Karnataka High Court
Sri. M V Neelakantaiah vs State Of Karnataka on 5 December, 2023
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 427 of 2013
C/W CRL.A No. 1018 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 427 OF 2013
CONNECTED WITH
CRIMINAL APPEAL NO. 1018 OF 2012
IN CRL.A.No.427/2013
BETWEEN:
STATE BY LOKAYUKTA POLICE
TUMKUR
...APPELLANT
(BY SRI. B. B. PATIL., SPP)
AND:
1. SRI M.V.NELAKANTAIAH
SECRETARY,
VILLAGE PANCHAYAT OFFICE,NITTUR,
Digitally GUBBI TALUK,
signed by TUMKUR DIST.
SUMITHRA R
Location: 2. SMT SUSHEELAMMA
High Court of PRESIDENT,
Karnataka VILLAGE PANCHAYAT, NITTUR,
GUBBI TALUK.
3. SRI BASAVARAJU
BILL COLLECTOR,
VILLAGE PANCHAYAT OFFICE, NITTUR,
GUBBI TALUK.
...RESPONDENTS
(BY SRI. A H BHAGAVAN AND
SRI. A.N.RADHAKRISHNA.,ADVOCATES)
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CRL.A No. 427 of 2013
C/W CRL.A No. 1018 of 2012
THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C
PRAYING TO GRANT LEAVE TO APPEAL AGAINST JUDGMENT
DATED 27.08.2012 PASSED BY THE II ADDL. DIST. & S.J.,
TUMKUR IN SPL. CASE NO.208/2007 -ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S.420 & 409
R/W 34 OF IPC.
IN CRL.A.No.1018/2012
BETWEEN:
1. SRI. M. V. NEELAKANTAIAH
SECRETARY,
VILLAGE PANCHAYAT OFFICE, NITTUR
GUBBI TALUK,
TUMAKUR DIST.
2. SMT. SUSHEELAMMA .
PRESIDENT,
VILLAGE PANCHAYATH NITRUR,
GUBBI TALUK
3. BASAVARJAU
BILL COLLECTOR
VILLAGE PANCHAYATH OFFICE,
NITTUR,
GUBBI TALUK.
...APPELLANTS
BY SRI. A H BHAGAVAN AND
SRI. A.N.RADHAKRISHNA.,ADVOCATES)
AND:
STATE OF KARNATAKA
BY LOKAYUKTHA POLICE,
TUMKUR,
REPRESENTED BY:
ITS SPECIAL PUBLIC PROSECUTOR,
MULTISTRORIED BUILDING,
BANGALORE -1.
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CRL.A No. 427 of 2013
C/W CRL.A No. 1018 of 2012
...RESPONDENT
(BY SRI. B B PATIL.,ADVOCATE)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET-ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
DATED 27.08.2012 PASSED BY THE II ADDL. DIST. & S.J.,
TUMKUR IN SPL. CASE NO.208/2007 - CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 13(1)(c)
P/U/S 13(2) OF PREVENTION OF CORRUPTION ACT. THE
APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO R.I.
FOR 1 YEAR AND TO PAY FINE OF RS.1,000/- EACH, IN
DEFAULT TO PAY FINE, THEY SHALL UNDERGO FURTHER
IMPRISONMENT FOR A PERIOD OF 3 MONTHS FOR THE
OFFENCE P/U/S 13(1)(c) P/U/S 13(2) OF PREVENTION OF
CORRUPTION ACT.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals arise out of the judgment and
order dated 27.08.2012 passed by the Court of Second
Additional District and Sessions Judge, Tumakuru in
Spl.Case No.208/2007.
2. Charges were framed against accused Nos.1 to
3 for the offence punishable under Section 13(1)(c) read
with Section 13(2) of Prevention of Corruption Act, 1988
and under Section 409 and 420 read with Section 34 of
IPC.
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3. The Trial Court vide impugned judgment
convicted the accused for the offence under Section
13(1)(c) punishable under Section 13(2) of Prevention of
Corruption Act. However, acquitted them of the offence
punishable under Section 409 and 420 of IPC.
4. Accused Nos.1 to 3 were sentenced to undergo
rigorous imprisonment for one year and to pay fine of
Rs.1,000/- each in default, to undergo further
imprisonment for a period of three months for the offence
under Section 13(1)(c) punishable under Section 13(2) of
Prevention of Corruption Act.
5. Against their conviction and sentence passed
for the offence under Section 13(1)(c) read with Section
13(2) of Prevention of Corruption Act, accused Nos.1 to 3
have preferred Crl.A.No.1018/2012. Against the judgment
of acquittal passed by the Trial Court for the offence
punishable under Section 409 and 420 of IPC, the State
has preferred Crl.A.No.427/2013.
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6. Heard both sides and perused the evidence and
material on record.
7. The case of the prosecution is that, accused
Nos.1 to 3 being public servants working in the capacity of
secretary, president and bill collector of Nittur village
Panchayat, in furtherance of their common intention, by
colluding with each other, collected applications from the
beneficiaries for the amount sanctioned by the
Government of Karnataka for construction of toilets under
Nirmala Karnataka Yojana and after the amount was
sanctioned from the Government, not allotted the amount
to the beneficiaries, for purchase of materials for
construction of toilets under the said yojana and therby
committed criminal breach of trust and cheating and
misappropriated the amount by misusing their position as
public servants.
8. On the basis of the complaint-Ex.P1, lodged by
the Police Inspector of Lokayukta Police Tumakuru, a case
was registered in crime No.6/2005 against accused Nos.1
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to 3. As per the complaint averments, accused Nos.1 to 3
working as secretary, ex-president and bill collector of
Nittur village panchayat, were supposed to conduct an
inspection with regard to the construction of toilets and
only then sanction the amount, but by colluding with each
other and by misusing their position, mis-appropriated the
amount sanctioned under the said scheme since 2001. It is
alleged in the complaint that in certain cases, toilets were
not at all constructed and in other cases toilets were half
constructed, but the accused by creating forged
documents as if the amount was paid to the beneficiaries,
misappropriated the amount to the tune of Rs.37,640/-.
9. To establish the guilt of the accused persons,
the prosecution got examined 8 witnesses and got marked
10 documents and MO-1-registers.
10. The learned Sessions Judge after appreciating
the oral and documentary evidence on record, came to
the conclusion that though PWs-3, 4 and 6 have turned
hostile, rest of the evidence supported and established the
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case of the prosecution. It is held that the evidence of
PWs-1, 2, 5, 7 and 8 is consistent and cogent and at the
earliest available opportunity, accused have not come up
with any explanation and specific defense. On the other
hand the prosecution has proved that the accused persons
have dishonestly or fraudulently misappropriated or
otherwise converted for their own use any property
entrusted to them or under their control as public servants
and thereby committed the offence punishable under
Section 13(2) of Prevention of Corruption Act.
11. In so far as Section 409 and 420 of IPC are
concerned, it is held by the Trial Court that Section 13(c)
also deals with dishonestly or fraudulently
misappropriating the public fund thereby attracting the
ingredients of Section 409 and of 420 of IPC and
therefore, the accused persons cannot be held responsible
for committing the offences punishable under Section 409
and 420 of IPC.
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12. As per prosecution, on receiving a credible
information regarding the offence committed by the
accused persons, PW-8 registered the case and then went
to the spot along with the panch witnesses and prepared
the spot mahazar after recording the statements of the
beneficiaries. As per Ex-P1-spot mahazar which was
drawn on 10.03.2005, the complainant-PW-8 and the
panchas visited about 10 houses and found that at certain
places the toilets were half constructed and in some other
places the toilets were not at all constructed. Further it is
also alleged that some of the villagers had constructed
toilets at their cost and not from the amount sanctioned by
the Government.
13. The Panch witnesses are examined as PWs.1 2
and 5. As per PW-1 and 2, on 10.03.2005 at about 05:00
p.m., they were taken to Nittur panchayat office, wherein
accused No.3 produced certain documents, marked as
MO-1-registers. The said accused then took them to 10
places wherein they observed that the toilets were not
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completely constructed. Panch witnesses have not at all
stated as to where the inspection was conducted and who
were the beneficiaries present at the spot. They have not
stated about recording of the statements of the
beneficiaries at the spot. A perusal of their evidence only
goes to show that they were taken to certain places where
the toilets were not fully constructed. They have stated
that the mahazar was written after they returned to the
IB.
14. The prosecution got examined the beneficiaries
namely PWs.3, 4 and 6. The said witnesses have turned
hostile and they have not supported the prosecution case.
It is pertinent to mention that both PWs-3 and 4 have
stated that they have received the amount sanctioned
under Nirmala Karnatka Yojana by the Nittur grama
Panchayat.
15. It is vehemently contended by the learned
counsel for the accused / appellants that PW-8, Police
Inspector, attached to Lokayukta Police, Tumakuru who is
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the complainant in this case has himself conducted the
investigation and filed the charge sheet thereby acting in a
dual role, which has prejudiced the accused. It is also
contended that the sanction order issued by PW-7 is not in
accordance with law and as per EX-P5, sanction was
granted to prosecute only accused No.1 and not accused
Nos.2 and 3.
16. The learned counsel appearing for the State
contended that PW-7 is the competent authority to issue
sanction and he has clearly stated that after examining the
relevant documents in detail he has issued sanction order
to prosecute Accused Nos.1 and 3. He contends that even
if PWs.3, 4 and 6 have turned hostile, the evidence of the
panch witnesses namely PWs.1,2 and 5 and the evidence
of PW.7 and 8 would establish the case of prosecution
beyond reasonable doubt. He contends that accused
persons are also liable to be convicted for the offence
punishable under Section 409 and 420 of IPC.
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17. It is the specific case of the prosecution that the
accused working as secretary, president and bill collector
of village panchayat, Nittur, though received the amount
from the Government under Nirmala Karnataka Yojana for
construction of toilets, have not allotted the said amount
in favour of the beneficiaries and thereby committed
criminal breach of trust and cheating. In the present case
though MO-1-registers are said to have been seized from
the office of the village panchayat, Nittur, the prosecution
has failed to show as to what was the amount sanctioned
by the Government under the Nirmala Karnataka Yojana
and who are the beneficiaries under the said scheme.
Though in the complaint it is stated that a total amount of
Rs.37,640/- was misappropriated by the accused persons,
the prosecution has utterly failed to show that the said
amount was sanctioned by the Government, but not
allotted to the beneficiaries. Three of the beneficiaries who
were examined by the prosecution have turned hostile.
PWs.-3 and 4 have categorically stated that they have
received the amount sanctioned by
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the Government. As per Ex-P1-Mahazar, PW-8 and panch
witnesses visited about 8 to 10 houses. The prosecution
has not examined any of those witnesses alleged to be the
beneficiaries of the scheme, to whom the amount
sanctioned by the Government for construction of toilets
were not paid.
18. Even though PW-8 has deposed about visiting
few houses and drawing up of Ex.P1-Mahazar, it is not
forthcoming from his evidence as to what was the amount
sanctioned by the Government and what was the amount
misappropriated by the accused persons. When no
beneficiaries have come forward to say that they have not
received the amount released under the Nirmala
Karnataka Yojana, it cannot be said that the prosecution
has been able to prove charges leveled against the
accused beyond reasonable doubts.
19. It is also pertinent to see that the prosecution
has examined PW-7 namely the Assistant Secretary of
Zilla Panchayat, who accorded sanction as per Ex.P5, to
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prosecute the accused persons. As rightly contended by
the learned counsel for appellants a perusal of Ex.P5
shows that the sanction order was issued only in-respect
of accused No.1 and there is no sanction order in-respect
of accused No.2 or accused No.3.
20. The trial Court has failed to take into
consideration the above aspects. The reasons assigned by
the Trial Court for convicting the accused for the offence
punishable under Section 13(1)(c) read with Section 13(2)
of Prevention of Corruption Act, is not in accordance with
law. The Trial Court has shifted the burden on the defense,
observing that accused have failed to demonstrate that no
reliance could be placed on the evidence of the prosecution
witnesses or they had any ill will or malafide intention to
falsely implicate them and further observing that at the
earliest available opportunity, accused have not come with
any explanation and specific defense. It is held by the Trial
Court that accused have failed to establish that the
amount in question has been released to the beneficiaries
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only after they have put up construction of the toilets and
only after being satisfied with the same, money has been
released.
21. The initial burden to establish the guilt of the
accused is on the prosecution. The trial Court has failed to
appreciate that the prosecution has not established as to
what was the amount released by the Government and
what was the amount misappropriated by the accused etc.
When the prosecution has failed to establish the charges
leveled against accused persons, the burden cannot be
shifted on the accused. Hence, the judgment of conviction
and sentence passed by the Trial is not sustainable in law
and the same is liable to be set aside. Accordingly, the
following.
ORDER
i) Crl.A.No.427/2013 is dismissed.
ii) Crl.A.No.1018/2012 is allowed.
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iii) The judgment and order dated 27.08.2012
passed by the Court of the II Additional District and
Sessions Judge, Tumakuru, in Spl.C.No.208/2007
convicting accused Nos.1 to 3 for the offence
punishable under Section 13(1)(c) punishable under
Section 13(2) of Prevention of Corruption Act, is set
aside.
iv) Accused Nos.1 to 3 are acquitted of the offence
punishable under Section 13(1)(c) punishable under
Section 13(2) of Prevention of Corruption Act.
v) The bail bonds of accused Nos.1 to 3 are
cancelled.
Sd/-
JUDGE
LDC
