Karnataka High Court
State Of Karnataka vs Ishwarappa Basalingappa Yalihondar on 19 December, 2023
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NC: 2023:KHC-D:14867-DB
CRL.A No. 100166 of 2018
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
CRL.A No. 100172 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100166 OF 2018 (A)
C/W
CRIMINAL APPEAL NO. 100167 OF 2018
CRIMINAL APPEAL NO. 100168 OF 2018
CRIMINAL APPEAL NO. 100169 OF 2018
CRIMINAL APPEAL NO. 100170 OF 2018
CRIMINAL APPEAL NO. 100172 OF 2018
IN CRL.A NO. 100166/2018
BETWEEN:
Digitally STATE OF KARNATAKA
signed by
SHIVAKUMAR
HIREMATH
REPRESENTED BY THE
Date:
2024.01.22
POLICE INSPECTOR,
13:04:12
+0530 SUB-URBAN POLICE STATION, DHARWAD,
THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
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CRL.A No. 100166 of 2018
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
CRL.A No. 100172 of 2018
AND:
PRADEEP AMARANATH POTDAR
AGE: 36 YEARS, OCC: PRIVATE WORK,
R/O: RAIKAR CHWAL, MARATHA COLONY, DHARWAD.
...RESPONDENT
(BY SRI. K.M. SHIRALLI, ADVOCATE)
THIS CRIMINAL APPEAL FILED UNDER SECTION 378(1)
& (3) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED: 30.10.2017 PASSED BY THE LEARNED II ADDITIONAL
DISTRICT AND SESSIONS JUDGE AT DHARWAD IN CRIMINAL
APPEAL NO. 130/2015 AND CONFIRM THE JUDGMENT AND
ORDER PASSED BY THE PRINCIPAL CIVIL JUDGE AND
PRINCIPAL JMFC COURT AT DHARWAD IN C.C.NO. 290/2003
DATED:30.10.2015 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 409, 468, 471, 420, 201 R/W 34 OF IPC IN THE
INTEREST OF JUSTICE AND EQUITY.
IN CRL.A.NO.100167/2018
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE INSPECTOR,
SUB-URBAN POLICE STATION, DHARWAD,
THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...APPELLANT
(BY SRI. M.B.GUNDAWADE, ADDL. SPP)
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CRL.A No. 100166 of 2018
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
CRL.A No. 100172 of 2018
AND:
1. FAKRUDDIN HAJARATSAB BUDIHAL
AGE: 76 YEARS,
OCC: RETD. HDMC, EMPLOYEE,
R/O: NEAR KRISHNA JINNING FACTORY,
MALAPUR, DHARWAD.
2. LINGAPPA SHIVJOGAPPA HUTAGONAVAR
AGE: 52 YEARS,
OCC: JUNIOR ENGINEER, HDMC.
R/O: C/O. PLOT NO. 53, 1ST CROSS,
SHARADA COLONY,
HUKKERIKAR NAGAR, DHARWAD.
..RESPONDENTS
(BY SRI. K.L. PATIL, ADVOCATE)
THIS CRIMINAL APPEAL FILED UNDER SECTION 378(1)
& (3) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED: 30.10.2017 PASSED BY THE LEARNED II ADDITIONAL
DISTRICT AND SESSIONS JUDGE AT DHARWAD IN CRIMINAL
APPEAL NO. 125/2015 AND CONFIRM THE JUDGMENT AND
ORDER PASSED BY THE PRINCIPAL CIVIL JUDGE AND
PRINCIPAL JMFC COURT AT DHARWAD IN C.C.NO. 289/2003
DATED:30.10.2015 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 409, 468, 471, 420, 201 R/W 34 OF IPC IN THE
INTEREST OF JUSTICE AND EQUITY.
IN CRL.A NO.100168/2018
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE POLICE INSPECTOR,
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NC: 2023:KHC-D:14867-DB
CRL.A No. 100166 of 2018
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
CRL.A No. 100172 of 2018
SUB-URBAN POLICE STATION, DHARWAD,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
AND:
MAHADEVAPPA MARIYAPPA KAKKALMELI
AGE: 68 YEARS, OCC: CHIEF ACCOUNT OFFICER,
HDMC, HUBBALLI,
R/O: SILVER ARCHARD, 2ND CROSS,
NEAR HOUSE OF H.R.KRISHNA BHAT, DHARWAD.
...RESPONDENT
(BY SRI. ARAVIND D. KULAKARNI, ADVOCATE)
THIS CRIMINAL APPEAL FILED UNDER SECTION 378(1)
& (3) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED: 30.10.2017 PASSED BY THE LEARNED II ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND SPL. JUDGE AT
DHARWAD IN CRIMINAL APPEAL NO. 133/2015 AND CONFIRM
THE JUDGMENT AND ORDER PASSED BY THE PRINCIPAL CIVIL
JUDGE AND PRINCIPAL JMFC COURT AT DHARWAD IN C.C.NO.
289/2003 DATED:30.10.2015 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 409, 468, 471, 420, 201 R/W 34 OF IPC IN
THE INTEREST OF JUSTICE AND EQUITY.
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CRL.A No. 100166 of 2018
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
CRL.A No. 100172 of 2018
IN CRL.A NO.100169/2018
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE INSPECTOR,
SUB-URBAN POLICE STATION, DHARWAD,
THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
AND:
1. ISHWARAPPA BASALINGAPPA YALIHONDAR
AGE: 68 YEARS, RETD. EMPLOYEE,
HDMC, DHARWAD DIVISION,
R/O: NAVANAGAR, MIG 177, HUBBALLI.
2. RAMDAS VENKAPPA RAYAKAR
AGE: 67 YEARS, OCC: RETD. EMPLOYEE,
HDMC, DHARWAD DIVISION,
NAVANAGAR, HUBBALLI.
...RESPONDENTS
(BY SRI. P.G. CHIKKANARAGUND, ADVOCATE FOR R2;
R1 APPEAL ABATED)
THIS CRIMINAL APPEAL FILED UNDER SECTION 378(1)
& (3) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED: 30.10.2017 PASSED BY THE LEARNED II ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND SPL. JUDGE AT
DHARWAD IN CRIMINAL APPEAL NO. 131/2015 AND CONFIRM
THE JUDGMENT AND ORDER PASSED BY THE PRINCIPAL CIVIL
JUDGE AND PRINCIPAL JMFC COURT AT DHARWAD IN C.C.NO.
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CRL.A No. 100166 of 2018
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
CRL.A No. 100172 of 2018
289/2003 DATED:30.10.2015 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 409, 468, 471, 420, 201 R/W 34 OF IPC IN
THE INTEREST OF JUSTICE AND EQUITY.
IN CRL.A NO.100170/2018
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE INSPECTOR,
SUB-URBAN POLICE STATION, DHARWAD,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
AND:
1. FAKRUDDIN HAJARATSAB BUDIHAL
AGE: 76 YEARS,
OCC: RETD. HDMC, EMPLOYEE,
R/O: NEAR KRISHNA JINNING FACTORY,
NEAR PATHAN HALL, 1ST CROSS,
MALAPUR, DHARWAD.
2. LINGAPPA SHIVJOGAPPA HUTAGONNAVAR
AGE: 52 YEARS,
OCC: JUNIOR ENGINEER, HDMC.
R/O: PLOT NO. 53, 1ST CROSS,
SHARADA COLONY, HUKKERIKAR NAGAR,
DHARWAD.
...RESPONDENTS
(SRI. K.L. PATIL, ADVOCATE)
THIS CRIMINAL APPEAL FILED UNDER SECTION 378(1) &
(3) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET
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NC: 2023:KHC-D:14867-DB
CRL.A No. 100166 of 2018
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
CRL.A No. 100172 of 2018
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED:
30.10.2017 PASSED BY THE LEARNED II ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND SPL. JUDGE AT
DHARWAD IN CRIMINAL APPEAL NO. 126/2015 AND CONFIRM
THE JUDGMENT AND ORDER PASSED BY THE PRINCIPAL CIVIL
JUDGE AND PRINCIPAL JMFC COURT AT DHARWAD IN C.C.NO.
290/2003 DATED:30.10.2015 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 409, 468, 471, 420, 201 R/W 34 OF IPC IN
THE INTEREST OF JUSTICE AND EQUITY.
IN CRL.A NO. 100172/2018
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE POLICE INSPECTOR,
SUB-URBAN POLICE STATION, DHARWAD,
THROUGH TH ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
AND:
1. ISHWARAPPA BASALINGAPPA YALIHONDAR
AGE: 68 YEARS, RETIRED
EMPLOYEE FROM DHARWAD DIVISION
R/O: NAVANAGAR, MIG 177, HUBBALLI.
2. RAMDAS VENKAPPA RAYAKAR
AGE: 67 YEARS,
OCC: RETIRED EMPLOYEE HDMC,
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CRL.A No. 100166 of 2018
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
CRL.A No. 100172 of 2018
DHARWAD DIVISION,
R/O: H.NO.6, LATTIPETE,
OLD HUBBALLI.
...RESPONDENTS
(BY SRI. P.G. CHIKKANARAGUND, ADVOCATE FOR R2;
R1 APPEAL ABATED)
THIS CRIMINAL APPEAL FILED UNDER SECTION 378(1) &
(3) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED:
30.10.2017 PASSED BY THE LEARNED II ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND SPL. JUDGE AT
DHARWAD IN CRIMINAL APPEAL NO. 132/2015 AND CONFIRM
THE JUDGMENT AND ORDER PASSED BY THE PRINCIPAL CIVIL
JUDGE AND PRINCIPAL JMFC COURT AT DHARWAD IN C.C.NO.
290/2003 DATED: 30.10.2015 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 409, 468, 471, 420, 201 R/W 34 OF IPC IN
THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
ON 05.10.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, RAMACHANDRA D. HUDDAR, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
These appeals arise out of common judgment of acquittal
dated 30.10.2017 in Crl.A.Nos.125/2015, 126/2015, 129/2015,
NC: 2023:KHC-D:14867-DB
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
130/2015 to 133/2015 passed by the II-Additional District and
Sessions & Special Judge at Dharwad (for short "I-Appellate
Court).
2. The aforesaid appeals were filed by accused
persons independently being aggrieved by the common
judgment dated 30.10.2015 passed by the Principal Civil Judge
and Principal JMFC, Dharwad in C.C.No.289/2003 and
290/2003 (for short "Trial Court") convicting the accused
persons for the offences punishable under sections 409, 468,
471, 420, 201 R/w Section 149 of the Indian Penal Code (for
short "IPC") and sentencing them as under:
"Accused No.1 to 6 are sentenced to undergo
simple imprisonment for three years for the offence
punishable under section 409 R/w 149 of IPC.
Accused No.1 to 6 are sentenced to undergo
simple imprisonment for three years for the offence
punishable under section 468 R/w 149 of IPC.
Accused No.1 to 6 are sentenced to undergo
simple imprisonment for three years for the offence
punishable under section 471 R/w 149 of IPC.
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CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
Accused No.1 to 6 are sentenced to undergo
simple imprisonment for three years for the offence
punishable under section 420 R/w 149 of IPC.
Accused No.1 to 6 are sentenced to undergo
simple imprisonment for three years for the offence
punishable under section 201 R/w 149 of IPC.
Accused No.1 to 6 shall pay compensation of
Rs.2,00,000/- each, total Rs.12,00,000/- such
compensation shall go to HDMC, Hubli-Dharwad, in
case of failure of payment of the same within 60
days of this Judgment, HDMC authorities are entitled
to recover the same from the person and the
property of the accused No.1 to 6.
Punishment shall run concurrently."
3. Being aggrieved by the said judgment of conviction
and order on sentence, appellants-accused No.1 to 6,
independently preferred appeals before the I-Appellate Court as
stated above and the I-Appellate Court on hearing the
arguments and evaluation of evidence allowed the appeals filed
by the appellants-accused persons vide its common judgment
dated 30.10.2017 and acquitted them for the offence under
above mentioned sections. Challenging the said judgment of
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
acquittal passed by the I-Appellate Court, the State has
preferred the present appeals.
4. For the purpose of convenience, the parties to these
appeals are referred to as per their rank before the Trial Court.
5. The brief and relevant facts made out by the
prosecution in the C.C.No.289/2003 and C.C.No.290/2003 are
as under:
i) That, all the accused persons were charge sheeted
by the Police Inspector, Sub-Urban Police Station, Dharwad for
the offence punishable under Sections 409, 468, 471, 420, 201
R/w section 149 of IPC. It is the case of the prosecution that
during the period commencing the year 1999-2000, 2000-2001
accused No.2 to 6 were working in HDMC Office, Dharwad in
Accounts Department. Accused No.1 was the contractor.
Accused No.2 to 6 in connivance with accused Nos.1, in
furtherance of their common intention, fabricated bogus
documents in respect of work, which was already carried out
and payment was made. To have unlawful gain, they prepared
fictitious bills pertaining to five such works by issuing a cheque
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
for an amount of Rs.5,19,691/- in favour of accused No.1-the
contractor. Thus, all the accused persons are responsible in
commission of the aforesaid offences. Based upon the
complaint filed by the then Executive Engineer of HDMC,
Dharwad by name Kallappa Hiriyappa Badavannavar, crime was
registered against the accused persons and criminal law was
set in motion.
ii) The investigating officer, after completion of
investigation and complying with all formalities filed two
separate charge sheets in the aforesaid criminal cases against
accused No.1 to 6 for the aforesaid offences.
iii) The learned Judge of the Trial Court conducted the
trial. To bring home the guilt of the accused persons, the
prosecution in all examined 41 witnesses as PW1 to PW41 and
got marked documents as per Ex.P1 to Ex.P85 and respective
signatures thereon before the Trial Court. During the course of
cross-examination, Ex.D1 to D3 were also marked. On closure
of evidence of the prosecution, on hearing the arguments, the
Trial Court found the accused persons guilty of committing
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
offence punishable under sections mentioned above and
sentenced them as narrated above.
iv) The said judgment of conviction and order on
sentence was challenged by all the accused persons by
preferring separate appeals as stated above. The I-Appellate
Court on hearing the arguments and examining the materials
placed on record, found that the prosecution has failed to prove
the guilt of the accused persons beyond all reasonable doubt
and thereby set aside the judgment of conviction and order on
sentence passed by the Trial Court and consequently acquitted
the accused persons of the charges leveled against them. This
is how the present appeals are preferred by the State
challenging the judgment of acquittal passed by the I-Appellate
Court.
6. We have heard the arguments advanced by the
learned Additional SPP as well as the learned respective
counsels for accused persons at length and perused the
records.
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
7. The learned Additional SPP, in addition to narrating
facts with regard to alleged offences committed by the accused
persons by creating documents as narrated in the appeal memo
submits that, the learned I-Appellate Court has not taken into
consideration the evidence placed on record by the prosecution.
This order of acquittal passed by the I-Appellate Court suffers
from infirmity. There is no illegality or irregularity committed by
the Trial Court in passing the judgment of conviction and order
on sentence. However, the I-Appellate Court has not properly
re-appreciated the evidence adduced by the prosecution. The I-
Appellate Court has ignored both oral and documentary
evidence.
8. It is his submission that, during the course of
investigation, it was found that there was a credit of
Rs.8,64,434/- in the bank account of accused No.1. However,
he denied about the same. He did not offer any explanation
about crediting of such amount in his bank account. All the
accused, in connivance prepared false and fictitious bills and
issued cheques in favour of accused No.1 to have unlawful
gain. It was accused Nos.2 to 6, who are responsible for
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CRL.A No. 100168 of 2018,
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CRL.A No. 100170 of 2018,
passing the said bills and cheque issued in favour of accused
No.1. No work, stated in the complaint, was carried out by
accused No.1. Accused Nos.2 to 6 were also beneficiaries under
the forged documents. The accused persons, with dishonest
intention, have committed the offences in the manner stated in
the complaint, which is duly proved through the evidence of the
prosecution witnesses. It is submitted that the I-Appellate
Court has not read the evidence in proper perspective. The
circumstances brought on record point out towards accused
persons that they have committed the offences in the manner
alleged by the prosecution. Hence, the learned Additional SPP
prays to allow these appeals by setting aside the judgment of
acquittal passed by the I-Appellate Court and to restore the
judgment of conviction passed by the Trial Court.
9. As against this submission, the learned respective
counsels for accused persons, Sri. K.L. Patil, Sri. K.M. Shiralli
with all vehemence, submit that the Trial Court itself has
committed an error in convicting the accused persons. Against
the said judgment of the Trial Court, the accused persons
preferred separate appeals before the I-Appellate Court. The I-
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CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
Appellate Court has properly evaluated the material on record
and on considering evidence has acquitted the accused
persons. There is no error or illegality in passing of the
judgment of acquittal by the I-Appellate Court. Hence, they
pray for dismissal of the present appeals.
10. The learned Additional SPP as well as the counsels
appearing for the accused persons took us through oral and
documentary evidence and also the findings of the Trial Court
as well as the I-Appellate Court.
11. In view of rival submissions of both sides, the
points that would arise for consideration in these appeals are as
under:
i) Whether the I-Appellate Court has committed any
illegality or perversity in finding the accused
persons not guilty of the offence leveled against
them?
ii) If so, whether the judgment of the I-Appellate
Court in acquitting the accused persons calls for
interference by this Court?
Point No.1 and 2 are taken together for discussion
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
12. Before adverting to other aspects of the case, let us
analyze certain admitted facts between both the sides. The
main allegation of the prosecution is against accused Nos.2 to
6. It is alleged by the prosecution that during the period
commencing from 1999-2000 and 2000-01, accused Nos.2 to 6
were working in HDMC, Dharwad as its employees. These
accused Nos.2 to 6 were, Junior Engineers, Chief Accounts
Officer, Meter Section Superintendent and FDA, respectively. It
is also an admitted fact that based upon the report of the
auditor, marked at Ex.P10, and the compliant filed by the
complainant by name Kallappa Hiriyappa Badavannavar as per
Ex.P2 the then Executive Engineer, No.2, HDMC, Dharwad, the
criminal proceedings were initiated against the accused
persons.
13. Insofar as accused No.1 is concerned, he is not a
licenced contractor as per the evidence brought on record. This
is an admitted fact. The main allegations of the prosecution
against accused Nos.1 to 6 are that, accused No.1 being
contractor and accused Nos.2 to 6 in the capacity of employees
of HDMC, Dharwad, in furtherance of their common intention,
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CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
when they were working in the official capacity in HDMC
Dharwad, entrusted with the dominion over the property of the
HDMC and in collusion with each other, they dishonestly
created fabricated bills with respect to the work, which was
already carried and payment was made. It is alleged by the
prosecution that, these accused persons have created false and
fictitious bills and thereby misappropriated the funds of the
HDMC, Dharwad. It is alleged against the accused persons that,
accused Nos.2 to 6 in collusion with accused No.1, dishonestly
have prepared false documents with fictitious bills so as to
cause loss to HDMC, Dharwad and they also forged the
documents, which were used for the purpose of cheating. So
also it is alleged that, accused No.1 in connivance with accused
Nos.2 to 6 with an intention to cause loss to the HDMC, created
documents as genuine documents and also by preparing
fictitious bills, dishonestly misappropriated the funds of HDMC.
14. In a case of present nature, it is bounden duty of
the prosecution to prove the guilt of the accused beyond
reasonable doubt. First of all, as required under the provisions
of Section 409 of IPC, the entrustment of dominion of the
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CRL.A No. 100170 of 2018,
property, has to be established by the prosecution with legal
and acceptable evidence. As per the allegations made by the
complainant, there is a misappropriation of funds of the HDMC,
Dharwad and he categorically alleged in the compliant that
though tenders were not called as per the rules of HDMC, these
accused persons made to believe that certain tenders were
called in respect of five works, which were already carried out
and amount was paid, created false bills. There was amount
credited in the account of accused No.1 to the extent of
Rs.8,64,434/- through cheque during the aforesaid period and
the accused persons are responsible for misappropriation of
funds of the HDMC, Dharwad. Based upon Ex.P2-complaint, the
criminal was set in motion. Thereafter, audit was conducted
and based upon the report submitted by the auditor, criminal
proceedings were initiated with the permission of the
Government of Karnataka.
15. Before appreciating the evidence on record, we
have to read the provisions of IPC in respect of offences under
Sections 409, 468, 471, 201, 420 R/w Section 149 of IPC.
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
16. Section 409 of IPC specifically envisages that "to
bring home a charge under Section 409, what is necessary to
prove is that the accused is a public servant and in such
capacity he was entrusted with the property in question or with
dominion over it and that he committed criminal breach of trust
in respect of it. The necessary elements constituted in the
offence must be strictly proved by the prosecution. The
prosecution need not prove the actual mode of
misappropriation. Once the entrustment of or dominion over
the property is established, then it, would be for the accused to
explain as to how the property was dealt with." Therefore, it is
the bounden duty of the prosecution that, to sustain conviction
under Section 409 of IPC, two ingredients are to be proved viz.,
i) the accused, a public servant or banker or an agent was
entrusted with the property of which he is duty bound to
account for; ii) the accused has committed criminal breach of
trust. What amounts to criminal breach of trust is provided
under Section 405 IPC. The basic requirement to bring home
the accusations under Section 405 of IPC are required to prove
conjointly i) entrustment and ii) whether the accused was
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
actuated by dishonest intention or not, misappropriated it or
converted it to his own use to the detriment of the persons who
entrusted it. This principle of law is well defined by the Hon'ble
Apex Court in the case of Sadhupati Nageshwara Rao v.
State of Andhra Pradesh1. Therefore, in the absence of legal
and independent evidence with regard to the entrustment, it
would be improper either to put a question with regard to the
entrustment to the accused and if put and an answer is
obtained partially admitting entrustment, the same does not
establish the case of entrustment.
17. So far as offence under Section 468 of IPC is
concerned, the law says that, if there is forgery for the purpose
of cheating, when the accused is charge sheeted for the offence
under Section 468 of IPC, the prosecution has to establish (i)
that the accused committed forgery and (ii) that he did with an
intention that the document forged shall be used for the
purpose of cheating. The object of Section 468 of IPC was to
find out as to whether the accused deceived someone by
making false documents. If the prosecution were to establish
2012 CRI.L.J.4317 (SC)
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
forging of the documents and intending to use such forged
documents for the purpose of cheating, then only the accused
is liable for conviction.
18. It is only a person who commits forgery, thereby
creates a document with an intention of using that, document
for the purpose of cheating who comes within the scope of such
section and not the person, who is not at all concerned.
19. Even at the time of deciding the case of present
nature with regard to forgery for the purpose of cheating, the
evidence of expert has to be appreciated with caution for the
purpose of conviction and the Court cannot rely upon a weak
piece of evidence.
20. Section 471 of IPC speaks about using as genuine a
forged document. This section also envisages that a bounden
duty is cast on the prosecution to prove that there is execution
of such document (purporting to convey some property of
which is not the owner) is not execution of a false document as
defined under Section 464 of IPC. If what is executed is not a
false document, there is no forgery. If there is no forgery, then
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
neither Section 467 nor Section 471 of IPC would attract. The
Hon'ble Apex Court in the case of Jibrial Diwan v. State of
Maharashtra2 viewed that the offence requires some action
resulting in a disadvantage, but for the deception the person
defrauded would have affected. The action of accused resulted
in no disadvantage to anyone which but for the deception, the
person defrauded would have acted otherwise.
21. Insofar as Section 201 of IPC is concerned, when a
charge is framed against the accused of causing disappearance
of evidence, this section goes along with the main offence and
the ingredients have to be fulfilled by the prosecution with legal
evidence. The law mandates that if there is a disappearance of
evidence of offence or giving false information to screen
offender based upon main offence, the accused can be
convicted. The law envisages that even accepting the case of
the prosecution of which there was no material worth the
name, that the accused being the author of the crime etc., the
bounden duty is on the prosecution to prove that there is a
screening or causing disappearance of evidence of offence.
1997 Cri.L.J. 4070 (SC)
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
22. The accused are also charge sheeted for the offence
under Section 420 of IPC, which speaks of cheating and
dishonestly inducing delivery of property. The essential
ingredients are that (a) a person cheats, (b) he thereby
dishonestly induces the person deceived (i) to deliver any
property to any person or (ii) to make other or destroy the
whole or any part of a valuable security, or anything which is
signed or sealed and which is capable of being converted into a
valuable security.
23. Unless these ingredients are proved by the
prosecution with legal evidence, it cannot be said that the
prosecution is able to establish the guilt of the accused
persons. So to say, for the purpose of establishing of offence
stated supra, the prosecution is required to prove that there
was fraudulent or dishonest intention on the part of the
accused in the commission of the crime, also the said
entrustment of properties has been misused by the accused
persons.
24. Keeping in mind the aforesaid ingredients, now let
us examine and assess the evidence placed on record by the
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
prosecution as to understand whether the prosecution is able to
establish the guilt of the accused beyond all reasonable doubt.
25. It is argued by the Additional SPP that, as the
prosecution is able to prove the ingredients of the offence
under the aforesaid sections, the accused are liable to be
convicted as done by the Trial Court. His submission is that the
I-Appellate Court has not properly appreciated the evidence on
record and has simply acquitted the accused persons. He urges
that, the Commissioner would sign the applications and these
accused Nos.2 to 6 in their official capacity were under the duty
to scrutinize those documents and place the same before the
Commissioner. The learned Additional SPP submits that the
entries made in the challans, other bills and relevant records
are sufficient to hold that the accused are guilty of committing
the offence.
26. We have scrutinized the entire documentary as well
as oral evidence. In this case, the disputed cheques alleged to
have been issued in the name of accused No.1 were marked as
Ex.P4 and Ex.P7. The said cheques were drawn on KVG Bank in
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
the name of accused No.1. The said amount was credited to the
account of the accused.
27. As per the case of the prosecution, accused Nos.2
and 3 have put their signatures on those cheques. But the
I-Appellate Court considered the evidentiary value to the
assertions made by the prosecution, based on its reasoning the
Audit Report marked at Ex.P10. So far as encashment of Ex.P4
and Ex.P7 cheques, accused No.1 never dispute the same. The
said amount mentioned in the said cheques have been credited
into his account. So far as offence under Section 409 of IPC is
concerned, it has to be proved that, accused No.1 was holding
capacity of a public servant. Evidently, he is a contractor and
not an employee of the HDMC at any point of time. Even, it has
been elicited from the mouth of PW1 that, this accused No.1
was not a registered contractor of HDMC. Throughout the
cross-examination, he has stated that, no bills or cheques were
prepared in his presence and handed over to accused No.1.
Even it has come in his evidence that, there are no documents
to show that, accused No.1 had really participated in the
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
process of those five works alleged in the complaint and report
of the auditor marked at Ex.P10.
28. When work is being entrusted by issuing work order
and accepting the tender, it is the duty of Class-I contractor or
anybody, who is entrusted with the said contract, to deposit
EMI in respect of the said works. To that effect, no documents
are produced to show that this accused No.1 has obtained the
said work orders. Throughout the evidence of this PW1, he has
given quite contrary evidence against the report of the auditor.
If at all the amount belongs to the HDMC is credited wrongly or
without any basis, it is for the HDMC to recover the same as
per the procedure known to law. Merely because amount is
credited into his account, it would not attract the penal laws.
29. This PW1, being the complainant and the then
Executive Engineer, specifically has stated that accused Nos.2
and 3 being the employees of the HDMC, Dharwad, were under
duty to accept the tenders and assignment of the work order by
PWD department in HDMC. As, per his evidence, the work order
has to be prepared by the concerned Junior Engineer along with
measurement sheet and the same has to be verified by the
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NC: 2023:KHC-D:14867-DB
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
Assistant Executive Engineer and then after technical approval,
it has to be sent to the Executive Engineer. PW1 categorically
admits that, such works would be entrusted to licenced
contractor only after approval of tender and then the work
order has to be issued.
30. As per the office administration as well as
procedure being adopted by the PWD authorities, the Junior
Engineer has to prepare the measurement sheet and this fact is
admitted by PW1 in his evidence on oath. As per the
measurement prepared by the Junior Engineer, in the
Measurement Book No.1242 and 1292 such a measurement
was prepared. But quite interestingly, those measurement
books are not produced. They would have been the best
material to connect the accused persons. After preparing the
measurement in Measurement Book, as per the office
procedure as admitted by PW1, the Assistant Executive
Engineer has to verify and then such measurement would be
sent to Executive Engineer for verification and thereafter the
Executive Engineer has to get it confirmed that the said
measurement is 100% correct. After satisfaction, the same
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
would be sent to the Accounts Department for the purpose of
preparing bills. In this case prosecution has examined the
auditor. On reading the Audit Report-Ex.P10 marked through
this witness, it shows that, based upon the available documents
produced by the HDMC authorities, he has prepared the audit
report. As per his report, he pointed out about six mistakes or
lacunas in preparing the bills. The said bills were technically
examined. He has stated that, initially the total amount for
work Nos.1 to 5 is for Rs.9,97,934.15/- and for work No.6 it is
mentioned as Rs.1,98,288/-. When he conducted the audit, it is
recited in Page No.13 of the report that, at the time of passing
of final bill, certain procedures were not followed and certain
documents were not being produced and satisfied by the
authorities concerned. Based upon that, he recommended for
initiation of action against these accused persons.
31. The evidence of PW7 would establish that, there is
no proper audit being conducted by him. On reading the
evidence of PW7, just for the sake of giving evidence, he had
come before the Trial Court and has stated that he audited the
bills and other documents, verified them and noticed similar
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
five identical bills. Thereby, he noticed that through these bills
payments were made to a single person. Even he opined that
there are different signatures. There is a report by the
handwriting expert.
32. On reading the evidence of PW7, it goes to establish
that it is a casual report being submitted by the auditor.
Perhaps, that might have been prepared at the instance of
some person so as to implicate the accused persons. That
means, though the trial Court has already held that, cheques
were issued and encashed and was acknowledged by the
accused, the very evidence spoken by PW7 goes to establish
that, it is a casual report. Rightly the I-Appellate Court has
disbelieved the said report. Even it has come in the evidence of
PW7 that, the estimate and measurement books were not at all
produced before him when he conducted the audit. Then it is
hard to believe such evidence without those estimates and
measurements prepared by the concerned junior engineer,
approved by the Assistant Executive Engineer and also
consented by the Executive Engineer etc. The said documents
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
were not produced by the concerned officials before the
auditor.
33. The cross-examination directed to this PW7 is worth
reading. As per his evidence, there was no signature in the
deposit register of the contractor. He also admits that, he has
not obtained any documents from HDMC to ascertain as to who
was the contractor who carried out the said work alleged by the
complainant in his complaint and based upon that, separate
fictitious bills were prepared and the amount was
misappropriated. During the course of his cross-examination,
he states that, he has prepared proper audit report. But on
reading the contents of Ex.P10-Audit Report, he admits that
there are no signatures on deposit receipts. He has not
obtained any documents regarding who was the contractor who
carried out the said work. Even he has not ascertained as to
whether accused No.1 had carried out the said contract work or
not. No such evidence is produced by the prosecution to that
effect.
34. It has come in the evidence of the prosecution
witnesses i.e. especially the investigating officer that, on behalf
- 32 -
NC: 2023:KHC-D:14867-DB
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
of this accused No.1, one Aravind Mestri, employee of HDMC
opened an account with M.G.Bank. To substantiate the said
fact, PW8 was examined by the prosecution. He identifies the
cheques Ex.P4 and Ex.P7 being sent for encashment. Whether
the said Aravind Mestri has really opened the account in the
name of accused No.1 is not properly explained. To
substantiate the said fact, the prosecution has also examined
PW10, the then Junior Engineer of HDMC. Nowhere in his
evidence, as rightly pointed out by the I-Appellate Court, he
has stated about the role of said Aravind Mestri in the
commission of crime. He has been turned hostile to the case of
the prosecution. The I-Appellate Court has rightly disbelieved
the evidence of this witness.
35. One more important witness examined by the
prosecution is PW12, the then Superintendent in the Accounts
Department of HDMC. The said witness has stated about
issuance of Ex.P4 and Ex.P7 cheques and also has spoken
about the bills alleged to have been prepared by these accused
persons. She identified the signatures on Exs.P3 to 6 belong to
accused No.4. According to her, she wrote the said cheques
- 33 -
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
Ex.P4 and Ex.P6. But in the cross examination, she has given a
clear go-bye. According to her cross-examination, based upon
the said bills, it cannot be ascertained as to who was the
contractor of the work and she deposed ignorance about the
same.
36. PW14 examined by the prosecution is an officer of
KVG Bank. He speaks about the disputed signatures on cheques
standing in the name of accused No.1 and their encashment.
Even some of the employees have committed suicide as per the
evidence of the investigating officer. It has come in the
evidence of PW14 that, the said Aravind Mestri possessed the
account with bank. He himself has opened the account. When
he himself has opened the account, as per the evidence of this
PW14, can it be said that he opened the account in the name of
accused No.1, which is a fake bank account. Such a version
cannot be accepted as put forth by the prosecution.
37. Evidently, on scrupulous reading of the entire
evidence of the prosecution, the witnesses examined in the
shape of PW22 to PW31, PW33 to PW39 have been turned
- 34 -
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
hostile. Their evidence would not help the case of the
prosecution.
38. On reading the entire evidence placed on record by
the prosecution, especially of investigating officer PW41, it
shows that there is no proper investigation carried out by this
PW41 so as to rope these accused persons in the commission of
crime. PW41 has categorically stated that there are no
signatures on the counter file of Ex.P4(a), P6(a), P7(a)
cheques. On overall reading of evidence of the prosecution, it
shows that, there is no connecting evidence against accused
No.1 in the commission of the crime.
39. PW7 on suspicious opinion has recommended for
initiation of proceedings. The learned I-Appellate Court has
rightly observed that, "the said auditor by overlooking all the
material aspects has erroneously concluded that, these accused
have committed the offence". Based upon that, a complaint
was filed. As the defence of the accused is of total denial, the
heavy burden is on the prosecution. Thus, to connect the
accused No.1 in the commission of the crime, the evidence
placed on record by the prosecution suffers from material
- 35 -
NC: 2023:KHC-D:14867-DB
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
particulars. It is full of contradictions, omissions and
discrepancies. It is for the prosecution to explain the same.
40. So far as other accused are concerned, their status
as employees of the HDMC is concerned, there is no dispute as
stated above. They are the employees of HDMC and as per the
instructions of their higher authorities, they have acted. There
is allegation against accused Nos.2, who was a junior engineer,
that in connivance with accused Nos.1 and 6, these accused
Nos.2 and 3 prepared the fabricated, fictitious bills by
misrepresenting that there was work of construction in Ward
No.6 and 8. But there is no proper evidence placed on record
by the prosecution. It is alleged that, it was accused No.3, who
has falsely created all the disputed bills by showing the amount
in the disputed cheques. It has come in the evidence of PW1-
complainant that, one Mr.Guttal examined as PW21 in this case
was the executive engineer at the relevant time and he has
stated that, the said cheques are disputed cheques, which are
misused by the accused persons. Based upon the bills being
prepared, as per the documents prepared by accused Nos.2
and 3, it was accused Nos.4 and 6, who have signed those
- 36 -
NC: 2023:KHC-D:14867-DB
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
documents without any proper verification as per the allegation
made by the prosecution.
41. According to PW1, PW21 the then executive
engineer Mr.Guttal without any verification has signed the said
bills placed by accused No.2. When office procedure is being
provided and there is a book called office administration, every
department has to follow the said handbook of administration.
So, whatever the work being done by these accused Nos.2 to 6
as employees of HDMC, as per the defence of the accused, they
have followed the same. When accused No.1 was not entrusted
the contract work as per the evidence of PW1, how the liability
is fixed on accused No.1 and other accused persons alleging
that these accused persons are involved in the crime is a
mystery.
42. In all these cases, the evidence of PW1 plays an
important role. It has come in the evidence of PW1 that, the
offences are committed by all the accused persons. We find
that there is inconsistent, discrepant evidence against all
accused persons. He attributes liability on PW21 that, without
verifying the bills, he has put his signature. When a competent
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
head of the department signs the bills and send the same to
the Accounts Department and based upon such approval given
by head of the office, the employees of the account department
are bound to follow the office administration and see that the
contract bill is being paid. But now the allegations are against
accused Nos.2 to 6.
43. Even it has come in the evidence of PW1 in his
cross-examination that, it was Superintendent of Engineer, who
also certified the work carried out as satisfactory. All the
documents were placed before the Superintendent of Engineer
and he opined that the work carried out was satisfactory. Here,
the tenders were also issued as per the evidence brought on
record. Thus, the common intention alleged against all these
accused persons is not duly proved in accordance with law, and
also the other offences of fabrication of documents and
preparation of fictitious bills.
44. So far as other accused Nos.3, 5 and 6 are
concerned, it has come in the evidence of PW1 and the Chief
Accountant Officer of the HDMC that, the accused fabricated
the disputed bills, but no evidence is placed on record by the
- 38 -
NC: 2023:KHC-D:14867-DB
C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
prosecution through competent witness. The evidence of PW1
suffers from material particulars. No specific allegations are
made against accused Nos.3, 5 and 6 and even against accused
No.4.
45. As rightly pointed out by the I-Appellate Court, this
PW1 has spoken that, accused No.4 is responsible. When a
contractor, who has obtained tender is a class-I contractor or
not, it is the duty of the concerned authority to decide the
same while accepting the tender. During the course of cross-
examination, certain documents were confronted to PW1 and
he admitted the same, which are marked as Ex.D1 to Ex.D3.
There is no allegation in the complaint-Ex.P1 against accused
No.4 that without authenticity, the disputed bills are prepared.
As per the contents of Ex.D1, it was the duty of accused No.4
to confine only to verification of accounts, bills and vouchers
and nothing more than that. If that is so, his duty was just to
verify the accounts, bills and vouchers and he has done his
duties as per the bills placed before him as per the office
administration. Therefore, we find lacuna in the case of the
prosecution in its entirety.
- 39 -
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
46. Even though it has come in the evidence that
accused Nos.5 and 6 are also responsible, they being the
superintendent and FDA in the HDMC at the relevant time, their
duty was to verify the bills and then follow the office procedure.
The prosecution cannot attribute these accused that they have
misappropriated the public funds. No doubt misappropriation of
the public fund amounts to heinous offence. But whether these
accused Nos.2 to 6 have really misappropriated the public
funds in furtherance of their common intention is not duly
proved by the prosecution.
47. The other witnesses examined in this case though
have come before the Court but have stated what was their
duty and how they discharged their duties in HDMC. Even
certain independent witnesses have been summoned by the
prosecution to show that, already work was done and the said
bills were prepared. Even the member of the HDMC was
summoned and also other witnesses. But as a whole, all the
witnesses have been turned hostile. Even some official
witnesses, named as prosecution witnesses, have also turned
hostile as stated above. To attribute the guilt of the accused
- 40 -
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
persons, there is no proper evidence placed on record by the
prosecution.
48. Learned counsel for the accused persons submits
that there is no evidence placed on record by the prosecution
as to prove the guilt of the accused persons. As stated supra,
the ingredients of the offences attributed against the accused
persons, narrated in the foregoing paragraphs, have not been
fulfilled by the prosecution with legal evidence. Though the
prosecution has examined in all 41 witnesses, but none of the
witness has given the linking evidence that it is accused Nos.2
to 6 in the official capacity being employees of HDMC have
committed the offences, and also accused No.1 being a
contractor, evidently who is not a licenced contractor.
Therefore, as per the evidence of the prosecution, no offence
can be attributed against these accused persons as stood
proved as alleged by the prosecution.
49. Even the handwriting expert report relied upon by
the prosecution also shows that, how far the said admitted
signatures and disputed signatures are being examined by him
and he has given report to that effect. Even that report also
- 41 -
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
would not help the case of the prosecution to prove the
fabrication and preparation of fictitious bills by these accused
persons in the manner alleged by the prosecution. Thus, on
overall assessment of the entire text of the evidence, it goes
without saying that, the I-Appellate Court has delivered a well
reasoned judgment and it does not require interference by this
Court. There is no merit in all these appeals. The case of the
prosecution suffers from material particulars. It is full of
contradictions, omissions and discrepancies. There is no linking
evidence to connect the accused persons in the commission of
the crime. If that is so, the appeals filed by the appellant-State
are liable to be dismissed by confirming the judgment of
acquittal passed by the I-Appellate Court. Accordingly, we
answer the above points against the prosecution and in favour
of the accused persons. Resultantly we pass the following:
ORDER
i) All the appeals are dismissed.
ii) The common judgment dated 30.10.2018
passed by the II-Additional District and
Sessions and Special Judge, Dharwad in
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C/W CRL.A No. 100167 of 2018,
CRL.A No. 100168 of 2018,
CRL.A No. 100169 of 2018,
CRL.A No. 100170 of 2018,
Criminal Appeals 125/2015, 126/2015,
129/2015, 130/2015 to 133/2015
acquitting the accused No.1 to 6 is hereby
confirmed.
iii) Send back the Trial Court records along
with a copy of this judgment.
Sd/-
JUDGE
Sd/-
JUDGE
YAN
