APHC010591372008 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3560] WEDNESDAY, THE FIRST DAY OF APRIL TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 1197/2008 Between: 1. CHIGURUPATI MURALI, S/O. VENKATESWARA RAO, PRIVATE EMPLOYEE R/O. PENAMALURU VILLAGE AND MANDAL, KRISHNA DISTRICT. ...PETITIONER AND 1. THE STATE OF AP REP BY ITS PP HYD, Represented by Public Prosecutor L & O Patamata, High Court of A.P., ...RESPONDENT Revision filed under Section 397/401 of CrPC praying that in the circumstances stated in the affidavit filed in support of the CriminalRevisionCase, the High Court may be pleased toto present this Memorandum of Crl.R.C., against the judgment made in Crl.A.No.105 of 2006 on the file of the Court of the II SessionsJudge, Mahila Court at Vijayawada, dt.06-08-2008. IA NO: 1 OF 2008(CRLRCMP 1611 OF 2008 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to dispense with the filing of the certified copy of the judgment in CC.No. 112/2000 dt. 13.06.2006 of 1st Addl. Chief Metropolitan Magistrate, Vijayawada in the above Crl.RC IA NO: 2 OF 2008(CRLRCMP 1618 OF 2008 2 SS,J Crl.R.C.No.1197 of 2008 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the sentence and enlarge the petitioner on bail pending disposal of the Crl.R.C., Counsel for the Petitioner: 1. SUNKARA RAJENDRA PRASAD Counsel for the Respondent: 1. PUBLIC PROSECUTOR The Court made the following: 3 SS,J Crl.R.C.No.1197 of 2008 THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 1197/2008 ORDER: The instant Criminal Revision Petition has been preferred against order of conviction and sentence passed by the learned trial Court, confirmed by the learned Appellate Court against present petitioner, wherein and whereunder the learned Courts below found the petitioner to be guilty for the offence punishable under Section 408 IPC and directed him to undergo three (03) years rigorous imprisonment and with fine of Rs.10,000/-. 2. Learned counsel for the petitioner submits that the impugned order of conviction recorded against the petitioner is illegal and improper. The prosecution has miserably failed to bring home the charge against the present petitioner beyond reasonable doubt. The alleged misappropriation by the accused has never been proved, instead of which, the learned Court below recorded conviction. He further submits that at the outset it would be revealed that P.W.1 is the owner of Auto Agency situated at Vijayawada, P.Ws.2 to 4 are dealers. The accused/petitioner is one of the agents of P.W.1, who alleged to have been collected some amount from P.Ws.2 to 4 and all amount was not remitted to P.W.1. Thus, P.W.1 has reported the matter to the Police through Ex.P1. Hence, the trial started. 3. He submits that there are lacunae in the investigation of the Police. At the closure of investigation, Police submitted charge sheet against petitioner 4 SS,J Crl.R.C.No.1197 of 2008 to the Court. Copy of charge sheet was handed over to the accused. Such copy does not contain name of P.W.4 as a witness. When P.W.4 was called for deposition, it was objected by the defence, but the learned Court has directed the prosecution to hand over the copy of 161 Cr.P.C. statement of P.W.4. Such procedure, as adopted by the learned trial Court is unwarranted and cannot be accepted. 4. He further submits that during evidence of P.W.1, for the first time, has placed before the Court a letter alleged to have been written by accused, which was alleged to have been typed by the P.W.1. The said document contains alleged letter of accused admitting the guilt. In spite of objection, the letter was marked as Ex.P9 by the learned trial Court. He further submits that the learned trial Court, in spite of strong objection from the defence, has relied upon Ex.P9 in recording the conviction of the petitioner. He submits that learned trial Court as well as the learned appellate Court has gone through a wrong notion of law in exhibiting Ex.P9 and making reliance upon Ex.P9 to record the conviction. He further submits that it has been admitted by P.W.1 during his cross examination as well as by the investigating agency that Police did not verify the account book and he did not furnish the account book as it was not called for by the investigating agency. It is further contention of the learned counsel for the petitioner that the order of conviction and sentence as well as entire criminal proceedings has been vitiated, and that the petitioner, 5 SS,J Crl.R.C.No.1197 of 2008 being the accused, has falsely implicated in this case, and thereby the order of conviction and sentence of imprisonment is liable to be set aside. 5. Learned Assistant Public Prosecutor submits that the accused admittedly one of the agent of P.W.1. He admittedly received amounts from P.Ws.2 to 4 on the strength of invoices. Such invoices were marked as Exs.P3 to P7. P.Ws.2 to 4 has consistently stated before the Court as well as before the Police during investigation that accused has collected entire amount of money in terms of invoices. Ex.P1 has disclosed that in spite of receiving entire amount of money, the accused has not remitted such amount to P.W.1. The evidence of P.W.1 along with P.Ws.2 to 4 successfully proved the offence committed by the accused under Section 408 of IPC. He further submits that the learned trial Court as well as learned appellate Court have correctly recorded the conviction of sentence on the basis of evidence of P.Ws.2 to 4. There is no illegality or impropriety, and thereby revision has no merit. Learned Assistant Public Prosecutor admits that Ex.P9 was filed during the trial, though it was in possession of P.W.1 at the time of filing Ex.P1 and the prosecution had no opportunity to verify the correctness of Ex.P9. 6. Heard Sri Sunkara Rajendra Prasad, learned counsel for the petitioner and Sri K.Sandeep, learned counsel for the respondent. Perused the entire observation of the learned trial Court as well as learned appellant Court. 7. At the outset, a distinct and separate practice and procedure is laid down in Criminal Procedure Code for criminal investigation and trial. At the 6 SS,J Crl.R.C.No.1197 of 2008 time of investigation, it is the duty of the investigating officer to collect evidences, both oral and documentary and after being satisfied that there is a prima facie acquisition against the accused, the same would be submitted to the Court through a final report. That final report shall contain the statements collected by the Police during investigation and recorded by them under Section 161 Cr.P.C., and also shall contain the way of investigation and the documents collected, day to day, during course of investigation. In this case, accusation against petitioner is under Section 408 IPC. The ingredients of Section 408 of IPC are very specific. Prosecution has to substantiate that the petitioner, being an agent of P.W.1, who reposed trust upon accused and under the capacity of such trust, the accused has received some property and after receiving such property, he misappropriated such property. To prove the offence under Section 408 IPC, the prosecution has to prove firstly that the accused is a clerk, servant or agent of P.W.1. In this particular case, it is admitted as well as not denied by the accused that he was an employee/agent of P.W.1. Secondly, the prosecution has to prove that under such capacity of trust as an agent, the accused has received some property or amount and that the same was misappropriated. At the outset of the fact of the case, it appears that P.W.1 has filed Ex.P1 to the Police. Police started investigation on the basis of Ex.P1. P.Ws.2 to 4 were examined during the investigation and their statements were recorded. However, P.Ws.2 to 4, who are the dealers, have stated before Court as well as the Police that they have given the entire money to the accused but P.W.1 has stated before the Police through Ex.P1 7 SS,J Crl.R.C.No.1197 of 2008 that entire money was not remitted. In this case, the Police had submitted charge sheet to the Court which is different to the charge sheet which was supplied to the accused. Accused has a right in criminal trial to have the true and full copy of the charge sheet along with all documents collected by the Police during the course of investigation. 8. In this case, supplying insufficient copy of charge sheet itself vitiates the trial. During the course of trial, when P.W.4 appeared to depose, it was objected by the defence that the name of P.W.4 is not appearing in the charge sheet supplied by the police after investigation. The copy of charge sheet which was supplied to the accused after investigation was placed on record and marked as Ex.D1. Ex.D1 shows that it does not contain the name of P.W.4. The learned trial Court should have not allowed P.W.4 to depose on behalf of prosecution and the deposition of P.W.4 itself violates the right of the accused to know what particular evidence prosecution intended to rely before starting of trial. It led accused by surprise causing prejudices. The same amounts to not a fair trial. 9. Furthermore, it appears that the P.W.1 during the course of trial has appeared before the Court to depose on 02.09.2004. He was examined in chief on that day after closure of examination in chief the matter was posted for cross examination. On 30.06.2005, on the prayer of the prosecution, the witness was again recalled for further chief examination. On that day, P.W.1 has placed a letter alleged to have been written by accused to him, in which 8 SS,J Crl.R.C.No.1197 of 2008 some portion was typed by P.W.1, himself, showing amounts collected by the accused but were not paid to P.W.1. Such document was marked as Ex.P9 with vehement objection. 10. During cross examination, P.W.1 has admitted that at the time of filing Ex.P1 i.e., complaint, the document was under his possession but it was not filed. He also admitted that he has not placed Ex.P9 to the Police during his examination under Section 161 Cr.P.C. and it was first time filed before the Court during trial. The entire factum of submission of Ex.P9 as well as the contents thereon appears and the recording of the learned trial Court proves that Ex.P9, which alleged to have been written by the accused, was never investigated by the Police during course of investigation. Ex.P9 is an alien document to the criminal investigation as well as criminal trial of the instant case which was filed suddenly during course of trial. In my view, learned Court below had two options after receiving such document; either Court should not mark the document as exhibit, Court may refer the document for further investigation of the Police. The learned trial Court has not opted any option but only marked the document as exhibit. Moreover, during passing the Judgment and recording the conviction, the learned trial Court has placed reliance upon the said Ex.P9 by holding that it was written by accused. The hand writing of the accused was not admitted by the accused during trial. Moreover, it was never proved that it was written by the accused. The observation of the learned trial Court regarding Ex.P9 appears to me illegal 9 SS,J Crl.R.C.No.1197 of 2008 and faulty one. The learned trial Court without having proper investigating the document Ex.P9 should not have relied it. On that, the procedure of trial conducted by the learned trial Court appears to me caused prejudice to the accused, so that he has no scope to defend against Ex.P9. 11. Going through the merit of in this matter, it appears that the prosecution has to prove in this case that the petitioner, being the accused and agent of P.W.1, has misappropriated huge amount of money. P.Ws.2 to 4 have deposed that they have given entire amount through invoices to accused but such money was not remitted to P.W.1. It is admitted fact that transaction between P.W.1 and accused was without receipt. When a transaction through an agent or clerk of an employer is without receipt, for proving such misappropriation account books and copy of relevant invoices are necessary documents. Admittedly, in this case, account book of P.W.1 was not examined or was not placed. Merely deposition or statement of P.W.1 is not sufficient to prove the accusation against the accused that he has misappropriated the huge amount of money. In this case, there are specific invoices which were issued in favour of P.Ws.2 to 4 and if such invoices were issued, the accounts should have mention regarding such invoices and if the investigation was conducted over the account book, the payment of such invoices would be revealed. Such investigation was not conducted. Reasons thereby, the mere allegation of P.W.1, which was supported by P.Ws.2 to 4 against the accused, does not itself prove misappropriation of money. 10 SS,J Crl.R.C.No.1197 of 2008 12. Under the above observation, recording of conviction and sentence by the learned trial Court as well as learned appellant Court appears to me not in conformity with the practices and procedures of criminal trial as mentioned herein above. Accordingly, the prosecution has failed to bring home the charge against the present petitioner. Thus, the order of conviction and sentence is hereby set aside. 13. Accordingly, the instant criminal revision case is allowed. As a sequel, interlocutory applications pending, if any, shall stand closed. _______________________ SUBHENDU SAMANTA, J Date:01.04.2026 JLV 11 SS,J Crl.R.C.No.1197 of 2008 111 THE HON’BLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 1197/2008 Date:01.04.2026 JLV