Complainant and State appealed against acquittal of an accused convicted by trial Court under Sections 406 and 420 IPC for misappropriating deposits of Rs.2,85,000/-. The High Court found defence receipts and bank records showed the amount was repaid, negativing dishonest intention at inception, and dismissed both appeals.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:47374 CRL.A No. 1408 of 2016 C/W CRL.A No. 517 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 1408 OF 2016
C/W
CRIMINAL APPEAL NO. 517 OF 2017
IN CRL.A No. 1408/2016
BETWEEN:
SMT. GRACE IRENE MIRANDA AGED ABOUT 50 YEARS, W/O PHILIP MIRANDA, R/O SANTHOSH GHAR KADRI TOLGATTE, MANGALORE-575 002.
…APPELLANT
(BY SRI. NATARAJA BALLAL A.,ADVOCATE)
AND:
Digitally signed by SUMA B N Location: High Court of Karnataka
…RESPONDENTS
(BY SMT. K.P. YASHODHA, HCGP FOR R1; SMT. HALEEMA AMEEN, ADVOCATE FOR R2)
THIS CRIMINAL APPEAL IS FILED U/S 372 CRPC PRAYING TO SET ASIDE THE ORDER DATED 08.07.2016 IN CRL.A.NO.48/2010
NC: 2024:KHC:47374 CRL.A No. 1408 of 2016 C/W CRL.A No. 517 of 2017
PASSED BY THE III ADDL. DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE AND RESTORE THE ORDER DATED 23.01.2010 PASSED BY THE JMFC (II Court), MANGALURU IN C.C.NO.1972/2004.
IN CRL.A NO. 517/2017
BETWEEN:
STATE OF KARNATAKA BY MANGALURU EAST PS REP.BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU -560 001.
...APPELLANT
(BY SMT. K.P. YASHODHA, HCGP)
AND:
MR PAUL NOVEL RODRIGUES AGED ABOUT 49 YEARS S/O EDWIN RODRIGUES R/O KARMIKA CORNER HOUSE NEW SHIVABAGH ROAD SHIVABAGH, MANGALURU-575 001.
...RESPONDENT
(BY SMT. HALEEMA AMEEN, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S.378(1) AND (3) CR.P.C BY THE STATE P.P. FOR THE STATE PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT AND ORDER DATED 08.07.2016 IN CRL.A.NO.48/2010 ON THE FILE OF III ADDL. DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE, THEREBY ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 406 AND 426 OF IPC ETC.
THESE APPEALS, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
NC: 2024:KHC:47374 CRL.A No. 1408 of 2016 C/W CRL.A No. 517 of 2017
ORAL JUDGMENT
Criminal Appeal No.1408/2016 is preferred by the complainant and Criminal Appeal No.517/2017 is preferred by the State impugning the Judgment dated 08.07.2016 passed in Criminal Appeal No.48/2010 on the file of the learned III Additional District and Sessions Judge, D.K., Mangaluru, (hereinafter referred to as first appellate Court') acquitting the respondent/accused for the offences punishable under Sections 406 and 420 of IPC by setting aside the Judgment dated 23.01.2010 passed in C.C.No.1972/2004 on the file of the learned JMFC (II Court), Mangaluru, D.K. (hereinafter referred to as trial Court) convicting the accused for the above said offences and sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs.4,000/- for the offence punishable under Section 406 IPC and to undergo two years rigorous imprisonment and to pay fine of Rs.6,000/for the offence punishable under Section 420 IPC.
of the accused, the complainant along with others paid the amount and obtained the receipts. But even after the date
of maturity, the accused had not paid the deposit amount and deliberately withheld the same with dishonest intention of cheating. Thereby the accused has committed the offences punishable under Sections 406 and 420 IPC. Therefore the complaint came to be filed. The police have registered the FIR, undertook investigation and filed the charge sheet.
The accused has denied all the incriminating materials on record, examined DWs 1 and 2 and got marked Ex.D1 to D13 in support of his defence. The trial Court after taking into consideration all these materials on record came to
the conclusion that the complainant is successful in proving the guilt of the accused beyond all reasonable doubt and accordingly convicted the accused by passing
the Judgment dated 23.01.2010 and sentenced him as stated above.
respondent/accused. Perused the materials including the trial Court records.
HCGP submitted in unison that the accused was the owner of the Finance Company, which received deposits from the complainant and her husband. The accused has received
a sum of Rs.2,85,000/- on various dates from 22.10.1996 till 05.11.1997. He promised to repay the amount with interest at 24% p.a. after 12 months. Since the accused was the neighbour of the complainant, she believed his words and made deposits. Even after lapse of one year, the accused has not repaid the amount and the intention of the accused in cheating the complainant was very clear
and accused has misappropriated the amount by committing criminal breach of trust and cheating.
remaining amount in cash, Ex.D6 is disputed by the complainant saying that she never used to sign in English. Payment of cash is also disputed by the complainant.
that the amount is already refunded is not acceptable and therefore the intention on the part of the accused is very clear that he has committed criminal breach of trust and cheating. Hence, they pray for allowing the appeal and restoring the Judgment of conviction and order of sentence passed by the trial Court.
21.12.2000. Even after acknowledging the receipt for Rs.2,21,705/- as per Ex.D6 the complainant filed the complaint on 13.08.2003 suppressing the material fact of receiving the amount.
complainant deliberately disputed her signature found on Ex.D6 and that when an application is filed to refer the disputed signature found on Ex.D6 to the handwriting expert, the said application was opposed by the complainant and accordingly said application came to be dismissed by the trial Court. Even though the complainant contended that she never used to sign in English as the
signature found on Ex.D6 is in English, the accused examined DW-1 -the Manager of the bank where the complainant is having an account. He produced Ex.D2the account opening form and Ex.D4 -specimen signatures of the accused and deposed before the trial Court stating that the complainant was infact signing in English. These materials demolishes the case of the complainant and
shows the intention on the part of the complainant in filing complaint making false allegations. When the complainant
is guilty of suppression of material facts, the accused is entitled for acquittal. Even though the trial Court committed an error in convicting the accused, the first appellate Court was right in acquitting. There are no illegality or perversity in the Judgment of acquittal passed by the first appellate Court. Hence, prays for dismissal of the appeals as devoid of merits.
"Whether the impugned Judgment of acquittal passed by the first appellate Court reversing the Judgment of conviction and order of sentence passed by the trial Court suffers from perversity or illegality which calls for interference by this Court?"
NC: 2024:KHC:47374 CRL.A No. 1408 of 2016 C/W CRL.A No. 517 of 2017
REASONS
It is the specific contention of the complainant that the accused induced the complainant and her family members to deposit the amount by promising to repay the same with interest at 24% p.a. after one year. Believing the words of the accused, an amount of Rs.2,85,000/- was deposited on various dates from 22.10.1996 till 05.11.1997. To evidence this fact, the complainant is placing reliance on Ex.P3 to P8 i.e., deposit receipts issued by accused. These documents are not seriously disputed and even as per accused he received Rs.2,85,000/- and promised to repay the same with interest at 16% p.a. after one year. The contention of the complainant that the accused promised to pay interest at 24% p.a. do not get support from these documents. There is no evidence except interested testimony of complainant in that regard.
got marked Ex.D6 the receipt dated 21.12.2000 to contend that an amount of Rs.2,21,705/- was paid to the complainant and others for which the complainant issued the receipt, acknowledging the receipt of the amount. It is pertinent to note that the complainant has specifically denied that she acknowledged the receipt of the amount by signing Ex.D6. The complainant contended that Ex.D6 contains signature in English but she never signs in English. The accused got examined DW-1 the bank manager who deposed before the Court and stated that
the complainant had opened the account in their branch and she used to sign in English. Ex.D2 is the account opening form and Ex.D4 is the specimen signatures where complainant had signed in English. These materials prima facie disclose that the complainant was signing in English. Then the question that arises as to why the complainant has taken a defence that she never used to sign in English and why Ex.D6 was suppressed while filing the complaint on 13.08.2003.
NC: 2024:KHC:47374 CRL.A No. 1408 of 2016 C/W CRL.A No. 517 of 2017
in other words Ex.D6 contains forged signature of the complainant, there was absolutely no reasons for the complainant to oppose the application to refer the document for handwriting expert. In other words, if the accused had concocted Ex.D6 by forging the signature of the complainant, he would not dare enough to file an application seeking reference of the disputed signature to the handwriting expert.
complainant is also repaid with some interest. These documents prima facie supports the defence taken by the accused. Now the question arises as to why the complainant suppressed all these materials and proceeded to file a criminal complaint. The same is unanswered.
opinion that the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt. I do not find any reason to interfere with the same as it cannot be said that the reasoning assigned by the first appellate Court is either perverse or illegal. Hence, I answer the
above point in the negative and proceed to pass the following:
ORDER
Criminal Appeal No.1408/2016 and Criminal Appeal No.517/2017 are dismissed.
Registry to send back the trial Court records.
Sd/(M G UMA) JUDGE
SBN List No.: 2 Sl.No.: 55
1 issue framed by the court
Whether the first appellate Court's acquittal of the accused for offences under Sections 406 and 420 IPC was perverse or illegal and called for interference?
2 provisions across 1 enactments
Smt. Grace Irene Miranda
State of Karnataka
Mr Paul Novel Rodrigues
M G Uma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
