- (1.) THE four Applicants in this revision who were the original Accused Nos. 3, 4, 5 and 6 have challenged their conviction for an offence punishable under Section500 of the Indian Penal Code in the present revision. THE facts leading to the institution of the prosecution and the conviction and sentence of the present Applicants are briefly stated as under : -
(2.) THE Respondent No. 1 in the present revision application, had filed a criminal complaint being Case No. 127/p/1990 before the Judicial Magistrate, First Class at Bicholim against the present Applicants and others for an offence punishable under Section500 of the Indian Penal Code. It was alleged in the complaint that the present Applicants and others had signed a letter dated-23rd October, 1989 addressed to the Rt. Rev. Fr. Caetano de Cruz Fernandes, Administrator of Confrarias at Paco Patriarchal, Altinho, Panaji. In the said letter the Applicants and others have made allegations against the Complainant/respondent No. 1 to the following effect. THE allegations were that earlier the Complainant had collected big sum of money from India and abroad for the repair of the above Chapel and not even half of that amount was spent, as per the calculations of the Applicants, and when the Complainant/respondent No. 1 was asked to show the account, he replied that the collection came more from the non catholics and till that day the account was not shown to the villagers. THE second allegation of the said letter was that the Complainant had tried to grab the property Udo of the Confraria at any costs and had been using all sorts of tactics for the purpose. On the basis of the allegations which were made in the complaint, the learned Trial Judge issued summons to the Applicants and others for an offence punishable under Section500 of the Indian Penal Code. The particulars of the offence were explained to the accused. During the course of trial, the Complainant examined himself and four other witnesses on his behalf. The Trial Judge after recording the statement of the Accused under Section313 Cr. P. C. and after hearing the respective Counsel came to the conclusion that the Complainant had been successful in proving beyond reasonable doubt the offence against the present Applicants and accordingly convicted them and sentenced them to pay fine of Rs. 1000/- each or in default to undergo one month Simple Imprisonment. The present four Applicants and another person had filed Criminal Appeal bearing No. 26/97 before the Additional Sessions Judge at Mapusa. The learned Additional Sessions Judge by his Judgment dated-22nd September, 2000 dismissed the Appeal, however, reduced the sentence of fine from that of Rs. 1000/- each to Rs. 500/- each. The present revision has been filed challenging the aforesaid Judgment. Mr. S. D. LOTLIKAR, learned Senior Counsel appearing on behalf of the Applicants and Mr. N. N. SARDESSAI, learned Counsel appearing on behalf of the Respondent No. 1 have taken me through the Judgments of the two Courts below and also the evidence. I have perused the entire record. According to the learned Counsel for the Applicants, the conviction of the Applicants deserves to be set aside. As according to the learned Counsel for the Applicants, both the Courts below have not appreciated the evidence in a correct perspective. According to the learned counsel, the Applicants have been successful in carving out a case that they are covered by virtue of exceptions 8 and 9 of Section499 of the Indian Penal Code. According to the learned Counsel had the Trial Court appreciated the evidence in a correct perspective, the Courts below would have come to a conclusion that the Applicants have made out a case under exceptions 8 and 9.
(3.) IN order to appreciate the submissions of the learned Counsel for the Applicants, it is useful to refer that part of the evidence which has been considered by the two Courts below. The learned Counsel for the Applicants invited my attention to the evidence of P.W.3 Caetano Fernandes. According to the learned Counsel for the Applicants, the said P.W.3 Caetano Fernandes in his cross-examination has admitted but I have some idea that some of the Committee was not handed over the account of Confraria. I was working as Administrator as Confraria at Altinho since 1972-94 May. According to the learned counsel for the Applicants, the evidence of P.W.3 Caetano Fernandes thus suggests that certain account had not been handed over by some of the Committees to the Confraria. Adverting to the evidence of P.W.4 Albert Araujo and particularly to the portion in his cross-examination which reads since accounts are not presented by said Luis Anthony D'souza, Treasurer in the year 1974 we believe that there was a confusion in the Chapel account from 1974 onwards. Since account of 1974 were not presented by said Luis Anthony D'souza and other two members the account cannot be audited. On the basis of this evidence, what was tried to be argued by the learned Counsel is that the allegation which has been made in the letter dated-23rd October, 1989 Exhibit PW1/a stands proved as the Complainant/respondent No. 1 has admitted that he had assisted any collection of money and as per P.W.3 and P.W.4 the accounts have not been furnished. So thus according to the learned Counsel for the Applicants, they are covered by the exceptions 8 and 9 in which according to them a complaint has been addressed. The good faith of the Applicants in making the aforesaid complaint is thus established. Mr. N. N. SARDESSAI, learned Counsel for the Respondent No. 1 has submitted that the part of the evidence to which my attention was drawn by the learned Counsel for the Applicants had been considered by the two Courts below. According to the Courts below good faith was lacking by the Applicants and they were not able to demonstrate their good faith. According to the learned counsel for the Respondent No. 1, Complainants P.W.3 and P.W.4 referred the fact that the accounts for 1974 were not furnished. The letter dated-23rd October, 1989, Exhibit PW1/a, says that the Complainant had collected big sum of money from India and abroad and the accounts had not been given. According to the learned Counsel for the Respondent No. 1 there is no nexus established between the collection of the money as is alleged in the letter dated-23rd October, 1989 and the non submission of the accounts which is referred to by P.W.3 and P.W.4 which is said to be of the year 1974. Therefore, according to the learned Counsel for the Respondent No. 1, the admission of P.W.3 and P.W.4 that the Complainant had failed to furnish the accounts for the years 1974 onwards could not be read as substantiating or in any manner proving the allegations made by the Applicants in the letter dated-23rd October, 1989, Exhibit PW1/a. I am in complete agreement with what has been canvassed by the learned Counsel for the Respondent No. 1. Both the Courts below have examined the evidence in detail and have negatived that the Applicants are entitled to benefit of exceptions 8 and 9 of Section499 of Indian Penal Code. Even otherwise, there is nothing on record to justify making allegations against Respondent No. 1/complainant that he had tried to grab the property Udo of the Confraria at any costs and was using all sorts of tactics for that purpose.;