Karnataka High Court
Mr Srinivas vs State Of Karnataka on 12 December, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2023:KHC:45192
CRL.P No. 7924 of 2023
C/W CRL.P No. 5663 of 2023
CRL.P No. 7377 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 7924 OF 2023
C/W
CRIMINAL PETITION NO. 5663 OF 2023
CRIMINAL PETITION NO. 7377 OF 2023
IN CRL.P NO. 7924/2023
BETWEEN:
SMT. H. ZAREENA BEGUM,
AGED ABOUT 60 YEARS,
W/O SRI. MOHAMMED SHAHNAWAZ,
R/AT NO.BA-77, PWD QUARTERS,
KAVALBYRASANDRA, BENGALURU - 560 032,
PRESENTLY R/AT
NO.14, 10TH A CROSS,
KANAKA NAGAR, BENGALURU - 560 032.
...PETITIONER
Digitally signed by B
K
MAHENDRAKUMAR (BY SRI. ANOOP HARANAHALLI, ADVOCATE FOR
Location: HIGH
COURT OF
KARNATAKA
SRI. SRINIVAS RAO S.S., ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
MALUR POLICE STATION,
REPRESENTED BY SPP,
HIGH COURT BUILDING,
BENGALURU - 560 001.
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NC: 2023:KHC:45192
CRL.P No. 7924 of 2023
C/W CRL.P No. 5663 of 2023
CRL.P No. 7377 of 2023
2. SRI. MUNIANJAPPA N.,
S/O LATE H. NARAYANAPPA,
AGED ABOUT 49 YEARS,
EXECUTIVE OFFICER,
MALUR TALUK PANCHAYAT,
KOLR DISTRICT - 563 130.
...RESPONDENTS
(BY SRI. VENKATSATYANARAYAN A., HCGP FOR R1)
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 27.02.2023 PASSED BY THE I
ADDITIONAL SESSIONS JUDGE AT KOLAR IN
CRL.RP.NO.52/2020 AND CONSEQUENTLY CONFIRM THE
ORDER DATED 09.03.2020 PASSED IN C.C.NO.252/2009 BY
THE II ADDITIONAL CIVIL JUDGE AND J.M.F.C., KOLAR AT
MALUR.
IN CRL.P NO. 5663/2023
SRI. N. B. VRUSHABHENDRAPPA,
S/O SRI BASAVARAJAPPA,
AGED ABOUT 55 YEARS,
R/AT FLAT NO.10 NO. 85,
PANORAMA POINT 1 APT,
V CROSS ROAD, BANASHANKARI I STAGE,
SBM CO, BENGALURU - 560 050,
SDA, SUBTREASURY OFFICE,
MALUR - 563 130,
PRESENTLY WORKING AS HEAD ACCOUNTANT,
DISTRICT TREASURY, BENGALURU URBAN,
KG ROAD, BENGALURU - 560 009.
...PETITIONER
(BY SRI. ANOOP HARANAHALLI, ADVOCATE FOR
SRI. SRINIVAS RAO S.S., ADVOCATE)
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NC: 2023:KHC:45192
CRL.P No. 7924 of 2023
C/W CRL.P No. 5663 of 2023
CRL.P No. 7377 of 2023
AND:
1. STATE OF KARNATAKA BY
MALUR POLICE STATION,
REPRESENTED BY SPP,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2. SRI. MUNIANJANAPPA N.,
S/O LATE H. NARAYANAPPA,
AGED ABOUT 49 YEARS,
EXECUTIVE OFFICER,
MALUR TALUK PANCHAYAT,
KOLR DISTRICT - 563 130.
...RESPONDENTS
(BY SRI. VENKATSATYANARAYAN A., HCGP FOR R1)
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 27.02.2023 PASSED BY THE I
ADDITIONAL SESSIONS JUDGE AT KOLAR IN
CRL.RP.NO.51/2020 AND CONSEQUENTLY CONFIRM THE
ORDER DATED 02.01.2020 PASSED BY THE II ADDITIONAL
CIVIL JUDGE AND J.M.F.C., KOLAR AT MALUR, KOLAR
DISTRICT IN C.C.NO.252/2009.
IN CRL.P NO. 7377/2023
MR. SRINIVAS,
S/O. SRI NARASIMHALU,
AGED ABOUT 49 YEARS,
JUNIOR ENGIENEER,
TALUK PANCHAYATH MALUR,
R/AT LAKSHMI NARASIMHA NILAYA,
3RD CROSS, ADARSHA NAGAR,
MALUR TOWN, KOLAR DISTRICT - 563 130.
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NC: 2023:KHC:45192
CRL.P No. 7924 of 2023
C/W CRL.P No. 5663 of 2023
CRL.P No. 7377 of 2023
PRESENTLY RESIDING AT
NO. SAM ALEEM RESIDENCE,
NO. 435/444, 1ST FLOOR,
1ST MAIN, BEML 5TH STAGE,
VBHBCS LAYOUT, RAJARAJESHWARI NAGAR,
BENGALURU - 560 098,
PRESENTLY WORKING AS
ASSISTANT EXECUTIVE ENGINEER,
BENGALURU SOUTH SUB-DIVISION,
RURAL DEVELOPMENT AND PANCHAYAT RAJ
ENGINEERING DEPARTMENT
BENGALURU - 560 078.
...PETITIONER
(BY SRI. ANOOP HARANAHALLI, ADVOCATE FOR
SRI. SRINIVAS RAO S.S, ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
MALUR POLICE STATION,
REPRESENTED BY SPP,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2. SRI. MUNINANJAPPA N.,
S/O LATE H. NARAYANAPPA,
AGED ABOUT 49 YEARS,
EXECUTIVE OFFICER,
MALUR TALUK PANCHAYAT,
KOLR DISTRICT - 563 130.
...RESPONDENTS
(BY SRI. VENKATSATYANARAYAN A., HCGP FOR R1)
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.252/2009
PENDING ON THE FILE OF THE LEARNED II ADDL.CIVIL JUDGE
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NC: 2023:KHC:45192
CRL.P No. 7924 of 2023
C/W CRL.P No. 5663 of 2023
CRL.P No. 7377 of 2023
AND J.M.F.C, MALUR FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 409, 465, 468, 471, 420 R/W 34 OF IPC.
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioners/accused were sought to be prosecuted for
the offences punishable under Sections 409, 465, 468, 471,
420 r/w Sec.34 or IPC, filed an application for discharge before
the trial Court and the said application was allowed by the trial
Court.
2. The prosecution filed a Review Petition under
Section 397 of Cr.P.C., challenging the order discharging the
petitioners of the offences alleged. The learned Sessions Judge
allowed the Review Petition and set aside the order discharging
the accused of the offences alleged stating that the application
for discharge can be considered only after tendering of the
evidence by the prosecution witnesses.
3. The case of the prosecution is that during 2001-02
and 2002-03 accused No.1 was working as Executive Officer at
Taluk Panchayat, Malur, accused No.2 was maintaining
administration of the office along with cash register, accused
No.3 was looking after release of budget grants, accused No.4
was working as First Division Assistant, accused No.5 and 6
were working as Junior Engineers, accused No.7 was working
as Second Division Assistant and accused No.8 was working as
Secretary. All of them being Government employees have
committed criminal breach of trust by forging / concocting the
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DC bills for the purpose of cheating and used the said
documents fraudulently or dishonestly as genuine documents
and thereby cheated the Government. The DC bills were
counter-signed by accused No.10 without verifying its
genuineness. Accused No.9 was warden of BCM Hostel of Malur
Taluk, created the said DC bills and without sending to Zilla
Panchayat for counter-signature, they have sent them directly
to the Sub-Treasury Office, Malur, where accused No.11 was
working as Sub-Treasury Officer, accused No.12 as First
Division Assistant, accused No.13 and 14 were working as
Second Division Assistants and all of them have passed the said
DC bills without verifying the genuineness/authenticity and
issued cheques. Accused No.15 being the Chief Accounts Officer
at Zilla Panchayat did not object for such forged DC bills.
4. Learned counsel for the petitioners submits that on
similar set of allegation, departmental enquiry was conducted.
In the said departmental enquiry, the petitioners have been
exonerated on merits and therefore, the continuation of the
criminal proceedings will be an abuse of process of law, the
underlying principle being higher standard of proof in criminal
cases. In support, he place reliance on the decision of the
Hon'ble Supreme Court in the case of Ashoo Surendranath
Tewari vs. Deputy Superintendent of Police, EOW, CBI
and another reported in (2020) 9 SCC 63.
5. On the other hand, learned High Court Government
Pleader for respondent No.1-State submits that, merely
NC: 2023:KHC:45192
because the petitioner has been exonerated in the
departmental enquiry, it would not lead to exoneration or
acquittal in criminal cases. In support, he places reliance on the
decision of the Honble Supreme Court in the case of State
(NCT of Delhi) vs. Ajay Kumar Tyagi reported in 2012 (9)
SCC 685.
6. Considered the submissions made by the learned
counsel for the parties.
7. The Hon'ble Supreme Court in the case of Radheshyam
Kejriwal Vs. State of West Bengal, reported in (2011) 3 SCC
581 has laid the principle which reads thus:
"38. The ratio which can be culled out from these
decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal
prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not
necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal
proceedings are independent in nature to each other;
(iv) The finding against the person facing
prosecution in the adjudication proceedings is not
binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement
Directorate is not prosecution by a competent court of
law to attract the provisions of Article 20(2) of the
Constitution or Section 300 of the Code of Criminal
Procedure;
(vi) The finding in the adjudication proceedings in
favour of the person facing trial for identical violation will
depend upon the nature of finding. If the exoneration in
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adjudication proceedings is on technical ground and not
on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits
where the allegation is found to be not sustainable at all
and the person held innocent, criminal prosecution on
the same set of facts and circumstances cannot be
allowed to continue, the underlying principle being the
higher standard of proof in criminal cases."
8. The Hon'ble Supreme Court consisting of three learned
Judges in the case of the State (NCT of Delhi) (supra) without
reference to the decision in the case of Radheshyam Kejriwal
(supra) has held that the High Court misread the judgment in P
S Rajya -vs- State of Bihar ((1996) 9 SCC 1)) and exoneration
in departmental proceeding ipso facto would not lead to
exoneration or acquittal in a criminal case. It was further noted
that the decision of P S Rajya case which was rendered by the
Bench consisting of two learned Judge was distinguished in a
subsequent decision in the case of State -vs- L. Krishnamohan
which was again by a two Judges and accordingly held that the
decision in P S Rajya was not an authority for the presumption
that exoneration in departmental proceeding ipso facto would
lead to a judgment of acquittal in a criminal trial.
9. The Hon'ble Apex Court in yder Consulting (UK) Ltd. v.
State of Orissa, (2015) 2 SCC 189 has held that a decision can
be said to be given per incuriam when the court of record has
acted in ignorance of any previous decision of its own, or a
subordinate court has acted in ignorance of a decision of the
court of record. Therefore the decision of State (NCT of Delhi)
which has not taken into account and consideration of the
NC: 2023:KHC:45192
earlier decision of the Supreme Court in Radheshyam is said to
be per incuriam.
10. The Full Bench of this Court in the case of
Govindanaik G Kalaghatigi -vs- West Patent Press Co. Ltd. has
held that where there is a conflict between two decisions of the
Hon'ble Supreme Court of the same Bench strength, it is latter
of the decision that would prevail. The decision of the Bench
consisting of three Judges in the case of Ashoo Surendranath
Tewari would prevail over the decision in the case of State (NCT
of Delhi) rendered by consisting of three Judges which is a
latter judgment. Though the decision of the State (NCT of
Delhi) was unanimous and whereas in the case of Radheshyam
Kejriwal it was a majority of 2:1, the total strength of the
Bench that they decided the case is deemed to be the Bench
strength of that decision despite dissenting opinion as held by
the Hon'ble Supreme Court in the case of Shanti Fragrances -
vs- Union of India (2018) 11 SCC 305.
11. In the instant case, the departmental enquiry was
initiated against the petitioners and the Enquiry Officer
recorded the categorical finding that DC bills in question have
not been fabricated or manipulated and the Disciplinary
Authority after considering the enquiry reports, exonerated the
petitioners on merits. Therefore, the continuation of the
criminal proceedings will be an abuse of process of law, the
underlying principle being higher standard of proof in criminal
cases. Accordingly, I pass the following:
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ORDER
i. Criminal petitions are allowed.
ii. The impugned order dated 27.02.2023 passed by
the I Additional District and Sessions Judge, Kolar
in Crl.R.P.No.52/2020 is hereby quashed and the
order dated 09.03.2020 passed by II Additional
Civil Judge and JMFC, Malur, discharging the
petitioners of the offences alleged is hereby
confirmed.
iii. The impugned order dated 27.02.2023 passed by
the I Additional District and Sessions Judge, Kolar
in Crl.R.P.No.51/2020 is hereby quashed and the
order dated 02.01.2020 passed by II Additional
Civil Judge and JMFC, Malur, discharging the
petitioners of the offences alleged is hereby
confirmed.
iv. The impugned order in CC.No.252/2009 on the file
of II Additional Civil Judge and JMFC, Malur, insofar
as it relates to petitioners/accused No.5, 14 and 15
is hereby quashed and the petitioners are
discharged of the offences alleged.
Sd/-
JUDGE
MCR
