JUDGMENT :

(Prayer: Petition filed under Section 397 read with 401 of the Criminal Procedure Code, to call for the records relating to the conviction imposed in the judgment dated 10.08.2017 made in C.A.No.20 of 2017 on the file of the learned Sessions (Fast Track Mahila) Court, Namakkal, confirming the conviction imposed in the judgment dated 28.04.2017 made in C.C.No.236 of 2005 on the file of the learned Judicial Magistrate No.1, Namakkal and set aside the same.)

1. The matter is heard through “Video Conference”.

2. Convicted sole accused is the revision petitioner herein. He was convicted for the offence under Section 406 and 420 of IPC by the learned Magistrate, on dismissal of the appeal, he preferred the revision.

3. The case of the prosecution is that

(i) on 16.03.1997, the accused started a dairy at Thalambadi and the witnesses Raja, Vaithi, Govindaraj, Sengodan and Kannan were sold milk to the accused from 16.03.1997 onwards. The accused paid them a part of amount and there was a due to sum of Rs.7,50,000/- to Raja, Rs.40,000/- to Vaithi, Rs.25,000/- to Govindaraj, Rs.37,329 to Sengodan and Rs.1,00,000/- to Kannan. When the above witnesses demanded for the balance the accused refused to pay the same. Thus, the accused had received the amount of Rs.9,52,329/- and thereby committed offences punishable under Section 406, 420 IPC. Hence, the charge.

4. Mr.N.Manokaran, the learned counsel for the revision petitioner would contend that the trial Magistrate has committed an error, treating the submissions of the accused-advocate in the bail order as an admission and laid the conviction and the same is unknown to criminal procedure. There is an inordinate delay of five years in preferring the complaint.

5. In the absence of any positive evidence for alleged supply of milk and non payment thereof, the charge sheet itself is bad in law. The particulars of date of supply and quantity of the milk and an amount there for, was not spoken to by any on of the witnesses and hence, the order of the conviction and sentence of the lower Court, is bad in law.

6. The learned Government Advocate for the respondent made a submission in support of the judgment of the trial Court.

7. The point for consideration is whether the order of conviction under Section 406 and 420 of IPC is sustainable in law. The minutes of the prosecution case points are detailed thereof:

7(i) On the side of the prosecution P.W.1 to P.W.10 witnesses were examined and six documents were marked as Exs.P1 to P6 were marked.

7(ii) P.W.1/Raja, P.W.2/Govindaraj, P.W.3/Kannan, P.W.7/Vaithi, P.W.8/Sengodan, were on the request of accused supply milk to his dairy farm. At the beginning, the accused paid amount once in a week but later he stopped payment. P.W.1 obtained loan from P.W.4/Elango, P.W.5/Kandasamy, to clear the payment to the person who gave milk to him. The P.W.6/Nallathambi is one among the milk vendor to P.W.1. P.W.4 to P.W.6 knows that the P.W.1 demanded the balance amount from the accused for which, he refused to pay. P.W.9/Manickam, is the Head Constable, District Crime Branch, received the complaint through Superintendent of Police and registered a case in Crime No.57/2004 under Section 406 and 420 of IPC. P.W.10/Ponusamy, Sub Inspector of Police, investigated the matter and arrested the accused and laid charge sheet against the accused.

8. The trial Court has laid the conviction based upon the observation made in the bail order dated 29.12.2004 in Crl.M.P.No.6685/2004 and held that it is a candid admission and laid the conviction. On appeal, the appellate Court dismissed it. At the outset, this Court unable to subscribe the seal of approval, as to the manner, how the learned Judicial Magistrate has accepted the averment made by the accused-advocate, in the bail order, as candid admission. Any observation or finding in the Crl.M.P., for bail, cannot be a ground for conviction.

9. The representation made by the learned counsel for the accused in the bail petition, canno