1CA 298 of 2011
IN THE COURT OF THE ADDL.METROPOLITAN SESSIONS JUDGE FOR TRIAL
OF COMMUNAL OFFENCE CASES CUM VII ADDITIONAL METROPOLITAN
SESSIONS JUDGE : HYDERABAD.
PRESENT: Sri.B.Sai Kalyan Chakravarthi, Addl. Metropolitan Sessions Judge for Trial of Communal Offence Cases, Hyderabad.
Dated this the 1st day of March, 2017
CRIMINAL APPEAL No.298 of 2011
From which court this appeal is XIV Additional Chief Metropolitan preferredMagistrate, Hyderabad Number of the case in that Court C.C.No.574 of 2007 Number of the appeal C.A.No.298 of 2011 Name and description of the The State of A.P., through the Sub AppellantInspector of Police, PS Panjagutta, Hyderabad through Public Prosecutor, Metropolitan Sessions Judge Court, Hyderabad. Name and description of the 1. M/s. Sai Rathna Group of RespondentsCompanies, 4349, V Cross, 17th Main, Vijayanagar, 2nd Stage, Mysore, KarnatakaState,Rep.by B.V.R.S.S.Prasad.
2.B.V.R.S.S.Prasad,S/o.B.V.R. Satyanarayana Murthy, age: 32 years, R/o.Plot No.202, Kukatpally, Ranga Reddy District. The Order of the Lower CourtIn the result, the accused are found not guilty for the offences under Sections 417, 418, 420, 403 and 406 IPC and accordingly, they are acquitted under Section 248(1) Cr.P.C. The bail bonds of the accused shall stand cancelled. Whether confirmed, modified or In the result, criminal appeal is reversed, if modified the dismissed under section 386 of Cr.P.C. Modificationby confirming the judgment of acquittal in CC No.574 of 2007, dated 21.3.2011 passed by the learned XIV Additional ChiefMetropolitanMagistrate, Hyderabad.
DATE OF OR ON WHICH
Presentation04.07.2011 Filing06.07.2011 Notice issued by the Court 07.07.2011 Bail bond if appellant is let out on -- bail Appellant is ordered to be appear 03.08.2011 Hearing29.03.2016 Judgment01.03.2017 2CA 298 of 2011
This Criminal Appeal is coming on for hearing before me, upon perusing the grounds of appeal and lower court record and upon hearing the arguments of the learned Public Prosecutor for the respondent/State and Sri V.Surender Rao, Advocate for the respondents, this court made the following:
: O R D E R :
1.This appeal is filed aggrieved by the Judgment dated 21.3.2011 passed by the learned XIV Additional Chief Metropolitan Magistrate, Hyderabad in
CC No.574 of 2007, wherein the trial Judge after consideration of oral and
documentary evidence on record has found the accused not guilty for the offences under Sections 417, 418, 420, 403 and 406 of IPC, and consequently acquitted the accused under Section 248(1) of Cr.P.C.
Aggrieved by the said judgment, the present appeal is filed by the complainant on the following grounds:
‘The Judgment of the learned Magistrate is contrary to law, weight of evidence and against the probabilities of the case. The
Court below failed to consider the evidence of PWs.1 to 4 and
Ex.P1 to P17 in proper perspective. The Court below failed to appreciate material evidence viz., Ex.P1 to P15 and failed to consider that the cognizance of offence was taken on record under Section 156 (3) of Cr.P.C., directed P.S. Panjagutta for investigation and report, that P.S. Panjagutta filed charge sheet after thorough investigation with all material evidence attracting criminal provisions under Sections 417, 418, 420, 403 and 406 of IPC. The Court below failed in confirming the circumstances of the case are of civil nature and that there is no criminal liability on the part of the accused. No defence witnesses were examined nor documents marked. Prosecution successfully established ingredients under Sections 417, 418, 420, 403 and 406 of IPC by showing circumstances that the complainant was induced by representative of accused in order to get works under subcontract, the act of accused in non-return of unused material duly by non performing the works as promised clearly established guilty intention, the intention of accused is successfully proved showing deception in getting delivery of property in their favour, the property misappropriated is movable property as reiterated in the order, the entrustment of property by complainant was never denied by the accused, towards sub-contracted work and it is also proved that the 3CA 298 of 2011 accused had cheated the complainant in dispossessing the same without returning to the complainant. The court below failed to appreciate the undertaking given by the accused is sufficient to establish the ingredients of cheating, the vouchers are issued by the complainant to the accused, there is no direct transaction between the MESCOM and the accused, and hence non- examination of the employee of MESCOM does not weaken the prosecution case,. The fraudulent deception and intention to cheat can be gathered from the circumstances of the case. It is not required to be proved from the inception date of the case.
The movement and approach of the accused towards complainant in order to gain the work order by making complainant believe it clearly shows that he has intention to cheat the complainant company. Subsequent act of non- completing the works within time as per work order and collecting the material on various dates under the guise of speeding up of the work along with advance payment receipt and subsequently delaying the works without completing shows that he has fraudulent intention to deceive the complainant. The
Court below failed to appreciate the evidence of the prosecution case by not considering the evidentiary material before it, such as acknowledgement through vouchers. When there is an acknowledgement of receipt of material through valid vouchers and advance amount there is no separate acknowledgement required to prove the prosecution case. The Court below failed to appreciate that after closing of examination under Section 313
Cr.P.C., when the prosecution has already submitted its oral and written arguments, the accused came up with an after-thought intention to fill up the gaps by recalling the witnesses had filed recall petition, and that recalling the witnesses for further cross examination cannot be allowed under the guise that the accused is changing his Advocate. The Court below failed in confirming that there is no allegation in the complaint that there was fraudulent or dishonest intention at the beginning of the transaction. The complainant had come to know about the dishonest intention of the accused in cheating the complainant on causing enquiries in the market and only upon when the accused failed to return the balance material. The accused approached the complainant and offered to carry out a part of 4CA 298 of 2011 the work awarded by MESCOM as sub-contractor and made the complainant believe in his words will amount to dishonest inducement. The Court below failed to consider that the act of the accused in inducing the complainant to enter into subcontract and supply material worth Rs.55,15,476-72 without having any intention to complete the work amounts to cheating.
The Court below had failed in affirming that the complainant does not allege that the accused had a fraudulent or dishonest intention at the time of placing work order Ex.P4 if the complainant had known about the fraudulent intention of the accused at the initial stage of placing work order the complainant would have not placed the work order. The above act of accused in misappropriating the material will amount to Criminal breach of trust. The court below failed in concluding that intention to cheat must have been in existence at very inception and not subsequently. The accused had acted fraudulently with all intention not to return the balance material worth Rs.28.62 lakhs only, at later stage of completing the works to an extent of
Rs.22.50 lakhs. The failure on the part of the accused to keep up the promise, even at a subsequent dates with a fraudulent intention not to return the balance material and misusing the same will attract the provisions of sections 406, 417, 418 and 420 of IPC. The recall of witnesses at later stage of submitting arguments will be arbitrary and illegal. The prosecution proved supply of material on various occasions worth Rs.55,15,476/- to the accused but the defence had failed to disprove with material evidence that the total material was used against the project work endorsed by the complainant, and failed to corroborate that he has returned balance material worth Rs.20,27,379/-. The
Court below failed to note that the complainant got issued legal notice to the accused for the alleged offences but no reply is received. The Court below failed to analyze the contents made in
Ex.P10 legal notice with that of Ex.P1 complaint, wherein the accused had never denied or replied appropriately with regard to the material received and also failed to issue reply to the contents of the notice. The Court below failed in concluding that “no document is filed to show about the total endorsement of material worth Rs.55.15 lakhs to the accused” when there was no protest or denial of receipt of above material by the accused 5CA 298 of 2011 at any point of time but admittedly accused averred that the material was used in completing the work. The Court below failed to appreciate the written arguments filed by the prosecution bringing about various issues that goes in favour of prosecution and against the accused. The Court below failed to appreciate that the signature of the accused was not dispute by him. Moreover no specific question was put to by the defence with regard to the signatures of the accused on Ex.P15 hence the burden lies on the accused to prove that he was not entrusted with property. Ex.P15 endorsement itself proves that entrustment of property is made to the accused. The major portion of property was entrusted by PW2 as such prosecution examined Pw2, so there is no requirement of examination of other witnesses who are the authors of only few of the Invoices.
The Court below failed to appreciate that Ex.P13 which is true copy of statement of account pertaining to the material supplied, material used, material returned and unreturned by the accused which clearly shows about the entrustment of property and failure of the accused in returning the balance material. The
Court below failed to appreciate that the evidence of Pw.3 who corroborated the evidence of PW.1 and 2 in which has clearly stated that he has completed the part of incomplete works of A- circuit feeder of MESCOM which also clearly proves that the accused did not complete the work and the defacto complainant was forced to complete the balance work with other agency. The
Court below acquitted the accused by coming to wrong conclusion that the ingredients of section 420 of IPC are not proved by the prosecution but failed to consider the other ingredients under Section 403 and 406 of IPC while passing the judgment despite the fact that the Hon’ble Court was framed the charges against the accused under Sections 417, 418, 420, 403 and 406 of IPC.
2.The factual matrix of the case is that the complainant company engaged the accused for execution of contract work of construction and infra activity, on 22.9.2005 for erection testing and commissioning of works for
APDRP Mescom Project. The complainant paid Rs.2.00 lakhs as advance. As per the terms and conditions of the work order, the complainant supplied material worth Rs.55 lakhs on different dates but the accused done work of 6CA 298 of 2011
Rs.28,62,699/- only upto July, 2006 and thereafter he was logging the work.
When the complainant asked the accused to return the material worth of
Rs.6,25,397-36, he did not return and deliberately converted the material worth of Rs.20,27,379/- for his own use and gained wrongfully by causing wrongful loss to the complainant. Hence, the complaint.
3.Originally the private complaint filed before the learned Magistrate was referred to the concerned police under Section 156(3) Cr.P.C., and on filing of charge sheet, the case was taken cognizance against the accused in CC
No. 574 of 2007 on the file of learned Magistrate. Copies furnished on appearance, charges under sections 417, 418, 420, 403 and 406 of IPC framed, readover and explained to the accused. The accused denied the offence and claimed to be tried. In support of the case of the prosecution,
PWs. 1 to 4 were examined and Ex.P1 to P17 were marked.
4.Heard the counsel for the appellant and the respondent.
5.Now the point for consideration are
1) Whether the prosecution could bring home the guilt of the accused No.1 for the offences under Sections 417, 418, 420, 403 and 406 of IPC beyond reasonable doubt?
2) Whether the Judgment of acquittal passed by the Court below suffers from any infirmity or illegality and requires interference by this Court?
POINTS : (1) & (2)
6.The prosecution in order to prove its case got examined PWs. 1 to 4 and got marked Ex.P1 to P17 documents. PW.1 is the complainant working as Asst. Manager (Materials) in M/s Nagarjuna Construction Company. PW.2 is the Site Engineer of the complainant company. PW.3 is the Proprietor of
P.R. Electricals at Mysore. PW.4 is the Investigating Officer in this case.
Ex.P1 is the private complaint filed by PW.1, Ex.P2 is the true copy of certificate of incorporation, Ex.P3 is the true copy of work order dated 22.9.2005, Ex.P5 is the true copy of advance letter addressed by the accused, Ex.P6 is the acknowledgement letter dated 11.3.2006, Ex.P7 is the 7CA 298 of 2011 copy of MOU dated 4.8.2006, Ex.P8 is the copy of letter dated 18.10.2006.
Ex.P9 is the another copy of letter dated 18.10.2006, Ex.P10 is the office copy of legal notice, Ex.P11 is the postal receipt, Ex.P12 is the postal acknowledgement, ExP13 is the true copy of statement of account, Ex.P14 is the copy of complaint given to police dated 24.3.2007, Ex.P15 is the bunch of office copies of Invoices (96 Nos), Ex.P16 is the FIR, Ex.P17 are the photographs along with corresponding negatives.
7.Pw.1, the Asst. Manager (Materials) of the complainant company deposed that their company engaged in the business of construction works and other allied business. His company was allotted works by Government of
Karnataka for accelerated of power development and reformerity and during the course of business the accused approached their company and made a request to allot some electrical works. The complainant company allotted works under work order No.38, dated 22.9.2005 to the accused who in turn promised to complete the work of laying, commission, testing for over advirel of M/s Mysore Town Air Circuit Fedal, ACS of rapid conductors and underground cable work and as per the terms and conditions of agreement entered into between both of them, the complainant supplied material worth
Rs.55,15,476/-. The accused started execution of work but could complete 5.6 KM of rapid conductor and 90% of underground cable work and failed to complete the work within two or three months and delayed the work. When the complainant company requested the accused to complete the work, the accused approached the complainant on 24.2.2006 and asked Rs.2 lakhs as advance and accordingly the complainant company issued cheque bearing
No.795980, dated 8.3.2006 in favour of Sri Ratna Group of companies. The accused intentionally delaying the work and in total the accused completed work for the value of Rs.28,62,699/- as against work of Rs.55,15,477/- and in this connection when the complainant company conducted meeting, the accused promised either to complete the work by 31.8.2006 or to return the material; neither he did any of them and later on repeated demands returned material worth of Rs.6,25,397/- only by retaining material worth of
Rs.20,27,379/-.
8.During cross examination by the learned counsel for the accused, Pw.1 stated that he do not know whether there is any agreement between the complainant and the accused to execute the work but he adds that the work order itself is an agreement. PW.1 has categorically stated that the accused 8CA 298 of 2011 has to complete the work within two to three months. They supplied the material to the accused after two months of work order at the request of the accused. Further PW.1 admitted that as the accused did not complete the work, the office did not pay the 5% of the amount as per terms of work order. The following are elicited from the cross examination of PW.1, viz.,
i) It is true that according to Ex.P5 accused completed 90% of the underground cable work and the other work was in progress.
ii) It is true that Ex.P7 is also fax copy sent from Mysore to Hyderabad.
iii) There are no grievances or complaint against accused as per Ex.P7 document.
iv) I have no knowledge as to the value of the work done by accused which will be calculated by our technical staff.
v) It is true that Ex.P15 contains material issue vouchers pertaining to S.V.S. Electrical works.
vi)M/s Gopi Krishna construction did part of the uncompleted work of the accused.
vii) I have no idea as to the total extent of work done by SVS Electrical. I do not know what was extent of bills submitted to our employer and what is the extent given to our contract.
9.Coming to the evidence of PW.2, he deposed that he is working as
Senior Engineer (Electrical) in the complainant company and he knows the accused. Their company received order from Electrical Department,
Bangalore and gave work order to the accused. As per terms and conditions of work order, the complainant company gave material worth Rs.55.15 lakhs to the accused and accused completed 90 % of cable work and 5.26 kms of
ACSR conductors, i.e, the completed work worth of Rs.28.26 lakhs but the balance work was not completed and when he demanded for completing the remaining work, the accused asked for Rs.2 lakhs for completion of remaining work in the month of March 2006. After receipt of the said amount, the accused has not completed the work and therefore they called the accused to Mysore and conducted a meeting on 4.8.2006 for completing 9CA 298 of 2011 the balance work and the accused assured to complete the work by 31.8.2006 but failed to do so; and therefore complainant company issued letter to the accused to complete the balance work or handover the balance material on or before 18.10.2006. The accused returned material worth of
Rs.6.25 lakhs only and not returned the material worth of Rs.20.27 lakhs.
Due to pressures from government of Karnataka, they completed the remaining work through R.R. Electrical and to Gopi Krishna Constructions.
Thus complainant incurred Rs.2 lakhs labour work. The accused caused loss of Rs.20.27 lakhs to the company. The accused has to complete the work within 3 months as per work order.
10.Coming to his cross examination, Pw.2 stated that he do not remember whether he filed documents to show that he was appointed by (Nagarjuna Construction Company) N.C.C. He do not know whether the police referred the matter as civil nature. He denied suggestion that he do not know that the company gave work order to the accused. He admitted that the agreement was not executed in his presence. He further denied suggestion that their company did not send any letter to the accused to complete the work, he has not handed over the material worth on different dates the work and that accused completed the entire work, the complainant did not pay Rs.2 lakhs, the accused returned the excess material to their company. Further he denied suggestion that the their company is due to pay the accused and to avoid payment they filed false case, and that he has not supervised the work done by the accused and giving false evidence to help their company. PW.2 admitted that they did not file extract of measurement book submitted to MESCOM with regard to the works done by the accused.
The measurement bills submitted to MESCOM are signed by their Project
Manager and he did not sign the same and he do not know what was the measurement submitted to MESCOM by their company with regard to work executed by S.V. Electricals and so also he do not know what was the payment made to S.V.S. Electrical and he did not seek any estimation by any expert as to the quantity of consumption of material in both the works per kilometer. He says that store-incharge will make contemporary entry as to issue of material and receipt of material in the stock register maintained in the stores. He denied suggestion that he never worked in Mysore at any point of time nor have any knowledge about the contract awarded to the accused and that the accused completed the work as per contract and returned unused material and in order to avoid payment to the accused they filed false case against the accused.
10CA 298 of 2011
11.Coming to the evidence of PW.3, he deposed that he had been working as Electrical Sub-Contractor in Nagarjuna Construction Company during 2006 and 2007 of A.P.D.R. work at Mescom at Mysore. In the month of
February, 2007 one Khallel, Project Manager of Nagarjuna construction company approached him at Mysore and told him that he should complete the erection of transformer and stringing of conductors and deteriorated phone removing and fixing of projector meters which are pending work of
Ratna Group of companies. He completed the said work and received amount for the work done by him. The worth of work done by him is Rs.1.7 lakhs. On 16.6.2007 Inspector of Police came to Mysore and inspected the work done by him and examined him.
12.In the cross examination, PW.3 stated that; he has not filed any document to show that he completed the work, he has not measured the work done by the accused, he has not inspected the work done by the accused, he do not know the accused completed the entire work entrusted by the complainant. He received payment for the work done by him from
N.C.C. by claiming the bill. He has not entered into agreement for completion of balance work, he has not completed the work in AC circuit feeder in this case, he has taken 20 days to complete the balance work. He denied suggestion that he did not work in the N.C.C., and that the has not been examined by the police and that he has not completed the balance work and deposing false at the instance of the complainant to support the complainant company.
13.PW.4 is the Investigating Officer in this case. He deposed that he received court referred case and registered it as case in Crime No.306/2007 under sections 403, 406, 417, 418, 420 of IPC and issued Ex.P16 FIR. He examined PWs. 1 to 3, collected all documents, went to Mysore, collected the photographs and documents, examined PW.2 and Ramesh, and after completion of investigation filed charge-sheet.
14.PW.4 in his cross examination admitted that he has not filed any tickets to show that he visited Mysore in connection with this case, he has no idea whether the complainant company passed the bill for the work done by 11CA 298 of 2011 the accused, he has not taken the measurements of the work place, he do not remember as to how many days he stayed at Mysore, he has not examined Puttaraju, Tataji, and Dinseh who are the site engineers of Feeder
No.2 to 4 as this case is pertains to feeder No.1, he has not cited photographer as witness, it is not possible to measure the entire work place as it is situated in 35 kms area; he has not collected any documents with regard to the work from Government of Karnataka, he has not examined the officials of Government of Karnataka i.e, MESCOM, he has not collected reports submitted by the complainant company to MESCOM, he has not collected bills submitted by accused to the complainant and complainant to the MESCOM, he did not collect any document except documents submitted by complainant to the Court, he has not specifically mentioned in his charge sheet that he confronted documents to the witnesses, he has not compared
Ex.P4, P5, P7, P8 to P10, P15 with the originals, he has not prepared panchanama or any proceedings at the site in Mysore, he has not examined any independent witnesses at site for the measurement of the work done by the accused, he has not collected any document to show that Pw.3 had done the work and the work was entrusted to him, he has not collected measurement book from the complainant company, he has not collected any document with regard to work done by the accused or complainant from
MESCOM, he stayed at Mysore for two or three days, he examined at Mysore and prepared draft statement and later go it typed, he has not filed any draft statement of witnesses before the Court, he has not conducted any enquiry with regard to SVS enterprises, he has not visited the office of accused, he has not examined stores incharge of complainant, Ex.P3 does not contain any stamp or seal of complainant company, he has not examined postal authorities, He has no idea about the Ex.P13 authorization, PW.2 did not specifically state before him that balance material should be handed over to
Raju on or before 18.10.2006.
15.Pw.4 has denied the suggestions that; he has not examined any witnesses and never visited Mysore; there is no deficit of material as he has not measured the work place; he has not conducted investigation in the matter relating to civil nature and that there is no criminal intention but foisted false case at the instance of the complainant company without any jurisdiction by fabricating all the documents including Ex.P17.
12CA 298 of 2011
16.From the above evidence, it is very much clear that the prosecution has not examined the Stores Incharge who is signatory of the work order, and also Supervisor Saddla who worked as representative of the complainant company. Moreover there is no allegation in the complaint that the accused has intention to cheat the defacto complainant even at the time of work order. In order to prove the offence of cheating, the prosecution has to prove that the accused has intention to cheat at the time of inception of the work but no such allegation is made by the complainant or there is any evidence to that effect. Above all the prosecution even though relied upon Ex.P1 to
P17 documents, there is no documentary evidence to show that the accused has been supplied with material worth Rs.55 lakhs and what extent of work has been completed by him and as to what extent of material is retained with the accused. In the absence of such evidence, it is hard to believe the contention of the prosecution that the material worth of Rs.20 lakhs and odd is converted into own use by the accused. Moreover, on close reading and perusal of the entire file it is very much clear that there is breach of contractual terms and conditions and as per terms and conditions -
Annexure to Ex.P4, at clause No.10, it is as under:
“All the matters of disputes or differences in opinion arising out of the work order shall be the subject matters of arbitration within the jurisdiction of Hyderabad District of Andhra Pradesh”
Thus, from the above there is an alternative effective remedy even though it is not a bar to file case for violation of contractual obligations and terms and conditions but the ingredients of Sections 403, 406, 418, 419 and 420 of IPC are to be satisfied in order to convict the accused for the said offences. But in this case, the ingredients of Sections 403, 406, 418, 419 and 420 of IPC are not satisfied and the prosecution failed to show that the accused had dishonest intention even at the inception of the work order or at least at the time of receiving material. In this case there is no evidence placed to show that Rs.55 lakhs and odd material was supplied to the accused. When the prosecution could not establish the worth of material entrusted to the accused, the question of misappropriation of some of the material does not arise.
17.In view of my above discussion, I see no irregularity or illegality or infirmity in the order passed by the trial Court and the grounds raised by the appellant are untenable and the appeal is liable to be dismissed.
13CA 298 of 2011
18.In the result, criminal appeal is dismissed under section 386 of Cr.P.C by confirming the judgment of acquittal in CC No.574 of 2007, dated 21.3.2011 passed by the learned XIV Additional Chief Metropolitan
Magistrate, Hyderabad.
Partly typed to my dictation and partly transcribed and typed by Stenographer-Gr.1, corrected and pronounced by me in the open court on this the 1st day of March, 2017.
ADDL.METROPOLITAN SESSIONS JUDGE FOR
TRIAL OF COMMUNAL OFFENCE CASES CUM VII
ADDITIONAL METROPOLITAN SESSIONS
JUDGE, HYDERABAD.
To: The XIV Additional Chief Metropolitan Magistrate, Hyderabad.
R/B: C/B: