Andhra Pradesh High Court – Amravati
Jala Mohana Raju, vs The State Of A.P., Rep By Pp., on 1 April, 2025
APHC010177902008
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3521]
(Special Original Jurisdiction)
TUESDAY ,THE FIRST DAY OF APRIL
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO
CRIMINAL REVISION CASE NO: 1261/2008
Between:
Jala Mohana Raju, ...PETITIONER
AND
The State Of A P Rep By Pp ...RESPONDENT
Counsel for the Petitioner:
1. S DILIP JAYA RAM
Counsel for the Respondent:
1. PUBLIC PROSECUTOR
The Court made the following:
ORDER:
The Criminal Revision Case has been filed under Sections 397 and 401
of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C‘) challenging
the judgment dated 11.08.2008 in Crl.A.No.135 of 2006 on the file of the
learned X Additional District and Sessions Judge (Fast Track Court), of Guntur
at Narasaraopet, confirming the conviction for the offence under Section 409
of the Indian Penal Code, 1860 (for brevity ‘the I.P.C‘) and sentencing the
2
Dr. YLR, J
Crl.R.C.No.1261 of 2008
Dated 01.04.2025
petitioner to Simple Imprisonment for two (2) years while setting aside the
conviction for the offence punishable under Section 420 of ‘the IPC.,’ passed
by the learned II Additional Munsiff Magistrate, Gurazala, in C.C.No.42 of
2004 vide judgment dated 02.03.2006.
2. I have heard the arguments of the learned counsel for the petitioner and
learned Assistant Public Prosecutor.
3. Mr. S.Dilip Jaya Ram, the learned counsel for the petitioner submits that
the evidence of P.Ws.1 to 3 was inconsistent with the contents of the Ex.P-1;
the prosecution could not prove the ingredients under Section 409 of ‘the
IPC.,’ beyond all reasonable doubt; there is inconsistency in between the
evidence of P.Ws.3 and 4 vis-a-vis P.W.5. Exs.D1 to D3 was sufficient to
falsify the story of the prosecution. Ex.P-2 receipt was found missing and
Ex.P-4 was not in handwriting of the petitioner and urged to allow the Criminal
Revision Case.
4. Alternatively, he submitted that the petitioner is aged about more than
67 years right now. He was a linemen and aged about 50 years and the
alleged offence was committed in the year 2001. Nearly 24 years have
passed. The petitioner was removed from the service, but later on his appeal
before the appropriate authority, he was asked to retire voluntarily; right of
speedy justice guaranteed in favor of the petitioner by Article 21 of the
Constitution of India is being violated. The petitioner was already in the
3
Dr. YLR, J
Crl.R.C.No.1261 of 2008
Dated 01.04.2025
incarceration for more than 18 days as convict prisoner. The alleged amount
involved in misappropriation was only Rs.12,331/- and urged to show leniency
in sentencing the petitioner. It is volunteered that the petitioner may be
directed to pay an amount of Rs.5,000/- as a measure of penance. The
petitioner was not even paid subsistence allowance during his suspension
period as per the rules; and he is also not getting any pension.
5. Per contra Ms. P. Akila Naidu, the learned Assistant Public Prosecutor
argued that the prosecution has proved the guilt of the petitioner beyond
reasonable doubt for the offence under Section 409 of ‘the IPC‘. The learned
Trial Court and also the Appellate Court felt that the evidence of prosecution
witnesses inspired confidence. There was no inconsistency in between the
evidence of the prosecution witnesses and urged to dismiss the Criminal
Revision Case, inasmuch as there were no material irregularities or
misreading of evidence.
6. Thoughtful consideration is bestowed on the arguments advanced by
the learned counsel for the petitioner and the learned Assistant Public
Prosecutor. I have perused the record.
7. Now the point for consideration is:
“Whether the judgment in Crl.A.No.135 of 2006, dated
11.08.2008, passed by the learned Additional District and
Sessions Judge (Fast Track Court) of Guntur at Narasaraopet,
is correct, legal and proper with respect to its finding, sentence,
or judgment, and there are any material irregularities? And to
what relief?”
4
Dr. YLR, J
Crl.R.C.No.1261 of 2008
Dated 01.04.2025
8. The prosecution in order to prove the guilt of the petitioner got
examined P.Ws.1 to 5 and marked Exs.P-1 to P-6 and on behalf of the
petitioner/accused Ex.D1 to D3 were marked. On careful perusal of the
contradictions marked under Exs.D1 to D3 in the 161 of ‘the Cr.P.C.,’
statements of P.W.4 are not material contradictions which would smash the
case of the prosecution.
9. As per Ex.P-1 complaint the Divisional Electrical Engineer Operations,
Macherla (PW-1) mentioned that receipts bearing serial Nos.146471 to
146490 were found missing from the book and that the Assistant Accounts
Officer had instructed the accused not to operate the book No.293 and
proceed with collection by another PRO. However, the accused issued
receipt for Rs.12,331/- in favor of D.V.Subbaiah on 11.04.01, but when the
corresponding duplicate receipt for the said receipt dated 11.04.01 bearing
No.146485 was perused it was not filled. So, it goes to show that said receipt
was issued without keeping the carbon paper on the respective duplicates.
Admittedly, accused was working as Sub-Inspector of Revenue collection in
Electricity Revenue Office having jurisdiction over the service connection of
D.V.Subbaiah who is the brother of P.W.4 herein.
10. P.W.4 is running New Swagath hotel under the service connection
bearing No.3694 of Dachepalli. So, the custody of Ex.P-2 bill book bearing
No.293 containing bill Nos.146601 to 156500 vide Ex.P-3 should be with the
accused on 12.02.01 and the accused as per the acknowledgement made by
5
Dr. YLR, J
Crl.R.C.No.1261 of 2008
Dated 01.04.2025
the accused as per P.W.1, who worked as Divisional Engineer (Operations)
APSPDCL, Macherla, during the relevant time. So, any entries made in said
Ex.P-2 bill book must be within the knowledge of the petitioner only as he is in
custody of the said Ex.P-2 PR bill book. Under Ex.P-5 petitioner
acknowledged the receipt of the bill collector revenue collection bearing
No.67451 to 67500.
11. In Ex.P-4 bill collectors Revenue collection of the accused dated
11.04.01, he had not shown any amount No.12,331/- pertaining to service
connection No.3694 of D.V.Subbaiah brother of P.W.4. When the payment
received by the petitioner for an amount of Rs.12,331/- dated 11.04.01 with
bill No.146485 is not reflected in the corresponding records, it clearly shows
that the accused cheated the exchequer and misappropriated the said
amount. The misappropriation and cheating done by the accused is borne out
by the documentary records covered by Exs.P2 to P5 documents.
12. Section 409 of ‘the IPC.,’ deals with Criminal breach of trust by a public
servant or agent. It lays down that whoever being in any manner entrusted
with property or with any dominion over property in his capacity of a public
servant or in the way of his business as a banker, broker, attorney or agent,
commits criminal breach of trust of that property shall be punished with
imprisonment for life or imprisonment for either description for a term and
shall also liable for fine. In the present case the occupation of the petitioner
as a public servant is not in dispute. He was entrusted with dominion over
6
Dr. YLR, J
Crl.R.C.No.1261 of 2008
Dated 01.04.2025
property in his capacity as sub-inspector of Revenue collection in the way of
his business as an agent of the APSEB and committed criminal breach of
trust with that property. Hence, he is liable to be punished for the offence
under Section 409 of ‘the IPC‘.
13. As per the evidence of P.W.4, it is clear that the petitioner indulged in
misappropriation to an amount of Rs.12,331/-vide Ex.P-2. There is no
misreading of evidence. There are no irregularities much less material
irregularities in conducting the trial. This Court cannot appreciate the
evidence of the witnesses of the prosecution like a Second Appellate Court as
per the following Judgments.
14. The Hon’ble Apex Court in Bindeshwari Prasad Singh v State of Bihar1
at Paragraph Nos.12 & 13 held as under:
“12. … We have carefully considered the material on record and we are
satisfied that the High Court was not justified in re-appreciating the
evidence on record and coming to a different conclusion in a revision
preferred by the information under Section 401 of the Code of Criminal
Procedure, Sub-section (3) of Section 401 in terms provides that nothing
in Section 401 shall be deemed to authorize a High Court to convert a
finding of acquittal into one of conviction. The aforesaid sub-section,
which places a limitation on the powers of the revisional Court, prohibiting
it from convert a finding of acquittal into one of conviction, is itself
indicative of the nature and extent of the revisional power conferred by
Section 401 of the Code of Criminal Procedure. If the High Court could not
convert a finding of acquittal into one of the conviction directly, it could not
do so indirectly by the method of ordering a re-trial. It is well settled by a
catena of decisions of this Court that the High Court will ordinarily not
interfere in revision with an order of acquittal except in exceptional cases
where the interest of public justice requires interference for the correction
of a manifest illegality or the prevention of gross miscarriage of justice.The
High Court will not be justified in interfering with an order of acquittal
merely because the trial Court has taken a wrong view of the law or has
erred in appreciation of evidence. It is neither possible nor advisable to
make an exhaustive list of circumstances in which exercise of revisional
jurisdiction may be justified, but decisions of this Court have laid down the1
(2002) 6 SCC 650
7
Dr. YLR, J
Crl.R.C.No.1261 of 2008
Dated 01.04.2025parameters of exercise of revisional jurisdiction by the High Court under
Section 401 of the Code of Criminal Procedure in an appeal against
acquittal by a private party.
13. …In the absence of any legal infirmity either in the procedure or in the
conduct of the trial, there was no justification for the High Court to
interfere in exercise of its revisional jurisdiction. It has repeatedly been
held that the High Court should not re-appreciate the evidence to reach a
finding different from the trial Court. In the absence of manifest illegality
resulting in grave miscarriage of justice, exercise of revisional jurisdiction
in such cases is not warranted.”
15. The Hon’ble Supreme Court in D. Stephens v Nosibolla2 at Paragraph
No.10 held as under:
“The revisional jurisdiction conferred on the High Court under S. 439,
Cr.P.C., is not to be lightly exercised, when it is invoked by a private
complainant against an order of acquittal, against which the Govt. has o
right of appeal under S. 417. It could be exercised only in exceptional
cases where the interests of public justice require interference for the
correction of a manifest illegality, or the prevention of a gross miscarriage
of justice. This jurisdiction is not ordinarily invoked or used merely
because the lower court has taken a wrong view of the law or mis-
appreciated the evidence on record.”
16. The Hon’ble Apex Court in K.Chinnaswamy Reddy v State of AP3, at
Paragraph No.7 held as under:
“7. It is true that it is open to a High Court in revision to set aside an order
of acquittal even at the instance of private parties, though the State may
not have thought fit to appeal; but this jurisdiction should in our opinion be
exercised by the High Court only in exceptional cases, when there is
some glaring defect in the procedure or there is a manifest error on a
point of law and consequently there has been a flagrant miscarriage of
justice. Sub-section (4) of S. 439 forbids a High Court from converting a
finding of acquittal into one of conviction and that makes it all the more
incumbent on the High Court to see that it does not, convert the finding of
acquittal into one of conviction by the indirect method of ordering retrial
when it cannot itself directly convert a finding of acquittal into a finding of
conviction. This places limitations on the power of the High Court to set
aside a finding of acquittal in revision and it is only in exceptional cases
that this power should be exercised. It is not possible to lay down the
criteria for determining such exceptional cases which would cover all2
AIR 1951 SC 196
3
AIR 1962 SC 1788
8
Dr. YLR, J
Crl.R.C.No.1261 of 2008
Dated 01.04.2025contingencies. We may, however, indicate some cases of this kind which
would in our opinion justify the High Court in interfering with a finding of
acquittal in revision. These cases may be: where the trial court has no
jurisdiction to try the case but has still acquitted the accused, or where the
trial court has wrongly shut out evidence which the prosecution wished to
produce. or where the appeal court has wrongly held evidence which was
admitted by the trial court to be inadmissible, or where material evidence
has been overlooked either by the trial court or by the appeal court, or
where the acquittal is based on a compounding of the offence, which is
invalid under the law. These and other cases of similar nature can
properly be held to be cases of exceptional nature, where the High Court
can justifiably interfere with an order of acquittal; an in such a case it is
obvious that it cannot be said that the High Court was doing indirectly
what it could not do directly in view of the provisions of S. 439 (4). We
have, therefore, to see whether the order of the High Court setting aside
the order of acquittal in this case can be upheld on these principles.”
17. Therefore, the conviction recorded by the learned Trial Court and
convicted the learned Appellate Court under Section 409 of ‘the IPC.,’ shall be
maintained.
18. Regarding the sentence of Simple Imprisonment of two (2) years
imposed on the petitioner by the learned Trial Court and confirmed by the
learned Appellate Court for the offence under Section 409 of ‘the IPC.,’ the
petitioner is aged about more than 67 years. In the year 2001, the offence was
committed by the petitioner. Nearly 24 years have passed. The petitioner
was in incarceration for a period of 18 days. In the departmental proceedings,
in the appeal preferred by the petitioner, his punishment was reduced. He
was asked to retire voluntarily. This Court examined the petitioner and found
that he is of old age and suffers from illness. He was not even paid
subsistence allowance during the suspension period, even though he was
9
Dr. YLR, J
Crl.R.C.No.1261 of 2008
Dated 01.04.2025
entitled as a statutory right. Because of ignorance, he could not file necessary
case before this Court seeking for grant of subsistence allowance.
19. Right to a speedy trial, including the speedy disposal of appeals and
revision casesas per the decision of the Hon’ble Supreme Court in
HussainaraKhatoon (IV) v. Home Secretary State of Bihar 4 . This right
includes speedy disposal of appeals. In addition to the appeals, the right to a
speedy trial also includes criminal revisions as per the decision of the Hon’ble
Apex Court in Rajdeo Sharma v. State of Bihar 5 . The petitioner himself
volunteered to pay an amount of Rs.5,000/- as fine towards penance, the said
voluntary statement is recorded and approved.
20. In the obtaining peculiar facts and circumstances of the case, the
conviction for the offence under Section 409 of ‘the IPC.,’ shall be maintained
while sentencing the petitioner to the period already undergone and directing
the petitioner to pay an amount of Rs.5,000/- towards fine within two (2)
months from the date of receipt of copy of this order. If the petitioner fails to
pay an amount of Rs.5,000/- towards fine, he shall undergo Simple
Imprisonment for a period of three (3) months. The petitioner shall pay fine of
Rs.5,000/- before the learned II Additional Munsiff Magistrate, Gurazala,
failing which the learned Magistrate may take appropriate steps.
4
Air 1979 SC 1360
5
2000 (1) BLJR 37
10
Dr. YLR, J
Crl.R.C.No.1261 of 2008
Dated 01.04.2025
21. In the result, the Criminal Revision Case is disposed of. There shall be
no order as to costs.
As a sequel, Miscellaneous petitions, if any pending, shall stand closed.
_________________________
DR. Y. LAKSHMANA RAO, J
Date: 01.04.2025
RSI
11
Dr. YLR, J
Crl.R.C.No.1261 of 2008
Dated 01.04.2025
148
THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO
CRIMINAL REVISION CASE No.1261 of 2008
Date:01.04.2025
RSI
[ad_1]
Source link