State Of Karnataka vs Srikant S/O Bhimanna Kattimani ...
2021 Latest Caselaw 5891 Kant

                             1



           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 10TH DAY OF DECEMBER 2021

                        BEFORE

         THE HON'BLE MR. JUSTICE H.P.SANDESH

            CRIMINAL APPEAL No.200107/2014

BETWEEN:

STATE OF KARNATAKA,
REP. BY SPECIAL PUBLIC PROSECUTOR
(LOKAYUKTA),
HIGH COURT OF KARNATAKA,
GULBARGA BENCH.                          ...APPELLANT

(BY SRI SUBHASH MALLAPUR, SPL. PP)

AND:

1.     SRIKANT,
       S/O BHIMANNA KATTIMANI,
       AGE: 51 YEARS,
       OCC : COMMISSIONER CMC BIJAPUR,
       R/O : KHB COLONY, SOLAPUR ROAD,
       BIJAPUR-586101.

2.     KANTAPPA,
       S/O KRISHNAPPA JALIBERI,
       AGE: 43 YEARS,
       OCC : ASSISTANT EXECUTIVE ENGINEER CMC,
       BIJAPUR,
       R/O : CMC QUARTERS,
       NEAR HASIMPEER DARGHA,
       BIJAPUR-586101.

3.     DASTAGIR,
       S/O MAMULAL TARADE,
                           2



     AGE: 42 YEARS,
     OCC : ASSISTANT EXECUTIVE ENGINEER CMC,
     BIJAPUR,
     R/O : AWATI NAGAR,
     KIRTI BUILDING,
     BIJAPUR-586101.

4.   SAYYADJALANIPASHA,
     S/O ABDULSATTAAR INAMADAR,
     CMC, BIJAPUR-586101.

5.   SHAKEELHMAD ABDULSATTAR BAGALI,
     AGE: 44 YEARS,
     OCC : CONTRACTOR,
     R/O : NEAR SANGAMESHWAR SCHOOL,
     SUHANA COLONY,
     BIJAPUR-586101.

6.   ARVIND,
     S/O VASANNA DESAI,
     AGE: 35 YEARS,
     OCC : CONTRACTOR,
     R/O : MUDHOL,
     BIJAPUR-586101.

7.   GOPAL,
     S/O BHIMASHI CHAVAN,
     AGE: 42 YEARS,
     OCC : CONTRACTOR,
     R/O : JAMAKHANDI ROAD,
     KALEBAG, WARD NO.35,
     BIJAPUR-586101.

8.   FAZALAHMAD,
     S/O ABDULKARIMKHAN,
     OCC : CONTRACTOR,
     R/O : HUSENI COLONY,
     HAKEEM CHOWK, BIJAPUR-586101.

9.   ANISALIKHAN @ AJGAR ALIKHAN,
     S/O GULAM HUSENKHAN KHAN,
     AGE: 39 YEARS,
                             3



     OCC : CONTRACTOR,
     GREEN PARK, KARADI GARDEN,
     NEAR SECAB SCHOOL, NAVBAG,
     BIJAPUR-586101.                     ...RESPONDENTS

(BY SRI S.S. MAMADAPUR AND
 SRI ANIL KUMAR NAVADAGI, ADVOCATES FOR R-1 TO R-4)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C. PRAYING THIS COURT TO GRANT
LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 23.07.2014 PASSED IN SPECIAL (LOK)
CASE NO.09/2010 ON THE FILE OF THE DISTRICT AND
SESSIONS JUDGE/SPECIAL JUDGE AT BIJAPUR WHEREBY
ACQUITTING ALL THE ACCUSED/RESPONDENTS FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 13(1)(C) AND
13(2) OF THE P.C. ACT, 1988 AND FOR THE OFFENCES
PUNISHABLE UNDER SECTION 468 READ WITH SECTION 34
OF IPC.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 11.11.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                     JUDGMENT

This appeal is filed challenging the judgment of

acquittal dated 23.07.2014 passed in Special (Lok) Case

No.09/2010 on the file of the District and Sessions

Judge/Special Judge at Bijapur.

2. The factual matrix of the case is that accused

Nos.1 to 4 are working in different capacity in CMC Bijapur

at the relevant point of time. Accused Nos.5 to 9 are the

private contractors. It is alleged that during the financial

year 2005-06, accused Nos.1 to 4 had obtained

administrative sanction by the Revenue Department under

its order No.RD/490/TNR/2005 dated 19.08.2005 for

removing silt and for carrying other repair works to 21

wells of Bijapur District under the head "Flood Relief Fund"

and the said accused had carried out the work of removing

silt and the repair works of only 17 wells. In the charge

sheet, details were culled out in respect to the work

carried out, funds utilized by the accused, funds spent as

per the investigation and the amount misappropriated by

the accused i.e., amount spent by the accused in

Rs.9,57,823/- and funds spent as per the investigation is

Rs.4,24,513/- and the amount of misappropriation is

Rs.5,33,310/-. But it is alleged that out of the grant of

Rs.6,32,099/- sanctioned for the works at serial Nos.1 to

4, 6, 7, 11 and 13 to 17, accused Nos.1 to 3 being public

servants and accused No.5 to 8 being private contractor

have dishonestly misappropriated Rs.2,66,152/- and

utilized the said amount for their personal use by

fabricating certain documents showing that the work

allotted to them in all aspect has been completed. In all,

the accused persons misappropriated the funds allotted

and released. The police have investigated the matter and

filed the charge sheet for the offence punishable under

Section 13(1)(c) read with Section 13(2) of the Prevention

of Corruption Act and for the offence punishable under

Section 468 read with 34 of IPC.

3. The accused persons were secured and they

did not plead guilty and claimed trial and hence the

prosecution examined P.W.1 to P.W.20 and got marked the

documents at Exs.P.1 to 104. The accused persons were

subjected to 313 statement. Accused Nos.1 to 9 got

examined D.W.1 and D.W.2 and the document at Ex.D.1

was got marked in their defence evidence. The evidence

of accused Nos.1 to 9 is one of the total denial of the

prosecution case. The learned Trial Judge after considering

both oral and documentary evidence available on record,

acquitted the accused persons. Hence, the present appeal

is filed by the appellant contending that the Trial Court

failed to consider both oral and documentary evidence and

particularly the evidence of P.W.1, who is the Inspector of

police and also the complainant, who has deposed in detail

about the initial investigation and inspected the work along

with the Municipal Engineer, verified the documents and

collected the documents and made out a case of the

misappropriation of Government funds allotted to the

"Flood Relief Fund" by creating false documents.

4. P.W.2 who is the panch witness categorically

deposed that he was taken to 19 different places and work

undertaken was shown to them and panchanama was

drawn. P.W.3 to P.W.11, who are the residents of various

localities of Bijapur deposed regarding different wells which

are situated in respect of which the flood relief work was

done. Out of them, six witnesses have supported the case

of the prosecution and others have stated the sub-

standard work in respect of the well situated in their

locality. P.W.12 is the Assistant Engineer who valued the

extent of work done in respect of desilting and other

various works. P.W.15 is the Deputy Commissioner who

has given sanction for the Flood Relief Fund in question

and P.W.16 valued the extent of work done in respect of

19 wells in question. P.W.18 is the sanctioning authority.

P.W.20 is the second Investigating Officer of the case, who

had filed the charge sheet.

5. The learned counsel for the appellant would

vehemently contend that the Trial Court failed to consider

the evidence available on record and the very acquittal by

the Trial Court is not only illegal, but also perverse.

Hence, it requires interference of this Court. The learned

counsel reiterated the grounds urged in the appeal memo

and contended that the Trial Court has not appreciated

both oral and documentary evidence available on record in

a perspective manner.

6. Per contra, the learned counsel for respondent

Nos.1 to 4 would submit that there was no complaint and

P.W.1 voluntarily visited and registered suo motu

complaint and he himself investigated the matter.

Though, the work was entrusted for an amount of

Rs.9,57,823/- and work was done partly and entire

amount was not released and amount was released to the

extent to which the work was carried out. The learned

counsel would submit that the complainant, who has been

examined as P.W.1, he himself registered the case and

investigated the matter. The Trial Court taken note of the

said fact and comes to the conclusion that he cannot be a

complainant and investigator. The learned counsel would

further contend that third party inspection report was

given to the Deputy Commissioner and the same was

accepted and the Deputy Commissioner who has been

examined as P.W.15 comes and deposes that there was no

such misappropriation. The learned counsel submits that

there is a technical wing and if any work has not been

carried out as specified in the work, the technical wing has

to give the report and no such report is placed before the

Trial Court and the Trial Court having considered all these

aspects into consideration rightly acquitted the accused

persons.

7. Having heard the learned counsel for the

appellant and also the learned counsel for respondent

Nos.1 to 4 and also on perusal of the factual aspects of the

case and the grounds urged in the appeal as well as the

reasoning of the Trial Court, this Court has to formulate

the points for consideration on re-appreciation of the

evidence. Having considered the material available on

record, the following points arise for the consideration of

this Court:

(i) Whether the Trial Court has committed an error in acquitting the accused persons for the offence punishable under Section 13(1)(c) and 13(2) of the Prevention of Corruption Act?

(ii) Whether the Trial Court has committed an error in acquitting the accused for the offence punishable under Section 468 read with Section 34 of IPC?

(iii) What order?

Point Nos.(i) and (ii):

8. Having considered the grounds urged in the

appeal memo as well as the oral submission of the

respective counsel and also the evidence available on

record, it is the case of the prosecution that accused Nos.1

to 4 are working in CMC Bijapur and accused Nos.5 to 9

are the private contractors and the same is not in dispute.

The question before this Court is whether the funds

released by the Government is misappropriated or not.

P.W.1 has registered the case suo motu and investigated

the matter himself and P.W.20 is the Investigating Officer,

who completed the investigation and filed the charge

sheet. It is not in dispute that P.W.1 and P.W.20 are the

Investigating Officers. No doubt, P.W.1 in his evidence

says that there was a misappropriation and the documents

were created and he gave the evidence in terms of the

charges levelled in the charge sheet. P.W.2 is

panchanama witness and P.W.3 to P.W.11 are the villagers

in which village the work was undertaken. P.W.12 is the

Engineer who has valued the extent of work done in

respect of desilting work entrusted.

9. The main contention of the appellant before

this Court is that the Trial Court has not appreciated the

evidence properly. But the fact is that P.W.1 who was

working as Lakoyuktha Inspector, he himself registered

the case and investigated the matter and the same is not

in dispute. The Trial Court also while appreciating the

evidence available on record, taken note of the evidence of

P.W.1 to P.W.20 as well as the documents at Exs.P.1 to

104. There is also no dispute that the work was entrusted

to accused Nos.5 to 9 for desilting. P.W.18 and P.W.19

issued the sanction and though the same is disputed by

the accused, the Trial Court comes to the conclusion that

sanction order issued under Exs.P.104 and 103 are valid

and legal. But the question before the Court is whether

the respondents have misappropriated the amount and

whether proper investigation was done or with malafide

intention, investigation was taken place.

10. I have already pointed out that P.Ws.3 and 4

and 6 to 11 are the witnesses residing in the respective

locality wherein the flood relief work were carried out in

public well as well as other repair work. P.W.5 is also

another attesting witness. It is emerged in the evidence

that the complainant himself registered the case and

proceeded with the investigation. The said fact is also

considered by the Trial Court, which is fatal to the case of

the prosecution. It is important to note that it is well

settled that an impartial investigation is the essential

bedrock for any successful prosecution and undoubtedly

this situation was very unusual and was something that

rarely ever happens in a criminal case. The Supreme

Court in several judgments has held that legal infirmity are

an impediment where the Investigating Officer is the

complainant he is offending the principal of impartiality

and quality of investigation is required. I have already

pointed out that suo motu case was registered in the case

on hand and no complaint was given. It is important to

note that third party inspection report was also collected

by the Deputy Commissioner and the Deputy

Commissioner was also examined before the Trial Court as

P.W.15, and in his evidence he categorically deposes

before the Trial Court that he has got inspected the work

carried out by the accused through a third party

investigation and accepted the report stating that the work

was satisfactorily carried out.

11. The Trial Court while considering the material

available on record has taken note of the witnesses who

have been examined before the Trial Court and the

prosecution witnesses have not at all spoken regarding

using of substandard material in the work carried out by

the accused and that they have left out the work

incomplete. It is also evident from the records and also

emerged in the evidence that there is Technical Wing and

if any short fall in carrying out the work, the same has to

be inspected and to obtain the report from the Technical

Wing and no such report is collected from the Investigating

Officer from the Technical Wing. Having considered the

oral all evidence available on record, it shows that P.W.1,

who is the complainant himself registered case and

investigated the matter and collected the documents. The

Trial Court also while considering this aspect, in paragraph

No.31 discussed that case was registered on 25.04.2006

and P.W.1 ought to have taken help from the Technical

Wing of the Karnataka Lokayuktha, Bengaluru and not

from the local PWD Engineer. In order to prove the fact

that there was a fabrication of the document also, the

same has not been properly investigated and the

prosecution failed to prove the very fabrication of the

documents using the same for getting the amount released

and none of the witnesses have spoken with regard to the

same.

12. It is not in dispute that the work sanction was

given by P.W.15 i.e., the Deputy Commissioner and the

Deputy Commissioner comes and deposes before the Court

and identifies Ex.P.22 for removing silt from the wells and

he also categorically admits in the cross-examination that

third party inspection report was not at all challenged by

anybody and the said report was also accepted as

satisfactory. When the very officer who entrusted the

work is not having any grouse against the accused persons

that they have not done the work and hence it is clear that

the very registration of the case and investigation

conducted by P.W.1 is nothing but biased investigation and

I have already pointed out that there was no complaint

and the authority who gave the work and entrusted the

work have not given any complaint. The work was

entrusted by the Deputy Commissioner himself and third

party inspection was carried out and the report was

submitted stating that the work carried out by them was

satisfactory. When such being the material available on

record, I do not find any error committed by the Trial

Court in appreciating the over all evidence available on

record. Hence, I do not find any force in the contention of

the learned counsel for the appellant that the Trial Court

has not properly appreciated the oral and documentary

evidence available on record.

13. The prosecution mainly relies upon the

evidence of P.W.1, who is the complainant as well as the

investigator in the case on hand and his evidence cannot

be relied upon since he himself is the complainant and

investigator. The other witnesses evidence, particularly

the evidence of P.W.3 to P.W.11, who are the residents of

various localities, does not inspire the confidence of the

Court. P.W.12 is the Assistant Engineer of PWD, who has

valued the extent of work and much credence cannot be

given to his evidence since the complainant P.W.1 has not

availed the services of the Technical Wing, which is

working in the complainant's office. Under the

circumstances, it is not a fit case to reverse the finding of

the Trial Court and this Court has not found any illegality

committed by the Trial Court in appreciating the oral and

documentary evidence available on record. Having

perused the judgment in its entirety, this Court has not

found any illegality committed by the Trial Court in

appreciation of the evidence and hence I do not find any

merit in the appeal. Hence, I answer point Nos.(i) and (ii)

as negative.

Point No.(iii):

14. In view of the discussions made above, I pass

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

MD