Pawan Kumar Singh vs State Of Karnataka
2022 Latest Caselaw 3894 Kant

                          1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF MARCH, 2022

                       BEFORE

        THE HON'BLE MR. JUSTICE K. NATARAJAN

       CRIMINAL PETITION No.1830 OF 2021

BETWEEN:

PAWAN KUMAR SINGH
S/O SHIW SHANKAR SINGH
AGED ABOUT 37 YEARS
R/AT ADMIN ASS(B) AND CASHIER
DFRL OFFICE, MM ROAD
NEAR MYSORE MILK ROAD
MYSURU CITY
KARNATAKA-570 011
                                      ...PETITIONER
(BY SRI KUMAR K.G., ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       BY NAZARBAD POLICE STATION
       MYSORE 570008
       (REPRESENTED BY LEARNED
       STATE PUBLIC PROSECUTOR
       HIGH COURT BUILDING-560 001)

2.     SANTANU BANERJEE
       S/O SWAPAN KUMAR NANERJEE
       AGE MAJOR
       OFFICE AT SAO GRADE-1
       DFRL, NEAR MILK DAIRY
       M M ROAD, MYSURU CITY
       KARNATAKA 570011
                               2


                                    ...RESPONDENTS
(BY SRI VINAYAKA V.S., HCGP FOR R1;
    SRI MADHUKAR DESHPANDE, ADV. FOR R2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.226/2020 ON THE FILE OF THE
HONBLE III ADDITIONAL SENIOR CIVIL JUDGE AND CJM
COURT, RB ROAD, MYSORE CITY, WHICH IS ARISING OUT
OF CRIME NO.194/2019 OF NAZARBAD POLICE STATION,
MYSORE FOR AN OFFENCES UNDER SECTIONS 409 AND
420 OF IPC AS AN ABUSE OF PROCESS OF LAW..

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

                         ORDER

This petition is filed by the petitioner/accused

under Section 482 of Cr.P.C. for quashing the order

taking cognizance by IV Additional Senior Civil Judge,

JMFC, Mysuru in respect of Crime No.194/2019

registered by Nazarbad Police for the offences

punishable under Sections 409 and 420 of the Indian

Penal Code, 1973 (for short 'IPC').

2. Heard the arguments of learned counsel for

the petitioner, learned Special Counsel for respondent

No.2 and learned High Court Government Pleader for

respondent-State as well as perused the records.

3. The case of prosecution is that one Santanu

Banerjee, who is respondent No.2 herein, has filed a

complaint before the Police on 13.12.2019 alleging that

the petitioner was said to be working as an Admin

Assistant B and Cashier in the Defence Food Research

Laboratory (hereinafter referred to as 'DFRL' for short)

which comes under the Defence Research and

Development Organisation, Ministry of Defence,

Government of India functioning in Mysore. The

petitioner-Pawan Kumar Singh is said to have

misappropriated the amount to the tune of Rs.50 lakhs

by transferring the amount to his accounts, which was

required to be paid to the students towards stipend. In

this regard, two committees were formed by

respondent No.2, an enquiry has been initiated against

him and found out that fraud had been committed by

the petitioner. Hence, this complaint for taking action.

4. After registering the case, the Police

investigated the matter and filed a charge sheet.

Learned Magistrate also took cognizance of the alleged

offences on 04.09.2020 and issued summons to the

petitioner, which is under challenge.

5. Learned counsel for the petitioner mainly

argued the matter contending that the petitioner, being

a public servant and a Central Government employee,

has discharged his public duty. The alleged offences

were committed during the discharge of his public duty.

Therefore, there is a protection under Section 197 of

Cr.P.C. For taking cognizance, the sanction of the

competitive Authority is required under Section 197 of

Cr.P.C., wherein in this case, no such sanction was

obtained. Therefore, taking cognizance of the offence

against the petitioner/accused is illegal and liable to be

set aside. Hence, he prays for allowing the petition.

6. Per contra, Sri Madhukar Deshpande, learned

Special Counsel appearing for respondent No.2

contended that the petitioner being an Admin Assistant

and Cashier, had created the documents and obtained

permission of the higher Officer instead of transferring

the amount to the account of the beneficiaries/students

towards stipend, he had transferred the same to his

accounts by stating that the amounts were given to the

beneficiaries. The creation and forging of such

documents cannot be considered as official duty. The

alleged offences have not been committed by the

petitioner during the course of discharge of his official

duty and as such, he has misappropriated the amount

which is punishable under Section 409 of IPC, whereas,

the Hon'ble Supreme Court has held that no sanction is

required for prosecuting the case of misappropriation.

Hence, he prays for dismissal of the petition.

7. Learned High Court Government Pleader

appearing for the respondent-State also supported the

contention of learned counsel for respondent No.2 and

contended that the documents which are produced

before this Court, especially, the statement of the bank

accounts of the petitioner clearly reveals that the

petitioner has misappropriated the huge amount by

transferring nearly a sum of Rs.50 Lakhs to his

accounts, which is an amount payable towards stipend

to the students. It is a clear case of misappropriation

of the amount. Therefore, the question of sanction is

not necessary to prosecute the case against him.

Hence, he prays for dismissal of the petition.

8. Learned counsel for the petitioner has relied

upon the decision of the Hon'ble Supreme Court in the

case of Indra Devi Vs. State of Rajasthan and

another in Crl.A.No.594/2021 dated 23.07.2021.

9. Learned counsel for respondent No.2 has

relied upon the decisions of the Hon'ble Supreme Court

in the cases of Punjab State Warehousing

Corporation Vs. Bhushan Chander and Another

reported in (2016) 13 SCC 44 and Prakash Singh

Badal and Another Vs. State of Punjab and Others

reported in (2007) 1 SCC 1 as well as the judgment

passed by this Court in the case of Dr.M.Basappa

Reddy Vs. State of Karnataka in

WP.No.12915/2021.

10. Having heard the learned counsel for the

petitioner-accused and the learned High Court

Government Pleader for the respondent-State as well

as learned Special Counsel for respondent No.2 and

perusing the records, of course, it is not in dispute that

the petitioner was said to have been working as an

Admin Assistant (B) and Cashier in DFRL at Mysore and

he was holding the accounts and disbursing amount to

the beneficiaries, i.e. stipend to the students. It is

alleged by the complainant in the complaint that during

the course of discharge of his duties, he has

misappropriated the amount by showing the names of

the beneficiaries and he has created the documents in

his name and transferred the same to his accounts. In

this regard, learned counsel for the petitioner relied

upon the latest judgment of the Hon'ble Supreme Court

in of Indra Devi's case (supra), wherein the Hon'ble

Supreme Court has held that under the provisions of

Section 197 of Cr.P.C., the protection is available to the

public servant to initiate the criminal proceedings. On

the other hand, the learned Special Counsel appearing

for respondent No.2 relied upon the judgment of the

Hon'ble Supreme Court in Punjab State's case

(supra) at paragraph-20 and 21 has held as under:

"20. A survey of the precedents makes it absolutely clear that there has to be reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official. If the act(s), omission or commission of which is totally alien to the discharge of the official duty, question of invoking Section 197 CrPC does not arise. We have already reproduced few passages from the impugned order from which it is discernible that to arrive at the said conclusion the learned Single Judge has placed reliance on the authority in B. Saha. The conclusion is based on the assumption that the allegation is that while being a public servant, the alleged criminal breach of trust was committed while he was in public service. Perhaps the learned Judge has kept in his mind some kind of concept relating to dereliction of duty. The issue was basically entrustment and missing of the entrusted items. There is no dispute that the prosecution had to prove the case. But the public servant cannot put forth a plea that he was doing the whole act as a public servant. Therefore, it is extremely difficult to appreciate the reasoning of the High Court. As is noticeable he has observed that under normal circumstances the offences under Sections 467, 468 and 471 IPC may be of such nature that obtaining of sanction under Section 197 CrPC is not necessary but when the said offences are interlinked with an offence under Section 409 IPC sanction under Section 197 for launching the

prosecution for the offence under Section 409 is a condition precedent. The approach and the analysis are absolutely fallacious. We are afraid, though the High Court has referred to all the relevant decisions in the field, yet, it has erroneously applied the principle in an absolute fallacious manner. No official can put forth a claim that breach of trust is connected with his official duty. Be it noted the three-Judge Bench in B. Saha has distinguished in Shreekantiah Ramayya Munipalli keeping in view the facts of the case. It had also treated the ratio in Amrik Singh to be confined to its own peculiar facts. The test to be applied, is as has been stated by Chandrasekhara Aiyar, J. in the Constitution Bench in Matajog Dubey which we have reproduced hereinbefore. The three-Judge Bench in B. Saha applied the test laid down in Gill's case wherein Lord Simonds has reiterated that the test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office.

21. Tested on the touchstone of the said principles, it cannot be said that in the obtaining factual matrix, sanction under Section 197 CrPC was necessary. We are compelled to observe that the High Court should have been more vigilant in understanding the ratio of the decisions of this Court".

11. This Court in Writ Petition No.12915/2021

i.e. in Bassappa Reddy's case by relying upon the

judgments of Hon'ble Supreme Court in the case of

State of Kerala and Padmanabhan Nair reported in

(1999) 5 SCC 690 and R.Balakrishna Pillai Vs.

State of Kerala and Another reported in 1996 1

SCC 478, has held that the protection is available to

the public servant only in the act of discharge of his

duties during the course of his official function and not

otherwise. However, creating and forging of documents

will not attract the official function and sanction is not

required under Section 197 of Cr.P.C.

12. The Hon'ble Supreme Court in Punjab

State's case (supra) has categorically held at

paragraph-20 wherein it is a matter of repetition, it is

required to be repeated once again, thus reads as

under:

"20................ No official can put forth a plea that breach of trust is connected with his official duty."

13. In view of the decisions of the Hon'ble

Supreme Court in the above said cases and on perusal

of the case of the prosecution herein and the statement

of the bank accounts of the petitioner produced before

this Court, it clearly shows that the amounts were

misappropriated by the petitioner by creating his own

accounts, whereas the documents produced by the

prosecution reveal that on 13.12.2019, the complainant

given a certificate stating that the petitioner-Pawan

Kumar Singh was working in his office as Admin

Assistant B and he had joined the organisation as

Admin Assistant A and was discharging his duty as

Cashier with effect from April, 2013 to 3rd July. The

said document reveals that the amounts were

misappropriated by him during the course of the

discharge of his duties. However, the allegation is that

instead of paying the amount to the beneficiaries, he

got credited to his own accounts, which is nothing but a

misappropriation. The amount was required to be

payable towards stipend to the beneficiaries/students,

but misappropriation cannot said to be the part and

parcel of discharging the official duty. If such being the

case, the protection under Section 197 of Cr.P.C. is not

available to the petitioner and no sanction is required

to prosecute against him.

14. The judgment of the Hon'ble Supreme Court

in Indra Devi's case (supra) wherein the trial Court

discharged one of the accused for want of sanction and

for the other two persons, it was rejected. The same

was not challenged by the State before the Appellate

Court. The Hon'ble Supreme Court has held in the said

case that the duty of the accused was only to put the

initials and others were working under him. The

application was prepared and placed before the

executive officer, who was directed to inspect and

accordingly, the work was done. Therefore, it was

considered as an official duty, whereas in this case, the

petitioner's official duty is to transfer the money from

the DFRL to the student accounts towards stipend,

which he has misappropriated to the tune of 50 lakhs.

The account extract clearly reveals that continuously,

he has misappropriated the amount and transferred the

same to his own accounts. There were three accounts

belongs to him i.e. two accounts in SBI Bank and one

account in ICICI Bank, which reveals that continuously,

he has misappropriated the amount in various names,

if such being the case, the offences punishable under

Sections 465, 468 and 471 of IPC also attract against

the petitioner. Of course, the police have filed a charge

sheet only for the offence punishable under Section

409 of IPC but not for creating of documents. The bank

account extract reveals that under different names, the

amount has been credited to his account and therefore,

it has not only been misappropriated but also creation

of documents and as such, he transferred the amount

to his accounts. If such being the case, it cannot be

said that he has committed the offences during the

course of discharge of his duty which requires

protection under Section 197 of Cr.P.C for any

sanction. Hence, the petition is devoid of merits and is

liable to be dismissed.

Accordingly, the petition is dismissed.

The trial Court is directed to proceed with the trial

after verifying the materials available on record.

However, any observation made by this Court in this

order shall not influence the trial court.

Sd/-

JUDGE

KTY