Karnataka High Court
Mallappa S/O Gurulingappa Naik vs The State Of Karnataka on 27 July, 2023
Bench: Anil B Katti
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CRL.RP No. 100064 of 2015
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100064 OF 2015
BETWEEN:
SHRI. MALLAPPA S/O. GURULINGAPPA NAIK
AGE:50 YEARS, OCC. AGRICULTURE
R/O. BENIWAD-591 309
TALUKA: HUKKERI, DIST. BELAGAVI. ...PETITIONER
(BY SRI. B. S. KUKANAGOUDAR, ADV.)
Digitally
AND:
signed by
ANNAPURNA
ANNAPURNA CHINNAPPA
CHINNAPPA DANDAGAL THE STATE OF KARNATAKA
DANDAGAL Date:
2023.07.28 REPRESENTED BY HIGH COURT PUBLIC
11:23:16 -
0700 PROSECUTOR DHARWAD. ...RESPONDENT
(BY SRI. PRAVEEN UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
AND ORDER DATED 23.01.2015 PASSED BY THE VII ADDL.
DISTRICT AND SESSIONS JUDGE, BELAGAVI AT CHIKODI IN
CRIMINAL APPEAL NO.104/2011 FOR THE OFFENCES U/S 408,
477-A OF IPC AND SET ASIDE JUDGMENT AND ORDER
DATED 07.09.2011 PASSED BY THE CIVIL JUDGE & JMFC
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CRL.RP No. 100064 of 2015
COURT, HUKKERI, IN C.C.NO.411/2007 AND SET THE
PETITIONER AT LIBERTY.
THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 12.06.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
Revision petitioner feeling aggrieved by the judgment of
first Appellate Court on the file of VII Addl. District and
Sessions Judge, Belagavi, sitting at Chikkodi, in
Crl.A.No.104/2011 dated 23.01.2015 preferred this appeal.
2. Parties to the petition are referred with their ranks
as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that accused
was incharge Manager of Beniwad Primary Agricultural Credit
Co-operative BanK Limited, Beniwad, Hukkeri taluka,
(hereinafter referred to as 'bank'). In between 01.04.2003 to
31.03.2004 on different dates the accused wrote false income
and expenditure entries and misappropriated a sum of
Rs.6,33,211/-. Apart from that he has credited total amount of
CRL.RP No. 100064 of 2015
Rs.42,849.16/- more in the account of CWs-16 to 22 and
totally caused loss of Rs.6,76,060.16 to the bank and thereby
committed the aforesaid offences.
4. On the direction of Assistant Registrar of Co-
operative Societies, Belagavi, the Co-operative Development
Officer filed complaint before the police. In the audit for the
relevant period of which accused was in-charge Manager of the
bank, it was found that accused has misappropriated the
amount. On registering the complaint, Investigating Officer has
carried out the investigation and on completion of investigation,
filed the charge-sheet.
5. In response to summons, accused appeared
through counsel and contested the matter. The trial Court after
being prima facie satisfied with the charge-sheet, framed the
charge against accused for the offences punishable under
Sections 408 and 477(A) of IPC. Prosecution to prove the
allegations made against accused, relied on the evidence of
PWs-1 to 21 and the documents as per Ex.P.1 to Ex.P.45.
6. On closure of prosecution evidence, statement of
accused under Section 313 of Cr.P.C. came to be recorded.
Accused did not lead any evidence. However, got marked
CRL.RP No. 100064 of 2015
Ex.D.1 and Ex.D.2 through the evidence of prosecution
witnesses. The trial Court after appreciation of evidence on
record convicted accused for the aforesaid offences and
imposed sentence as per order of sentence.
7. Accused challenged the said judgment of conviction
and order of sentence before the first Appellate Court on the
file of VII Addl. District and Sessions Judge, Belagavi, at
Chikkodi, in Crl.A.No.104/2011. The first appellate Court after
re-appreciation of the evidence, by judgment dated 23.01.2015
partly allowed the appeal and convicted accused only for the
offence punishable under Section 408 of IPC.
8. Appellant/accused feeling aggrieved by the said
judgment of conviction and order of sentenced passed by first
appellate Court preferred this revision petition contending that
both the Courts below have not properly appreciated the
evidence on record and did not consider Ex.D.1 and Ex.D.2.
The accused was not responsible for the entries found in the
account books and it is the staff of the bank who entered the
transaction in the account book. The entire amount alleged to
have been misappropriated have been deposited to the bank.
The revision petitioner is not qualified to maintain the books of
CRL.RP No. 100064 of 2015
accounts and has only passed SSLC who was placed in-charge
Manager though there is no any appointment order to that
effect. The approach and appreciation of oral and documentary
evidence placed on record by both the Courts below cannot be
legally sustained. Therefore, prayed for allowing the revision
petition and to set aside the judgment of conviction passed by
both the Courts below and consequently, to acquit the accused.
9. In response to notice of revision petition, learned
High Court Government Pleader has appeared for
respondent/State.
10. Heard the arguments of both sides.
11. On careful perusal of oral and documentary
evidence placed on record by the prosecution, it would go to
show that accused was in-charge Manager of bank from
16.02.2001 to 20.10.2005. In between 01.04.2003 to
31.03.2004 on different dates the accused wrote false income
and expenditure entries and misappropriated a sum of
Rs.6,33,211/-. Apart from that he has credited total amount of
Rs.42,849.16/- to the bank. The same was detected during
audit of the bank accounts for the relevant period.
CRL.RP No. 100064 of 2015
12. The trial Court as well as the first appellate Court on
the basis of oral and documentary evidence more particularly,
Exs.P.8, 30, 34 and 36 held that accused was in-charge
Manager of the bank from 16.02.2001 to 20.10.2005. The said
documents are not disputed by the accused during trial.
13. Another contention of accused is that in-charge
Manager cannot be appointed and the Managing Committee has
to appoint a full time Manager. The Rules of the Society are
produced at Ex.P.29. On careful perusal of the Rules, it would
go to show that Managing Committee is empowered to appoint
the Manager for effective management of the Society. The
resolution and the order passed by Common Cadre Authority
would go to show that accused was appointed as in-charge
Manager of the bank. It is pertinent to note that the accused
since from the time of appointment on 16.02.2001 as in-charge
Manager of the bank till the complaint was being filed, has
never questioned authority of the Managing Committee to
appoint him as in-charge Manager of the bank. On the other
hand, accused has admittedly continued to work as in-charge
Manager of the bank. Therefore, under these circumstances,
both the Courts below have rightly rejected the contention of
accused as referred above and justified in holding that accused
CRL.RP No. 100064 of 2015
was working as in-charge Manager of the bank from
16.02.2001 to 20.10.2005 and the Managing Committee of the
bank has got every power to appoint the in-charge Manager.
14. The prosecution alleges that during the period from
01.04.2003 to 31.03.2004, there was misappropriation in the
bank and to prove the said fact, relied on the documents as per
Ex.P.6 to Ex.P.13. The documents at Ex.P.6 and 7 are the cash
books, Ex.P.8 and 9 are the resolution books, Ex.P.10 and 11
are the bill books and Ex.P.12 and 13 are related to pigmy.
The auditor report is marked as Ex.P.3 and the material witness
to speak on the audit report and the misappropriation of the
fund by the accused being in-charge Manager of the bank,
examined the auditor as PW-19.
15. PW-19 during the course of his evidence before the
Court deposed to the effect that he has conducted audit work of
the bank from 04.12.2004 to 29.03.2005 for the period
01.04.2003 to 31.03.2004. During the period of audit, it was
noticed several false entries of accounts and misappropriation
of funds. The details of such misappropriation has been
reported in the audit report as per Ex.P.3. The evidence of the
auditor PW-19 is duly corroborated by the accounts maintained
CRL.RP No. 100064 of 2015
by the bank. In a case of this nature where the allegations are
based on the books of accounts to hold the person liable for
maintenance of account, the evidence of auditor of books of
accounts assumes much importance than any other evidence.
The other evidence will be in the form of corroborative
evidence, since the same would be as an outcome of the audit
report and also the seizure of the books of accounts by the
Investigating Officer.
16. In the present case, the evidence of auditor PW-19
and the audit report Ex.P.3 coupled with the account books of
the bank would reveal that accused being in-charge Manager
was responsible for the entries made in the account books.
Therefore, the defence of accused that he was not trained in
maintaining the books of accounts and he has just studied upto
SSLC cannot be a valid ground to disown the responsibility of
misappropriation of funds.
17. PW-1 - Co-operative Development Officer has
deposed about filing complaint as per the direction of Assistant
Director of Co-operative Societies and PW-18 - Bheemappa
Kempanna Chikkalagudda, present Secretary of the bank has
spoken about accused working as in-charge Manager of the
CRL.RP No. 100064 of 2015
bank and responsible for maintaining the account. The defence
counsel though has subjected the above witnesses to lengthy
cross-examination, nothing worth material has been brought on
record so as to discredit their evidence. The Courts below have
rightly appreciated the evidence on record and arrived at a just
and proper conclusion in holding that accused is guilty of the
offences alleged against him.
18. The first appellate Court has convicted the accused
only for the offence under Section 408 of IPC. The said
modified order of the first appellate Court has not been
challenged by the State. Accused was sentenced to undergo
simple imprisonment for six months and pay fine of Rs.5,000/-,
since the fine amount imposed by trial Court is not modified by
the first Appellate Court for the offence punishable under
Section 408 IPC.
19. Learned counsel for revision petitioner questioning
the imposition of sentence as modified by the first appellate
Court for the offence under Section 408 of IPC contended that
the entire misappropriated amount is deposited by the accused.
Secondly, appellant was unskilled person and studied only upto
SSLC and hence, has improperly handled the books of
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CRL.RP No. 100064 of 2015
accounts. Thirdly, accused was having no any training or
knowledge about handling of books of accounts. Fourthly, the
mis-appropriated amount can be recovered along with fine.
Fifthly, accused is undergoing trauma of trial nearly for about
20 years and lastly, accused is now aged 50 years and with
great difficultly he is eking out his livelihood by doing
agricultural work. Therefore, prayed for exercising power
under Section 4 of the Probation of Offenders Act for the
offence under Section 408 of IPC.
20. Learned counsel for accused in support of such
contention relied on the judgment of Hon'ble Apex Court in
BORE GOWDA VS. STATE OF KARNATAKA [(2000) 10 SCC
260] wherein it has been observed and held that:
"Penal Code, 1860 - S. 408 - Criminal breach of
trust by clerk or servant - Probation of Offenders
Act, 1958 - S. 4 - Power of court to release certain
offenders on probation of good conduct - Appellant
convicted under S. 408 IPC for irregularities
detected during audit of accounts of a cooperative
society, of which appellant was Secretary - On
appeal sentence reduced to one month RI -
Irregularities occurred in 1981-82 - Amounts of
money involved were small (Rs.1812 and less) -
Appellant had reimbursed the Society for entire
amount with interest - Held, benevolent provisions
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CRL.RP No. 100064 of 2015
of Probation of Offenders Act could be extended to
appellant, who directed to execute a bond for
keeping the peace and being of good behaviour for 3
years - Sentence suspended sine die."
21. In the present case, the mis-appropriation took
place in between 01.04.2003 to 31.03.2004 on different dates
during the period for which accused was in-charge Manager of
the bank. The total misappropriated amount from the account
of CWs-16 to 22 is Rs.6,33,211/-. The excess amount credited
to their account is Rs.42,849/-. Thus, the total
misappropriated amount is Rs.6,76,060/-. The accused on
14.07.2010 has deposited an amount of Rs.12,66,638/- with
interest. Indisputably, accused has passed only SSLC and has
no any knowledge of maintaining the books of accounts of the
bank. The accused is also undergoing trauma of trial for the
last 20 years. Under the said circumstances and the grounds
urged at the time of hearing of the arguments, this Court called
for the report of Probation Officer.
22. The report of Probation Officer would go to show
that accused is now aged 50 years having educational
qualification upto SSLC and now presently doing agricultural
work. Accused has lost his wife about 3 years back and has got
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CRL.RP No. 100064 of 2015
3 sons who are depending on the income of accused. It is
further reported that one of the son is employed in a private
concern and two of them are working with the accused in the
agricultural land belonging to the accused measuring about 5
acres. The social status of accused is reported that he is a
sober man and has no antecedents of criminal history. The
villagers have expressed good opinion of accused. The
responsibility of maintaining the family is on the accused.
Looking to the report of the Probation Officer and the fact that
accused has already deposited the misappropriated amount on
14.07.2010 with interest amounting to Rs.12,66,638/- and
further undergoing trauma of trial for last 20 years and for the
reasons recorded as above, in my opinion, it is a fit case to
extend the benefit of P.O.Act. Consequently, proceed to pass
the following:
ORDER
Revision petition filed by revision petitioner is hereby
partly allowed.
The judgment of the first Appellate Court on the file of VII
Addl. District and Sessions Judge, Belagavi, sitting at Chikkodi,
in Crl.A.No.104/2011 dated 23.01.2015 is hereby ordered to be
modified as under:
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CRL.RP No. 100064 of 2015
The judgment of conviction under Section 408 of IPC and
imposition of sentence as ordered by the first Appellate Court is
maintained.
However, the benefit of Section 4 of P.O. Act is extended
to the accused and he is ordered to be released on executing
bond of good conduct and on his executing bond with one
surety for a period of two years from the date of this judgment
and undertaking to receive sentence when called upon during
the said period.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
Jm/-
