Full Judgment Text
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 19 DAY OF NOVEMBER 2016
BEFORE
THE HON’BLE MRS.JUSTICE RATHNAKALA
CRIMINAL REVISION PETITION NO.178/2010
BETWEEN:
H. MANJUNATHA @ MANJUNATHA
PRASAD @ SHIVAKUMAR @ MAHESH
@ PRAKASH
SON OF LATE HOSALLAIAH
AGED ABOUT 44 YEARS
TH
R/AT NO.75, 7 ‘D’ MAIN ROAD
SHIVANAHALLI
RAJAJINAGAR
BANGALORE – 560 010.
PERMANENT ADDRESS:
R/O HEBBUR
TUMKUR DISTRICT. …PETITIONER
(BY SRI H.H.SHETTY, ADV. FOR SRI A.RAFI, ADV.)
AND:
THE STATE OF KARNATAKA
BY THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE – 560 001. ...RESPONDENT
(BY SRI S.CHANDRASHEKARAIAH, HCGP.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENTS OF CONVICTION AND SENTENCE
PASSED AGAINST THIS PETITIONER ACCUSED BY THE
ADDITIONAL CIVIL JUDGE (JR.DVN.) & JMFC, DODDABALLAPUR
IN C.C.NO.160/2008 DATED 8.5.2009 AND ALSO THE
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JUDGMENT DATED 24.12.2009 PASSED BY THE PRESIDING
OFFICER, FAST TRACK COURT-II, BANGALORE RURAL DISTRICT,
BANGALORE IN CRL.A.NO.34/2009.
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
Heard the learned Counsel appearing for both
parties.
2. The respondent/Police charge sheeted the
revision petitioner in respect of the offence under Section
420 of IPC.
3. The allegation was that the petitioner/accused, a
married person, suppressing the said fact advertised
through a daily newspaper for a prospective bride. Thus
he came in contact with CW-1/Smt.Bhagyamma, the
mother of CW-2/Roopashree. He persuaded Bhagyamma
to sell her site and entered into an agreement of sale with
CW-4/Smt.Renukamma on 11.6.2007. He received the
advance amount of Rs.3,25,000/- from the proposed
purchaser with the consent of Bhagyamma towards the
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expenses of his proposed marriage with Roopashree, but
subsequently retreated from the proposal to marry the
girl.
4. During the trial, prosecution examined PWs-1 to
8 and marked documents Exs.P1 to P7. The accused
took the stand of total denial and denied all the
incriminating evidence appearing against him during his
examination under Section 313 of Cr.P.C. He did not opt
to adduce defence evidence. The Trial Court after giving
its audience to both parties found the accused/petitioner
guilty in respect of the offence under Section 420 of IPC
and sentenced him to undergo imprisonment for a period
of three years and to pay a compensation of
Rs.1,50,000/- to PW-1 with default clause.
5. The appeal preferred by the aggrieved accused
against the said judgment of conviction and sentence,
went in vain.
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6. Sri.H.H.Shetty, learned Counsel appearing for
the revision petitioner/accused while assailing the
judgments of the courts below submits that, assuming
for a while, entire case presented by the prosecution as
true and correct, then also it fails to bring home the guilt
of accused under Section 420 of IPC. The so-called
newspaper through which the petitioner gave
advertisement by itself was not proved in accordance
with law. There was no clinching evidence establishing
that he induced PW-1 to sell her property to CW-4 and
there was nothing to establish that the sale amount or
the advance amount was received by the petitioner. The
courts below have acted upon the suppositions to convict
the petitioner, without taking notice of the admissions
emerging during the cross-examination of prosecution
witnesses. That has resulted in great injustice to him
and the impugned judgments being erroneous are liable
to be set aside under the revisional jurisdiction of this
Court.
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7. Sri.S.Chandrashekaraiah, learned High Court
Government Pleader for the respondent/State in reply
would submit that the petitioner has signed sale
agreement as a witness. The courts below have rightly
upheld the case of the prosecution, which is proved by
the evidence of complainant/CW-1/PW-1 and her
daughter/CW-2/PW-2; CW-4/PW-4, who is the
purchaser of the property and CW-5/PW-5, who is the
husband of CW-4. The courts below have not fallen into
any error which needs to be interfered in excise of
revision jurisdiction of this Court.
8. In the light of the above submission and on
perusal of the lower court records, the sole point that
arises for consideration is:
“Whether the judgments of the court below are
not founded on the evidence borne on record?”
9. Manifestly to prove the first portion of the
charge that the accused through a paper advertisement
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sought for a suitable bride, etc., the prosecution relied
on a piece of newspaper/Ex.P3, which reads thus:
ªÀzsÀÄ ¨ÉÃPÁVzÉ
“
°AUÁ¬ÄvÀ ªÀgÀ 38 ªÀµÀð, «zÁåªÀAvÀ, «±Á® ªÀÄ£ÉÆèsÁªÀzÀ
M§âgÉà EgÀĪÀ C£ÀÄPÀÆ®¸ÀÜ ªÀgÀ¤UÉ PÀ£Éå, qÉåªÉÇùð, «zsÀªÉ,
ªÀÄPÀ̽zÀݪÀgÀÄ, ºÉaÑUÉ ªÀAiÀĹì£ÀªÀgÀÆ ¸ÀºÀ, eÁw C¨sÀåAvÀgÀ«®èzÉ
£ÉÃgÀ ¸ÀA¥ÀQð¸À§ºÀÄzÀÄ.
98455 64455
ªÉÆ.£ÀA.: ”
10. Basically this piece of evidence was
inadmissible since the entire news paper was not
produced. As such, the newspaper is not one of the
documents referred to in Section 78(2) of the Evidence
Act, 1872 by which an allegation of fact can be proved.
The presumption of genuineness attached under Section
81 of the Evidence Act to a Newspaper report cannot be
treated as proved of the facts reported therein. In that
view of the matter, the courts below could not have taken
judicial notice of the news item in Ex.P3. The nexus
between mobile phone with sim No.98455 64455 was not
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established; no evidence was produced linking the
accused to the said mobile phone. During trial, a call
list/Ex.C1, pertaining to sim No.98455 64455 standing
in the name of one Manjunath was produced and marked
as Ex.C1. But no evidence was further produced to
prove said document, which is a Computer output, in
accordance with the procedure contemplated by Section
65B of the Indian Evidence Act. That takes away the
case of the prosecution that the petitioner came in
contact with the complainant through the paper
advertisement and had assured to marry her daughter.
PWs-1, 2 and 3 are the complainant, her daughter and
her mother respectively, who have stated that the
accused persuaded the complainant to sell her property
and thereafter took away the advance amount of
Rs.3,25,000/-. It was brought down by the evidence of
the purchaser of the property PW-4 and her husband
PW-5 that the amount paid on the date of the agreement
is received by PW-1 only. It is also shown that
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subsequently the agreement is acted upon. On the
showing of the prosecution itself, the property was sold
in favour of PW-4. The signature by one Shivakumar in
the agreement was marked as the signature of the
accused at Ex.P4(e). But no further attempt was made to
establish that the said signature is in the handwriting of
the accused. Neither of the courts below considered this
aspect of the matter while appreciating the evidence that
taints the impugned judgments with perversity.
11. Now it is well settled that mere promise to
marry and later on withdrawing the said promise will not
amount to an offence of cheating. On such false promise
to marry, the person to whom such promise was made
should have done or omitted to something that he would
not have done or omitted to do but for deception. In this
case, the allegation that the accused received the cash
amount of Rs.3,25,000/- is not corroborated by oral or
documentary evidence. Thus the case of the prosecution
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fails to attract ingredients of Section 420 of I.P.C. and
the judgments of both Courts below are erroneous and
warrant interference.
12. Having held so, the next focus is on M.Os.1 to 6
seized by the Investigating Officer during investigation.
M.O.6 being cash amount of Rs.10,000/- seized from the
possession of the petitioner, same shall be returned. As
regards 5 mobile sets are concerned, over passage of
time, necessarily they would have become useless. The
body of mobile phone shall be destroyed by the Court in
its usual procedure and the battery in the mobile shall be
sent to any of the E-Waste Recyclers recognised by the
State Pollution Control Board for Disposal.
The revision petition is allowed. The judgment of
conviction and sentence dated 8.5.2009 passed in
C.C.No.160/2008 by the Additional Civil Judge (Jr.Dn.)
and JMFC., Doddaballapura, confirmed in Criminal
Appeal No.34/2009 vide order dated 24.12.2009 by the
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Sessions Judge, Fast Track Court-II, Bangalore Rural
District, is set aside. The Material Object Nos.1 to 6 shall
be disposed of by the Trial Court as per the observations
made supra.
Sd/-
JUDGE
KNM/-