Partly allowed

A Muniraju v. State by Cbi/Acb

Karnataka HC30 Sept 2021CRL.RP/34/2015

Case brief

AI extract

What is this about?

The High Court, in criminal revision petitions, maintained the convictions for cheating, forgery, and criminal conspiracy regarding a loan fraud. While rejecting factual challenges, the Court found an error of jurisdiction in the failure to grant probation. Consequently, it set aside imprisonment and fines, replacing imprisonment with probation and enhancing the fine, while acquitting the deceased

What did the court decide?

Petitioners convicted but granted probation with execution of bond; imprisonment set aside; fine increased from Rs.4,000/Rs.5,000 to Rs.25,000 each.

A Muniraju Vs State by Cbi/Acb — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE V. SRISHANANDA

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CRIMINAL REVISION PETITION NO.34/2015 C/W CRIMINAL REVISION PETITION NO.194/2014

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IN CRL.RP NO.34/2015

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BETWEEN:

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A MUNIRAJU S/O LATE ANJINAPPA AGED ABOUT 68 YEARS R/AT BYADARAHALLI MAGADI MAIN ROAD VISWANEEDAM POST GOVERNMENT PRIMARY SCHOOL BACKSIDE PIPELINE ROAD BANGALORE - 560091. ... PETITIONER

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(BY SRI. NAGENDRA NAIK R, ADV. PHYSICAL HEARING)

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AND:

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STATE BY CBI/ACB GANGANAGAR BANGALORE - 560057.

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…RESPONDENT

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(BY SRI. P PRASANNA KUMAR, ADV. SPECIAL PUBLIC PROSECUTOR PHYSICAL HEARING)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER OF JUDGMENT PASSED IN THE XLVIII-ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI CASES AT

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BANGALORE (CCH-49) IN CRL.A.NO.834/2014 DATED 17.12.2014 AND SET ASIDE THE ORDER OF CONVICTION ORDER DATED 26.07.2014 PASSED BY THE HON'BLE XVII-ACMM COURT (SPCIAL COURT FOR CBI CASES) AT BANGALORE IN C.C.NO.12282/13 AND ACQUIT THE PETITIONER FOR THE OFFENCES P/U/S 120(B), 420,468,471 OF IPC. IN C.C.NO.12282/2013 ON THE FILE OF XVII-ACMM COURT, BANGALORE.

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IN CRL.RP NO.194/2014

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BETWEEN:

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SMT G GAYATHRI W/O A MUNIRAJU AGED ABOUT 49 YEARS

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SRI K MURALI S/O KRISHNAPPA AGED ABOUT 44 YEARS

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SMT. P SARASWATHI W/O SRI P GUNDAPPA AGED ABOUT 68 YEARS ALL ARE R/AT NO.22 MOODLAPPA STREET DODDAMAVALLI BANGALORE - 04.

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...PETITIONERS

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(BY SRI. M.R NANJUNDA GOWDA, ADV. PHYSICAL HEARING)

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AND:

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STATE BY CBI/SPE BANGALORE CITY BANGALORE - 560008.

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…RESPONDENT

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(BY SRI. P PRASANNA KUMAR, ADV. SPECIAL PUBLIC PROSECUTOR PHYSICAL HEARING)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 AND 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONERS PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED

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AGAINST THE PETRS. NO.1 TO 3 ON 30.10.2009 IN C.C.NO.2482/1995 ON THE FILE OF THE XVII ADDL.C.M.M., BANGALORE AND ETC.,

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THESE CRIMINAL REVISION PETITIONS COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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Heard Sri R.Nagendra Naik, Sri M.R.Nanjunda Gowda, learned counsel for the revision petitioners and Sri P.Prasanna Kumar, learned Special Public Prosecutor for respondent-Central Bureau of Investigation. Perused the records.

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These revision petitions are arising out of orders passed in Crl.A.Nos.834/2014 and 901/2009, on the file of the XLVIII Additional City Civil and Sessions Judge and Special Judge for CBI Cases (CCH-49).

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3. The brief facts of the cases are as under:

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The revision petitioners in both the revision petitions

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were accused in respect of Crime No.RC19A/1994/CBI/BLR which culminated into CC Nos.12282/2013 and 2482/1995 and charge sheeted for the offences punishable under

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Sections 120-B read with Sections 420, 468 and 471 of the India Penal Code (hereinafter referred to as 'the IPC' for short).

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The sum and substance of the charge sheet is that in respect of opening a Nandini Milk Parlour and paan beeda stall in KSRTC bus stand, Bangalore, a loan was applied in State Bank of Mysore, Basavanagudi, Bengaluru. While obtaining the loan, certain documents were supplied by the accused persons, which ultimately turned out to be the fake documents and as such, the Bank sustained wrongful loss and accused got wrongful gain in getting the loan sanctioned on imperfect and incorrect documents.

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Learned Special Judge for CBI cases on receipt of the charge sheet, framed necessary charges.

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The accused persons pleaded not guilty. Charge sheet was split up against Muniraju and a special trial was subsequently held. The learned Magistrate after considering the oral and documentary evidence on record

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placed by the prosecution, convicted all the accused persons for the offences punishable under Sections 120B read with Sections 420, 468 and 471 of IPC.

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Being aggrieved by the said judgment of conviction and order of sentence passed by the learned Magistrate, accused persons preferred Crl.A.Nos.834/2014 and 901/2009.

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Learned Sessions Judge/Special Judge secured the records and after hearing the parties in detail, dismissed the Criminal Appeals filed by the accused persons and confirmed the judgment of conviction and order of sentence passed by the learned Magistrate.

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Learned Magistrate while passing the judgment of conviction, sentenced the first accused to undergo simple imprisonment for a period of six months and in all ordered fine of Rs.4,000/- and sentenced accused Nos.2 to 4 to undergo simple imprisonment for a period of one year and in all ordered fine of Rs.5,000/-.

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In view of the fact that accused No.4 died during the pendency of this revision petition, automatically the sentence of imprisonment passed against P.Saraswathi (accused No.4) stands extinguished. However, the case is continued as against accused No.4 for the purpose of recovery of the fine in view of the dictum of Hon’ble Apex Court in the case of Ramesan vs. State of Kerala reported in 2020(3) SCC 45.

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Sri R. Nagendra Naik, learned counsel for the Revision Petitioner/accused No.1- Sri S. Muniraju and Sri M.R.Nanjunda Gowda, learned counsel for accused Nos.2 to 4 – Smt. G. Gayathri, K. Murali and P. Saraswati, vehemently contended that both the Courts have not properly appreciated the materials available on record and wrongly convicted the revision petitioners. They further contended that the alleged misappropriated amount is already repaid in Bank toto along with interest, and therefore, wrongful loss that has occasioned to the Bank at all, which is concomitant factor for convicting the accused

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persons for the offences punishable under Section 420 IPC. Insofar as offences under Sections 468 and 471 of IPC is concerned, there is no proper clinching and cogent evidence on record, which would say that the documents were fabricated for the purpose of committing the offence under Section 420 of IPC. They further contended that materials available on record would not indicate that there was a pre-illegal agreement inter se accused persons, and therefore, learned Magistrate ought not to have convicted the accused persons for the offence punishable under Section 120-B IPC. They further contended that materials available on record do not indicate even iota of the evidence to show that there was an illegal agreement between the parties. However, only with regard to the relationship between accused Nos.2 to 4 and accused No.1, the Trial Court and first Appellate Court wrongly convicted the accused persons for the aforesaid offences and sought for allowing the revision petitions.

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Per contra, Sri Prasanna Kumar, learned Special Public Prosecutor for the respondent-CBI, vehemently contended that mere repayment of the loan amount would not efface the criminal act of the accused persons in obtaining loan fraudulently, which has been established by placing cogent and convincing evidence on record. He further contended that the learned Magistrate after thorough discussion about each and every document, has recorded a categorical finding that the documents supplied by the accused persons were fabricated only for the purpose of taking loan and therefore, there was a pre-concerned among accused persons whereby for the purpose of illegally obtaining the loan and therefore, all ingredients required to attract the offence punishable under Section 120-B of the IPC stands established. He also contended that very repayment of loan itself shows that there was a temporary wrongful loss that has occasioned to the Bank and therefore, hardly any scope is available to this Court to interfere in the revisional jurisdiction to alter the findings recorded by the learned Magistrate and upheld

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by the first Appellate Court in the absence of any palpable factual defect or the error of jurisdiction committed by both the courts and therefore, sought for dismissal of the revision petitions.

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Alternatively, learned counsel for the revision petitioners submits that in the event this Court maintain the order of conviction, may consider the grant of probation as the revision petitioners are the first time offenders.

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In reply, Sri Prasanna Kumar submitted that since it is an economic offence, the Courts are not entitled to liberally exercise the powers vested in the Court under the provisions of Probation of Offenders Act.

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In view of the rival contentions urged by the learned counsel for the parties, the following points that would arise for consideration are:

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"1. Whether the revision petitioners have made out a case for interference with the finding recorded

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by the trial magistrate that the accused persons are guilty of the offences punishable under Sections 120B read with Sections 420, 468 and 471 of IPC, which is confirmed by the learned Special Judge, CBI Court in Crl.A.Nos.834/2014 and 901/2009?

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2. Whether the sentence passed is excessive?"

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In the case on hand, obtaining loan amount for the purpose of opening Nandini Milk Parlour and Paan Beeda Shop, in KSRTC bus stand, in the name of Sri Mahalakshmi Cooling Equipments (Exs.P115 to 117) Rashmi Enterprises (Exs.P111-114) and Excel Furniture Mart (Ex.P-151) are fictitious firms and in pursuance of criminal conspiracy. Accused persons created bogus receipts and invoices as if they have been issued by the above said firms and those receipts/invoices were produced by the accused persons for availing loan from the State Bank of Mysuru, Basavanagudi Branch, knowing fully well that their fictitious and false documents whereby all ingredients required to attract the offence punishable under Sections 120B, 420, 468 and 471 IPC, stands

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established by placing necessary oral and documentary evidence on record. It is also found from the impugned judgments that both the Courts have recorded a categorical finding that the documents that were produced for obtaining loan which were fabricated and the said finding is recorded by both the Courts based on the oral and documentary evidence on record. The lengthy crossexamination conducted on behalf of the defence to the prosecution witnesses did not yield any contra material to show that the documents were not fabricated and they were genuine documents. In the teeth of such a factual finding recorded by the trial Court as well as first Appellate Court having regard to the limited jurisdiction, this Court is vested powers under Sections 397 and 401 of Cr.PC, in view of the judgment of the Hon’ble Apex Court in the case of Amit Kapoor Vs. Rameshchander and another reported in 2012(9) SCC 460 , this Court cannot re-visit into the factual aspects of the matter.

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Insofar as the error of jurisdiction is

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concerned, there is no merit in any one of grounds urged on behalf of the revision petitioners to say that learned Magistrate did not have the jurisdiction or exercise the jurisdiction in an illegal manner, when both the trial Magistrate and first Appellate Court were competent to deal with the case on hand and there was no error of jurisdiction either legally or otherwise, hardly any scope is left over for this Court to re-visit into the factual aspects as to the challenge made for recording of the finding by the learned Magistrate in convicting the accused persons for the offences punishable under Sections 120-B read with Sections 420, 468 and 471 of IPC. Accordingly, point No.1 is answered in the negative .

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Insofar as the sentence is concerned, admittedly the accused persons did not have any previous criminal records. The accused persons, who were convicted by the trial Magistrate that accused No.1 to undergo

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simple imprisonment for a period of six months and accused Nos.2 to 4 are one year.

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Since the accused persons faced trial and were convicted for first time, in the absence of any previous criminal records, the trial Magistrate was bound to consider the grant of probation as per the provision of Probation of Offenders Act.

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The Hon’ble Apex Court in the case of Gulzar Vs. State of Madhya Pradesh reported in (2007)1 SCC 619 held as under:

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"Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 360, 361 of the Code in that area.

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Section 3 of the P.O.Act refers particularly to Section 379 IPC. Same reads as follows:

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"3.-Power of Court to release certain offenders after admonition - When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 of Section 381 or Section

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404 or Section 420 of the Indian Penal Code or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.

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Explanation - For the purpose of this section, previous conviction against a person shall include any previous order made against him under this section or section 4."

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The Hon’ble Apex Court has also ruled in the case of Chandreshwara Sharma Vs. State of Bihar reported in ( 2000) 9 SCC 245, that it is the mandatory duty of the Magistrate to find out grant of probation in a given case. Therefore, non-exercise of granting of

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probation by the trial Magistrate, has resultant in error of jurisdiction by both the Courts and therefore, this Court being the revisional Court, is entitled to exercise the powers vested in the provisions of Probation of Offenders Act.

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At this stage, Sri P. Prasanna Kumar, learned

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Special Public Prosecutor contended that for exercising powers under the provisions of Probation of Offenders Act, report from the Probation Officer is necessary and for that purpose, the matter requires to be remanded to the trial Magistrate.

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The incident is of the year 1994, there was a marathon trial. Almost after two decades, the matters have reached this Court in the revisional jurisdiction. At this distance of time, only for the purpose of getting the report from the Probation Officer and for that purpose, the matters are to be remanded, would only result in futile exercise. Moreover, after the incident, there is no complaint against any one of the accused persons that

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they are indulged in similar type of criminal activities. Under such circumstances, this Court is of the considered opinion that while maintaining conviction of the accused persons for the offences punishable under Sections 120-B read with Sections 420, 468 and 471 of IPC, they may be granted probation by executing a bond in a sum of Rs.25,000/- each with one surety for the likesum to the satisfaction of the Trial Court, which shall be in force for a period of two years from the date of execution of the bond. Having said thus, the amount of fine awarded by the trial Court and confirmed by the first Appellate Court is on the lower side.

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Even though, the State has not filed any appeal or revision seeking enhancement of sentence, since this Court is exercising the grant of powers vested in the Probation of Offenders Act and granting probation to the accused persons, this court is of the considered opinion that if the accused persons are ordered to pay fine of Rs.25,000/- each as against Rs.5,000/-, ends of justice

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would be met. While so granting the probation, this Court has taken into consideration the age of the accused persons as well. Further, grant of probation and dispensing the report from the Probation Officer is ordered by this Court having regard to the peculiar facts and circumstances of this Court. Accordingly, point No.2 is answered partly in the affirmative and following order is passed:

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ORDER

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Revision Petitions are allowed-in-part.

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While maintaining the order of conviction of accused persons for the offences punishable under Sections 120-B read with Sections 420, 468 and 471 of IPC as ordered by the trial Magistrate and confirmed by the first Appellate Court, accused Nos.1 to 3 are granted probation and they are directed to execute a bond in a sum of Rs.25,000/- each with one surety for the likesum to the satisfaction of the trial Court for their good behavior, which shall be in force for a period of two years from the date of execution of the bond

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and ordered to pay in all fine of Rs.25,000/- each as against Rs.5,000/- ordered by the trial Magistrate and confirmed by the first Appellate Court.

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