IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1222 OF 2004 Between: Sri M. Siva Kumar ..... PETITIONER AND The Station House Officer, Vanasthalipuram Police Station. ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1222 OF 2004 ORDER: This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the Judgment, dated 22.07.2004, in Crl.A.No.114 of 2003, on the file of V Additional Sessions Judge (Fast Tract Court), L.B.Nagar, Ranga Reddy District. 2. The brief facts that are necessary for disposal of the present revision case may be stated as follows: On 01.06.1993 at about 12:30 mid night, PW.1 kept an amount of Rs.25,000/- in the almirah in his house and went to the cattle yard. When he opened the almirah at a later point of time, the said amount was found missing. Suspecting the accused to be the offender, he lodged a complaint on 17.06.1993 and thereafter, the accused was arrested. It is stated that the accused confessed that he had committed the offence by stealing; that he had spent Rs.500/- and deposited the balance amount of Rs.24,500/- in his S.B. Account No.1437 in Andhra Bank, Dilsuknagar Branch. In pursuance of the confession statement given by the accused, the pass book and counter foil with regard to deposit made by the accused were seized. Police filed charge sheet, for the offence punishable under Sections 454 and 380 I.P.C. 3. When the charges under Sections 454 and 380 I.P.C. were framed against the accused, read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined PWs.1 to 7 and got marked Exs.P-1 to P-9. 5. After closure of the prosecution evidence, the accused was examined under section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, no oral or documentary evidence were adduced. 6. The trial Court, upon considering the evidence on record, vide judgment, dated 28.08.2003, in C.C.No.249 of 1994 found the accused not guilty for the offence punishable under section 454 I.P.C., but found the accused guilty for the offence punishable under Section 380 I.P.C. and accordingly, convicted and sentenced him to undergo rigorous imprisonment for six months and to pay fine of Rs.2,000/-, in default to undergo simple imprisonment for two months. On appeal, the conviction of the petitioner of the charge under Section 380 I.P.C. was set aside, but, however, convicted the accused for the offence punishable under Section 411 I.P.C. and confirmed the sentence imposed by the trial Court. Challenging the same, the present revision is filed by the accused. 7. Now the point for determination is whether the judgments of both the Courts below are correct, legal and proper? 8. The learned counsel appearing for the petitioner contended that there is no evidence to show that the amount deposited by the accused in his Bank account is the cash stolen from the house of PW.1; that the police have not examined the Bank Officials to show that immediately after the theft, the accused deposited the amount into the Bank; and therefore, the necessary ingredients under Section 411 I.P.C. are not being made against the accused beyond all reasonable doubt and hence, he prays to set aside the impugned judgments. 9. On the other hand, learned counsel representing the learned Public Prosecutor opposed the same on the ground that the findings of both the Courts below are legal and proper inasmuch as the evidence of PW.1 coupled with Ex.P-8 would clearly go to show that the accused deposited the stolen amount into the Bank after committing the theft; that the finding of the appellate Court for the offence punishable under Section 411 I.P.C. i.e., when a person dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, if he is in the possession of the property, then it is an offence punishable under Section 411, I.P.C. is legal and therefore, the primary ingredient for the offence punishable under Section 411 I.P.C. i.e., the accused was found in possession of the stolen property, is made out and hence, she prays to dismiss the revision case. 10. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. This Court cannot re-appreciate the evidence sitting as if in an appeal. Unless the findings are shown to be perverse, or contrary to law, or illegal or improper, ordinarily this Court will not interfere with the concurrent findings of the Courts below. A finding can be said to be perverse, if it is not based upon proper appreciation of the evidence on record. 11. The evidence of PWs.1 and 2 would go to show that PW.1 kept an amount of Rs.25,000/- in his almirah and locked the same on the night of 01.06.1993. At a later point of time, when he opened the almirah, he found the money missing. The case entirely rests upon the alleged confession given by the accused to the mediators. In the presence of police he stated that he committed the theft of Rs.25,000/- from the house of PW.1 and having spent about Rs.500/-, he deposited the remaining amount into his Bank account. 12. There cannot be any dispute that the confession given by the accused in the presence of police officials is not admissible under law in view of Section 24 of the Indian Evidence Act, 1872. It must be shown by prosecution that the accused was in possession of the stolen property. The stolen property in this case is cash of Rs.25,000/-. That amount has not been seized. No Bank official is examined to show that at what point of time the accused deposited the amount into the Bank. Similarly, there is no material collected, though it is stated that the pass book and receipt have been seized from the possession of the accused. They were not marked as exhibits on behalf of the prosecution. Except Ex.P-9, which is the true account statement of the accused relating to Andhra bank, Dilshuknagar Branch, there is no other document to show that the accused has deposited Rs.25,000/- soon after the theft. Ex.P-9 is relating to the period from 21.05.2001 to 24.02.2003, nearly eight years after the alleged commission of theft. Therefore, Ex.P-9 cannot be relied upon for the purpose of determining the point that the accused deposited certain amount in his Bank account. In view of the fact that the accused is also doing business, there is nothing unusual for him to keep certain amount in his Bank account. Unless it is shown that soon after committing the theft of certain amount from the house of PW.1, the same was deposited in the Bank account of the accused, it cannot be said that the accused is the receiver of the stolen property. Therefore, the findings of the trial Court as well as the appellate Court are not based upon the evidence at all. They gave perverse findings. There is absolutely no evidence to show that the accused was the receiver of the stolen property. Hence, the conviction and sentence imposed by the appellate Court for the offence punishable under Section 411 I.P.C. are set aside. Accused is acquitted accordingly. Fine amount, if any, paid by the accused shall be refunded to him. It is needless to state that PW.1 is not entitled to withdraw any amount from the Bank account of the accused and the accused can operate the Bank account. 13. Accordingly, the Criminal Revision Case is allowed. _______________ K.C. BHANU, J July 01, 2010 MD THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1222 OF 2004 July 01, 2010