IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD Date:07-04-2011. PRESENT: THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No.102 OF 2005 Between: Lala Malla Swamy … Petitioner - A- 1 AND The State of Andhra Pradesh Represented by its SHO II-Town Police Station, Karimnagar District. … Respondent-Complnt. Counsel for the Revision Petitioner : Sri S. Satyam Reddy Counsel for the Respondent : Addl.Public Prosecutor The Court made the following judgment (judgment follows from 2nd page) THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No.102 OF 2005 JUDGMENT: This Criminal Revision Case is filed by the revision petitioner – A-1 assailing the judgment dated 24-01-2005 in Criminal Appeal No.70 of 2002 passed by the learned Sessions Judge, Karimnagar District confirming the conviction imposed on him by the learned Judicial Magistrate of First Class, Karimnagar District for the offence under Section 381 of IPC in C.C. No.261 of 1999 vide judgment dated 12-04-2002. 2. A-1, in C.C. No. 261 of 1999 on the file of the Court of the learned Judicial Magistrate of First Class, Karimnagar, was convicted along with A-2 and A-3 for the offence under Section 381 of IPC by the judgment of the said Court dated 12-04-2002, whereby they were sentenced to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/- and in default of payment of fine to suffer simple imprisonment for two months. Assailing the same, A-1 preferred Criminal Appeal No.70 of 2002 on the file of the Court of the learned Sessions Judge, Karimnagar and the said Court by its judgment dated 24-01-2005 dismissed his appeal confirming the conviction while reducing the sentence to rigorous imprisonment for a period of six (6) months while maintaining the fine with default sentence. Aggrieved by the said impugned judgment of conviction, A-1 filed this Criminal Revision Case. 3. The learned counsel for A-1 submits that A-3 and A-4 in C.C. No.261 of 1999 on the file of the Court of learned Judicial Magistrate of First Class, Karimnagar had also preferred Criminal Appeal No.68 of 2002 before the Court of Sessions, Karimnagar and the same was dismissed and aggrieved by the said judgment, A-3 and A-4 preferred Criminal Revision Case No.89 of 2005 before this Court and after hearing both sides, this Court allowed the said Criminal Revision Case by its order dated 09-03-2010 and acquitted them setting aside their conviction and sentence for the alleged offence. Therefore, he submits that the case against A-1 is also similar to A-3 and A-4, as such, he is also entitled to acquittal. 4. Heard both sides and perused the judgment in Criminal Revision Case No.89 of 2005 dated 09-03-2010 passed by this Court. 5. The unnumbered paragraph No.3 of the judgment in Criminal R.C. No.89 of 2005 dated 09-03-2010 reads as under: “In my opinion, facts as stated by the prosecution do not disclose offence punishable under Section 381 IPC, as basic ingredients for offence of theft as defined in Section 378 IPC are not there. Even as per the prosecution case, A-1 to A-7 were entrusted with the scrap material at Kamareddy workshop for dumping the same at Karimnagar workshop, and while dumping scrap material at Karimnagar workshop, A-1 to A-7 retained some property in the bus itself and intended to misappropriate the same for themselves. When there were entrustment and the alleged misappropriation, the appropriate section of law to be invoked by the prosecution would be different and not Section 381 IPC. In order to attract offence punishable under Section 381 IPC, there must be taking away of the property from another’s possession. There cannot be taking away of the scrap material when the accused themselves were in possession of it. Thus, the prosecution could not prove basic ingredients required for a theft as defined under Section 378 IPC. Both the courts below did not notice requirements for convicting the petitioners under Section 381 IPC. Both the courts below fell into groove of the prosecution and simply decided the case on an evaluation of evidence without going into satisfaction or otherwise or basic ingredients required for theft. Therefore, I am of the opinion that the convictions and the sentences passed by the courts below against the petitioners 1 and 2/ A-3 and A-4 are not sustainable in law.” 6. In view of the above, this Court is of the view that the decision referred supra applies to the case of A-1 as the allegation against him is also the same as against A-3 and A-4. 7. Therefore, following the decision in Criminal R.C. No.89 of 2005 dated 09-03-2010 passed by this Court, this Criminal Revision Case is allowed in terms thereof and A-1 is acquitted setting aside the impugned judgments of the Courts below and conviction and sentence imposed on him for the offence under Section 381 IPC. _________________ B.N. RAO NALLA, J Date: 07-04-2011. ISL/PV