Partly allowed

M B Hanumantharayappa v. State of Karnataka

Karnataka HC22 Jul 2021CRL.RP/461/2012

Case brief

AI extract

What is this about?

High Court allowed criminal revision petition partly. Accused acquitted of forgery (S. 471 IPC) due to waiver of loan. Conviction for cheating (S. 420 IPC) maintained. Custody counted as sentence. Fine enhanced to Rs. 25,000.

What did the court decide?

Petitioner acquitted of S. 471 IPC; convicted but fine enhanced to Rs. 25,000 for S. 420 IPC with custody counted as sentence.

M B Hanumantharayappa Vs State of Karnataka — Cheating and Forgery | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND 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.461/2012

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BETWEEN

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M B HANUMANTHARAYAPPA S/O BHEEMAPPA AGED ABOUT 37 YEARS, NOW WORKING AT GOVERNMENT HOSPITAL HALEBIDU, HASSAN DISTRICT. ...PETITIONER

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(BY SMT.NALINA.K, FOR SRI S K VENKATA REDDY, ADV. - PHYSICAL HEARING)

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AND

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STATE OF KARNATAKA BY NEW EXTENSION POLICE TUMKUR, TUMKUR DISTRICT

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…RESPONDENT

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(BY SRI SHOWRI.H.R, HCGP)

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGEMENT OF CONVICTION AND ORDER OF SENTENCE DATED 2.2.2009 PASSED IN C.C.NO.844/2003 BY THE ADDL.CJ (SR.DN) AND CJM TUMKUR AND JUDGMENT DATED 15.3.12 PASSED IN CRL.A.NO.18/2009 BY THE PO, FTC-III, TUMKUR BY ALLOWING THIS REVISION PETITION AND CONSEQUENTLY ACQUIT THE ACCUSED/PETITIONER OF THE CHARGES LEVELED AGAINST HIM IN

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C.C.NO.844/2003 ON THE FILE OF THE ADDL.CJ (SR.DN) AND CJM TUMKUR.

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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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The accused is in Revision challenging the order dated 2.2.2009 passed in CC No.844/2003 by the learned Addl. Civil Judge (Sr. Dn.) & CJM, Thumkur, which is confirmed by the first Appellate Court in Criminal Appeal No.18/2009 dated 15.3.2012 on the file of Fast Track Court-III, Thumkur, for the offence punishable under Sections 471 and 420 of IPC.

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The brief facts which are necessary for disposal of the Revision Petition are as under:

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A complaint came to be filed by the complainant stating that on 14.06.1999, the petitioner/accused had obtained loan of Rs.5,47,000/- from SC/ST Development Corporation, Tumkur, to purchase TATA 407 vehicle and it was registered in the office of RTO, Tumkur, having registration No.KA-06/A-961 under self employment

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scheme. The said vehicle was hypothecated in favour of SC/ST Development Corporation, Tumkur and it was noted in the Registration Certificate and records of the RTO, Tumkur. Petitioner/accused became defaulter of repayment of the agreed loan amount as per the agreement and thereafter, without repaying the loan amount, the accused forged and fabricated the NOC form No.35 and presented it to the RTO Office to show that the hypothecation was released by the Bank and he illegally sold it in favour of Nanjundashetty during August, 2001 and thereby committed an offence punishable under Sections 471 and 420 of IPC.

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The learned Magistrate took cognizance, recorded the sworn statement and issued summons. The accused entered appearance and plea was recorded. The accused pleaded not guilty. Therefore, the trial was held. In order to prove the guilt of the accused 8 witnesses are examined as PWs.1 to 8 and relied on eleven documentary evidence which were exhibited and marked as Exhibits P-1 to P-11.

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On behalf of the defence, the accused has not chosen to lead any evidence nor marked any documents.

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The statement of the accused as contemplated u/s.313 Cr.PC., was recorded, wherein the accused denied all the incriminatory circumstances.

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Being aggrieved by the judgment of the learned Magistrate, the accused preferred an appeal on the file of the Fast Track Court-III, at Tumkur in Criminal Appeal No.18/2009. The learned Judge in the first Appellate Court secured the presence of the parties as well as the records, heard the parties in detail and dismissed the appeal whereby confirmed the judgment of the Trial Court. Hence, this Revision Petition.

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Learned counsel for the Revision Petitioner Smt. Nalina K., for Sri S.K. Venkata Reddy, vehemently contended that both the courts have grossly erred in coming to the conclusion that the petitioner has committed an offence punishable under Sections 471 and 420 of IPC though there is an inconsistency in the evidence of PW-

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1/complainant and PWs.5 and 8 the investigating officers who conducted the investigation. She has further contended that both the courts have failed to consider that notice for repayment of loan was issued on 18.11.2000 and vehicle was seized on 23.10.2001 from one Nanjundashetty and the said Nanjundashetty was not examined which is fatal to the case of the prosecution and prayed for allowing the Revision Petition.

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In the light of the arguments advanced on behalf of the Revision Petitioner and after perusal of the records of both the courts, the following points that would arise for consideration:

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(i) Whether the finding recorded by the learned Trial Magistrate convicting the accused for the offence punishable under Sections 471 and 420 of IPC and confirmed by the first Appellate Court is erroneous?

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

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My answer to the above points is in " Partly Affirmative" for the following reasons:

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It is well settled principle of law and requires no emphasis that assigning the reasons to reach a conclusion is a sine qua non . In fact, the reasons are heart beat of any judgment. This aspect of the matter is ignored by the first Appellate Court while confirming the order passed by the learned Magistrate.

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Perused the entire materials available on record meticulously. On such perusal it is seen that PW-2 is the witness to seizure mahazar Ex.P-5, for seizing the documents from the RTO office, Tumkur. PW-3 is the RTO who is also a witness to Ex.P-9, Form No.35 alleged to be issued by the office of the RTO. PW-5 is the Superintendent at RTO Office, Tumkur and received Ex.P5 on 27.7.2001 transferred the said vehicle to Chikkamagalur RTO office.

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In view of the foregoing discussions, the fact that the loan has been waived, the offence under Section 471 of IPC would not survive for further consideration.

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More over, the materials available on record would not conclusively establish that a forged document has been used for the purpose of committing fraud. Under such circumstances, the offence under Section 471 of IPC is not properly established by the prosecution which has been ignored by the learned Trial Judge and the first Appellate Court and the first Appellate Court did not properly bestow his attention to the said aspect of the matter. Accordingly, the Revision Petitioner has made out a case for an order of acquittal in so far as the offence under Section 471 of IPC is concerned.

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However, since there was a temporary misappropriation, the ingredients required to attract offence under Section 420 of IPC is made out. But by the waiver of the loan, the Government in not put to wrongful loss and there is no wrongful gain to the accused which has been

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rightly appreciated by the learned Trial Magistrate and confirmed by the learned first Appellate Court. The fact remains that the entire loan amount is now waived, the custody period of few days during the trial can be treated as period of imprisonment for the offence punishable under Section 420 of IPC. However, when such benefit is transferred on to the revision petitioner, necessarily, the fine amount needs to be enhanced from Rs.5,000/- which has been imposed by the learned Trial Magistrate and confirmed by the first Appellate Court needs to be enhanced to Rs.25,000/-, whereby the ends of justice would be met.

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Accordingly, point Nos.1 & 2 are answered partly in 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) The accused/Revision Petitioner is acquitted for the offence punishable under Section 471 of IPC and order of conviction passed

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by the learned Trial Magistrate and confirmed by the first Appellate Court for the offence punishable under Section 420 IPC is maintained; and

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(iii) Custody period already undergone during the trial is treated as imprisonment for the offence punishable under Section 420 IPC and ordered to pay fine of Rs.25,000/inclusive of the fine already imposed by the learned Trial Magistrate in a sum of Rs.5,000/- with a default sentence of simple imprisonment for a period of six months.

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(iv) Four weeks' time is granted to the Revision Petitioner to pay the fine amount from the date of receipt of this order.

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Sd/JUDGE

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PL*

M B Hanumantharayappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

M B Hanumantharayappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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