Partly allowed

Muralidhar v. State of Karnataka

Karnataka HC20 Jul 2021CRL.RP/430/2012

Case brief

AI extract

What is this about?

The High Court partly allowed a criminal revision petition challenging convictions for cheating and forgery. It acquitted the wife of the accused for lack of common criminal intention, quashed conviction for cheating presumptively, and modified the sentence for the remaining offence, treating trial custody as imprisonment and enhancing the fine.

What did the court decide?

Accused No.2 acquitted. Accused No.1 convicted only under Section 419 IPC; trial custody treated as imprisonment; fine enhanced to Rs.20,000.

Muralidhar Vs State of Karnataka — Cheating and Forgery | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF JULY, 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.430/2012

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BETWEEN

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1 . MURALIDHAR

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S/O SATHYANARAYANA AGED ABOUT 39 YEARS R/A OPP. HOYSALESHWARA COLLEGE LAKSHMI BUILDING NH-206, ARASIKERE TOWN

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2 . SMT. LAKSHMI @ M.G.NAGALAKSHMI W/O MURALIDHAR, AGED ABOUT 34 YEARS, R/A OPP. HOYSALESHWARA COLLEGE LAKSHMI BUILDING, NH-206, ARASIKERE TOWN

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...PETITIONERS

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(BY SRI HASHMATH PASHA, SR. COUNSEL)

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AND

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STATE OF KARNATAKA BY ARASIKERE TOWN POLICE ARASIKERE HASSAN DISTRICT

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REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR

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…RESPONDENT (BY SRI SHOWRI.H.R, HCGP)

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THIS CRL.RP IS FILED U/S.397 OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED:5.5.2011 PASSED IN C.C.NO.26/2009 ON THE FILE OF SENIOR CIVIL JUDGE, JMFC, ARASIKERE, WHICH IS CONFIRMED IN CRL.APPEAL NO.40/2011 ON THE FILE OF ASJ AND PRESIDING OFFICER, FTC-II, HASSAN AND CONSEQUENTLY ACQUIT THEM FROM THE ALLEGED CHARGES.

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THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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This Revision Petition is by the convicted accused persons who have suffered an order of conviction dated 5.5.2011 passed in CC No.26/2009 by the Senior Civil Judge & JMFC, Arsikere for the offence punishable under sections 419, 420 and 468 of IPC which was confirmed in Criminal Appeal No.40/2011 vide judgment dated 3.3.2012 have challenged the validity of those orders.

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Brief facts which are necessary for disposal of the

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Revision Petition are as under:

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Arasikere Town Police filed a charge sheet against the Revision Petitioners for the offence punishable

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under Section 419, 420 and 468 read with 34 IPC on the complaint lodged by Smt. Bindu Kumble. In the complaint it is contended that Smt.Bindu Kumble, owned coconut garden in the land bearing Survey No.17 of Murundi Village of Arasikere Taluk and in order to manage the said property, she had authorized accused No.1.

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During the year 2000, accused No.1 obtained money from Smt.Bindu Kumble and installed drip irrigation system in the garden land and also in order to get subsidy amount from the Government, has submitted an application and necessary documents in the name of Smt.Bindu Kumble by forging her signature and instead of affixing photo of Smt.Bindu Kumble, he affixed the photo of his wife (accused No.2) and impersonated Smt.Bindu Kumble and submitted the application and in that connection, the Horticulture officer, Arsikere, has issued treasury cheque for Rs.4,873/- as the subsidy through cheque bearing No.545295 from the Government treasury and it was encashed through SBI, Tiptur Branch.

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It is further contended that accused No.2 who is the wie of accused No.1 actively supported accused No.1 by furnishing her signature and also her photograph in respect of the application seeking subsidy form the Government and also helped accused No.1 in opening bank account bearing No.29/6006 and after the receipt of the subsidy amount, they have withdrawn the same and thereby caused financial loss to Government and also gained financially by themselves and thus they have committed the aforesaid offences.

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On receipt of the charge sheet, the learned Magistrate took cognizance of the offences alleged against the accused persons and framed the charge.

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Accused pleaded not guilty and hence, trial

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was held.

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During the trial, in order to bring home the

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guilt of the accused persons, prosecution in all examined 16 witnesses as PWs.1 to 16 and relied on 80 documents which were exhibited and marked as Exs.P-1 to P-80.

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After conclusion of the prosecution evidence, the learned Magistrate recorded the statement of the accused under Section 313 Cr.PC., wherein the accused persons denied all the incriminatory circumstances. After hearing the arguments of both sides, learned Trial Judge convicted both the accused persons for the offence punishable under Sections 419, 420 and 468 read with 34 IPC.

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Being aggrieved by the order passed by the impugned judgment and order of conviction passed by the learned Trial Judge, accused persons filed an appeal before the first appellate court and the learned judge of the first appellate court after securing the records, hearing the parties in detail, by the impugned judgment dated 3.3.2012 confirmed the order passed by the learned Magistrate by dismissing the appeal.

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Learned Senior counsel for the Revision Petitioners Sri Hashmath Pasha, while questioning the validity of both the judgments, contended that the materials available on record is hardly sufficient to record

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an order of conviction against the accused No.2 and only incriminating articles in so far as accused No.2 is concerned is only the signature and parting with her photograph to accused No.1. He further contended that learned Magistrate has not assigned any reason of whatsoever to establishment the ingredients required to attract the common intention between accused Nos.1 & 2. He further contended that just because accused No.2 is the wife of accused No.1, she should not be penalized for the action of the accused No.1 and except parting away the photograph and subscribing her signature on Ex.P-12, no other material is available to record on order of conviction against the accused No.2.

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He further contended that even if the entire materials on record is taken into consideration, the prosecution is successful in establishing only the ingredients to attract the offence under Section 419 IPC and not under Section 420 or 468 of IPC.

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He further contended that in the event of this court upholding the conversation against accused No.1, the custody period of 10 days already undergone by accused No.1 may be taken into consideration as the period of imprisonment and enhance the fine in a suitable sum and allow the revision to that extent.

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Per contra, learned High Court Government Pleader Sri Showri.H.R. vehemently contended that both the courts have rightly convicted both the accused and therefore, the impugned order needs to be confirmed by dismissing the Revision Petition.

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He further contended that accused No.2 being the wife of accused No.1 has actively supported accused No.1 by subscribing her signature in the account opening form and also furnishing her photograph and ultimately the subsidy amount in the name of Smt.Bindu Kumble has been drawn by accused Nos.1 & 2 and utilized by both of them, which clearly establishes that both are responsible for the offences alleged against them and Section 34 IPC

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has been rightly invoked by the prosecution which has been rightly appreciated by the learned Magistrate inasmuch as proving the offence under Section 34 IPC and prayed for dismissal of the Revision Petition.

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In view of the rival contentions, following points would arise for consideration:

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"(i) Whether the finding recorded by the learned Magistrate in convicting the accused Nos.1 and 2 for the offence punishable under Sections 419, 420 and 468 IPC; is suffering from legal infirmity, patent defect or error of jurisdiction, and thus calls for interference?

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(ii) Whether the sentence passed by the learned Magistrate confirmed by the first appellate court is excessive?"

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On re-appreciation of the entire materials on

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record, having regard to the scope of the revisional jurisdiction, it is established fact that accused No.1 was managing the coconut garden of the complainant Smt.Bindu Kumble. He had also installed drip irrigation system in the coconut garden and there was a scheme

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whereby drip irrigation installed in any agricultural land, subsidy amount would be given by the Government to encourage drip irrigation system. Accordingly, accused No.1 opened Bank account in State Bank of India, Tiptur Branch in the name of Smt.Bindu Kumble. At the time of opening bank account, the signature of Smt.Bindu Kumble was forged by accused No.1 and instead of affixing the photograph of Smt.Bindu Kumble, accused No.1 has affixed the photograph of his wife who is accused No.2.

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The entire case of the prosecution, mainly depends on the documentary evidence rather than the oral evidence having regard to the nature of the offence alleged against them. The documents which were relied on and marked as Exs.P-1 to P-80 have probative value and those documentary evidence has been rightly appreciated by the learned Magistrate while reaching a finding that the amount which was payable by the Government in the name of Smt.Bindu Kumble has been drawn by accused No.1 by impersonating Smt.Bindu Kumble by affixing the

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photograph of his wife. The fact that the amount of Rs.4,873/- has been drawn by accused No.1 stands established from the documentary evidence on record. The finger print expert PW-15 has given an opinion vide Ex.P-75 clearly establishes that the signature found on the application form and other documents vide Exs.P3 to P16 is not the signature of Smt.Bindu Kumble. Therefore, it was for the accused No.1 to say who has signed in the place of Smt.Bindu Kumble.

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In the absence of any such explanation, learned Magistrate has rightly concluded that it is accused No.1 who has forged her signature and also impersonated Smt.Bindu Kumble by affixing the photograph of his wife. All these aspects of the matter has been rightly appreciated and the learned Magistrate has recorded an order of conviction as aforesaid. However, in order to attract the offence under Section 420 and 468 of IPC, there is no materials on record inasmuch as the material

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evidence do not conclusively establish all ingredients to attract the offence under Sections 420 and 468 IPC.

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On re-appreciation of the entire materials on record, the prosecution case suffers from the above ingredients and there is sufficient materials available on record to attract the offence under Section 419 IPC.

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As such, there is sufficient force in the arguments canvassed on behalf of the Revision Petitioner that the finding recorded by the learned Magistrate convicting accused Nos.1 & 2 for the alleged offences is suffering from legal infirmity. Just because accused No.2 has subscribed her signature which is marked at Ex.P-2(b) and parting away with the photograph of her own husband, it cannot be said that she had criminal intention to cheat Smt.Bindu Kumble. Further, there is no evidence placed on record to establish that accused No.2 has actively shared common intention with accused No.1 in the act of cheating Smt.Bindu Kumble in drawing the subsidy amount granted by the Government. In such

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circumstances, the finding recorded by the learned Magistrate needs interference by this court. Unfortunately, the first appellate court has not bestowed its attention to the ingredients of Sections 420 and 468 IPC so as to maintain conviction of those offences. Therefore, from the foregoing discussion, point no.1 is answered partly in Affirmative.

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In so far as sentence is concerned, learned senior counsel for the Revision Petitioners vehemently contended that the incident is of the year 2009 and accused No.1 was in custody for a period of ten days during trial. He further contended that having regard to the nature of offence and the amount that was involved in the incident is meager, the court may consider the custody period already undergone by the accused may be treated as imprisonment for the offence punishable under Section 419 IPC and he may be asked to pay additional fine which deems fit to the facts and circumstances of the case.

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Having regard to the fact that amount of subsidy i.e., withdrawn in the name of Smt.Bindu Kumble is Rs.4,873/- by accused No.1. This court is of the considered opinion that appropriate sentence needs to be passed in the place of sentence already passed by the learned Magistrate and confirmed by the first appellate court. Accordingly, this court is of the considered opinion that there is sufficient force in the arguments addressed on behalf of the Revision Petitioner, custody period already undergone by accused No.1 be treated as imprisonment and ordered to pay fine of Rs.20,000/- inclusive of the fine already imposed by the learned Magistrate for the offence punishable under Section 419 of IPC would meet the ends of justice Hence, Point No.2 is answered in the Affirmative and following order is passed:

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ORDER

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(i) Revision Petition is allowed in part.

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(ii) Accused No.2 is acquitted of all the charges leveled against her.

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(iii) In so far as accused No.1 is concerned, he is acquitted for the offence punishable under Section 420 and 468 IPC and conviction for the offence punishable under Section 419 IPC is hereby confirmed and the period of imprisonment of ten days already undergone by accused No.1 during trial shall be treated as imprisonment and ordered to pay fine of Rs.20,000/- inclusive of the fine already imposed by the learned Magistrate for the offence punishable under Section 419 IPC with default sentence of one year simple imprisonment.

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(v) Four week’s time is granted to pay the balance fine amount before the learned Magistrate.

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(vi) Office is hereby directed to return the records with a copy of this order forthwith.

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Sd/JUDGE

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PL*

Muralidhar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Muralidhar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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