Sri T Chandappa Naik vs State Of Karnataka
2022 Latest Caselaw 10099 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE          1ST DAY OF JULY 2022

                              BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

   CRIMINAL REVISION PETITION No.792 OF 2013

BETWEEN:

Sri T.Chandappa Naik,
S/o T.Damu Naik,
Aged about 62 years,
R/at Thoudugoli House,
Naringana Village and Post,
Bantwal Taluk,
D.K. 575 201.                                 .. Petitioner

 ( By Smt.Haleema Ameen, Advocate )

AND:

State of Karnataka,
Represented by
State Public Prosecutor,
High Court Buildings,
Bangalore-560 001.                            .. Respondent

 ( By Sri K.Nageshwarappa, HCGP )

       This Criminal Revision Petition is filed under Section
397(2) of Cr.P.C. praying to set aside the judgment and order
of conviction dated 07.11.2008, made in C.C.No.577/2002 by
the Court of Additional Civil Judge (Junior Division) and
J.M.F.C., Bantwal, D.K. and the judgment and order dated
23.08.2013 made in Cr.Appeal No.403/2008 by the II Additional
District and Sessions Judge, D.K. Mangalore, in the interest of
justice.
                                                Crl.R.P.No.792/2013
                               2


      This Criminal Revision Petition is coming on for Hearing,
through Physical Hearing/Video Conferencing Hearing, this day
the Court made the following:

                             ORDER

The present petitioner was tried as accused by the

Court of learned Addl.Civil Judge (Jr.Dn.), & J.M.F.C.,

Bantwal, Dakshina Kannada, (hereinafter for brevity

referred to as the `trial Court') in C.C.No.577/2002, for the

offences punishable under Sections 466, 409 of Indian

Penal Code, 1860 (hereinafter for brevity referred to as the

`IPC') and was convicted by its judgment of conviction and

order on sentence dated 07.11.2008 and was sentenced

accordingly.

Aggrieved by the same, the petitioner/accused

preferred an appeal under Section 374(3) and 382 of

Cr.P.C., in Criminal Appeal No.403/2008, before the

learned II Addl.District and Sessions Judge, Dakshina

Kannada, Mangaluru, (hereinafter for brevity referred to as

the `Sessions Judge's Court'). The learned Sessions

Judge's Court after hearing both side, by its impugned Crl.R.P.No.792/2013

judgment dated 23.08.2013, dismissed the appeal

preferred by the accused and confirmed the impugned

judgment passed by the trial Court in C.C.No.577/2002.

Being aggrieved by the same, the petitioner has preferred

the present revision petition.

2. Heard the arguments of learned counsel for the

petitioner and learned High Court Government Pleader for

the respondent who are physically present in the Court.

3. Learned counsel for the petitioner in her

arguments submitted that though the petitioner has raised

few grounds in his memorandum of petition, but, he would

not press on any of those grounds, except requesting this

Court to waive the sentence of imprisonment and confine

the sentence only to the fine amount which may be at

slightly enhanced amount and thus to give solace to the

petitioner, who according to her, is 75 years old and is

suffering with various ailments and ill-health.

Crl.R.P.No.792/2013

4. Learned High Court Government Pleader for the

respondent-State in his brief argument submits that

though fixing the quantum of sentence is to the discretion

of the Court, however, he would only bring to the notice of

the Court that, irrespective of quantum of the amount

involved in the alleged offence, it is the nature of the

offence to be considered. It is not just the criminal breach

of trust by a public servant, but, also the forgery of the

records of the department that is involved in the present

case. As such, the magnitude of the nature of the offence

should be borne in mind, which probably would not allow

to further reduce the sentence of imprisonment which has

already been ordered by the trial Court.

5. Perused the materials placed before this Court,

including the trial Court and Sessions Judge's Court's

records.

6. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the trial

Court.

Crl.R.P.No.792/2013

7. After hearing the learned counsel from both side,

the only point that arise for my consideration in this

revision petition is:

Whether the sentence ordered by the trial Court, which was further confirmed by the Sessions Judge's Court warrants any interference at the hands of this Court?

8. The admitted facts of the case are that the present

petitioner (accused) was working a Post Master at

Naringana G.D.S. Post Office. On 29.06.1998, CW-3 paid

a premium of `990/- to his R.P.L.I. Policy

No.RKT/SK/EA/40714. The same was shown by the

petitioner (accused) in his Pass Book and a receipt bearing

No.16 also issued to the policy holder. The accused

instead of depositing the same into the Head of Account of

the Post Office, misappropriated the said amount for

himself and on 06.07.1998, he tampered the record and

changed the amount only to `90/- instead of `990/- in

R.P.L.I. receipt No.16 and paid only `90/- in the Head of Crl.R.P.No.792/2013

Account in his Post Office. Thus, there was

misappropriation of `900/- by forging the document.

Similarly on 22.05.1999, CW-3 had paid another sum

of `1,080/- to the same account. It was reflected in his

Pass Book entered by the petitioner as a Post Master,

however, the said amount in its entirety was not taken into

Books of Account maintained in the Post Office. On

02.07.1999, the said receipt was forged as `360/- instead

of `1,080/- and thus, the accused misappropriated and

used the difference amount of `720/- by himself and

thereby the accused (petitioner) misappropriated a total

sum of `1,620/- by forging the documents and Books of

Accounts maintained in the Post Office and thus, has

committed the offences punishable under Sections 466,

409 of IPC.

9. Since the accused pleaded not guilty, he was tried

for the alleged offences, wherein to prove the alleged guilt

against the accused, the prosecution examined in all eight

witnesses from PW-1 to PW-8 and got marked documents Crl.R.P.No.792/2013

from Exs.P-1 to P-24. In his defence, the accused got

marked a portion in the statement of PW-7 as Ex.D-1.

10. After recording the statement made by the

accused under Section 313 of Cr.P.C. and hearing both

side, the trial Court by its impugned judgment of

conviction and order on sentence dated 07.11.2008,

convicted the accused for the offences punishable under

Section 466 and 409 of IPC and sentenced him to undergo

simple imprisonment for a period of one year and to pay a

fine of `1,000/-, in default, to undergo simple

imprisonment for a period of thirty days for each of the

two offences for which he was convicted.

11. Though the petitioner has raised few grounds in

his memorandum of petition and sought for setting aside

of the judgment of conviction also, however, the learned

counsel for the petitioner in her brief arguments submitted

that she would not agitate any grounds seeking setting

aside the judgment of conviction and fairly accepts the

judgment of conviction, however, her only plea is to Crl.R.P.No.792/2013

reconsider the sentence of imprisonment and to confine

the punishment only to the fine, may be with some

enhancement of the fine ordered against the petitioner

(accused). She further submits that the petitioner along

with age related ailments, is also suffering with other

various ailments of hypertension, diabetes and breathing

problem and as such, if he is sent to imprisonment, that

too, for an year, there is no guarantee of he coming out of

the jail after completion of period of imprisonment.

12. A perusal of the evidence led from the

prosecution side through PW-1 to PW-8 and the documents

produced as Exs.P-1 to P-24, gives no scope to alter or

vary or set aside the impugned judgments of conviction

passed by the trial Court and which was further confirmed

by the Sessions Judge's Court. As such, the learned

counsel for the petitioner has fairly conceded that she

would not dispute the judgment of conviction, but, pleads

for mercy of the Court only so far as order on sentence is

concerned.

Crl.R.P.No.792/2013

13. It is the sentencing policy that the sentence

ordered must be proportionate to the gravity of the proven

guilt of the accused. It must not be either exorbitant or

for namesake.

14. Learned counsel for the petitioner while making

her submission to revisit the order on sentence and to

remove the sentence of imprisonment, has relied upon two

judgments of Hon'ble Apex Court.

In Bonela Swaminatham -vs- State of A.P. reported in

2002 SCC (Cri) 1042, for the offences punishable under

Sections 409 and 420 of IPC, the Hon'ble Apex Court after

noticing that the alleged amount of misappropriation was a

sum of `13,400/- and that he had already repaid the said

amount back to the bank which has alleged

misappropriation against the appellant before it and also

after noticing that the appellant before it was though

ordered to undergo rigorous imprisonment for a period of

one year, had already undergone the imprisonment for a Crl.R.P.No.792/2013

period of three months, was pleased to reduce the

sentence of imprisonment to the period already undergone

by the appellant. Accordingly, the appeal came to be

disposed of.

In State of H.P. -vs- Karanvir, reported in 2006

Crl.L.J. 2917, wherein also the accused was a Post Master

and was convicted for the offence punishable under

Section 409 of IPC and was sentenced to undergo simple

imprisonment for a period of six months and to pay a fine

of `1,000/-, the Hon'ble Apex Court after considering the

age of the accused, which was at 60 years, and noticing

that before filing of FIR, he had already deposited the

misappropriated amount with interest and also of the fact

that the offence was said to have taken place fifteen years

back, was pleased to impose a fine of `4,000/- upon the

accused which was in addition to the amount of fine of

`1,000/- imposed by the trial Court and observed that the

interest of justice would be subserved if any substantial

sentence was not awarded.

Crl.R.P.No.792/2013

15. In the instant case also, though the alleged

misappropriation was said to have been taken place in the

year 1998 and 1999, however, admittedly the petitioner

(accused) has repaid the alleged amount of

misappropriation on 13.07.2000 as could be seen in

Ex.P-6. The FIR came to be filed in this matter nearly

eleven months thereafter, which was on 01.06.2001.

Thus, much before a criminal case would be registered

against him in the respondent-Police Station, he had

already paid the entire amount.

Secondly, the alleged misappropriated amount is in

total a sum of `1,620/- only.

Thirdly, he was said to be a Post Master and

admittedly he was dismissed from the service after holding

a departmental enquiry. As such, from the date of his

removal from the services, according to the learned

counsel for the petitioner, he has been mentally suffered a

lot and paid the cost of his health.

Crl.R.P.No.792/2013

Lastly, according to the learned counsel for the

petitioner, he is now 75 years old and apart from age

related ailments, he is also suffering with other various

ailments of hypertension, diabetes and breathing problem.

The said submission is not denied or disputed from the

other side.

16. As such, in the peculiar facts and circumstances

of the case and confining to the present case, I am of the

view that, sentence of imprisonment as one of the

exceptional case be reduced and confined to three months

simple imprisonment for each of the offences, however,

with enhanced fine amount of `3,000/- for each of the

offences, which is in addition to `1,000/- each ordered by

the trial Court.

17. Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition is partly allowed.

While confirming the judgment of conviction passed

by the learned Addl.Civil Judge (Jr.Dn.) & J.M.F.C., Crl.R.P.No.792/2013

Bantwal, Dakshina Kannada, in C.C.No.577/2002, dated

07.11.2008, holding the accused (petitioner herein) guilty

for the offences punishable under Sections 466, 409 of

IPC, which was further confirmed by the Learned

II Addl.District and Sessions Judge, Dakshina Kannada,

Mangaluru, in Criminal Appeal No.403/2008, dated

23.08.2013, the order on sentence passed by the trial

Court and confirmed by the Sessions Judge's Court stands

modified and is reduced and confined to three (3) months'

simple imprisonment for each of the offences and the fine

amount is enhanced to `3,000/- for each of the offences,

which is in addition to `1,000/- each as ordered by the trial

Court.

Both sentences shall run concurrently.

Though according to the learned counsel for the

petitioner, the petitioner was not in judicial custody in this

case, however, if he has undergone any period in judicial

custody, the same be given set-off under Section 428 of

Cr.P.C.

Crl.R.P.No.792/2013

Petitioner/accused shall surrender himself before the

trial Court within three weeks from today and to serve the

sentence.

Registry to transmit a copy of this order to both the

trial Court and also to the Sessions Judge's Court along

with their respective records forthwith to enable them to

proceed further in accordance with law.

Sd/-

JUDGE

bk/