Dismissed

Y.Raghuram , v. C.Rajendra Kumar and Another

Telangana HC7 Feb 2023CRLRC/1040/2008

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision filed by an erstwhile partner challenging a conviction order. He argued misappropriation of firm funds and cheating by personation were committed by the former partner. The Court held the acquittal by the lower court was in accordance with law and evidence.

What did the court decide?

Criminal Revision Case dismissed; pending miscellaneous applications closed.

Y.Raghuram , Vs C.Rajendra Kumar and… — Contract and Commercial Disputes | Telangana HC (2023)

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I :

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[^32se ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE SEVENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE DR. JUSTICE D.NAGARJUN

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CRIMINAL REVISION CASE No: 1040 OF 2008

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Criminal Revision filed under Section 397 & 401 of CrPC, against Order dated 14-12-2007 passed in C.C.No. 19.18 of 2005, on the fite of the Court of the lll Metropolitan Magistrate Cyberabad, at L.B.Nagar, Hyderabad.

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Between:

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!.Ragluqm,^{(PW.1),Sio. Y.Gopala Krishna Murthy, aged48 years, R/o. Ptot} No.1'18, H.No. 8-3-833/1 18, Kamalapuri Colony, Srinagar Colony, Hyderabad500073

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..Petitioner/Comptainant

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AND

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C.Rajendra Kumar, S/o. C.Satyanarayana, aged 46 years, R:/o. Plot No.3A, Navodaya Colony, Road No.14, Banjara Hills, Hyderabad -500 034.

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...Accused

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State of A.P.,, rep by Public Prosecutor, High Court, Hyderabad.

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...Respondents

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Counsel for the Petitioner: SRl. C. SHARAN REDDY

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Counsel for the Respondent No.1: SRI B. NALIN KUMAR, SENIOR COUNSEL

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Counsel for the Respondent No.2: SRI MUTHYALA MURALIDHAR,

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ADDITIONAL PUBLIC PROSECUTOR

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The Court made the following: ORDER

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THE HONOURABLE DR. JUSTICE D.NAGARJuN CRIMINAL REVISION CASE No. 1O4O of 2OOB

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ORDER:

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This Criminal Revision Case is filed by the revision petitioner - de-facto complainant aggrieved by the judgment of acquittal dated 14.12.2OO7 in C.C.No.1918 of 2OO5 on the file of learned III Metropolitan Magistrate, Cyberabad at L.B.Nagar.

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The facts in brief, as per the record available before the Court are as under:

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af The revision petitioner - de-facto complainant by name Y. Raghuram has filed a private complaint before the learned I[[ Metropolitan Magistrate, Cyberabad at L.B.Nagar alleging that he is a Chartered Account and he has opened a Chartered Accountant firm in the name of M/s. Raghu & Rajendra along u,ith respondent No.1 - accused by name C. Rajednra Kumar in the year 1984. There were three partners. The said firm was reconstituted on 01.10.1999 by inclusion of another partner. M/s. Raghu Rajendra was

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)

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having only bank account bearing No. l33g of Indian Bank, Himayathnagar. A.P. Transco (at present named as Northern Power Distribution Company of Ap Limited), ERO, Armoor, Nizamabad) was one of the clients of the said hrm. As disputes arose between the revision revision petitioner _ de-facto complainant and respondent No. 1 - accused, they decided to settle the disputes amicably by dividing the work and accordingly work pertaining to Ap TRANSCO was entrusted to respondent No.l- accused to his share and whereas the revision petitioner - d"e-facto complainant has retained tlle rest of the work including the individual and corporate bodies. On account of disparity of the work between the revision petitioner and respondent No. 1, the revision petitioner has agreed to compensate Rs.2.5 lakh to the respondent No.1- accused. The r€spondent No.l_ accused has opened an oflice separately at Himayathnagar on O4.10.200O

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b) The respondent No.1 - accused has received cheque bearing No.159724, dated 26.O2.2OO2 for Rs. 1,72,6O1.15 paise after separation of partnership in the name of Raghu &

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Rajendra and the sarne was encashed vide SB Account No.7424 in Canara Bank, Gardhi Nagar, Hyderabad. Since the cheque was in the name of M/s. Raghu & Rajendra, the revision petitioner has made a complaint to the bank authorities of Andhra Bank. On which the bank authorities have reversed the transaction from the account of respondent No.l - accused and gave a demand draft to the respondent No.1 - accused, who has encahsed the said DD. The de-facto complainant has filed a private complaint alleging that the respondent - accused has not only encashed the said DD belonging to the said hrm but also utilized the said money for himself successfully

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c) The private complaint filed by the petitioner was taken cognizance by the learned Magistrate for the offences under Sections 479,42O and 109 of the Indian Penal Code and numbered as C.C.No.1918 of 2005. During the course of trial, the prosecution has examined PWs 1 to 5 and got marked Exs.Pl to P15 and whereas no oral erridence is adduced on behalf of the respondent - accused. However, Exs. Dl to D6 were marked. After full fledged enquiry, the

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trial Court has found the respondent^No.l -^accusednot guilty of the offence alleged against him.

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Aggrieved by the same, the Present criminal^revision case is lrled by the revision^petitioner -^{de-facto complainant} on the following^grounds:

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i) The learned \t[a gistrate ought to have seen that on^a complaint given by t}:re de-facto complainant stating^{that the} money belongs to the Company, the amount^{was recovered} and a DD was given in favour^{of Raghu Rajendra.}

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ii) The learned Magistrate ought to have^seen that^PW4, the Bank Manager clearly stated that the accused^has committed fraud.

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iii) The learned Magistrate failed to notice that^another account was opened with the help of K. Sudha at^A.P. Mahesh Cooperative Bank, Ramanthapur and^{deposited the} Demand Draft there.

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iv) The learned Magistrate did not go through^the Memorandum of Understanding, which^say that^{there should}

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be a retirement deed executed by the accused, then only he is entitled for the benefits.

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v) The learned Magistrate failed to appreciate the evidence, which shows that accused is using the firm name for opening a bank account without any authorization.

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vi) The learned Magistrate failed to notice that the accused used the name of tlne de-facto complainant without his permission and collected amounts of the lirm.

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vii) The learned Magistrate ought to have seen that even while taking the demand draft, he used the name of beneficiar5z as Raghu Rajendra willully instead of firm name Raghu and Rajendra, so that he can encash through another bank.

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Heard Sri C. Sharan Reddy, learned counsel for the revision petitioner, Sri B. Nalin Kumar, learned Senior Counsel for the respondent No. I accused as well as Sri Muthyala Muralidhar, learned cotrnsel for the respondent No.

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2 - State

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Now the point for consideration is:

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Whether judgment of acquittal

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dated 14.12.2007 in C.C.No. t918 of 2005 on the file of learned III Metropolitan Magistrate, Qrberabad at

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- L.B.Nagar is liable to be set aside?

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The scope and ambit of this Revisional Court in interfering with the judgment of the trial Court is very limited, This Court cannot sit like an appellate Court for reassessing the finding of the trial Court in respect of facts, which are already settled on the basis of evidence placed before the Court. This Court will essentially try to understand whether the appellate Court has committed any error, on the face of the record, either procedurally or legally, while coming to the conclusion. In Khema @ Khem Chandra etc v. State of Uttat Pradesht, the Honourable Supreme Court held as under:

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Shri Singh Luz.s stronglg relied on the judgment of this Court in the case of Smt. Dalbir Kaur (supra) in support of tle submission that in utew of the concurrent ftndings of fact, this Court should not reappreciate th_e euid.ence. No doubt

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'^{2022o AIR(sc) i765}

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that the reliance placed bg Slri Singh^{on tLe} judgment of this Court in the case of Smt. Dalbit Kaur (supra) is uell meited.^{HouLeuer, it is to be} noted that tltis Court, in a^{catena of cases, hc,s} held that ttnugh in cases^{of concuruent} findings of fact this Court u-till not ordinarilg^interfere utith tllE said findings, in^exceptional circumstances, this Court is^{empowered to do} so. If this Court finds that the^{appreciationof} euidence and findings is uitiated^{bg any error of} la u-t or procedure or found contrary to^the prtnciples of natural^justice, errors of record^and misreading of the euidence, or uhere^the conclusions of the High Court are^manifestlg peruerse, this Court u,tould not be^{pouterless to} reappreciate the euidence. Reliance in^this respect could be placed on the^{judgments of thi,s} Court in the cases of Himachal^Pradesh Administration u. Shn Om^Prakash6, Arunachalam u. P.S.R. Sadhanantham and⁶ (1972) I SCC 249 AnotherT, Mithilesh^Kumari and Another u. Prem Behai^{KhareS,State of} tl.P. u. Babul Nath9, and Pattakkal Kunhikoga (Dead) Bg LRs. u. Thoopigakkal Koga and Anoth.erlO.

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Recentlg, this Court in tlte case of Astroksiruh Jagendrasinh u. State of Gujaratl¹ twd also held tLat u.then the High Court^has failed^{to appreciate tLe oral euidence,this Court} taould certainlg be entitled to appreciate^tLe euidence in correct perspectiue. In the said^case also, this Court, finding that the conuiction uas recorded afier ignoing the uital euidence,^has set astde the order of conuiction and^acquitted tte accused."

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7 . The main grievance of the revision petitioner is that the

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respondent No.1 - accused, who was partner in M/s. Raghu

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& Rajendra has misappropriated the amount of Rs.1,72,60 1.15 paise, which has been received from Ap TRANSCO and utilized the szune for himself without intimating to the revision petitioner and without depositing in the joint hrm account. On the other hand, it is the case of the respondent No. 1 - accused that as per the settlement between the parties, partnership was dissolved, wherein the respondent No,.1 - accused was entrusted vdth the work of AP TRANSCO and that since the agreement with Ap TRANSCO was with the firm when the revision petitioner and respondent No.l were working jointly as firm and since the hrm was dissolved and both the revision petitioner and respondent No.1 were working separately and since the work of_AP TRANSCO was entrusted to him, the respondent No.1 is entitled to take the said money, thereby he has not committed any offence.

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B. The respondent No.l accused is charged for the offences under Sections 4 19 and 42O of the Indian penal Code. Section 419 of the Indian Penal Code reads as under:

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"419. Punishment for cheatinq bu personatiort.-Whoeuer cheats by personation shall be purtished with imprisonment of either desciption _for a terrn uthich mau ertend to tLvee Aears,^{or utith} fine,^{or uith both."}

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In order to constitute the offence under Section 419 of

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the Indian Penal Code, the prosecution is expected to prove that the respondent No. 1 - accused by way of impersonation has cheated the revision petitioner - de-facto complainant. The cheque, which was received from AP TRANSCO stands in the name of M/s. Raghu Rajendra. The name of the revision petitioner de-facto complainant is Y. Raghuram and whereas the name of the respondent No.l accused is C.Rajendra Kumar. If at ali the respondent No.1 - accused opens an account in the name of Y.Raghuram and misappropriates the money belonging to the Y. Raghuram - the revision petitioner - de-facto complainant, then it can be said that respondent No.1 accused has committed misappropriation of the amount. Here the respondent No.1 - accused has opened account not in the name of Y.Raghuram and not in the name of C.Rajendra Kumar but in the name of M/s.Raghu & Rajendra. Therefore, technically, the

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respondent No. 1 accused has not misappropriated the money.

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Further, as per the dissolution agreement under Ex.D1, which is admitted by the de-facto complainant that he has signed the said agreement, which bears the signature of the de-facto complainant that works of AP TRANSCO were entrusted to respondent No.l accused and in order to compensate, the respondent No. 1 accused has paid Rs.2,5O,OOO/-. It is also admitted by PWl in the cross - examination that the firm was dissolved on 13.09.2001. When the firm was dissolved on 13.09.2001, the cheque given by AP TRANSCO cannot be presented in the firm account. Further, the work pertaining to AP TRANSCO was already been entrusted to respondent - accused. Further, as per the conditions mentioned in Ex.D 1 , the de-facto complainant has addressed a letter to the AP TRANSCO on 08.05.2001 undertaking that the firm was dissolved and that the accused is authorized to correspond with AP TRANSCO. PWI also admitted that he has received Rs.1,36,153/- for the work done for AP TRANSCO prior to 02.01.2005 and he

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himself went to the house of accused and handed over the cheque to the accused along with another cheque for Rs.2 lakhs. This indicates that work done prior to dissolution or subsequent to dissolution in respect of AP TRANSCO was only by the respondent No. 1 accused and thereby remuneration in respect of that work was given to the respondent No.1 - accused by the revision petitioner - defacto^{complainartpersonally by going to the house of the} respondent No.1 accused. That means the money in respect of depositing of Rs. 1,72,601.15 paise also does not belong to the revision petitioner - de-facto complainant but belongs to the respondent No. I - accused.

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I i. It is true that even if the money belongs to the accused, the only mistake committed by the respondent - accused is that he has opened account in the name of Raghu Rajendra, a {ictitious name, which is not authorized. In fact Raghu Rajendra is a firm name. There is no person like Raghu Rajendra. Banker should have objected lor opening such account in the name of Raghu Rajendra. The other issue is even after opening the account in the name of Raghu

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Rajendra the said bank: should not have accepted the DD. It is to be noted that originally Ap TRANSCO authorities have grven a cheque for Rs. l,Z2,60l.lS paise in the name of Mrzs. Raghu R4iendra. However, the accused has managed to deposit the same in his account. On a complaint given by the de-facto complainant, the bank authorities have reversed the traasaction and issued DD in the name of Raghu Raajendra. Therefore, the respondent No. I - accused has opened the account in Malesh Cooperative Bank in the name of Raghu Rajendra and encashed the same. However, though the procedure adopted by the accused in encashing demand draft is not regr:Iar, it is not for the de_factocomplainant to make a complaint. There is no complaint from AT TRANSCO against the respondent No. 1 _ accused that he has wrongly encashed the cheque. According to the condition of dissolution under Ex. Dl, the remuneration for work done for Ap TRANSCO shall go to the respondent No. 1 - accused only. on careful perusal of entire evidence, it is not the case of the reyision petitioner - d e-facto complainant that money, which was deposited by the respondent No.t _ accused in his account

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belong^{to PW1 (PWl did not claim that money belongsto}

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him).

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Therefore,^{considering the above factsand} circumstalces^{and on alalysing the facts' trial Court has} rightly come^{to the conclusionthat none of the offences} including^{Sections 419 and 42O and 109 of the IndianPenal} Code are^{proved against therespondent -accused'} Therefore,^{this Court did not flnd any illegality or irregularity} committed^{by the tria-l Court whilepassing the impugned} orders.^{The revisionpetitioner failed to establishany of the} grounds to^{interferewith the impugned orderspassedby the} trial Court.^{Thus, the criminal revision case is liable to be} d ismi ssed.

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I3 Accordingly,^{the Criminal Revision Case is dismissed'} As a sequel,^{pending MiscellaneousApplications' if any'}

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shall stand^closed.

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Sd/- K.SAILESHI /' DEPUTY REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

The lll Metropolitan Magistrate Cyberabad, at L.B.Nagar,^Hyderabad. 2. f wo CCs to Additional Public Prosecutor, High Court for the^{State of} Telangana at Hyderabad.(OUT) 3. One CC to SRl. SHARAN REDDY, Advocate IOPUCI 4 5. Two One CD CopiesCC to SRl. B. NALIN \kKUMAR, Advocate [OPUC]

HIGH COURT

DATED:0710212023

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ORDER

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CRLRC.No.1040 of 2008