Judgement
|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELATE
JURISDICTION CRIMINAL APPEAL No.2049-2066 of 2012 (Arising out of SLP (Crl.)
Nos. 5206-5223 of 2011)
Kumar Etc. Etc. ...Appellant
Versus
Karnataka Industrial
Coop. Bank Ltd. & Anr .........Respondents
RANJAN GOGOI, J.
1. Leave granted in each of the Special Leave Petitions.
2. The appellants who have been acquitted of the charges under Sections 406
and 420 read with Section 34 of the Indian Penal code have filed the instant
appeals challenging the conviction ordered by the High Court of Karnataka in the
exercise of its Revisional Jurisdiction under Section 397 read with Section 401
of the Code of Criminal Procedure. The appellant in each of the appeals has been
sentenced to undergo R.I. for three months for the offence punishable under
Section 406 IPC and R.I for six months for the offence under Section 420 IPC.
While both the sentences of imprisonment are to run concurrently, each of the
appellants has also been sentenced to pay fine or undergo the default sentence
that has been imposed.
3. The facts lie within a short compass and may be briefly enumerated herein
under.
The respondent No. 1 in each of these appeals i.e. Karnataka Industrial
Corporation Bank Ltd., Hubli (hereinafter shall be referred to ‘the
complainant Bank’) had filed 18 different complaints in the Court of Judicial
Magistrate, First Class, Hubli alleging that between 12.07.2003 and 31.03.2004
loans were taken by each of the appellants by mortgaging gold ornaments.
According to the complainant Bank, on 10.06.2004, a news item had appeared in
the local newspapers that the appraiser of Maratha Cooperative Bank had given
false appraisal reports on the basis of which the said bank had granted loans
against fake gold ornaments. As the said person was also the appraiser of the
complainant Bank the gold ornaments pledged with the complainant bank by the
accused were verified through another appraiser (PW.4) who certified the gold
ornaments pledged by the accused to be fake. Accordingly, the complaints in
question were filed alleging commission of offences under Section 406, 420 read
with Section 34 of the IPC by each of the accused persons who had taken loans
from the complainant Bank by pledging fake gold ornaments. The complaints were
referred, by the learned Magistrate, to the police for investigation and on
completion of such investigation charge sheets were filed in the Court against
each of the accused. Thereafter charges were framed to which the accused pleaded
not guilty and claimed to be tried. All the complaint cases were taken up for
trial together and the evidence of the prosecution was recorded in the complaint
case registered and numbered as CC. No. 1235 of 2005. In the course of the trial
six witnesses were examined by the prosecution and several documents were also
exhibited. Thereafter, the learned trial court by order dated 29.2.2008
acquitted each of the accused of the charges levelled against them. It may also
be noticed that during the pendency of the trial, the appraiser, who was
impleaded as the second accused had died. Aggrieved by the said acquittal, the
complaint Bank instituted separate Revision applications before the High Court
of Karnataka. The High Court by its common order dated 16/11/2010 and 22/3/2011
allowed each of the Revision Applications filed by the complainant Bank and
convicted and sentenced the accused as aforesaid.
Aggrieved the present appeals have been filed.
4. We have heard Mr. Shankar Divate, learned counsel for the appellant and
Mr. N.D.B. Raju and Mr. V.N. Raghupathy, learned counsels for the respondents.
5. The revisional jurisdiction of a High Court is conferred by the provisions
of Section 397 read with Section 401 of the Code of Criminal Procedure. While
Section 397 empowers the High court to call for the record of any proceeding
before any inferior criminal court within its jurisdiction to satisfy itself as
to the correctness, legality or propriety of any finding, sentence or order and
such power extends to suspension of execution of any sentence or order and also
to release the accused on bail, under Section 401 (3) Cr.P.C. there is an
express bar in the High Courts to convert a finding of acquittal into one of
conviction. While the revisional power under the Code would undoubtedly vest in
the High Court the jurisdiction to set aside an order of acquittal the same
would not extend to permit the conviction of the accused. The High Court may,
however, order a retrial or a rehearing of the case, as may be, if so justified.
[vide Sheetala Prasad & Ors. v. Sri Kant & Anr.[1] and Johar &
Ors. v. Mangal Prasad & Anr.[2]]. In view of the above we do not see how
the orders of the High Court dated 16/11/2010 and 22/3/2011 converting the
acquittal of the accused appellants to one of conviction and the sentences
imposed on each of them can be sustained in law.
6. There is another aspect of the case which cannot be left unaddressed.
The Revision Applications filed by the complainant Bank before the High Court
were inordinately delayed, i.e., some by 290 days and the others by 785 days. We
have read and considered the application filed by the complainant Bank under
Section 5 of the Limitation Act,
1963 seeking condonation of the delay that had occurred in instituting the
Revision Applications. The entire application is in a single paragraph
containing a bald statement that the result of the case (perhaps the order of
the trial court) was not intimated to the bank and it is only after getting the
requisite information and certified copies of the judgment that the Revision
application could be filed. The High Court had condoned the delay on the ground
that mere technicalities should not come in the way of rendering justice. While
there can be no dispute with the above proposition, we do not see how the same
could have had any application to the present case. It was the duty of the High
Court to consider the reasons assigned for the delay and thereafter come to the
conclusion whether, on the grounds shown, sufficient cause within the meaning of
Section 5 of the Limitation
Act has been made out. We have already taken note of the contents of the
condonation application filed on behalf of the bank and it is our considered
view that on the basis of the statements made therein no satisfaction could have
been reasonably reached that the complainant Bank was prevented by sufficient
cause from filing the Revision Applications in time.
7. We have also been addressed by the learned counsels for the parties at
some length on the merits of the matter. To make the discussion complete we may
briefly note the reasons that had weighed with the learned trial court to acquit
the accused in the present cases. We have considered the evidence tendered by
the prosecution witnesses, particularly, Madan Athani (PW-1), A.N. Ramakrishna
(PW-2), Irappa Abbigeri (PW-3) and Pandurang (PW- 4). Significantly, PW-1 had
deposed that a register is maintained with respect to the gold articles pledged
with the Bank showing the weight, the nature of the article, quality of the
gold, name of the design etc. for purposes of identification of the articles
pledged. However, no such register was brought on record by the prosecution. At
the same time, PW-2 who was the Manager of the bank at the time of the filing of
the complaint had stated that he had not called the borrowers/accused to
identify the gold articles when the same were found to be fake nor had he
informed the accused that the gold ornaments pledged by them were fake. That a
register showing the particulars and description of the gold ornaments pledged
to the bank was maintained had also been admitted by PW-3. PW-1 in his cross-
examination had admitted that each gold article pledged with the bank will have
a chit containing the loan account number, signature of the borrower and the
bank officials but in respect of the gold articles exhibited in the court no
such chits were found to be affixed. It also transpires that PW-1 who was the
Bank Manager at the time of the loan transaction had handed over the articles to
the new incumbent (PW-2) and furthermore that the gold ornaments pledged were
kept in a locker and were subjected to regular inspection by the bank officials.
PW-4 who had submitted the second appraisal report to the effect that the gold
ornaments sent to him were fake had deposed that the said fact i.e. gold
ornaments were fake could be made out on an examination by the naked eye. If the
prosecution evidence itself had revealed the aforesaid facts it is difficult to
see as to how the conclusion of the learned trial court that the prosecution had
failed to prove that the gold ornaments exhibited in the case are the very same
articles pledged by the accused is in any way erroneous or untenable in law so
as to disentitle the accused to be acquitted.
8. For all the aforesaid reasons we are of the view that the judgment and
order dated 16/11/2010 and 22/3/2011 passed by the High Court in each of the
Criminal Revisions before it cannot be sustained in law. We therefore, allow the
appeals and set aside the common judgment and order dated 16/11/2010 and
22/3/2011 passed by the High Court in the Criminal Revision Petitions filed by
the respondent Bank.
.J...............................
[ P. SATHASIVAM ]
J.
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