Sri V N Manjunath vs State By Sagar Rural Police
2021 Latest Caselaw 5191 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 1ST DAY OF DECEMBER, 2021

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.100/2017


BETWEEN

SRI V N MANJUNATH
S/O V K NAGENDRA BHATTA,
AGED ABOUT 51 YEARS,
AGRICULTURIST,
R/O VARTHAKONDLU ARALAGODU VILLAGE,
BARANGI HOBLI-577421
SAGAR TALUK
                                      ...PETITIONER
(BY SRI SRIDHARA M.M., FOR
SRI SWAMY SHIVA PRAKASH H, ADVOCATES)

AND

STATE BY SAGAR RURAL POLICE
SAGAR, SHIVAMOGGA DISTRICT,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560001
                                    ...RESPONDENT

(BY SRI V.S.VINAYAKA, HCGP)
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     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER OF CONVICTION PASSED BY THE LEARNED
SENIOR    CIVIL   JUDGE  AND   JMFC,  SAGAR   IN
C.C.NO.256/2011 DATED 25.02.2013 AND JUDGMENT
PASSED BY THE LEARNED V ADDL. DIST. AND S.J.,
SHIVAMOGGA SITTING AT SAGAR IN CRL.A.NO.45/2013
DATED 29.11.2016.

     THIS CRIMINAL REVISION PETITION COMING ON
FOR FURTHER HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                         ORDER

Heard Sri Sridhara M.M., appearing for Sri Swamy

Shiva Prakash, learned counsel for the Revision Petitioner

and learned High Court Government Pleader for the

respondent -State and perused the records.

2. This Revision Petition is filed by the accused,

who suffered an order of conviction in C.C.No.256/2011,

on the file of the Senior Civil Judge & JMFC, Sagar by

Judgment dated 25.02.2013, whereby he has been

convicted for the offences punishable under Sections 465,

467, 471 and 409 IPC, which was confirmed in Criminal

Appeal No.45/2013, on the file of the V Additional District

and Sessions Judge, Shivamogga sitting at Sagar by

judgment dated 29.11.2016.

3. Brief facts of the case are as under:

The accused/Revision Petitioner was a Branch Post

Master at Avinahalli Branch from 16.04.2002 to

07.04.2003 and has forged the signature of Nirvanappa in

the S.B.Form No.7 with respect to the Recurring Deposit

Account No.1001027 and withdrew the amount for his own

use and again on 27.02.2003, he forged the signature of

Eshwara in similar manner and withdrew a sum of

Rs.12,000/-. In yet another occasion, he forged the

signature of Nanjappa in the similar fashion on

17.02.2003 and drew a sum of Rs.12,000/-. When these

discrepancies were noted, a formal complaint came to be

lodged against the accused for the aforesaid offences. The

jurisdictional police after thorough investigation, laid the

charge sheet against the accused for the aforesaid

offences.

4. The presence of the accused was secured

before the learned Magistrate and plea was recorded.

Accused pleaded not guilty and as such, trial was held.

5. In order to prove the case of the prosecution,

prosecution in all examined 12 witnesses as PWs.1 to 12

and relied on 26 documentary evidence which were

marked and exhibited as Exs.P1 to 26.

6. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

Cr.P.C was recorded, wherein accused denied all the

incriminatory circumstances found in the prosecution

evidence. However, accused did not choose to lead any

evidence nor place his version on record by adducing oral

evidence or filing a written submission as is contemplated

under Section 313(5) Cr.P.C.

7. Thereafter, learned Magistrate heard the

parties in detail and after considering the oral and

documentary evidence on record, convicted the accused

for the aforesaid offences and sentenced as under:

"The accused shall undergo S.I. for six months for the offence punishable under Section 465 of 1.P.C. and he shall pay a fine of Rs.1,000/-. In default of payment of fine, he shall undergo S.I. for 15 days.

The accused shall undergo S.I. for one year for the offence punishable under Section 467 I.P.C. and he shall pay a fine of Rs.2,000/-. In default of payment of fine, he shall undergo S.I. for 30 days.

The accused shall undergo S.I. for three months for the offence punishable under Section 471 I.P.C.

The accused shall undergo S.I. for one year for the offence punishable under Section 409 I.P.C. and he shall pay a fine of Rs. 2,000/-."

      8.      Being   aggrieved     by     the   same,    accused

preferred    an   appeal in Criminal       Appeal   No.45/2013.

Learned Judge in the First Appellate Court after securing

the records and hearing the parties in detail, dismissed the

appeal and confirmed the order of conviction and sentence

passed by the learned Magistrate. Thereafter, the accused

is in the Revision Petition.

9. In the Revision Petition, the following grounds

are raised:

"The impugned orders passed by the learned J.M.F.C and confirming the same by the learned Sessions Judge suffers from serious legal as factual infirmities and the same are liable to be set aside..

The petitioner is entrusted with the duty of collecting the money from the recurring deposit account holders and transmit the same to the head post office. Accordingly the petitioner collected the amount from the account holder and transmit the same to the head post office. the At no point of time he forged the signatures of account holders viz., Nirvanappa, Eshwar and Nanjappa. However the trial court without any basis has come to the conclusion that the petitioner has committed an offences alleged against him.

It is submitted that P.W.2 Nirvanappa who is one of the account holder and it was alleged that petitioner has misappropriated the amount belonging him. However on examination the said Nirvanappa categorically said that the petitioner did not forge his signature and his money was not misappropriated by the petitioner. Thus it is clear that the prosecution wanted to frame the accused

and failed. However this important evidence was ignored by learned trial judge as well as appellate court.

It is pertinent to note that the money was not entrusted to the petitioner as the money was laying in the head post office at Sagar. Hence there was misappropriation of money as there was no entrustment. Further the withdrawal slip submitted by account holder have been given to the head post office and officials at head post office passed the voucher and the officials of head post office made the payment to the account holders. Thus the petitioner has no role in disbursing the amount. Therefore at no stretch of imagination it can be said that the petitioner either committed the offence of misappropriation or forgery. The evidence of the expert does not indicate that the petitioner has forged the signature of Eshwar and Nanjappa. However the trial judge by mere surmise and conjecture has convicted the petitioner for the alleged offences. Hence the judgment of both the courts are liable to be set aside.

In the absence of direct evidence the trial court has based its conclusion on alleged circumstantial evidence. In fact there are no circumstances under which it can be said that the petitioner has

committed the alleged offences. The non filling of pass books as and when amounts are withdrawn cannot be attributable to the petitioner as the account holders, were having the pass books, unless the account holders present the same for making the entries the petitioner is not expected to make entries with regard to withdrawal in the pass book. Hence this finding of the trial court is liable to be interfered.

Looked at any angle the impugned orders passed by the learned J.M.F.C. and confirmed by learned Session Judge is otherwise opposed to law, facts and probability of the case."

Reiterating the above grounds, learned counsel for

the Revision Petitioner vehemently contended that both

the Courts have failed to notice that the accused/Revision

Petitioner has immediately repaid the money and

therefore, there was no misappropriation at all and the

same has not been properly considered and accused has

lost his job and his pensionary benefits also withheld by

the Govt. and therefore, both the Courts ought not have

convicted the accused for the aforesaid offences and

sought for allowing the revision petition. Alternatively, he

contended that the Court may consider that accused has

served the sentence of two years nine months and taking

note of the same, by enhancing the fine amount

reasonably, suitable orders may be passed letting the

accused at liberty.

10. Per contra, learned High Court Government

Pleader supported the impugned judgment by contending

that both the Courts have rightly appreciated the materials

on record and rightly convicted the accused. He further

contended that because of the Post held by the accused as

Branch Post Master, there was a automatic entrustment of

the entire assets of the post office in the hands of the

accused and accused having forged the signatures of

Nirvanappa, Eshwara and Nanjappa, withdrew the amount

from RD account and therefore, the prosecution is able to

prove the charges leveled against accused by placing

cogent and convincing evidence on record. He also pointed

out that the accused admitted the guilt and

misappropriated amount is also repaid by the accused in

the form of monthly installments recovered from his salary

and said aspect of the matter clearly indicate that accused

did misappropriate the amount from the accounts by

forging the necessary documents and which also resulted

in the all ingredients to attract the offence under Section

409 IPC and sought for dismissal of the Revision Petition.

11. Insofar as alternate plea is concerned, learned

High Court Government Pleader contended that if the

Revision Petitioners are shown leniency, the same would

send a wrong message to the society and therefore,

sought for dismissal of the Revision Petition in toto.

12. In view of the rival contentions and having

regard to the scope of the Revisional jurisdiction, the

following points that would arise for consideration are:

"1. Whether the finding recorded by the learned Magistrate that accused is guilty of the offences punishable under Sections 465, 467, 471 and 409 IPC, which was confirmed by the First Appellate Court is suffering from legal infirmity,

perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

13. In the case on hand, the materials on record

especially the documentary evidence placed before the

Court clearly indicate that the signatures found on the

Form No.7 of the SB Account No.1001027 of Nirvanappa,

Eshwara and Nanjappa is admittedly not the signatures of

the said persons and the same has been conclusively

established by placing necessary oral and documentary

evidence on record. A finding has been recorded by both

the Courts that those signatures are forged by the

accused. No proper explanation is forthcoming on behalf of

the accused in this regard. There is a withdrawal of the

money and it has been proved by placing statement of

accounts of the concerned accounts and the accused being

the Branch Post Master and custodian of all the records is

bound to explain how the money has been withdrawn. In

the absence of any such explanation offered by the

accused either at the time of recording the accused

statement or by examining himself or at least by placing

the written submission as is contemplated under Section

313(5) Cr.P.C., the Trial Magistrate rightly recorded the

finding that the accused is guilty of the offences alleged

against him. The learned Judge in the first Appellate Court

even after re-appreciation of the materials on record and

in the light of the grounds of appeal, did not find any legal

infirmity or perversity or patent factual error in recording

such a finding by the Trial Magistrate and accordingly,

confirmed the order of conviction and sentence passed by

the Trial Magistrate. This Court, in the light of the grounds

urged in the Revision Petition cited supra, re-appreciated

the entire materials on record with the limited scope of the

Revisional jurisdiction. On such re-appreciation, this Court

does not find any legal infirmity or patent factual error or

perversity in reaching such a finding by the Trial

Magistrate and learned Judge in the first Appellate Court.

Admittedly, there is no explanation on record on behalf of

the accused, who is the Branch Post Master as to the

amount that has been withdrawn from the account of the

above said persons and accordingly, point No.1 is

answered in the negative.

14. Insofar as sentence is concerned, it is found

from the records that accused has undergone

imprisonment for a period of two years nine months. The

Trial Magistrate has imposed fine as referred to supra.

Since the accused has lost his job and his pension is not

settled by the Govt., and taking note of the fact that the

accused is now aged 53 years as on today, this Court is of

the considered opinion that if the period of imprisonment

undergone by the accused is treated as imprisonment for

the aforesaid offences and ordered to pay fine of

Rs.1,00,000/- inclusive of already fine imposed by the Trial

Magistrate and confirmed by the first Appellate Court, ends

of justice would be met. Accordingly, point No.2 is

answered partly in the affirmative and pass the following:

ORDER

1. Criminal Revision Petition is allowed-in-part.

2. While maintaining the conviction of the accused for the offences punishable under Sections 465, 467, 471 and 409 IPC, the period of two years nine months spent by the accused in the imprisonment is treated as period of imprisonment for the aforesaid offences and accused is ordered to pay fine of Rs.1,00,000/- inclusive of fine already imposed by the Trial Magistrate on or before 15.01.2022.

It is made clear that in the event of accused failing to pay the balance fine amount, the order of the learned Magistrate confirmed by the first Appellate Court stands automatically restored.

Office is directed to return the trial Court records with a copy of this order forthwith.

Sd/-

JUDGE

KA*