THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No. 283 of 2009 ORDER: This Criminal Revision Case is filed against the conviction of the revision petitioner in C.C.No.233 of 2003 on the file of the XI Additional Chief Metropolitan Magistrate, Secunderabad for the offences under Sections 408 and 477-A of the Indian Penal Code, 1860 (for short “IPC”) and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for six months in each offence, which in Criminal Appeal No.105 of 2008 on the file of the Metropolitan Sessions Judge, Hyderabad was confirmed to the extent of the offence under Section 408 of IPC. The case of the prosecution is that the accused was sales representative-cum-bill collector of Rama Synthetics, Secunderabad and authorized to collect money from the customers and deposit on return tour. On 15.04.2002 and 16.04.2002 the accused is said to have collected a sum of Rs.11,43,878/- from 23 customers without giving receipts and has not remitted the same with P.W.2, the accounts manager. On 18.04.2002 the accused is said to have gone to P.W.1 and produced two receipt books and confessed to have not remitted the said amounts. On the basis of the above information, a complaint was lodged by P.W.1, which was investigated into and charges under Sections 408, 420 and 477-A of IPC were framed, read over and explained to him and he pleaded not guilty. On behalf of the prosecution, P.Ws.1 to 5 were examined and marked Exs.P-1 to P-17 and Ex.D-1 was also marked on behalf of the accused. The Courts below did not accept the plea of the accused and convicted and sentenced him. Aggrieved by the said conviction and sentence relating to the offence under Section 408 of IPC, the present revision is filed. The point that arises for consideration is whether the prosecution has proved that the accused misappropriated the moneys, which were entrusted to him? POINT: P.W.1 is the proprietor of Rama Synthetics since 1990 and deposed that the accused was a bill collector and from 15.04.2002 to 18.04.2002 the accused has collected a sum of Rs.11,37,775/- under several receipts and on 18.04.2002 he claims to have come to him and given a letter Ex.P-2 admitting the collection and the non-deposit of the same. He claims to have given the complaint Ex.P-1 to the police on 18.04.2002. In his cross-examination he stated that the amount collected by the accused relates to the dues from the customers from November, 2001 to March, 2002 and Ex.P-3 is the receipt book. According to him, Ex.P-2 was written at his house in the presence of his brother Gopal Agarwal. He denied the suggestion that he has to pay commission of Rs.15,00,000/- to the accused and that P.W.1 is a defaulter in payment of income tax. He admitted that Ex.P-2 was not referred in Ex.P-1 complaint. P.W.2 was the manager, who claims that the accused has not deposited the collections from 15.04.2002 to 17.04.2002. According to him, Ex.P-2 was given by the accused in his presence. He denied that Ex.P-2 was fabricated for the purpose of this case. P.W.3 is said to be a businessman at Guntur and he claims that he paid a sum of Rs.72,444/- on 15.04.2002 to the accused and Ex.P-3 receipt was given by the accused. The credit bills are Exs.P-11 to P- 13. He also stated that one Surya Prakash also visited the shop on behalf of P.W.1. He did not obtain any payment endorsement from the accused in his books. So also P.W.4 stated that the accused was visiting his shop and used to supply the material and collecting the money but receipts were issued. But, when he was treated as hostile in cross-examination he admitted that on 15.04.2002 the accused came to him and handed over seven receipts covering a total sum of Rs.29,338/-. He also stated that he does not know the proprietor of Rama Synthetics. The evidence of P.W.5 is about the investigation done by him in this case. The learned counsel for the revision petitioner contends that all the customers from whom the accused is said to have collected the money were not examined and the statement Ex.P-2 was not forwarded to the police along with the complaint Ex.P-1 and, therefore, it is a fabricated one and the Courts below have not taken into consideration this aspect while convicting the accused. There is no dispute about the fact that this Ex.P-2, which is said to be an admission of the collection and misappropriation, was not enclosed along with the complaint Ex.P-1. However, he claims that the accused came to him and admitted that he has utilized the funds to a tune of Rs.11,37,775/- and has not paid that amount. Even in the absence of this Ex.P-2, if the factum of entrustment and collection of the money by the accused and non-remitting is proved, then Ex.P-2 may not have any bearing on the facts of the case. The further contention of the learned counsel for the revision petitioner is that all the persons, who have said to have paid such a huge amounts, were not examined and further the evidence on record goes to show that one Surya Prakash was also visiting the shop and the said person was not examined and, therefore, the evidence on record is not sufficient to find accused guilty of the offence. In fact, there is no serious denial of the fact that the accused was going for collection of the moneys and in fact the suggestions made to P.W.1 clearly go to show that the accused has to get huge commission and that it was not paid. The evidence of P.Ws.3 and 4 clearly goes to show the factum of collection of the amount from them and issuing the receipts though P.W.4 initially did not state about the payment of the money but he had admitted the payment in his cross-examination to the accused. Therefore, even if the other payments are not proved by examining the customers, the evidence of P.Ws.3 and 4 is sufficient to hold that nearly Rs.1,00,000/- was collected by the accused from P.Ws.3 and 4. It is not the case of the accused that these amounts, which were collected by him, were remitted with P.W.2. Therefore, for the above reasons, the evidence of P.Ws.3 and 4 is sufficient to bring home the guilt of the accused even in the absence of Ex.P-2 or the non-examination of the other persons, who have paid the amounts. The Courts below have rightly appreciated the evidence and came to the conclusion and there are no grounds to interfere with the conviction and sentence. Accordingly, the Criminal Revision Case is dismissed. The lower Court is directed to take steps for apprehension of the accused to serve the remaining period of sentence. ________________________ N.R.L. NAGESWARA RAO, J Date: 27-12-2011 MR THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No. 283 of 2009 DATE: 27-12-2011 MR