B L Nagaraj vs State Of Karnataka
2021 Latest Caselaw 6360 Kant

                         1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 17TH DAY OF DECEMBER, 2021

                      BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.733/2012

BETWEEN:

B.L.NAGARAJ,
42 YEARS,
S/O B.G.LINGAPPA,
EX-SECRETARY OF BARAGI
MILK PRODUCERS SOCIETY,
RESIDING AT BARGI VILLAGE,
GUNDLUPET TALUK,
CHAMARAJNAGAR DISTRICT.
                                     ... PETITIONER
(BY SRI.D.R.SUNDARESHA, ADVOCATE)

AND:

STATE OF KARNATAKA,
REPRESENTED BY
GUNDLUPET POLICE.
                                     ...RESPONDENT
(BY SRI.V.S.VINAYAKA, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF CR.PC
PRAYING TO SET - ASIDE THE ORDER OF CONVICTION
AND SENTENCE PASSED IN C.C.NO.243/1997 ON THE FILE
OF THE CIVIL JUDGE (JR.DN.) AND JMFC, GUNDLUPET
DATED 25.11.2002 AND MODIFICATION OF THE
SENTENCE   IN  CRL.  APPEAL    NO.22/2004   DATED
                             2

23.01.2008 ON THE         FILE   OF   THE   P.O.,   F.T.C.,
CHAMARAJANAGAR.


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

                       ORDER

The accused, who suffered an order of conviction for

the offence punishable under Section 109(3) of the

Karnataka Co-operative Societies Act, 1959 (hereinafter

referred to as 'the said Act' for short) and Sections 175

and 188 of the Indian Penal Code, 1860 (hereinafter

referred to as 'IPC' for short) and ordered to undergo six

months simple imprisonment and to pay fine of Rs.1,000/-

for the offence punishable under Section 109(3) of the said

Act, Rs.500/- for the offence punishable under Section 175

of IPC and Rs.200/- for the offence punishable under

Section 188 of IPC with default sentence of 15 days simple

imprisonment which was modified by the learned judge in

the First Appellate Court by reducing the sentence of

simple imprisonment from six months to two months and

maintained the fine amount ordered by the trial

Magistrate, is in this Revision Petition.

2. Facts of the case are as under:

The accused was charge sheeted for the offence

punishable under Section 109(3) of the said Act and under

Sections 175 and 188 of IPC. The charge sheet material

reveals that the accused being the custodian of the books

of account of Baragi Milk Producing Co-operative Society,

Gundlupet Taluk, Chamaraj Nagar District, has failed to

produce the books of account to the society and thereby

committed an offence as referred to supra and also alleges

that there is misappropriation of Rs.33,530-15/- to the

society.

3. 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.

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

prosecution in all examined 13 witnesses as PWs.1 to 13

and relied on 15 documentary evidences which were

marked and exhibited as Exs.P1 to 15.

5. 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 by filing a written submission as is

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

6. 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 referred to

supra.

7. Being aggrieved by the same, accused

preferred an appeal in Criminal Appeal No.22/2004.

Learned Judge in the First Appellate Court after securing

the records and hearing the parties in detail, by judgment

dated 23.01.2008 allowed the appeal in part by

maintaining the conviction of the accused for the aforesaid

offences and modified the order of sentence as under:

ORDER

The appeal preferred by appellant/accused is modified only in respect of quantum of sentence imposed by the Court below:

The appellant/accused is convicted and sentenced to undergo imprisonment for Two Months for the offence punishable U/S 109(3) of Karnataka Co-operative Societies Act, 1959 instead of Six months and to pay fine of Rs.1000/- and in default to further undergo S.I. for One month. Further the accused is convicted and sentenced to undergo imprisonment for Fifteen Days instead of One Month and to pay fine of Rs.500/- in default to further undergo S.I. for Eight Days for the offence punishable U/S 175 IPC. Further the accused is convicted and sentenced to pay fine of Rs.200/- for the offence punishable U/S 188

IPC, in default to pay fine shall further undergo S.I. for Ten Days.

All the sentences shall run concurrently. The accused is also entitled the benefit of set off if the accused had already undergone imprisonment as provided U/S 428 Cr.P.C."

Being aggrieved by the same, the accused has preferred

the present revision petition.

8. Learned counsel for the Revision Petitioner has

challenged the impugned order on the following grounds:

x "Both the Courts erred in holding that the accused is guilty of offence.

x The conviction and sentence is opposed to Rule of Law, probability and evidence on record.

x The allegation that in 1994 the accused failed to hand over charge. The complaint is on 01/08/1995 after lapse of one year.

x The accused said have challenged the order before the Co-operative Society authority and inspite of the orders accused failed to hand over charges.

x Infact charge has been handed over as per Ex.P11 and still complaint has been lodged.

x The accused under 313 statement that he worked from 1984 to 1994 and due to political reasons he has been kept under suspension, therefore the trial Court and Apex Court has not considered the case properly.

x The order of conviction and sentence is illegal and improper, no offence has been made out.

x No other appeal or revision has been preferred on the same cause of action."

9. Reiterating the above grounds, Sri. D. R.

Sundaresha, learned counsel for the revision petitioner has

contended that both the Courts have not looked into the

aspect of the grant of sanction to prosecute the accused

which is mandatory requirement. He also pointed out that

the accused needs to be heard even at the time of

granting sanction itself and therefore, it is a protection for

the employees of the Co-operative Society, which is not

been complied in the case on hand and therefore, the

entire filing of the charge sheet and the trial stood vitiated

for want of proper sanction order and sought for allowing

the revision petition.

10. Alternatively, learned counsel appearing for the

revision petitioner contended that in the event of this

Court maintaining the order of conviction, leniency may be

shown as he is a first time offender. Only fine may be

imposed as the allegation that stood proved before both

the Courts is non-furnishing of books of account.

11. Per contra, learned High Court Government

Pleader supported the impugned judgments and contended

that the accused did not raise the question of want of

sanction order before the trial Magistrate or before the

learned judge in the First Appellate Court and faced trial

before the trial Magistrate and even in the First Appellate

Court, he did not raise the ground of want of sanction and

as such, for the first time before the revisional Court, he

cannot take such a stand and sought for dismissal of the

revision petition.

12. Insofar as alternate submission is concerned,

he contended that the sentence of imprisonment ordered

by the trial Magistrate has been modified by the learned

Judge in the First Appellate Court and therefore, there is

no further indulgence that could be shown by this Court

and sought for dismissal of the revision petition in toto.

13. In view of the rival contentions and having

regard to the scope of the Revisional jurisdiction, following

points would arise for consideration:

1. Whether the finding recorded by the learned Magistrate that accused is guilty of the offences punishable under Section 109(3) of the said Act and under Sections 175 and 188 of 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?"

14. In the case of hand, admittedly, the accused

was in custody of the books of account being the officer of

the Baragi Milk Producing Co-operative Society, Gundlupet

Taluk, Chamaraja Nagar District at the relevant point of

time when he was required to produce the books of

account, he failed to do so. The factual aspect of the

matter stands established by taking necessary oral and

documentary evidence on record on the ground of want of

sanction was never urged by the accused before the trial

Magistrate or before the First Appellate Court. Therefore,

for the first time before this Court urging the said ground

cannot be countenanced in law. The materials on record

clearly indicate that for non-furnishing of the books of

account, the accused is liable for the conviction under the

provisions of Section 109 of the Act, which deals with the

offences and penalties.

15. In order to take cognizance of the offence,

Section 111(3) of the Act is to be looked into. Section

111(3) of Karnataka Co-operative Societies Act, 1969

reads as under:

"111. Cognizance of offences.- (1) No court inferior to that of a Magistrate of the First Class shall try any offence under this Act.

[(2) No prosecution shall be instituted under this Act without the previous sanction of,-- (a) The 2 [Director of Co-operative Audit] 2 in respect of matters arising out of audit; xxxxx

(3) The sanction under sub-section (2) shall not be given,--

(i) without giving to the person concerned an opportunity to represent his case;

(ii) if the 1 [Director of Co-operative Audit]1 or the Registrar, as the case may be is satisfied that the person concerned has acted in good faith.]"

16. The said aspect of the matter having not been

urged before the learned trial Magistrate and before the

First Appellate Court, cannot be countenanced for the first

time before this Court in the revision petition. Accordingly,

the conviction order passed by the learned trial Magistrate

modified by the First Appellate Court needs to be

confirmed. Accordingly, point No.1 is answered in

negative.

17. Insofar as sentence is concerned, non-

furnishing of the books of account should not always

render imposing extreme punishment of sentence.

Further, even though in the allegations made that there is

a misappropriation of Rs.33,530-15/-, the accused was not

prosecuted for the misappropriation of the money but only

confined to the non-furnishing of the books of account.

18. Under such circumstance, imposing the

punishment of imprisonment to the tune of six months by

the learned trial Magistrate and modified by the First

Appellate Court for a period of two months cannot be

countenanced in law more so, when the accused is a first

time offender.

19. Accordingly, this Court is of the considered

opinion that the sentence ordered and modified by the

First Appellate Court needs interference at the hands of

this Court.

20. However, at this stage Sri. D. R. Sundaresha,

learned counsel appearing for the revision petitioner

apprehends that taking note of the order passed by this

Court, disciplinary proceedings will be initiated against the

accused and therefore, suitable orders may be passed by

this Court while disposing the revision petition.

21. The said apprehension of the learned counsel

appearing for the revision petitioner can be quelled by

passing appropriate order in this revision petition itself.

Accordingly, point No.2 is answered partly-in-affirmative

and pass the following:

ORDER

i. The Criminal Revision Petition is allowed-

in-part.

ii. While maintaining the conviction of the accused for the offence punishable under Section 109(3) of the Co-operative

Societies Act and under Sections 175 and 188 of IPC, the order passed by the learned trial Magistrate imposing fine and modified by the First Appellate Court is maintained for the aforesaid offences.

iii. However, it is made clear that having regard to the nature of the offence namely non-furnishing of books of account and leaving out the charge for misappropriation of Rs.33,530-15/- by the Prosecuting Agency itself, the present order shall not be made as a basis for initiating the disciplinary enquiry against the accused - revision petitioner so also it should not affect the service conditions of the revision petitioner.

Sd/-

JUDGE

VBS/PL