Allowed

B.Prabhakar, Hyderabad., v. Ch.Subba Rao, Hyd and Anr, Rep Pp.

Telangana HC21 Jul 2023CRLRC/762/2016

Case brief

AI extract

What is this about?

The High Court of Telangana in this revision allowed the appeal, holding that reasonable doubt existed due to lack of evidence regarding inducement and the existence of the second business. The conviction for cheating and criminal breach of trust was set aside.

What did the court decide?

The conviction and sentence under Sections 406 and 420 IPC were set aside. Bail bonds were cancelled and bond money refunded.

B.Prabhakar, Hyderabad., Vs Ch.Subba Rao, Hyd and… — Cheating and Forgery | Telangana HC (2023)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY, THE TWENTY FIRST DAY OF JULY TWO THOUSAND AND TVVENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

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CRIMINAL REVISION CASE NO: 762 oF 2016

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Criminal Revision Case Under Section 397 and 40.1 of Cr.P.C., against the Judgement dated 03-03-2016 made in Crl.A.No.34 of 2015 on the file of the Court of the lllrd Additional Metropolitan Sessions Judge at Hyderabad.

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Between:

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B.Prabhakar, S/o. Ramakrishna, aged 36 years, Occ: Business, R/o. 6-3-788/fu17, Durganagar, Ameerpet, Hyderabad.

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.....APPELLANT/ACCUSED

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AND

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Ch.Subba Rao, S/o. Venkataiah, aged 40 years, Occ;Business, R/o. 101, Saikrishna Sadan, Navodaya Colony, Ellareddyguda, Hyderabad.

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....RESPONDENT/COMPLAINANT

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State of Telangana, rep. by the Public Prosecutor, at Hyderabad, High Court at Hyderabad.

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...RESPONDENT/RESPONDENT

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Counsel for the Petitioner : Sri.Naraparaju Avaneesh

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Counsel for the Respondents : Additional Public Prosecutor

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The Court made.the following Order :^-

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/r.

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THE HSN,BLE SRI JUSTISE I\TAMAIARAPII RA.IESHwAR RAo CRIM:NAL REVISION CASE NO. 162 CtF 2016

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ORDER:

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Th s Criminal Revision Case is filed undr'r Sections 397 and 40 i ol the Code of Criminal Procedure^(for short, 'Cr.P.C'), aggreved by the judgment dated 03.03.2016 passed in Crl.A \o.34 t't 2016 on the file of the II Addl. Metropolitan Sessions Judlge. Hyderabad, wherein and r.i,hereby, t re learned Judge confirn ed the^judgment dated 19.12.2013 p,assed in C.C No.623 ol 2( I I passed bl the Ill Addl. Chit:f M..'tropolitan Magistrate, H rderabad, convicting and sentencirrg tl- e revision petitioner to t ndergo rigorous imprisonment for a period of one year for the of^'ences under Sections 406 and 420 rrrrd iLlso to pay Rs. 1,00O/ - fin,:.

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Tht brief facts of the case are as fc,llows:

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The de-flcto complainant is a techni,:ian in etliting and dubbing and he started a business in the yt:ar 1997 at Hyderabad. Wlrile so, the revision petitioner approetchecl him with an idea to flo. rt a partnership hrm and prc,poserl to become a partner. Pursurnt to the acceptance of the proposaLl, th,ry entered into a Deed of Partnership dt.07. 12.2005. The rev sion petitioner

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2 RRN,] Crl. RC No 762 of 2076

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used to maintain and^look after the business and the firm^got huge profits.^Though the^de-iacto complainant^repeatedly requested the^{revisionpetitioner} to show him the books^of accounts,^{the revision petitionerah.r,ays postponedthe same. The} revision^{petitioner withoutinforming} the^{de-factocomplainant,} started another^{studio inthe} name and^style of^'Surya Technoiogies'^{and diverted the funds} of^{joint businessto the} account of^{his business. On 05.06.2010, u'hen the de-facto} complainant^{demanded the revision petitionertosettle the} accounts,^{he threatened the de-facto complainant lvithdire} consequences.^{Hence, the de-facto complainantfiled a private} complaint^{beforethe Magistrate Court and the samewas referred} to the^{policeto registeran FIR and conduct investigation. Upon} completion^{of the investigation,the policefiledChargeSheetand} the^{proceedings commenced beforethe Trial Court.}

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In support of the case of the^prosecution, PWs- 1 to 4 wcre got examined^{and Exs.Pl} to^{P6 were got marked.On behalf} of the defence, DW- 1 was examined but no^{docurnentswere} marked.

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4 Upon completion of the trial and final arguments advanced on either - side, the Trial Court found the revision

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,/,

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RRN,J :rl.RC ',lo 762 of 2016

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petitioncr guil .' ol the ol'li:r^r :es under Secti,rns^4O(i and⁴²⁰ ol IPC and sentettced^{himtr-r r.trr.lergo imprisonrrlentas stated supra.} Aggrieved by tire said^jrtdgnrr:nt, the revision^{petiticnerpreferreda} criminal appc rl before^t lrc iessions .Judge and the same^,vas dismissed vic e judgmcnt dt.03.03.20 16 by confirming the judgment of t}-re Trial Ci urt. Challenging the above said judgmer-rts, tht present Crirn irral Revision Case canre to be filed.

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Hci lcl Sri N. A"aneesh, learned Cour-rsel lor the revision petiti( )ner/ accuscrl and the learne,l Ad,li:ional Public Prosecutor for .he respor-rdc,nt /State.

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Leer^-necl Couns;cl lor the revision petiti,:ner had contended tha. both the C(,urts below erred in convicting the revision petitio rer though re€,sonable doubt exists in lavour of the revision petiticner. He furtL er contended ttrat the prosecution failed to establ sh as to who opened the company as; alleged and even the bank account. ile turther contended thzrt th,: de-facto complainant wls very u,ell :lware of all the transa.cl_iorLs and he would also be in knorvteclgr: of the books of accournts being an active partner. It was also r)o rtended that the comF,la.int was filed in the year 20 0 and onh' 1r,z colouring a contractuitl clispute in

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i.l

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4 RRN,' Crl. RC No.752 of 2016

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the style ol a criminal offence. Acc ordingl;,,, pra-r,e<1 to allour the revision and acquit the revision pe trr l1;,n.. ol thc said offcnces.

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On the other hand, i lrr: lr:arnccl Additional Public Prosecutor appearing for the res >orrdent/ State had contended that both the Courts belolv were.iu:; t.i{'ied in passing l-he impugned judgments as there is ample inr:rirainating material avaiiable against tl're revision petitioner, m,)r'l particularll', trx.P6, '*hich proves ihat the revision petitlorl r- diverted the funds to his account, v:hicl-r ought to have bcc:r c ncashcC in il'rc parrnership account. He also stressed on the point that DW-2, i.e the own brother of the revision petitioner hirnself strengthened thc case cf the prosecution. Thus, prayed to disuiss the revrsron case.

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t The^judgment of the Tlirrl Court needs to be rninutely exarnined as to how it came to the r:onclusion of guilt on the part of the revision petitioner. Para nos. 'l tt and 19 of the judgment of the Trial Court '"tould sum up its fin<lings and are relevant to be discussed. The Trial Court, based orr the oral evidcnce of PW- i and PW-2 who stated that the revision^petitioner never showed the books of accounts to the de-fact('^complainant attd^u,ith such reasons, lound that the revision pel ilr,rner had a dishonest intent to cheat the de-facto complainar, t from the^{beginr-ring.After}

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RRN,I

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t i

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Cr l. RC No.762 of 2016

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considerable ;rnal,vsis o1' this finding, this Court ir;^,:f lhe opinion that the Trial C)ourt crred in formulating it,; bas is or such oral evidence in or dr:r to invoke 1hc ingredients cl Sec -ion^.120 of IPC It u,ould be a;propriate herc to refer to sections 115 rnd 420 of IPC.

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4 1 i. Chealing.-Whoeuer, by deceiuir,.g atry pet son, frauclulently or dishone:;tly ittctuc'zs the person so deceiu<:d to deliuer anA properta to trty person. or L() consenf that any oerson shull retain antl property, or^{;ntentionallg} inaut'es the person so d.eceiued to do or crnit to do artgthirrg tuhich he would not <lo or ornit if he u,ere not so deceiued, and u,hich a2t )r om s.sion causes or is likelg to cause dernalle or harm to that y;erson in bodg, minC, rep'.tlcttion L)r properlA, is said to "L:heat". Ex1'lorrti.,.t. A clishonesf concealme'nt cf /ac^{s is a dea:ptiortLuithin the mectning oJ- this} section.

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( Illu st rat iorts ct re not extract<.d)

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42( Cheatin ctrtcL dishorLestl llTt7t'.cir, g deh u_Sty_-pL pfppS4g.-Whoeuer cheat:; and the,'eby ciishonestly induces the perscn decziued to deliuer anA propertA to 1n!/ persotL or lt make, alter or destroA the whole or anA par ctf a ualuable security, or angthing which is signed or sealed, and which is capabie of beb g conuened into a ualuable secltritA :;hall be puni.shed with irttprisonment of e,:.th<:r des:nption lbr a tenn which mag exte,n,C lo seu?n Aears, and shall also be liabl,z to fine'.

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5 R RI'1,-l Crl.RC llo.762 of 2016

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A careful readillg of the above provisions gocs ro strolr, that in order to name an act as cheating, especially for the purpose cf determining the guilt under section 42O ol iPC, there must be a dishonest intention to indrrce delivery oi property. which r.r'ould result in some harm or injury to the person delivering strch propert),. Both the Courts belorv irave noi stated anywhere in their^judgments as to the property which was delivered by the defacto compl;rinant due to the dishonest ind,-rcement of the revision petitioner. The allegation against the revision petitioner is that he diverted the arrrount/profits of the partnership firm to his own bank account. There is no element here to believe that the revisior-r petitior-rer resorted to any inducement of cheating the defacto cornplainant. Learned Counsel for- the revision petitioner relied upon a decision of the Hon'ble Supierne Court reported in Vesa Holdings P. Ltd. And Ors. Vs. Stcte of Kerald and Ors.l wherein it '.vas held that for the purpose of constituting an offence of cheating, the complainant was required to shou. that the accused had the fraudulent intention at the time of making the promise or representation i.e at the very inception.

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'1zots; s scc zsl

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RRN,] C^-l.R( No.762 of 2016

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Tf ere is no^promisc madc by the re\ ision^petitioner, much less a ry inducement ft)r deliverl of^prop erty. Therefore, appiying the rbove decision to the present^,lase, ttris Court is of the vieq, that the CoLrrts belori' erred in findi'rg; t.re revision petitioner gui tl of the ollencc rrnder Sectiort 420 c-'l I^rC and the same deserve:i to be set aside.

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Ccming to the reasons assig,ned by the Tria. Court visa-vis conviction of the rer',sion petitiorer frrr the offence punishable u rder Section 406 of IPC, the lrial C,rurt observed that the de-facto complainant entrusted the task c,f accounts to the revision petitioner but tlrc rer.ision I)etiticnr:r committed criminal brea:h of trust by divcrting the e'arnir gr; of the joint partnership business account to his cwn account. The incriminating evidence against the revision p()tit:oner was admitted intc evidence but the irregularity observed in the judgment of tt e Trial Court is, except the bank account statement vide Ex.P6 shr wing the credit o[ the two cheques is,suec: by the AP State Film TV atrd Theatre Corporation Ltd. coup et1 r.r,ith Ex.P3, no concrete r:vidence is on record that there exists another business in th: name and style of 'Surya Technolol3ies'. Assuming for an instancr, that it so does cxist, such grievance cf the de-facto

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RRN,] Crl. RC No.762 of²⁰¹⁵

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complainant shall bc dealt ri ith by invoking the provisions of civil lav., but not criminal law, in view of the partnership deed vide Ex.P5 and the version of the revision petitioner that the complaint was filed in the .r,ear 2010 only by colouring a contractual dispute in the style of a criminal offence can be believed and such attempts to invoke criminal proceedings in substitution of civil proceedings, especially in the presence Ex.P5 partnership, any violation of the samc rvould only permit the de-facto complainant to protest by rvay ol civil litigation.

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1 1. More so, there is no clarity as to whether the partnership frrm u'as active or rr',ound up at the relevant period and the prosecution could not establish whether the above stated cheques were really issued in favour of the partnership firm or the alleged business started by the revision petitioner. This being so, reasonable doubt exists in favour of the revision petitioner and he is entitled to acquittal from the charged offences.

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In light of the above hndings, the revision case deserves to be aliowed. Accordingly, the Criminal Revision Case is allowed. Tlie^judgment dated 03.03.20^{16 passed} in Crl.A No.34 of 2016 on the file of the ttl Addi. Metropolitan^Sessions Judge, Hyderabad, wherein and rvhereby,^{the learnedJudge conlirmed}

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R R N,.' ilrl. F C No.762 of 2016

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the judgmert dated 19.12.2013 passed in C.C No.(i23 of 20 11

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passed by the III Addl. Chief Nletropolitan llaqis-rate. Hyderabad are hereby s:t-aside. Since the revision per itionr:r is on bail, his bail bonds stlnd cancelled. The llne amolrn: paid t-,y ltim shall be

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refundecl to I im after the lapse of the appe al peric d

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As a se<1uel thereto, miscellaneous applications, if any,

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pending in this appeal, shall sr:rnd closed.

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Sid/.K.SAILESHI t,Et)UlY REGISTRAR //TRUE COPY' (l)

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S,ECTIbN OFFICER

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