HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No. 1904 OF 2003 DATED 21ST JUNE, 2010. BETWEEN Poosni Baburao …..Petitioner/Accused No.1 and The State of AP, Rep. By its Public Prosecutor and anr …Respondents HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No. 1904 OF 2003 ORDER: This Criminal Revision Case under Sections 397 and 401 of the Cr.P.C. arises out of the judgment dated 26.11.2002 passed in Criminal Appeal No. 145 of 2002 by the learned VII Additional District & Sessions Judge (Fast Track Court) Visakhapatnam, conﬁrming the conviction and sentence imposed against the petitioner/accused in the judgment dated 19.12.2003 passed in C.C.No. 34 of 1999 by the learned VIII Metropolitan Magistrate, Gajuwaka. The case of the prosecution is that the State represented by the Sub Inspector of Police, Law & Order Police Station, Visakhapatnam City ﬁled a case against the two accused alleging that on 30.11.1998 the tank truck bearing registration No. AEP 490 arrived at Central Fuel Stores, Steel Plant from H.P.C.L. to Visakha Terminal to unload the furnace oil vide invoice No. 316364, dt. 30.11.1998 and A.1 is the lessee of the vehicle and A.2 is the driver and that even after unloading in the normal way some oil was found to come out from the delivery valve and when jerks were given to the tanker about 900 ltrs of oil was unloaded and the same was informed by P.W.3, one of the oﬃcers of the Steel Plant, to P.W.2 Chief Superintendent, Energy Management Department of the Steel Plant and Mr. Mannanm Venkateswara Rao, Chief Superintendent, Energy management Department of the Steel Plant, P.W.2 in turn informed the same to P.W.1, then P.W.1 visited the Central Fuel Oil Stores and came to know that while Mr.P.Satyanarayana, Technician was on night duty at Central Fuel Oil Stores on 30.11.1998 he saw some persons entered the tanker during the night and that on 3.12.1998 the manhole of the tanker compartment No.2 was opened in the presence of Mannam Venkateswara Rao, Chief Superintendent, G.Rama Rao (P.W.3) and P.W.5 and they found a chamber like construction in the idle compartment. On 5.12.1998 the HPCL representatives P.W.4 and one Mr. Kodallur Varian Krishna Kurtty came to Central Fuel Oil Stores and conﬁrmed that the chamber is of unusual construction. Then on 5.12.1998 in the presence of Kutti and P.W.4 when the remaining oil was unloaded it comes to 900 litres. Then on the report given by P.W.1, the Sub Inspector of Police, Steel Plant, Law & Order Police Station registered F.I.R. and investigated the case and on 10.12.1998 the District Inspector, Legal Metrology (P.W.6), Gajuwaka conducted panchanama on the vehicle and found that the middle compartment of the tanker is having an extra square type box ﬁtting at the bottom of the compartment of dimension of 55 cm. Height, 35 cm. Length and 35 cm. Width, and that due to the extra ﬁtting only a part of the furnace oil contained in the middle compartment will come out, when delivery valve is opened and the rest of the oil will remain in the square type extra ﬁtting in the compartment, and on the requisition given by the S.I. of Police, the District Inspector–1, Legal Metrology recalibrated the vehicle on 16.12.1998 and ﬁled a case alleging that A.1 made a chamber like unusual construction in side the middle compartment with a dishonest intention and gained the furnace oil wrongfully and thereby committed the oﬀence. Accordingly, the police ﬁled the charge sheet before the VII Metropolitan Magistrate, Gajuwaka. On such complaint, the learned Magistrate tried the case for the charge under Section 407 IPC against both the accused. Before the trial Court, the prosecution examined P.Ws. 1 to 9 and got marked Exs.P.1 to P.8. The learned Magistrate, on a consideration of the material on record and hearing both sides, found A.1 guilty of the charge under Section 407 IPC and accordingly convicted and sentenced him to suﬀer S.I. for a period of one year and to pay a ﬁne of Rs.1000/-, in default, to suﬀer S.I. for a period of two months. However, the learned Magistrate found A.2 not guilty and accordingly acquitted him of the said charge. On appeal being preferred by Accused No.1, the lower appellate Court conﬁrmed the conviction and sentence imposed by the trial Court. Hence this revision. Heard the learned Counsel for the petitioner/Accused No.1 and the learned Public Prosecutor appearing for the State, at length. It is needless to state that the powers of the High Court in exercising its jurisdiction under Section 397 and 401 of Cr.P.C. are truncated. Unless the ﬁnding is shown to be perverse or incorrect or illegal or not based on any evidence on record, the judgment under challenge needs interference. On a entire perusal of the record and having given anxious consideration to the submissions of the learned Counsel on either side, this Court is of the view that the conviction imposed on the petitioner/Accused No.1 by the trial Court and conﬁrmed by the lower appellate Court is based on evidence and hence need not be interfered with by this Court. However, the learned Counsel for the petitioner/Accused No.1, arguing at length, conﬁned his argument to the imposition of sentence by the Courts below and submitted that this Court may consider as far as the imposition of sentence is concerned, inasmuch as the entire occurrence took place in the year 1998; that after lapse of twelve years remanding of the petitioner to judicial custody will cause prejudice to him; that he already suﬀered a stigma of conviction in the society; that he is now aged about 45 years; that he is the only bread winner to his family members and that he has to look after his old age parents and school going children. Considering the submission of the learned Counsel for the petitioner, this Court thought it ﬁt to show some lenience on the petitioner insofar as the inﬂicting of sentence on him by the Courts below is concerned. This Court, considering the lapse of twelve years and also the family circumstances of the petitioner, set aside the sentence imposed by the Courts below and in its place, directs the petitioner to pay a ﬁne of Rs.50,000/- (Rupees ﬁfty thousand only), apart from the ﬁne amount already imposed by the Court below, within a period of three months from the date of a copy of this order is made ready. Subject to the above modiﬁcation in sentence, this Criminal Revision Case is disposed of. ----------------------------------- JUSTICE RAJA ELANGO DATED 21st June, 2010. Msnr.