Partly allowed

Beenathi Gangadhar, v. The State of Andhra Pradesh

Telangana HC6 Feb 2012CRLRC/292/2009

Case brief

AI extract

What is this about?

This revision petition challenged the conviction of an accused for Sections 407 and 417 IPC. The revision court set aside the conviction under Section 417 IPC but confirmed the conviction and sentence under Section 407 IPC, directing issuance of a non-bailable warrant.

What did the court decide?

Revision allowed in part; conviction under Section 417 IPC set aside; conviction and sentence under Section 407 IPC confirmed; non-bailable warrant issued for remaining imprisonment.

Beenathi Gangadhar, Vs The State of Andhra Pradesh — Cheating and Forgery | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

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CRIMINAL REVISION CASE No.292 OF 2009

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ORDER:-

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The appeal is filed by the appellant in Criminal Appeal No.136 of 2006 on the file of the IV Additional Sessions Judge at Kadapa, who was convicted of the offences punishable under Sections 407 and 417 of the Indian Penal Code (for short, 'IPC') in Calendar Case No.34 of 2004 on the file of the II Additional Judicial Magistrate of I Class, Kadapa.

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2. The case of the prosecution is that the accused was the Manager of the Gati Transport (Cargo Services) Ltd., for four years prior to 2003. His duty was to receive the consignments and deliver the same to the customers and PWs.1 and 2 are the delivery boys assisting him. The accused was in financial troubles and he wanted to take away the valuables from the godown and set the godown to fire but his plan did not succeed earlier. On 13.10.2003 the accused is alleged to have shifted the valuable goods worth of Rs.16,30,000/- and placed in the house of PW.10. On the intervening night of 13/14-10-2003 set fire to the godown to give it a colour of accidental fire and went away to his house. After information, he came to the scene and on the next day gave a complaint to the police about the loss. On 13.11.2003 PW.5 along with other employees coming to know about the suspicious incident gave complaint to the police and it was registered under Sections 406, 407, 417 and 421 IPC and investigation was taken up. During the course of investigation, the accused was arrested and took to the house of PW.10 and produced the property kept in the house of PW.10. Consequently, charge sheet was filed against the accused and charges under Sections 406, 407, 417 and 421 IPC were framed, read over and explained to him, for which, he pleaded not guilty.

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3. On behalf of the prosecution, PWs.1 to 18 were examined and marked Exs.P.1 to P.29 and M.Os.1 to 13. After considering the material available on record, the learned Magistrate found the accused guilty of offences punishable under Sections 407 and 417 IPC, accordingly, convicted and sentenced him for the said offences and found the accused not guilty for the offences punishable under Sections 406 and 421 IPC and accordingly, acquitted him for the said offences. Against which, appeal was preferred and the appellate Court also confirmed the conviction. Aggrieved by the said conviction, the present revision is filed.

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4. The point for consideration is whether the conviction of accused for the offences punishable under Sections 407 and 417 IPC is legal and sustainable?

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5. POINT:

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In order to prove that the accused was in employment of the company, the evidence of PW.1 is material and his evidence goes to show that on the date of incident, they have closed the godown and handed over the keys to the accused. Therefore, the contention of the revision petitioner that on the date of incident, he was not in employment cannot be accepted. In fact, there was no crossexamination of PW.1. Therefore, this fact clearly goes to show that on 13.10.2003 at about 8.00 P.M., the keys of the godown were handed over to the accused. The evidence of PWs.2 and 3 is about noticing of the fact and the evidence of PW.4 is about extinguishing of the fire. The evidence of PW.5 is about the employment of the accused and lodging the complaint with regard to the conduct of the accused. He denied the suggestion that the incident was happened due to short circuit. The prosecution has also examined other witnesses to show about the picking of the goods. The evidence of PW.10 is not in support of the prosecution case and he denied that M.Os.1 to 13 have

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been seized from his house.

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6. PW.18 is the Sub Inspector of Police, who has investigated into the case and he also spoke about the seizure of the property at the instance of the accused. Evidently, the property that was booked to the transport agency was identified by the owner and the said property was found intact and evidently seized from the place outside the godown. It is for the accused to explain as to how these goods have gone outside the premises. His earlier complaint that the property was damaged in the fire is falsified. The keys are with the accused and the property, which was received in the godown has gone outside the godown, naturally it is for him to explain as to how it has gone out. The accused has taken a false plea and the fact that the godown was under fire is not in dispute. There is no material to show that it was an accidental fire. The evidence on record clearly establishes that there was criminal culpable intention on the part of the accused and except himself nobody would have set the godown to fire and further without his knowledge or indulgence the goods could not have been shifted from the godown. Therefore, taking into consideration the above facts, it is quite clear that an offence under Section 407 IPC has been consequently made out against the accused.

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7. So far as the offence under Section 417 IPC is concerned, evidently, he did not adopt any deceitful means or obtain delivery of any property from third person by fraudulent representation or intention. When there is a case of entrustment and misappropriation, the question of conviction for cheating does not arise since the ingredients of both the offences are quite different.

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8. Therefore, in view of the above circumstances, the conviction of the accused for the offence punishable under Section 417 is not warranted, accordingly it is set aside. However, the conviction and sentence for the offence punishable under Section under Section 407

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IPC is concerned, it does not call for any interference.

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9. Accordingly, the Criminal Revision Case is allowed in part setting aside the conviction and sentence of the accused for the offence punishable under Section 417 IPC. The conviction and sentence of the accused for the offence punishable under Section 407 is confirmed and the lower Court is directed to issue non-bailable warrant for apprehension of the accused to suffer the balance period of imprisonment for the offence punishable under Section 407 IPC.

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___________________________ JUSTICE N.R.L. NAGESWARA RAO

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Date:06-02-2012 INL

Beenathi Gangadhar, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Beenathi Gangadhar, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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