Karnataka High Court
M Balaji vs The State Of Karnataka on 2 September, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO.521 OF 2018
BETWEEN:
M. BALAJI
S/O. MUNIYAPPA,
AGED: 40 YEARS,
EX-ASSISTANT POST MASTER,
R/O VARADAPURA VILLAGE,
BOODIKOTE HOBLI,
TALUK : BANGARPET,
KOLAR DISTRICT - 563103.
...PETITIONER
(BY SRI. VEERANNA G. TIGADI, ADV.)
AND:
THE STATE OF KARNATAKA,
REP. BY SUB INSPECTOR OF POLICE,
Digitally signed by
MALLIKARJUN
MULBAGAL POLICE STATION,
RUDRAYYA
KALMATH
Location: HIGH
MULBAGAL,
COURT OF
KARNATAKA
DHARWAD BENCH
KOLAR DIST-563101.
Date: 2025.09.04
12:46:28 +0530
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-560001.
...RESPONDENT
(BY SRI. M.R. PATIL, HCGP.)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE DATED 24.03.2014 IN C.C.NO.79/2008 PASSED
BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., MULBAGAL AND
JUDGMENT DATED 06.02.2018 IN CRL.A.NO.28/2014 PASSED
BY THE I ADDITIONAL SESSIONS JUDGE, KOLAR AND BY
ACQUITTING HIM OF THE OFFENCES ALLEGED AGAINST HIM.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.07.2025 AND COMING ON FOR
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PRONOUNCEMENT OF ORDER THIS DAY, THE COURT, MADE
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
CAV ORDER
This Criminal Revision Petition is filed by the accused
against the Judgment of conviction and Order of sentence dated
24th March 2014, passed in CC No.79 of 2008 by the Principal
Civil Judge & JMFC, Mulbagal (for short "the trial Court"), which
is confirmed by I Additional Sessions Judge, Kolar (for short
"the appellate Court) in Criminal Appeal No.28 of 2014 dated 6th
February, 2018.
2. For the sake of convenience, the parties herein
referred to as per their rank before the trial Court.
3. Facts leading to this revision petition are that the
Police Sub-Inspector, Mulbagal, submitted charge-sheet against
the accused for offence punishable under Section 408 of Indian
Penal Code. It is alleged by the prosecution that from 30th
January, 1999 to 28th September, 2004, the accused was
working as Branch Postmaster at Kothamangala Branch Post
Office and during that period, the accused has dishonestly
misappropriated the amount deposited by the customers. The
same is as under:
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"a) Not remitted Rs.4,200/- to the government
deposited by CW.2-K.Narayanappa from
12.5.2003 to 20.9.2004 to his SB Account No.
193031.
b) Not remitted Rs.2,000/- out of Rs.2,250/- to the
government which was deposited by CW.3-
K.Suvarna from 27.1.2004 to 20.9.2004 to her
RD A/c. No.241101.
c) Not remitted Rs.4,200/- to the government
deposited by CW.4-Sarswathamma from
17.8.2002 to 21.7.2004 to her RD A/c.
No.240742.
d) Not remitted Rs.1,600/- out of Rs.2,000/-
deposited by CW.5-Venkatalakshmamma from
24.11.2003 to 23.9.2004 to her RD A/c.
No.240425.
e) Not remitted Rs.6,000/- to the government
deposited by CW.6-Vishalakshamma on
26.2.2004 to her SB A/c. No.193602.
f) CW.7-R.Munireddy, Head Master, Govt Higher
Primary School, Kothamangala had withdrawn
Rs.600/- on 24.7.2003 and Rs.200/- on
29.10.2003 from SB A/c. No.191498, but the
accused has drawn Rs.1,600/- and Rs.1,200/-
respectively and has misappropriated excess
amount of Rs.2,000/-."
4. The accused, despite mentioning the deposits and
withdrawal in the respective account Passbooks, has not
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remitted the amount to the Government and has drawn excess
amount from the account of Headmaster, Government Higher
Primary School, Kothamangala and has dishonestly
misappropriated the amount and used for his own purpose,
thereby committed the offence punishable under Section 408 of
Indian Penal Code. The accused appeared before the trial Court
and was enlarged on bail.
5. Upon hearing on framing of charges, the trial Court
has framed charges for the offence punishable under Section
408 of Indian Penal Code. Thereafter, the charge was altered
for the offence punishable under Section 409 of Indian Penal
Code. The same was read over and explained to the accused in
the language known to him. Accused, having understood the
same, pleaded not guilty and claimed to be tried. To prove the
guilt of the accused prosecution, in all, has examined, fifteen
witnesses as PW1 to PW15 and marked 28 documents as
Exhibits P1 to P28. On closure of prosecution side evidence,
statement of the accused under Section 313 of Code of Criminal
Procedure was recorded. Accused has totally denied the
incriminating evidence appearing against him but has not
chosen to lead any defence evidence on his behalf.
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6. Having heard the arguments on both sides, the trial
Court convicted the accused for the offence punishable under
Section 409 of Indian Penal Code and sentenced to undergo
rigorous imprisonment for a period of two years with fine of
Rs.10,000/- and in default of payment of fine, to undergo
rigorous imprisonment for a period of six months. Being
aggrieved by the same, the accused preferred appeal before the
appellate Court. The same came to be dismissed vide
Judgment dated 6th February, 2018. Being aggrieved by the
Judgment of conviction and Order of sentence passed by the
trial Court which is confirmed by the appellate Court, the
accused is before this Court in this revision petition.
7. Sri Veeranna G. Tigadi, learned Counsel appearing for
the accused-Revision Petitioner, would submit that the
impugned Judgment of conviction and Order of sentence passed
by the trial Court which is confirmed by the appellate Court, is
illegal, perverse and is liable to be set aside. He submits that
both the Courts have not properly appreciated the oral and
documentary evidence placed by the prosecution. None of the
witnesses have stated that the entries made in the Books and
Registers are in the handwriting of the accused. He would
submit that the trial conducted before the trial Court is in
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contravention of Sections 219 and 220 of Code of Criminal
Procedure. Both the Courts have failed to see that PW1-
Saraswathamma, PW2-Venkatalakshmamma and other
witnesses have not supported the case of the prosecution that
they had entrusted the amount to the accused as alleged by the
prosecution. The evidence adduced by the complainant is only
based on records and he had no personal knowledge about the
allegation made against the accused. PW5-R.Munireddy, the
Headmaster of Government Higher Primary School,
Kothamangala, has not supported the case of the prosecution.
Both the Courts have failed to consider the material omissions
and contradictions in the evidence of the prosecution witnesses.
He would further submit that the petitioner is a Central
Government Employee and as such, is a public servant. The
offences alleged against him are alleged to have been
committed while discharging his official duties. Hence, his
prosecution, without sanction, is illegal. On all these grounds,
he sought to allow the revision petition.
8. On the other hand, Sri M.R. Patil, learned High Court
Government Pleader appearing for the State, would support the
impugned judgment of conviction and order of sentence and
submitted that the trial Court has properly appreciated both the
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oral and documentary evidence placed before it in its proper
perspective and has convicted the accused for the offence
punishable under Section 409 of Indian Penal Code and
sentenced to undergo rigorous imprisonment with fine. The
same has been confirmed by the appellate Court and the same
do not call for interference in this revision petition. Accordingly,
he sought for dismissal of the revision petition.
9. Having heard the arguments on both sides and on
perusal of materials placed before me, the point that would
arise for my consideration would be:
"Whether the judgment of conviction and order
of sentence passed by the trial Court which is
confirmed by the appellate Court requires intercede
by this Court?"
10. I have examined the materials placed before me.
Before appreciation of the materials on record, it is necessary to
mention here as to the essential ingredients to prove the
offence under Section 409 of Indian penal code. The same
reads as under:
"Essential Ingredients:- An offence under Section
has following essentials:
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(i) That the accused was entrusted with the property in
any manner;
OR
That such property was in his dominion, in his capacity
of a public servant, or as banker, merchant, factor,
broker, attorney or agent, in the way of his business
in such capacity;
(ii) The accused committed breach of trust in respect of
that property."
11. In the case on hand, it is alleged by the prosecution
that the accused, being the Branch Postmaster at
Kothamangala Branch Post Office for the period 30th January
1999 to 28th September 2004, has dishonestly misappropriated
the money deposited by the customers in the following cases:
"a) Not remitted Rs.4,200/- to the government
deposited by CW.2-K.Narayanappa from
12.5.2003 to 20.9.2004 to his SB Account No.
193031.
b) Not remitted Rs.2,000/- out of Rs.2,250/- to the
government which was deposited by CW.3-
K.Suvarna from 27.1.2004 to 20.9.2004 to her
RD A/c. No. 241101.
c) Not remitted Rs.4,200/- to the government
deposited by CW.4-Sarswathamma from
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17.8.2002 to 21.7.2004 to her RD A/c.
No.240742.
d) Not remitted Rs.1,600/- out of Rs.2,000/-
deposited by CW.5-Venkatalakshmamma from
24.11.2003 to 23.9.2004 to her RD A/c. No.
240425.
e) Not remitted Rs.6,000/- to the government
deposited by CW.6-Vishalakshamma on
26.2.2004 to her SB A/c. No.193602.
f) CW.7-R.Munireddy, Head Master, Govt Higher
Primary School, Kothamangala had withdrawn
Rs.600/- on 24.7.2003 and Rs.200/- on
29.10.2003 from SB A/c. No.191498, but the
accused has drawn Rs.1,600/- and Rs.1,200/-
respectively and has misappropriated excess
amount of Rs.2,000/-."
12. Further, the accused, despite mentioning that deposits
and withdrawal in the respective account passbook, has not
remitted the amount to the government and has excess amount
from the account of Headmaster, Government Higher Primary
School, Kothamangala, has dishonestly misappropriated the
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amount and used for his own purpose and thereby, committed
the offence.
13. Learned Counsel for the revision petitioner vehemently
submitted that the prosecution has failed to prove the fact of
entrustment of amount to the accused. He would submit that
to prove the factum of entrustment of amount to the accused,
prosecution has produced Exhibit P15-Charge report and receipt
for cash and stamps on transfer of charge. The scanned copy
of the same is printed herebelow:
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14. To prove this document, the prosecution has examined
PW3-N. Govindaraju, Inspector of Posts. He has deposed in his
evidence that he has produced SB Journal-Exhibit P15 to show
that accused has taken charge of Kothamangala Branch.
Except the charge certificate, the Investigating officer has not
collected any materials to prove the duties of the accused. The
investigating officer has also not collected any material as to
taking over the material documents, i.e. SB Journal, pay-in-
slips/challans and other Registers maintained in the Branch Post
Office, as required under relevant Act and Rules. The
investigating officer has also not explained anything as to non-
production of these material pieces of evidence before the Court
below. In the absence of material evidence, only on the basis
of Exhibit P15, mere oral evidence of PW3-N Govindaraju,
Inspector of Posts, who is an interested testimony, is not
sufficient to prove the alleged entrustment to the accused.
Accordingly, prosecution has failed to prove the essential
ingredients of factum of entrustment.
15. It is alleged that the amount deposited by K
Narayanappa from 12th May 2003 to 20th September 2004 to
the tune of Rs.4,200/- to his SB A/c No.193031 was not
remitted to the Government. To prove this fact, CW2-K
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Narayanappa has not been examined by the prosecution.
However, prosecution has examined PW3-N Govindaraju,
Inspector of Posts. He has deposed in his evidence that the said
Narayanappa has remitted an amount of Rs.4,200/- between
12th May 2003 to 20th September 2004, and the same was not
remitted to the Government. Further, he has deposed that
after receiving this amount, the same has to be entered in the
SB Journal, but the same is not entered. The passbook
pertaining to K Narayanappa is marked as Exhibit P8. As per
the passbook, on 24th November 2003, an amount of Rs.5,000/-
was deposited; on 30th December 2003 an amount of Rs.500/-
was deposited. But in SB Journal, it shown as Rs.100/-. On
22nd March 2004 an amount of Rs.584/- was remitted, but in SB
Journal it is shown as Rs.84/-. On 17th May 2004 Rs.500/- was
remitted, but in SB Journal, there is no entry in that regard. In
the passbook, the concerned Post-Master has also put his
initials on the relevant dates in SB Journal Exhibit P19. But
none of the witnesses have identified this signature to prove
that the accused has affixed his initials in the passbook as well
as in the SB Journal. The investigating officer has not taken
any steps to prove the signatures/initials found on the passbook
as well as in the SB Journal. The investigating officer has not
explained anything as to not taking steps to prove the initials
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affixed on the passbook as also on SB Journal. Moreover, the
signatures/initials found on the Passbook, as also on the SB
Journal, do not tally each other. As on the date of alleged
entrustment, whether the accused was on duty or not has not
been proved by the prosecution. The Attendance Register
maintained by the concerned Post Office is also not produced.
The investigating officer has not explained anything in this
regard. The prosecution has not placed any material to show
that how the investigating officer has seized Exhibit P8 from the
possession of Sri Narayanappa, as the same would be in the
custody of account holder himself. Whether Sri Narayanappa
has voluntarily produced the passbook before the Investigating
Officer or has the Investigating Officer seized the same from
the possession of Sri Narayanappa in the presence of panchas
under mahazar, has not been disclosed by the prosecution. In
the absence of these material evidence, it is difficult to accept
the testimony of PW3 that the accused has misappropriated the
amount as alleged by the prosecution. Additionally, PW3 has
admitted in his cross-examination that they will not conduct
Audit every year, but inspect the Registers once in a year. He
has further admitted that as regards this Post Office is
concerned, since 1990 to 2004, they have not conducted any
inspection. He has further admitted that Kothamangala Post
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Office had only two staff i.e. one Postmaster and one Rural Dak
Sewak. Further, he has submitted that when the customers
deposit the amount, there will be a pay-in slip with counterfoil.
The counterfoil will be with the customer, and the main pay-in-
slip will be in the post office. But the investigating officer has
not seized the counterfoil or the pay-in-slip. The investigating
officer has not explained anything as to non-seizure of these
material pieces of evidences. In the absence of this evidence,
and also in the absence of evidence of customer i.e. CW2-
Narayanappa, it cannot be said that the prosecution has proved
its case beyond reasonable doubt. Hence, the interested
testimony of the prosecution witness cannot be believed, in the
absence of supporting documents.
16. It is the further case of the prosecution that the
accused has not remitted an amount of Rs.4,200/- deposited by
CW4-Saraswathamma between 17th August 2002 and 21st July
2004 into her RD A/c No.240702. In this regard, the
prosecution has examined the customer Smt. Saraswathamma
as PW1. She has not deposed anything against the accused.
She has completely turned hostile to the case of the
prosecution. Even during her cross-examination made by the
Assistant Public Prosecutor after treating her as hostile witness
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with the permission of the Court, she has categorically denied
the statement recorded by the investigating officer under
Section 161 of Code of Criminal Procedure which is marked as
Exhibit P1. However, the prosecution had produced the
passbook pertaining to Smt. Saraswathamma, which is marked
as Exhibit P13. The prosecution has not pointed out that
whether the amount shown in Exhibit P13 is shown in RD
Journal or not. Smt. Saraswathamma has clearly stated that
the accused was working as Postmaster in Kothamangala Post
Office and she had RD account in that Post Office and she used
to deposit Rs.100/- to her account every month. She has also
deposed that she used to give the money to the accused to
which accused used to give the receipt and also make an entry
in the Passbook. She has also stated that she had deposited
Rs.9,000/- to her account and she has received back the same.
The same is also observed by the trial Court in paragraph 17 of
the Judgment. In the absence of pay-in-slips and the
counterfoils, it is not possible to come to the conclusion that the
accused has misappropriated an amount of Rs.4,200/- with
respect to RD A/c No.240702 pertaining to Smt.
Saraswathamma. The investigating officer has also not
produced any document to show as to withdrawal of the
amount as stated by Smt. Saraswathamma. When the
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customer herself has clearly admitted in her evidence that she
has already received whatever the amount she has deposited
into her account, the question of misappropriation of the
amount by the accused from the account of PW1-Smt.
Saraswathamma as alleged by the prosecution, does not arise.
17. It is further alleged by the prosecution that an amount
of Rs.2,250/- deposited by CW3-K Suvarna from 27th January
2004 to 20th August 2004 to her account No.241101. In this
regard, CW3-K Suvarna is examined as PW4. She has not
deposed anything against the accused. This witness is treated
as hostile witness and has been cross-examined by the
Assistant Public Prosecutor. Even during cross-examination,
she has clearly deposed that the Investigating Officer has not
recorded any statement under Section 161 of Code of Criminal
Procedure which is marked as Exhibit P16. Accordingly, the
prosecution has failed to elicit any favourable answer from this
witness. The prosecution has produced Exhibit P14-Passbook
pertaining to Smt. K Suvarna. It is alleged by the prosecution
that there is no entry in the SB Journal. But, the relevant entry
pertaining to SB Journal is marked as Exhibit P11. As per
Passbook, Exhibit P14, and amount of Rs.500/- was remitted on
25th March 2004, and on the same day, again an amount of
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Rs.750/- was remitted; Rs.1,000/- was remitted on 26th April
2004; Rs.1,250/- was remitted on 27th May 2004; Rs.1,500/-
was remitted on 28th June 2004; Rs.1,750/- and Rs.2,000/- was
remitted on 28th July 2004; and Rs.2,250/- was remitted on
20th August 2004. During the course of cross-examination of
PW1, the investigating officer has not collected pay-in-slips or
the counterfoils pertaining to aforesaid transactions, and the
investigating officer has also not taken any steps to identify the
officials who have put initials in the Passbook on the relevant
dates. In the absence of these material pieces of evidence, so
also, in view of the fact that the material witness PW4 having
not supported the case of the prosecution, it is difficult to
accept the interested testimony of the official witness that the
accused has misappropriated amount of Rs.2,250/-, as alleged
by the prosecution.
18. It is the further allegation of the prosecution that out
of Rs.2,000/- deposited by CW5-Venkatalakshmamma to her
RD A/c No.240425 from 24th November 2003 to 22nd September
2004, Rs.1,600/- is not deposited to the said account. In this
regard, CW5-Venkatalakshmamma is examined before the
Court as PW2. She has not supported the case of prosecution.
This witness is treated as hostile witness with the permission of
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the Court and was cross-examined by the Assistant Public
Prosecutor. In her cross-examination, she has clearly stated
that the police have not recorded the statement under Section
161 of Code of Criminal Procedure which is marked as Exhibit
P2. However, the prosecution has produced the Passbook
pertaining to the account of Smt. Venkatalakshmamma, which
is marked as Exhibit P10. Smt. Venkatalakshmamma has
deposed that she was depositing Rs.200/- in the said account
every month. The amount shown in the Passbook has not
found place in the SB Journal. Investigating Officer has not
stated anything in this regard nor has collected the pay-in-slips
or the counterfoils.
19. It is alleged by the prosecution that an amount of
Rs.6,000/- in respect of Account No.193602 pertaining to CW6-
Vishalakshi, is not remitted to the Government. The said
Vishalakshi is not examined before the Court. However, the
prosecution has produced the Passbook of Smt. Vishalakshi as
Exhibit P9. The same reveals that on 23rd February 2004, an
amount of Rs.50/- was deposited and on 26th February 2004 an
amount of Rs.6000/- was deposited into her account. The
prosecution has not produced any material to show whether the
accused was on duty on 26th February 2004 and as to whether
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he has affixed his initials on Passbook-Exhibit P9. Further, pay-
in-slips or the counterfoils pertaining to the remittances of the
amount to her account, has not been produced by the
prosecution. The investigating officer has not explained
anything as to non-production of these material evidences. In
the absence of these material piece of evidence, it is not
possible to come to the conclusion that the accused has
misappropriated the amount of Rs.6,000/- from the account of
the customer, as alleged by the prosecution.
20. Nextly, it is alleged by the prosecution, the amount of
Rs.2,000/- remitted by CW7-R Munireddy, Headmaster,
Government Higher Primary School, Kothamangala to his
Account No.191498 has been misappropriated by the accused.
In this regard CW7-Sri R Munireddy is examined as PW5. He
has not deposed anything against the accused. He has been
treated as hostile witness with the permission of the Court and
has been cross-examined by the Assistant Public Prosecutor.
Even during the cross-examination, he has denied as to the
statement recorded by the investigating officer under Section
161 of Code of Criminal Procedure, which is marked as Exhibit
P17. However, the prosecution has produced the Passbook-
Exhibit P6 pertaining to PW5-Sri R. Munireddy. The
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investigating officer has not stated anything as to the
identification of the officials who have affixed the initials in the
passbook. The investigating officer has not collected any
material to show that the accused was on duty on the relevant
date. In the absence of material witness, it is not safe to come
to the conclusion that the accused has appropriated the amount
of Rs.2,000/- remitted by CW7-Sri R Munireddy, merely based
on the interested testimony of official witnesses.
21. Both the Courts have not properly appreciated the
evidence on record in accordance with law and facts. In the
absence of material witnesses, though there are material
omissions and contradictions in the evidence of prosecution
witnesses and the entries shown in the Passbooks, both Courts
have blindly accepted the testimony of the official witness and
had come to conclusion that the prosecution has proved the
guilt of the accused. The same is not sustainable under law.
On meticulous examination of both oral and documentary
evidence placed before the Court, I am of the considered
opinion that absolutely there are no cogent, convincing,
clinching evidence before this Court to substantiate the case of
the prosecution. The prosecution has failed to prove that
essential ingredients of Section 409 of Indian Penal Code.
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Accordingly, prosecution has failed to prove the guilt of accused
beyond all reasonable doubts.
22. With regard to sanction under Section 197 of Code of
Criminal Procedure is concerned, for the first time before this
Court, the learned Counsel for the accused-Revision Petitioner
has raised this legal point. The initiation of criminal
proceedings is not maintainable for want of sanction. It is the
case of the prosecution that accused being the Branch
Postmaster has misappropriated the amount as alleged by the
prosecution. In such circumstances, it is the duty of the
investigating officer to obtain sanction before prosecuting the
Case. Be that as it may, this Court has held already held that
the prosecution has failed to prove the guilt of the accused
beyond all reasonable doubts. Hence, at this stage, there is no
need for giving any finding as to obtaining of sanction before
initiation of a criminal case. For the aforesaid discussions, I am
considered opinion that the both the Courts have failed to
appreciate the evidence on record in accordance with law and
facts. Accordingly, I answer the point that arose for
consideration in the affirmative. In the result, I proceed to pass
the following:
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ORDER
i) Revision Petition is allowed;
ii) The Judgment dated 24th March, 2014 passed in CC No.79 of 2008 by the Principal Civil Judge & JMFC, Mulbagal, which is confirmed by the I Additional Sessions Judge, Kolar in Criminal Appeal No.28 of 2014 dated 6th February, 2018, is set aside;
iii) Accused is acquitted of the offence punishable under Section 409 of Indian penal code;
iv) Fine amount, if any, deposited by the accused shall be refunded to him;
v) Registry to send back the trial Court records along with the copy of this order to the concerned Court.
Sd/-
(G BASAVARAJA) JUDGE lnn