Karnataka High Court

Smt B G Sunandamma vs State By Kadur P.S on 18 December, 2021

Bench: V Srishananda

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

 DATED THIS THE 18TH DAY OF DECEMBER 2021

                     BEFORE

   THE HON'BLE MR.JUSTICE V. SRISHANANDA

             CRL.RP. NO.149 OF 2017

BETWEEN:

SMT. B. G. SUNANDAMMA
W/O SRI. SUNDARAJ
AGED ABOUT 54 YEARS
PRESIDENT
CHIKKANGALA GRAMA PANCHAYATH
R/AT CHIKKANGALA
KADUR TALUK - 577 548
CHIKKAMAGALUR DISTRICT            ... PETITIONER

(BY SRI.SAMEER S. N., ADVOCATE)

AND:

STATE BY KADUR P. S.
KADUR, CHIKKAMAGALUR
DISTRICT - 577 548
REP. BY SPP, HIGH COURT
BANGALORE                         ... RESPONDENT

(BY SRI V. S. VINAYAKA, HCGP)

    THIS CRIMINAL REVISION PETITION IS   FILED
UNDER SECTION 397 READ WITH SECTION 401 OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGEMENT
DATED 06.02.2013 PASSED BY THE SENIOR CIVIL
JUDGE AND J.M.F.C., KADUR, CHIKKAMAGALURU IN
C.C.NO.46/2006 AND SUBSEQUENTLY THE DISMISSAL
OF THE JUDGMENT DATED 04.11.2016 PASSED BY THE
II ADDITIONAL SESSIONS JUDGE, CHIKKAMAGALURU
IN CRIMINAL APPEAL NO.112/2013.
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    THIS CRIMINAL REVISION PETITION COMING ON
FOR FURTHER HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:-

                            ORDER

The present revision petition is filed against the

order of conviction and sentence passed in

C.C.No.46/2006 which was confirmed in

Crl.A.No.112/2013.

2. The brief facts of the case are as under:-

A charge sheet came to be filed against the

revision petitioner contending that from 01.04.2004 to

26.11.2004, accused No.1 being the Secretary and

accused No.2 being the President of Chikkangala Village

Panchayath, Kadur Taluk had illegally withdrawn a sum

of Rs.6,26,171/- which was granted for various

purposes and had committed a criminal breach of trust

and misappropriated the said amount and cheated the

Government and thereby committed the above said

offences. One Sri.M.R.Ekanthappa has filed a complaint

to the police and accordingly, police registered a case in

Crime No.84/2005 and after thorough investigation,

police have filed charge sheet against the accused for

the aforesaid offences. Thereafter, the learned trial

Magistrate secured the presence of the accused and

framed the charge. After hearing the charge, the

accused persons denied the charge and therefore,

turned aside.

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

19 witnesses have been examined as P.Ws.1 to P.W.19

and prosecution relied on 45 documents which are

exhibited and marked as Exs.P.1 to P.45 comprising of

audit report marked at Ex.P.6. PWs-3 and 4 are the

persons who have conducted the audit in the Grama

Panchayat and specifically deposed that there was

misappropriation of funds allotted to the Grama

Panchayat and accused Nos.1 and 2 are responsible for

the same.

4. After completion of the prosecution evidence,

accused statements as contemplated under Section 313

of Cr.P.C. have been recorded wherein the accused

persons have denied all the incriminating circumstances

put against them. Accused Nos.1 and 2 got examined

themselves as DW-1 and 2 thereafter. In their

evidence, the accused No.1 has contended that in the

National Rural Employment Scheme, the amount has

been sanctioned to construct kitchen in Andenahalli

Village and for constructing the compound wall and also

rain water harvesting in Chikkangala Village. He further

deposed that 11 rain water harvesting projects were

carried out in various villages. He also contended that

in Chikkangala village, shops were constructed and in

Srirampura, bus stand was constructed. He further

contended that a sum of Rs.10,00,000/- was also

received by the Grama Panchayat for Swacha Grama

Yojane and sum of Rs.5,75,250/- was spent for

metalling road and for construction of the garbage pit a

sum of Rs.1,15,000/- was spent and for the repairs of

school and for construction of toilet in High School,

Primary School and in Anganawadi, a sum of amount of

Rs.1,15,100/- was spent. In other words, in his

evidence, he has given account for having spent the

entire amount that was granted to the Grama

Panchayath.

5. Smt. B.G.Sundandamma, who is accused No.2

has stated that she was the President of the

Chikkangala Grama Panchayat during the year 2003-

2004 and regular meetings were conducted in the

Panchayath and house tax and water tax was collected

by the Bill Collector and it was deposited into the Bank

and the bills have been signed by them after verifying

the report done by the Engineer.

6. In the cross-examination by the Assistant Public

Prosecutor, DW-1 has specifically admitted that for

having spent sum of Rs.5,75,250/- for developmental

work and metalling work, he has not produced any

document. He has also stated that for having spent a

sum of Rs.1,15,000/- for rain water harvesting project

he has given document to the auditor so also he admits

that for having spent a sum of Rs.1,15,100/- for

construction of toilet in Higher Middle School and

Anganawadi he has not given any documents. In

further chief-examination of DW-2, she has stated that

the regular resolutions of the meetings will be sent to

the Executive Officer periodically. She also admits that

any projects in the Grama Panchayat would be carried

out only after written permission from the Executive

Officer. She also admits that it is only after completion

of the work, work report has been filed and amount

would be disbursed.

7. In the cross-examination of DW-2 i.e., accused

No.2, it has been elicited that for withdrawal of the

amount from the Bank, the signature of President and

Secretary is necessary. She has also answered that she

has seen the developmental work personally.

8. The learned trial Magistrate appreciated the oral

and documentary evidence on record. In the light of

the explanation offered by the accused persons in the

form of oral testimony, came to the conclusion that

there is misappropriation of amounts to the tune of

Rs.4,51,304/- during the period 01.04.2004 to

26.11.2004 and convicted the accused Nos.1 and 2 for

the offence punishable under Section 409 read with

Section 34 of IPC and passed an order of sentence to

undergo Rigorous Imprisonment for a period of two

years and to pay fine of Rs.2,000/- each. In default of

payment of fine, accused Nos.1 and 2 shall undergo

Simple imprisonment for a further period of two months

each. The accused Nos.1 and 2 are convicted for the

offence punishable under Section 420 read with Section

34 of IPC and sentenced to undergo Simple

Imprisonment for a period of two years each and to pay

fine of Rs.2,000/- each. In default of payment of fine,

the accused Nos.1 and 2 shall undergo Simple

Imprisonment for a further period of two months each.

9. Being aggrieved by the same, accused No.2

preferred Crl.A.No.112/2013. Learned Judge in the First

Appellate Court secured the records and in the light of

grounds urged in the appeal, re-considered the matter

and re-appreciated the material evidence on record and

dismissed the appeal filed by accused No.2 by

confirming the order of conviction and sentence. Being

aggrieved by the same, accused No.2 has filed revision

petition before this Court.

10. Sri.Sameer S.N., learned counsel for the

revision petitioner has challenged the orders passed by

both the Courts on the following grounds:-

"This Judgment of the Trial Court and the First Appellate Court are highly erroneous and not sustainable under law. The learned Trial Court had erred in not appreciating the admission made by the PW-1 who stated without evidence that the Government grant have misused. The learned Trial Court has erred in not holding the Accused No.2 an innocent person when the documents produced by the respondent, prosecution do not exactly reflect the amount of grant extended by the Government to Chikkangala Grama Panchayath and various amounts drawn. Under the learned Trial Court Judgment has erred in not considering the admission of PW-2 who admits that there was an earlier FIR on 19/01/2005 and that the FIR was 24/03/2005 which provided the ample scope for the prosecution to tamper with the evidence and admission that, there was no mahazar done before bringing 31 documents from the Grama Panchayath to Taluka Panchayath and then to the Police. He also admits that, the statement was not recorded by the police. He also admits

that all the 31 documents were not as on the date of filing of the FIR.

2. The Trial Court has erred in not differentiating the various amounts under various heads misappropriated namely under misappropriation of tax collection, misappropriation of amount granted under first SGRY Scheme and Indiragandhi Awas Yojana.

3. The non deposit of tax collected by the Tax Collector and the Secretary cannot be linked to the President/Accused No.2. Likewise, the Grama Panchayath financial matter is dealt with by the Secretary to the Grama Panchayath and not by the President who only has to carry out resolutions and the decisions of the Panchayath as nominal head.

4. The exact amount of misappropriation of money under the different heads like money collected as tax, money to be utilized for the Bank under SGRY and Indiragandhi Awas Yojana are not clearly identified and differentiated.

5. The amount misappropriated is not supported by the document produced by the prosecution. The Trial Court has erred in appreciating irrelevant evidence and

documents in passing the Judgment of conviction.

6. The Trial Court has erred in considering the oral and documentary evidence on the prosecution without considering the oral evidence of the accused.

7. The trial Court has erred in passing of the conviction even though mahazar of the document was done in the police station as admitted by the mahazar witnesses and not at the spot when the documents were seized.

8. Most of the witnesses examined by the prosecution have turned hostile and have not supported the prosecution case. Inspite of that the trial court and the appellate court have convicted the accused. The amount of misappropriation in the middle of the trial has been changed which is ample proof of the shoddy investigation and filing of the charge- sheet by the respondent is highly motivated and influenced. The procedure adopted by the trial Court in allowing the charges being altered without there being additional charge sheet under Section 173 (8) of Cr.P.C. itself is sufficient to show that a fair trial is not conducted.

9. No other proceedings or litigation relating to the subject matter or any part thereof either past or present is pending before this Hon'ble Court or any other court of law."

11. Re-iterating the above grounds, Sri.Sameer

S.N., learned counsel for the revision petitioner

vehemently contended that both the Courts have not

properly appreciated the material evidence on record

and blindly believed the oral evidence of PWs-4 and 5

by ignoring the admissions obtained by the defense in

their cross-examinations and wrongly convicted accused

No.2 resulting in miscarriage of justice. He further

contended that accused No.2 was not in custody of the

records and it is the Secretary of the Grama

Panchayath, who was custodian of the records and non-

production of the records by the accused No.1 has been

blown out of proportion by the learned trial Magistrate

while convicting accused No.2 which has been ignored

by the learned Judge in the First Appellate Court and

therefore, sought for allowing the revision petition.

Alternatively, he has pleaded for taking lenient view for

the revision petitioner, in the event, this Court is

confirming the order of conviction.

12. Per contra, learned HCGP supported the

impugned judgments by contending that sanction of the

amounts to the Grama Panchayath and the expenditures

made by the accused persons have been taken note of

by the learned trial Magistrate in proper perspective and

in the absence of suitable documents to substantiate the

amount spent for alleged developmental works being

not produced, the learned trial Magistrate rightly

recorded a finding that the amount of Rs.4,51,304/- has

been misappropriated by the accused persons for the

period 01.04.2004 to 26.11.2004 and therefore, sought

for dismissal of the revision petition.

13. He further pointed out that in the cross-

examination of DW-1, it has been clearly elicited that he

has not produced the document to substantiate the

alleged developmental work. He also pointed out that if

accused persons are not in custody of the documents,

nothing prevented the accused to summon the

documents from the Grama Panchayat and to establish

the contentions urged by them and having failed to do

so, the accused persons cannot now contend that the

conviction order passed by the trial Magistrate is

incorrect. In so far as the alternate plea is concerned,

learned HCGP contends that the learned trial Magistrate

has held that the accused persons are liable for the

offences punishable under Sections 409 and 420 read

with Section 34 of IPC, grant of probation is

impermissible and therefore, it has been rightly rejected

by the learned trial Magistrate. He also points out that

there is discretion in the order of sentence about the

age of the accused No.1 so also the gender of accused

No.2 and taking note of the same, the trial Magistrate

has granted only two years of Rigorous Imprisonment

for the offence punishable under Section 409 of IPC and

two years of Simple Imprisonment for the offence

punishable under Section 420 of IPC and which is

perfectly justified and sought for dismissal of the

revision petition in toto.

14. In the case on hand, in view of the rival

contentions and also having regard to the scope of the

revisional jurisdiction, following points would arise for

consideration:-

1. Whether the finding recorded by the trial Magistrate confirmed by the First Appellate Court that accused persons are guilty of the offences punishable under Sections 409 and 420 read with Section 34 of IPC is suffering from patent factual defects, error of jurisdiction, legal infirmity or perversity and thus, calls for interference?

2. Whether the sentence is excessive?

15. In the case on hand, the accused No.1 being

the Secretary and accused No.2 being the President of

the Chikkangala Grama Panchayath is not in dispute.

So also the sanction of the amount by the Government

for the Chikkangala Grama Panchayath is not in dispute.

As is admitted by accused No.1 in his examination-in-

chief itself, he has spent the money received from the

Government for the purpose of metalling the road,

developmental activities, rain water harvesting,

constructing garbage pits and for construction of toilets

in High School, Higher Middle School as well as in the

Anganawadi. Even according to him, out of Swacha

Grama Yojana, a sum of Rs.10,00,000/- has been

allotted to Chikkangala Grama Panchayath and also he

has spent a sum of Rs.5,75,250/- for metalling the road

and Rs.1,15,000/- for construction of the garbage pit

and Rs.1,15,100/- for the purpose of construction of

toilet in High School, Higher Middle School and

Anganawadi. That means to say a sum of Rs.8,05,250/-

has been spent for the aforesaid purposes. Further,

under the National Rural Employment Project, a sum of

Rs.2,77,350/- has been sanctioned and in the said sum,

sum of Rs.60,000/- has been spent for construction of

kitchen in Higher Primary School and sum of

Rs.15,000/- was spent for rain water harvesting project

and sum of Rs.25,300/- was spent for laying water

pipeline for drinking water.

16. In his cross-examination, he admits that he

has not produced any documents to substantiate the

expenditure. He submits that he does not have the

documents to substantiate the same as it is not in his

custody. He being the Secretary, he is bound to have

custody of these documents. Non furnishing of the

documents not only raise lot of suspicion but also

resulted in lapse of how the payment has been made if

there is no receipts for having spent the money.

Accused No.2, being the President, is the signing

authority for the cheque as is admitted by her. Unless,

the documentary evidence is placed before the Elected

Members, there cannot be any approval of the

expenditure made by the Grama Panchayath. It is also

admitted by DW-2, who is accused No.2 that the

payment is to be made by issuing the cheque signed by

both President and Secretary of the Grama Panchayath.

How an expenditure came to be made without a

document is a question that remains unanswered by the

accused persons. The audit report filed before the trial

Magistrate marked at Ex.P.6 clearly shows that there is

misappropriation of funds. PWs-3 and 4 are the persons

who have conducted the audit. No doubt, in their cross-

examination few admissions are elicited by them to

show that the auditors did not lay their hands to the

Bank details. However, it is for the accused No.1 to

produce the Bank details as he was in custody of those

documents. Under such circumstances, when there is

no documentary proof furnished by the accused

persons, PWs-3 and 4 have given the report that there

is misappropriation of funds. Admittedly, PWs 3 and 4

did not possess any previous enmity or animosity

against the accused persons to depose falsely. Further,

the accused Nos.1 and 2 having chosen to offer an

explanation for the expenditure, did offer an explanation

but only through their oral testimony and there is no

material on record to show that the amount that has

been received by the Chikkangala Grama Panchayath

and has been properly utilized by placing the proper

documentary evidence on record. Accordingly, the trial

Magistrate believed the audit report and recorded a

categorical finding that accused Nos.1 and 2 have

misappropriated in a sum of Rs.4,51,304/-. Accused

Nos.1 and 2 being Secretary and President of the

Chikkangala Grama Panchayath are the custodian of the

entire amount in the Grama Panchayath by virtue of

their position and there is an automatic entrustment of

amount in their hand. Accordingly, all ingredients

required to attract offences under Sections 409 and 420

read with Section 34 of IPC has been rightly concluded

by the trial Magistrate and the learned Judge in the First

Appellate Court.

17. This Court having regard to the scope of

revision jurisdiction, re-considered the material

evidence on record and does not find any legal infirmity

or perversity or patent factual defect or error of

jurisdiction in reaching out such a finding by the trial

Magistrate or by the learned Judge in the First Appellate

Court. Accordingly, point No.1 is answered in the

Negative.

18. Point No.2:-

It is contended by the learned counsel for the

revision petitioner that accused No.2 is a Lady, who is

aged about 45 years on the date of registering the case

in the year 2013 and now, she is aged about 53 years

and therefore, leniency may be given. The mere fact

that accused No.2 being the President of the

Chikkangala Grama Panchayath and has only signed the

cheque cannot be a ground to treat her under litigating

circumstances. However, having regard to the fact that

accused No.2, who is the revision petitioner is a Lady,

the rigorous imprisonment for a period of 2 years needs

to be converted into Simple Imprisonment for a period

of 1 ½ years for the offence punishable under Section

409 of IPC. Therefore, to that extent, the sentence

ordered by the trial Magistrate and confirmed by the

First Appellate Court needs to be modified. Hence,

Point No.2 is answered partly in the affirmative and

pass the following:-

ORDER

(i) This Criminal Revision Petition is allowed-

in-part.

(ii) While maintaining the conviction of the

revision petitioner for the offences

punishable under Sections 409 and 420

read with Section 34 of IPC, the sentence

ordered by the learned trial Magistrate

confirmed by the First Appellate Court

imposing two years of Rigorous

Imprisonment for the offence punishable

under Section 409 of IPC and two years of

Simple Imprisonment for the offence

punishable under Section 420 of IPC is

reduced to 1 ½ years Simple

Imprisonment by enhancing the fine

amount in a sum of Rs.10,000/-.