to the effect that property is not yet received in the court till that date, on that Presiding Officer issued a memo to the Station House Officer to produce the property then it came to light that accused received the property from court constable and issued a receipt in token of receipt of property. Then a report was given both against the accused and the Court Constable and police registered the same as Cr.No.112 of 2004 but after investigation, they referred the case as mistake of fact, on that the Presiding Officer filed protest petition on the basis of which, cognizance was taken and Criminal Case is registered as C.C.No.197 of 2005. During trial, six witnesses are examined and ten 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 offences under Sections 403 and 409 I.P.C. and sentenced him to suffer six months imprisonment for the offence under Section 403 I.P.C. and one year imprisonment with a fine of Rs.1,000/-for the offence under Section 409 I.P.C. Aggrieved by the same, he preferred appeal to the court of Sessions Kadapa and V Additional District and Sessions Judge, Kadapa at Rayachoti, on a reappraisal of evidence, confirmed both conviction and sentence. Now aggrieved by the same, present revision is preferred.
Heard both sides.
Advocate for revision petitioner submitted that appellate judge mechanically confirmed the judgment of trial court though there is no evidence attracting the ingredients of Sections 403 and 409 I.P.C. He further submitted that on the very same allegation, police after due investigation referred the case as a mistake of fact but without any further fresh material, cognizance was taken simply because, the complainant was Presiding Officer of the Court. He further submitted that there is no material to show that the accused misappropriated the case property and even according to the prosecution version, the entire amount was recovered intact and therefore, there is no misappropriation or criminal breach of trust. He further submitted that both trial court and appellate court only on presumption held that there is dishonest misappropriation but there is absolutely no evidence to prove the same.
He further submitted that both courts failed to notice that mere retaining money is not an offence but there shall be misappropriation and therefore, the ingredients are not attracted. He further submitted that P.W.1 admitted in his evidence that there is no entry in the case property register with regard to this case property and therefore, the contention that the property was received by the court and the same is misappropriated cannot be accepted. He further submitted that there is neither criminal misappropriation nor criminal breach of trust but both the trial court and appellate court convicted him and therefore, the same is to be set aside.
On the other hand, learned advocate for second respondent-complainant submitted that both trial court and appellate court have held that the act committed by accused amounts to temporary misappropriation and Ex.P.10 would clearly disclose that he received case property of Rs.3,33,000/- from P.W.5 without authorization from the Presiding Officer and that the said amount was found in the almyrah of accused when it was opened in the presence of other staff members. He further submitted that both trial court and appellate court have considered each and every objection raised on behalf of accused and that there are no grounds to interfere with the concurrent findings.
Learned Public prosecutor adopted arguments of the complainant advocate.
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:
Admittedly, the accused was working as Criminal Bench Clerk-cum-Property Clerk in the court of Judicial First Class Magistrate, Kamalapur at relevant point of time. According to prosecution, Station House Officer, Yerraguntla produced case property of Rs.3,33,000/- and a car with ‘B’ Form before the court and the same was returned with a direction to produce the same along with charge sheet. But according to prosecution, on 15-5-2004, police have again produced the property and it was returned with the same endorsement to produce at the time of filing charge sheet but the accused in the capacity of Criminal Bench Clerk received the said cash from the Court Constable and issued a receipt. This fact came to light only when the Magistrate directed the police to produce the case property in Crime No.61 of 2004.
On behalf of prosecution, six witnesses are examined. P.W.1 is de facto complainant and the then Presiding Officer of Kamalapuram court. He has narrated the entire episode and the role of the accused. P.W.2 is the then Senior Civil Judge-cum-C.J.M. of Kadapa District who made a surprise visit to the court on receipt of same complaint and after causing enquiry, he found that the case property of Rs.3,33,000/- was not with the Magistrate but it was with the accused and he seized the receipt and also rubber stamp used by the accused. P.W.3 is the Superintendent of Junior Civil Judge’s Court, Kamalapuram who supported version of P.W.1. P.W.4 is the Field Assistant of Junior Civil Judge Court, Kamalapuram who deposed about the surprise visit of P.W.2 and the other facts. P.W.5 is the Court Constable who handed over the cash to the accused and obtained receipt from him. P.W.6 is the then S.I. of Police of Yerraguntla Police Station.
One of the objection of the revision petitioner is that this receipt which is marked as Ex.P.10 is not original document and it is only Xerox copy and therefore, relying on it for convicting the accused, is not permissible.
I have perused the document Ex.P.10. This is the receipt issued by accused in token of receiving Rs.3,33,000/- from P.W.5 on 15-5-2004.
Though it is a Xerox copy but it is attested by the Presiding Officer of the Court. This document is marked through P.W.1. Though accused cross-examined P.W.1 at length covering many aspects, nothing is elicited from him with regard to Ex.P.10. There is not even suggestion disputing the signature of accused on Ex.P.10. So the objection of the revision petitioner with regard to Ex.P.10 document is not at all acceptable.
Here the main material witnesses are P.Ws.1 and 5. One of the objection of the advocate for revision petitioner in respect of evidence of P.W.5 is that in the original complaint submitted to police, P.W.5 was also figured as accused but for the reasons best known to P.W.1, at the time of Protest Petition, he was not figured as accused, on the other hand, he was examined on behalf of the complainant. But the objection of the advocate for petitioner is not at all tenable because there is no allegation of any conspiracy. This P.W.5 clearly deposed in his evidence that he handed over cash of Rs.3,33,000/- to the accused on 15-5-2004. He deposed that as per the directions of Inspector, he produced cash of Rs.3,33,000/- on 12-5-2004 with ‘B’ Form at 10-30- A.M., but till 5 P.M., the property was not taken and that accused asked him to produce the property as and when he received telephonic instructions. He deposed that on 15-5-2004 on the direction of his Sub-Inspector, he again produced the case property with ‘B’ Form but on that day, at about 3.30 P.M., the accused received cash and when he requested the accused to acknowledge ‘B’ Form in proof of receipt of property, accused informed that C.P.R. Register was seized and it is in the District Court and soon after the Register is brought, this ‘B’ Form will be issued and saying so, he passed on Ex.P.10 receipt. He further deposed that on 9-8-2004, the Presiding Officer of the court enquired him about the case property and that he appraised P.W.1 and later produced Xerox copy receipt passed by the accused. He further deposed that C.J.M. of Kadapa enquired him on 13-8-2004.
One of the objection of the advocate for revision petitioner is that this Rs.3,33,000/- was intact and therefore, the charge of misappropriation is not maintainable. On the other hand, it is the submission of learned Public Prosecutor, from the evidence, the dishonest intention of the accused is made out and receiving such huge amount from the police and retaining it, would amount to temporary misappropriation. He submitted that both the trial court and appellate court held on these lines and therefore, the objection of the revision petitioner is not tenable.
Now it will be useful to refer Sections 403 and 405 I.P.C. which explains the criminal misappropriation of property and criminal breach of trust.
Section 403 I.P.C.reads as follows:
“Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
Section 405 I.P.C. reads as follows:
“Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “Criminal breach of trust”.
From a reading of the above provisions, it is clear whoever in any manner entrusted with the property or with any dominion over property converts to his own use or dishonestly uses in violation of any direction of law is said to be committed the above two offences.
From the evidence of P.W.5, it is clear that accused received Rs.3,33,000/- which is the case property in Cr.No.61 of 2004 without the knowledge of the Presiding Officer, though the direction was to produce the property with charge sheet. Admittedly, on 15-5-
2004, charge sheet was not filed. According to P.W.5, the accused issued Ex.P.10 receipt in token of receipt of cash and when he insisted for endorsement on ‘B’ Form, the accused replied stating that the Property Register was in District Court and soon after it is received, the endorsement will be made on ‘B’ Form. From the evidence, it is clear that a petition is filed under Section 452 Cr.P.C. for interim custody of the property and on the said petition, the accused who was Bench Clerk/Property Clerk put up a note stating that the property is not received in the court. This petition is marked as Ex.P.6. From Ex.P.10, it is clear that by the date of putting endorsement on Ex.P.6, this Rs.3,33,000/- was with the accused. Putting such a note on the petition discloses the dishonest intention of the accused. From the evidence, it is clear that the fact that accused received cash from P.W.5 by passing Ex.P.10 receipt came to light around 9- 8-2004 and on 13-8-2004 P.W.2 made a surprise visit to the court and enquired in respect of this matter.
All the objections now raised were urged before the appellate court and the learned appellate judge on an elaborate discussion while considering the evidence of prosecution witnesses held that all the objections are not at all tenable.
On a scrutiny of the material on record, I am of the view that both trial court and appellate court have not committed any error while appreciating the evidence on record. When the accused has not denied receiving cash of Rs.3,33,000/- from P.W.5 and when the same cash was found in the almyrah of the accused, it clearly attracts the offence with which accused is charged. No doubt, this Rs.3,33,000/- was not spent but the fact remains that the accused received this amount with dishonest intention and kept with him without informing the Presiding Officer contrary to the rules governing the subject. As rightly pointed out by learned advocate for complainant, it clearly amounts to temporary misappropriation and both trial court and appellate court rightly convicted the accused for these two offences and I do not find any incorrect findings in the judgments of the courts below.
For these reasons, I am of the view that there are absolutely no grounds to interfere with the concurrent findings of the trial court and appellate court and that the revision is devoid of merits.
Accordingly, this revision 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 8-7-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CRIMINAL REVISION CASE No.286 OF 2010 Dated 8-7-2014