|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
J U D G M E N T
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 dis entitle 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.
[ RANJAN GOGOI ]
New Delhi,
December 14, 2012
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[1] 2010(2) SCC 190
[2] 2008 (3) SCC 423
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