APHC010224002011 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] THURSDAY,THE TWENTY SEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY-FIVE PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 641/2011 Between: Thammu Goardhana Rao ...PETITIONER AND The State of Andhra Pradesh ...RESPONDENT Counsel for the Petitioner: Narasimha RaoGudiseva Counsel for the Respondent: Public Prosecutor The Court made the following: ORDER: The revision has been preferred under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’) challenging the judgment dated 16,03,2011 in Crl.A.No.125 of 2010on the file of the learned I Additional District and Sessions Judge, Krishna at Machilipatnam, confirming the conviction and sentence for the offence punishable under Section 409 of the Indian Penal Code, 1860 (for short ‘the I.P.C’) passed by the learned 2 Dr.YLR, J Crl.R.C.No.641 of 2011 Dated 27.03.2025 Additional Judicial I Class Magistrate, Avanigaddain C.C.No.564 of 2005vide judgement dated 11.06.2010. 2. I have heard the arguments of the learned counsel for the Revisionists and the learned Assistant Public Prosecutor. 3. Sri T. Manikanta, learned counsel, representing Sri Narasimha Rao Gudiseva, the learned counsel for the petitioner, while reiterating the grounds of the revision submitted that P.Ws.2 to 9 who are the account holders had not spoken against the petitioner; the petitioner ought to have been acquitted as he specifically denied Exs.P17 to P22; there was no evidence forthcoming to sustain conviction under Section 409 of ‘the I.P.C.,’ as there was no entrustment of the property; non examination of the inquiry officer was fatal to the case of the prosecution; the disputed signatures ought to have been compared with the admitted signatures; as the prosecution had not proved the guilt of the accused/petitioner beyond all reasonable doubt, the petitioner is entitled for acquittal. Alternatively, it is submitted that the petitioner is aged about 55 years, he worked as Postmaster. Nearly 20 years ago the alleged offence was committed. The alleged victims received their amounts. Right to speedy disposal of the case of the petitioner as guaranteed under Article 21 of the Constitution of India, is violated and urged to show some leniency in imposing the sentence. It is further volunteered that an amount of Rs.25,000/- (Rupees Twenty-Five Thousand Only) may be imposed as fine towards fine and urged to pass appropriate orders. 3 Dr.YLR, J Crl.R.C.No.641 of 2011 Dated 27.03.2025 4. Per contra, Ms. P. Akila Naidu, learned Assistant Public Prosecutor vehemently argued that the prosecution had proved the guilt of the petitioner beyond all reasonable doubt for the charge framed against him; the learned Trial Court rightly appreciated the evidence of the witnesses of the prosecution and the documents filed by the prosecution and found the petitioner guilty. The learned Appellate Court also having gone through the evidence of the prosecution witnesses and the judgment of the learned Trial Court rightly passed the judgment confirming the conviction for the offence under Section 409 of ‘the I.P.C.,’ and urged to dismiss the revision case as there are no material irregularities and misreading of the evidence. 5. 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. 6. Now the point for consideration is: “Whether the judgment in Crl.A.No.125 of 2010 dated 16.03.2011 passed by the learned Additional District and Sessions Judge Krishna, Machilipatnam, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?” 7. It is apposite to refer to the judgment of the Hon’ble Apex Court in Bindeshwari Prasad Singh v State of Bihar1wherein at Paragraph Nos.12 & 13 it is held as under: 1(2002) 6 SCC 650 4 Dr.YLR, J Crl.R.C.No.641 of 2011 Dated 27.03.2025 “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 the parameters 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 the 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.” 8. The Hon’ble Supreme Court in D Stephens v Nosibolla2at Paragraph No.10 held as under: 2AIR 1951 SC 196 5 Dr.YLR, J Crl.R.C.No.641 of 2011 Dated 27.03.2025 “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 no 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.” 9. 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 all contingencies. 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 3AIR 1962 SC 1788 6 Dr.YLR, J Crl.R.C.No.641 of 2011 Dated 27.03.2025 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.” 10. This Court, while exercising its jurisdiction under Section 397 read with Section 401 of ‘the Cr.P.C.,’ cannot invoke its revisional power as a Second Appellate Court and re-appreciation of evidence is not possible in the revision case as laid down in the decisions in Bindeshwari Prasad Singh, D Stephens and K Chinnaswamy Reddy. 11. To prove the guilt of the petitioner, the prosecution examined P.Ws.1 to 10 and marked Exs.P1 to 22, for the petitioner’s side Ex. D1 portion of 161 of ‘the Cr.P.C.,’ statement of P.W.1 was marked. In this case, the evidence is forthcoming that the petitioner in the year 2005 misappropriated an amount to a tune of Rs.50,000/- (Rupees Fifty Thousand Only) which was taken place in Etimoga Branch Post Office while he was working as Postmaster. The unofficial witnesses of the prosecution, who are the account holders of their savings and recurring deposits stated that their amounts were misappropriated by making necessary mentioning in the passbooks, but the details were not carried into the post office records. Ex. P17 eleven pay slips were seized by the inspection officer from the petitioner. All these pay slips 7 Dr.YLR, J Crl.R.C.No.641 of 2011 Dated 27.03.2025 contain the depositors' signatures and those were prepared by the petitioner. The amounts paid by the depositor were not brought into Exs.P18 to 22. 12. The evidence is forthcoming that the petitioner utilized the amounts for its own use. It was more importantly pointed out that more amounts were misappropriated, but in only a few cases it was deducted by the police. Interestingly, in this case, the petitioner re-deposited the amounts with the postal authorities which fact establishes that he admitted the guilt. Misappropriation for one time or for a small period would also be a misappropriation as per Explanation 1 of Section 403 of ‘the I.P.C’. The learned Trial Court and the Appellate Court, having gone through the evidence of the witnesses of the prosecution and the exhibits, appreciated the evidence in correct prospective and found the petitioner guilty under Section 409 of ‘the I.P.C’. There was no misreading of the evidence. Ex. D1 portion of 161 of ‘the Cr.P.C.,’ statement of P.W.1 does not refer to material contradiction or omission which would smash the case of the prosecution. There are no irregularities let alone material irregularities committed either by the learned Trial Court or the learned Appellate Court. The evidence of P.W.1 and 10 is inspiring confidence, trustworthiness and voluntary. Therefore, the conviction under Section 409 of ‘the I.P.C.,’ shall be maintained. 13. Regarding the imposition of the sentence of imprisonment and fine, the learned Trial Court sentenced the petitioner for one-year simple imprisonment and the learned Appellate Court also confirmed it. The misappropriation by the 8 Dr.YLR, J Crl.R.C.No.641 of 2011 Dated 27.03.2025 petitioner as the Postmaster of Etimoga Branch Post Office, Nagayalanka Mandal, was taken place in the year 2005. Nearly 20 years have passed by now. The petitioner was a tricenarian when the offence was committed. Now, he is a quinquagenarian. The petitioner suffered incarceration for more than 15 days. More importantly, the amount that was misappropriated by the petitioner as Postmaster was already paid by the petitioner. The financial victims had also stated that their amounts were paid. The right to speedy trial is a fundamental right as per the decision of the Hon’ble Supreme Court in Hussainara Khatoon (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 Bihar5. 14. The learned counsel for the petitioner volunteers that an amount of Rs.25,000/- may be imposed as fine towards penance. The said statement is recorded and approved. Interest of justice would be sub-served, if the petitioner is sentenced to the imprisonment to which he had already undergone while imposing an amount of Rs.25,000/- towards the fine which excludes the payment of fine paid by the petitioner pursuant to the judgment of the learned Trial Court. 15. For the above reasons, the criminal revision case is disposed of confirming the conviction for the offence under Section 409 of ‘the I.P.C.,’ and 4 Air 1979 SC 1360 5 2000 (1) BLJR 37 9 Dr.YLR, J Crl.R.C.No.641 of 2011 Dated 27.03.2025 sentencing the petitioner to suffer imprisonment to which he had already undergone, while directing him to pay a fine of Rs.25,000/- excluding the fine amount paid by him pursuant to the judgment of the learned Trial Court, within two months from the date of the receipt of this order failing which, the petitioner shall suffer three months rigorous imprisonment. 16. The learned Additional Judicial I Class Magistrate, Avanigadda is directed to take follow up steps. There shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed. _________________________ Dr. Y. LAKSHMANA RAO, J Dt: 27.03.2025 KMS 10 Dr.YLR, J Crl.R.C.No.641 of 2011 Dated 27.03.2025 119 THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 641/2011 27.03.2025 W KMS