* THE HON’BLE SRI JUSTICE K.G. SHANKAR + CRIMINAL REVISION CASE.No.1030 of 2004 % Dated 29.01.2011 # Palam Buddagandla Obaiah … Petitioner v. $ State of A.P. Rep. by its Public Prosecutor, High Court of A.P., Hyderabad. … Respondent ! Counsel for the Petitioner : Sri V.Eswaraiah Chowdary ^ Counsel for Respondent : Public Prosecutor < GIST: > HEAD NOTE: ? Cases referred C/15 JUDGMENT: The sole accused who preferred this revision was convicted by the Judicial Magistrate of First Class, Sidhout for the offence under Section 418 I.P.C. He was sentenced to suffer rigorous imprisonment for a period of three years and to pay fine of Rs.2,000/-. Aggrieved by the same, the accused preferred criminal appeal No.164 of 2002 before the Sessions Court. The learned I Additional Sessions Judge, Cuddapah dismissed the appeal. Hence this revision. 2. The case of the prosecution is that on 4.09.2001, the accused tried to cheat the bank by pledging four bangles with it as if they were gold bangles while the bangles sought to be pledged by the accused were not gold bangles. Alleging that the accused, thus, cheated the bank, P.W.1 - Manager of the bank lodged Ex.P.1 complaint with the police. Police registered the complaint as Ex.P.2 F.I.R. The accused was arrested on 20.09.2001 by the police. 3. The accused allegedly approached the bank on 4.09.2001 at about 11.30 A.M. with four bangles. P.W.1, who lodged the complaint under Ex.P.1, stated that the accused approached the bank at about 11.30 A.M. on 4.09.2001. Ex.P.2 is the F.I.R. Ex.P.2 was lodged at 6.30 P.M. as can be seen from Ex.P.2. 4. Sri V. Eswaraiah Chowdary, learned counsel for the revision petitioner – accused, contends that while the incident occurred at about 11.30 A.M., complaint was lodged at 6.30 P.M., and that there was a delay of seven hours in lodging the complaint. He further claimed that the delay in lodging F.I.R. was not explained successfully by the prosecution and that the accused would be liable to be acquitted on that ground alone. 5. The case of the prosecution is that the accused approached Rayalaseema Grameena Bank, Sidhout branch at about 11.30 A.M. on 4.09.2001 with four bangles and was seeking loan on the value of the bangles as a pledge. As in the usual course, P.W.1 sent the bangles to a Goldsmith. The Goldsmith was indeed cited as a witness in the charge sheet (as L.W.3). The Goldsmith, however, was not examined by the prosecution. The efficacy of the non-examination of the Goldsmith shall be considered later. After the Goldsmith tested the bangles brought to him by an employee of the bank (P.W.2), the Goldsmith considered that the bangles were not gold bangles. He accordingly issued Ex.P.3 certificate stating that the bangles were brass bangles and not gold bangles. P.W.2 brought back the report of the Goldsmith to P.W.1. P.W.1 would have lodged Ex.P.1 complaint only thereafter. 6. Thus, it was not as though the incident occurred at 11.30 A.M., and P.W.1 waited till 6.30 P.M. for lodging the complaint. The gold bangles submitted by the accused were sent to a Goldsmith by P.W.1 through P.W.2. The Goldsmith tested them and issued Ex.P.3 certificate. P.W.2 returned to P.W.1 with the gold bangles and Ex.P.3 certificate of the Goldsmith. Then alone, complaint was lodged by P.W.1. Indeed, it is not clear as to when P.W.1 received the certificate under Ex.P.3 through P.W.2. Assuming that Ex.P.3 certificate was received around at 2.00 P.M. on 4.09.2001, lodging of the complaint at about 6.30 P.M., after banking hours, cannot be considered to be a delay. I am not prepared to accept the contention of the learned counsel for the accused that there was delay in lodging the F.I.R. and that the non-explanation of the delay in lodging the F.I.R. should lead to the acquittal of the accused. 7. Whether the accused is known to P.Ws.1 and 2 or not ? In their evidence, P.Ws.1 and 2 claimed that they knew the accused. P.W.1 did not state how he knew the accused. In any event, it is the case of P.Ws.1 and 2 that they knew the accused. The bangles produced by the accused were sent by P.W.1 through P.W.2 to the Goldsmith. It is not clear as to when the accused left the bank. 8. P.W.2 categorically deposed that he took M.O.1 - bangles to the Goldsmith for verification. P.W.1, however, is not so forthright. In his evidence, P.W.1 deposed that he called the Goldsmith to test the bangles and that the Goldsmith tested the bangles and informed P.W.1 that the bangles were not gold bangles. The reading of the evidence of P.W.1 leaves a distinct impression that he was deposing that the Goldsmith was called to the bank, whereas P.W.2 is very clear that he went to the Goldsmith. Be that as it may, the evidence of P.W.2 is not that the Goldsmith was called to the bank. The evidence of P.W.1 gives an impression that perhaps P.W.1 was deposing that the Goldsmith was called to the bank. I do not consider that this inconsistency between the evidence of P.Ws.1 and 2 cannot be considered to be a contradiction. 9. The most important aspect of the case is the intention of the accused. Was it the intention of the accused to cheat the bank? In other words, was the accused aware that the bangles tendered by him were not gold bangles? 10. There is no evidence in this regard. The accused produced four bangles as gold bangles and P.W.1 sent them in the usual course to a Goldsmith for testing the same. Before the Goldsmith tested the bangles, the accused simply walked away from the bank. He did not skulk away. He did not run away and he did not hide himself from the view of P.W.1. After the bangles were sent to the Goldsmith, when the accused walked away from the bank, admittedly no attempt was made by P.W.1 or any employee of P.W.1 on the instructions of P.W.1 to apprehend the accused. 11. If the intention of the accused was to cheat the bank, the moment P.W.1 sent the bangles to the Goldsmith for verification, the accused would have taken to heals. However, it is not the case of the prosecution. Further, it is nowhere on record that the accused was aware that the bangles tendered by him were not gold bangles. If the accused was aware that he was trying to pledge bangles as gold bangles knowing fully well that they were not gold bangles, it certainly would be tantamount to cheating the bank. However, it has not been made out by the prosecution that the accused knew that the bangles were not gold bangles and that he tried to pledge the same with the dishonest intention of cheating the bank. 12. Another important aspect of the case is the non-examination of the Goldsmith who tested the bangles. Is it the case of Goldsmith that the bangles tested by him were not gold bangles? I am afraid that Ex.P.3 is not sufficient to conclude that the bangles presented by the accused were not gold bangles and were presented deliberately by the accused to P.W.1 with a view to cheat the bank. I agree with the contention of the learned counsel for the accused that the non-examination of the Goldsmith is, certainly, fatal to the prosecution case. However, the most important aspect of the case is that the prosecution failed to establish the requisite mens rea that the accused knew that the bangles sought to be pledged by him were not gold bangles and that he was trying to pledge them as gold bangles with a view to cheat the bank. The prosecution thus failed to prove the offence under Section 418 I.P.C. 13. The trial court as well as the appellate court proceeded on the assumption that the accused was aware that the bangles sought to be pledged by him were not gold bangles. They went further and assumed that the accused had the intention of cheating. I am afraid that the trial court and the appellate court did not correctly assess the evidence and reach the conclusion that there was cheating on the part of the accused, where the prosecution in fact failed to establish the requisite mens rea. Consequently, the accused is not guilty for the offence under Section 418 I.P.C. with which he is charged and convicted. 14. In view of these circumstances, the accused deserves to be acquitted of the charge levelled against him and the charge under which he was convicted. Hence, the revision is liable to be allowed. 15. Accordingly the Criminal Revision Case is allowed. The accused is acquitted of the charge levelled against him. The fine amount, if any, paid by the accused shall be refunded to him. __________________ K.G.SHANKAR, J 29th January 2011 KSP