Sri. R. Krishnappa vs State Of Karnataka
2023 Latest Caselaw 7326 Kant

                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 26TH DAY OF OCTOBER, 2023

                        BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

 CRIMINAL REVISION PETITION NO.1043 OF 2015
                         C/W
 CRIMINAL REVISION PETITION NO.1042 OF 2015
CRIMINAL REVISION PETITION NO.1044 OF 2015,

IN CRL.RP.NO.1043/2015:
BETWEEN:

SRI. R. KRISHNAPPA,
S/O LATE RANGEGOWDA,
AGED 54 YEARS,
R/O GUNGURUMALE,
NONAVINAKERE HOBLI,
TIPTUR TALUK,
TUMKUR DISTRICT-572 201.
                                         ....PETITIONER
(BY SRI. K.N. NITISH, ADVOCATE)

AND:

STATE OF KARNATAKA,
BY NONAVINKERE POLICE-572 201
                                        ...RESPONDENT
(BY SRI. JAIRAM SIDDI, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 30.06.2015 PASSED BY THE V ADDL. DIST. AND S.J.,
TIPTUR IN CRL.A.NO.6/2011 AND THE JUDGMENT OF
                            2

CONVICTION AND ORDER OF SENTENCE DATED 10.01.2011
PASSED IN C.C.NO.1207/1999 BY THE ADDL. CIVIL JUDGE
AND JMFC, TIPTUR.

IN CRL.RP.NO.1042/2015:
BETWEEN:

SRI. R. KRISHNAPPA,
S/O LATE RANGEGOWDA,
AGED 54 YEARS,
R/O GUNGURUMALE,
NONAVINAKERE HOBLI,
TIPTUR TALUK,
TUMKUR DISTRICT-572 201.
                                         ....PETITIONER
(BY SRI. K.N. NITISH, ADVOCATE)

AND:

STATE OF KARNATAKA,
BY NONAVINKERE POLICE-572 201
                                        ...RESPONDENT
(BY SRI. JAIRAM SIDDI, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 30.06.2015 PASSED BY THE V ADDL. DIST. AND S.J.,
TIPTUR IN CRL.A.NO.6/2011 AND THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 10.01.2011
PASSED IN C.C.NO.1206/1999 BY THE ADDL. CIVIL JUDGE
AND JMFC, TIPTUR.

IN CRL.RP.NO.1044/2015:
BETWEEN:

SRI. R. KRISHNAPPA,
S/O LATE RANGEGOWDA,
AGED 54 YEARS,
R/O GUNGURUMALE,
                                 3

NONAVINAKERE HOBLI,
TIPTUR TALUK,
TUMKUR DISTRICT-572 201.
                                                  ....PETITIONER
(BY SRI. K.N. NITISH, ADVOCATE)

AND:

STATE OF KARNATAKA,
BY NONAVINKERE POLICE-572 201
                                                 ...RESPONDENT
(BY SRI. JAIRAM SIDDI, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 30.06.2015 PASSED BY THE V ADDL. DIST. AND S.J.,
TIPTUR IN CRL.A.NO.6/2011 AND THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 10.01.2011
PASSED IN C.C.NO.1208/1999 BY THE ADDL. CIVIL JUDGE
AND JMFC, TIPTUR.

     THESE CRIMINAL REVISION PETITIONS HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 09.10.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

These revision petitions are filed by the revision

petitioners/ accused challenging the judgments of

conviction and orders of sentence passed by Additional Civil

Judge and JMFC, Tiptur in C.C.No.1206/1999,

C.C.No.1207/1999 and C.C.NO.1208/1999 which are

confirmed by V Additional Sessions Judge, Tiptur in

Crl.A.No.6/2011.

2. For the sake of convenience, the parties herein

are referred with original ranks occupied by them before the

trial Court.

3. The brief factual matrix leading to these cases

are as under:

The accused was working in Vyavasaya Seva

Sahakara Sangha, Niyamitha (VSSN) Gungurmale Village

for the period from 02.02.1986 to 31.07.1996. It is the case

of the prosecution that the accused was the Secretary from

01.04.1993 to 31.03.1996 of the said Society and was

entrusted with stock and all the financial commitments

pertaining to the Society. He was required to maintain the

books of accounts and also stock and he was also a

salesman. It is alleged that for the period from 01.04.1993

to 31.03.1994, he had misappropriated a sum of

Rs.28,780/-, for a sum of Rs.4,07,090.92/- for the period

01.04.1994 to 31.03.1995 and a sum of Rs.1,28,180.56/-

for the financial year 01.04.1995 to 31.03.1996. The same

was traced during the audit of the accounts of the Society

on 05.11.1997. On the basis of the audit report,

complainant as per directions and authorization lodged a

complaint before Nonavinakere Police Station by sending it

by post after obtaining sanction of Assistant Registrar

Cooperative Societies, Tiptur. On the basis of the complaint,

crime was registered in Crime No.102/1997 for the offences

punishable under Section 408 and 409 of Indian Penal

Code, 1860 (hereinafter referred to as 'the IPC' for short).

Thereafter, the Investigating Officer seized relevant

material documents from the society by drawing the

mahazar after issuing necessary notice and recorded the

statement of the witnesses as well as the auditor. Then he

found that there is material evidence as against the accused

and submitted the charge sheet for the offences punishable

under Section 408 and 409 of IPC.

4. The learned Magistrate has taken cognizance of

the offence and accused has appeared before the trial Court

and was enlarged on bail. He was also provided with

prosecution papers as contemplated under Section 207 of

Code of Criminal Procedure, 1973 (hereinafter referred to

as 'Cr.P.C' for short).

5. After hearing the arguments and after perusing

the oral and documentary evidence, the learned Magistrate

has framed the charge against the accused for the offence

punishable under Section 408 of IPC. The accused denied

the same and claims to be tried.

6. As these matters are pertaining to the same

transaction for different years, the learned Magistrate has

recorded common evidence, but the relevant entries were

marked differently.

7. In order to prove the guilt of the accused

prosecution has examined in all 8 witnesses and placed

reliance on 77 documents marked at Ex.P1 to Ex.P77.

Further, in C.C.No.1201/1999 to C.C.No.1208/1999, the

auditor was examined as PW1.

8. After conclusion of the evidence of the

prosecution, the statement of accused under Section 313 of

Cr.P.C was recorded to enable the accused to explain the

incriminating evidence appearing against him in the case of

the prosecution. The case of accused is of total denial.

However, the accused did not lead any oral and

documentary evidence in support of his defence, but at the

same time, during the cross-examination of the auditors

who were examined as PW4 and PW1 in all the three cases

independently, Ex.D1 to Ex.D5 were marked, which were

statement of the said witnesses said to have been given

before the Investigating Officer.

     9.    After    hearing      the      arguments       and        after

appreciating the    oral and documentary evidence, the

learned Magistrate has convicted the accused for the

offences punishable under Section 408 of IPC in all the

three matters by imposing Simple Imprisonment for a

period of two years with fine of Rs.10,000/- in each case

with default sentence.

      10.     Being    aggrieved        by    these     judgments     of

conviction    and     order   of   sentences,     the    accused     has

approached      V     Additional    Sessions     Judge,     Tiptur    in

Crl.A.No.6/2011       challenging       the   common     judgment     of

conviction and order of sentences. The Learned Sessions

Judge after re-appreciating the oral and documentary

evidence, allowed the appeal in part so far as it relates to

sentence portion is concerned and modified the sentence by

imposing Simple Imprisonment for 8 months with fine of

Rs.5,000/- in each case. Against these concurrent findings,

these revision petitions are filed by the revision petitioner /

accused.

11. At the outset, it is to be noted here that though

three charge sheets were submitted independently and

three independent criminal cases were registered the

evidence was recorded commonly and judgment was

delivered commonly. However, sentence was imposed in all

the three matters independently and not commonly.

Against this, a single appeal is filed in Crl.A.No.6/2011. The

accused has not challenged the judgment of conviction in

three independent appeals, but he challenged them in a

single appeal, which is against the principles of law.

Interestingly, neither the prosecution nor the Learned

Sessions Judge noticed this aspect and raised any objection,

but mechanically on single appeal the sentence was

modified in all the three criminal cases. Further, this order

in appeal is challenged in three petitions by accused in

these revision petitions, but State has not challenged the

same. At the outset, the entire approach of the Learned

Sessions Judge itself is erroneous and the accused could not

have challenged all the three convictions in a single appeal.

12. Heard the arguments advanced by the learned

counsel for the revision petitioner/accused and learned High

Court Government Pleader for the State. Interestingly, none

of the parties have advanced their arguments on the

aforesaid point. Perused the records.

13. The learned counsel for the revision petitioner

would contend that the alleged offences are said to have

committed for the period of 1993-94, 1994-95 and 1995-

96. It is further asserted that the direction to lodge the

complaint was given on 13.05.1997, but the complaint was

lodged on 05.10.1997 and there is an inordinate delay,

which is not explained. Further, it is asserted that there is

a delay in seizure of the material records. He would also

contend that in Ex.P20 and Ex.P77, the handing over of

charge is in relation to 126 items, but no evidence was led

and no detail charge was framed. He would also contend

that from Ex.P6, the Secretary was required to maintain all

the financial transactions of the Society, but there is no

specific assertion in the charge regarding details as the

charge framed is vague and bereft of material particulars.

He would also contend that audit reports Ex.P3 and Ex.P4

are photo copies and no foundation was laid down and they

were objected for marking and hence, no much importance

can be given to the audit report. He would also assert that

the audit report and the evidence of auditor itself cannot be

a ground for conviction and Ex.P3, Ex.P4 and Ex.P77 have

been disputed. It is also asserted that person who has

handed over charge to the accused / revision petitioner was

not examined and the sentence was also disproportionate.

Hence, he would seek for allowing these revisions by setting

aside the impugned judgments of conviction and order of

sentences passed by both the courts below.

14. Per contra, the learned counsel High Court

Government Pleader would support the judgment of

conviction and order of sentence passed by the trial Court

and affirmed by the appellate court. He would contend that

undisputedly, the accused was the Secretary during the

relevant period and there was misappropriation in this

period for continuous three years and there is no

explanation offered by the accused. He would also contend

that the misappropriated amount is more than

Rs.5,60,000/- and accused admittedly was holding the

Secretary post and he was domain over the property as well

as cash and entrustment is established. He has not shown

the sale proceeds in the cash book and Ex.P6, bye- law of

the Society establishes the duties and responsibilities of the

Secretary and admittedly, Secretary was responsible for

day to day transaction of the Society including cash and

stock. He would contend that the entries in Ex.P3 and

Ex.P4 audit reports were not challenged and the audit

reports were not disputed but initially marking was objected

from particular witness on ground that he is not signatory

to document. Hence, he would contend that both the courts

below are justified in convicting the accused by imposing a

reasonable sentence. Hence, he would seek for dismissal of

the revision as the appellate court has already shown

leniency by reducing the sentence.

15. Having heard the arguments and on after

appreciating the oral and documentary evidence, now the

following point would arise for my consideration:

"(i) Whether the judgments of conviction and order of sentences passed by the learned Magistrate and confirmed by the Learned Sessions Judge with certain modification regarding sentence suffers from any perversity, arbitrariness or illegality so as to call for any interference by this court?"

16. At the outset, it is an undisputed fact that the

accused was the Secretary for the relevant period from

01.04.1993 to 31.03.1996. This fact is not under dispute.

Ex.P6 is the bye-law of the Society and it establish that the

Secretary was in charge of the cash / accounts and stock of

the Society. Though the accused admittedly, joined the

Society as salesman in the year 1986, subsequently, he was

appointed as a Secretary, which is not under dispute.

Hence, it is a fact that he was entrusted with the accounts

of the Society including stock and he had domain over the

cash and property of the Society. To prove the

misappropriation, the basic ingredient is entrustment and in

the instant case, regarding entrustment or domain there is

no dispute at all.

17. Ex.P33 is the cash book and the entries in the

cash book clearly establish that the entries do not tally with

sales ledger marked at Ex.P31 and stock ledger marked at

Ex.P34. Further, Ex.P35 is the ledger extract and it

discloses that the accused has drawn certain amount of

Rs.25,525/- from the Society, but the same was not shown

in Ex.P33. All these entries were specifically marked and in

detail explained by PW3. During cross-examination of PW3,

only Ex.D5 was got marked, which is a portion of the

statement said to have been given before the Investigating

Officer, but that statement does not have relevancy in view

of documentary evidence and the anomalies recorded in the

entries are required to be explained by the accused.

18. Ex.P36 is the mahazar regarding seizure of

certain documents and Ex.P3 is the audit report for the

financial period 1993-94. From Ex.P3, Ex.P31, Ex.P33, and

Ex.P34, it is evident that there is a misappropriation of

Rs.28,780/- by the accused. The accused has not made any

attempt to explain the anomalies in the entries. Since, the

accused was entrusted and domain over the stock and cash

he is required to explain the facts within his knowledge

under Section 106 of evidence act, but his case was formal

denial.

19. As per the case of the prosecution, for the

financial year 1994-95, there was misappropriation of

Rs.4,03,590.92/-. In this regard, the auditor was

independently examined as PW1. The audit report is

marked at Ex.P4. His evidence clearly discloses that the

Society has received an amount of Rs.3,28,617/- towards

current deposit as per records, but only one voucher for

Rs.52,000/- was available and there are no vouchers found

in respect of remaining amount of Rs.2,73,170/-. It is for

the accused to explain while audit was going on, why he

has not produced corresponding vouchers. It is not his case

that corresponding vouchers were available and he did

produced them before the auditor or handed over to the

incoming Secretary. Ex.P7 discloses that the entries

thereunder established regarding misappropriation of

Rs.59,051.02/-. Further Ex.P20, Ex.P28, Ex.P7, Ex.P30 and

Ex.P31 disclose that he has misappropriated

Rs.4,03,590.92/- for the said financial year 1994-95. When

sales stock discloses regarding sale and corresponding sale

proceeds were not mentioned, definitely it is for the

accused to explain and it clearly amounts to

misappropriation.

20. The evidence of PW1 further discloses regarding

non-consideration of total amount in respect of advance

sale proceeds, which was sold by the accused, which was

not taken in cash register. His evidence further discloses

that sale proceeds were not mentioned in cash book and

amount of Rs.15,645.15/- was omitted while drawing the

bills. Further, from Ex.P40, it is evident that the accused

has misappropriated a sum of Rs.38,114.70/-, which is the

shortage amount. The cash book at Ex.P75 discloses

shortage amount of Rs.33,197.91/- and the relevant entries

were available at Ex.P75(a) to Ex.P75(d). The daily sales

register extract is marked at Ex.P38.

21. During the cross-examination of PW1, a

suggestion was made to the effect that CW6 being the

salesman has not handed over the sale proceeds and that

has been denied by PW1. PW1 admits that CW6 has paid

the amount alleged to have misappropriated by him.

Further, it is also evident that notice of audit was duly

served on the accused, but he did not respond. Hence,

prima facie there is material evidence to show that accused

has misappropriated a sum of Rs.1,28,180.46/- during the

financial period 1995-96.

22. Interestingly, during the cross-examination, the

accused has not disputed the entries in the audit reports

Ex.P3 and Ex.P4 and it was asserted that in the audit

report, there was a direction to initiate action against the

salesman-Krishnegowda who is equally responsible for

criminal breach of trust and he was not prosecuted. But that

does not absolve the responsibility of the accused under

Ex.P3 and Ex.P4 as the accused was in complete control of

stock as well as finance of the Society. If CW6-

Krishnegowda had misappropriated, it was his duty to

initiate immediate action against him for recovery of the

said amount, but his silence in not initiating any action

against him establishes that he was part of the conspiracy.

23. The other contention raised by the learned

counsel for the revision petitioner / accused is that the

original audit report is not produced and there was

objection for marking the audit reports. No doubt, original

audit reports were not produced, but in the entire evidence,

the genuineness of the audit reports were not at all

challenged asserting that there were material alterations in

Ex.P3 and Ex.P4 compared to the original audit reports.

Apart from that, the objection was not for marking the audit

report, but objection was raised during the cross-

examination of PW1 for marking the audit reports on the

ground that he is not a signatory to the audit report, but

the said objection was ignored and audit reports were

marked. However, during the evidence of the auditor, the

corresponding entries were marked and during that period,

there was no objection or challenge to the authenticity of

the audit report. Hence, the arguments advanced in this

regard, by the learned counsel for the revision petitioner

holds no water.

24. The other contention is regarding delay in

lodging the complaint. But since, the entire case is based on

documentary evidence and considering the seriousness of

the offence, delay itself cannot be a ground for setting aside

the conviction. The complaint was lodged only after

obtaining sanction from the concerned authority and hence,

delay cannot be termed as fatal.

25. The other ground raised is non-framing of

charge with details of individual entries. The copy of the

audit report was furnished to the accused along with the

prosecution papers under Section 207 of Cr.P.C. He was

having knowledge of the allegations made against him and

the allegation was for a particular financial year

independently. It is not the case of the accused that he did

not understand the charge and thereby it has prejudiced his

defence. However, the cross-examination reveals that the

accused understood the charge and in detail cross examined

the auditors. Hence, the said arguments do not have any

relevancy as no prejudice was caused to the accused. The

arguments that the copies of the audit reports are produced

without laying foundation cannot be a ground since, these

documents are not at all disputed or challenged. The

complaint itself in detail refers as to how the

misappropriation was done based on the audit report. The

'D' series would not help the accused in anyway as the

documentary evidence would prevail over the oral evidence.

Apart from that, the conviction is not based on only audit

report, but it is based on audit report as well as cash books,

stock register, which were correspondingly considered by

the auditor. Hence, the arguments advanced by the learned

counsel for the revision petitioner in this regard are not

sustainable.

26. The learned counsel for the revision petitioner

has placed reliance on a decision reported in 'DADARAO

VS. THE STATE OF MAHARASHTRA', AIR 1974 SC 388,

wherein it is observed that when there is no evidence of

mode and manner of keeping accounts and not even

suggestion that cash on hand was at any time was tallied or

checked and when nobody were examined to prove that

books of accounts were kept regularly in the course of

business, the conviction cannot be sustained. But the facts

and circumstances of the said case are entirely different. In

the instant case, it is not the case of the accused that books

of accounts were not kept and he was not handling them.

The mode and manner of keeping of books of accounts itself

is explained by the auditor and that was not challenged by

the accused and hence, the said principles would not come

to the aid of the accused in any way.

27. The learned counsel for the revision petitioner

further placed reliance on a decision in 'SARDAR SINGH

VS. STATE OF HARYANA', AIR 1977 SC 1766, but in the

said case, there was an observation that there was no

evidence to establish that the accused dishonestly

misplaced the receipt book or converted it for his own use

or dishonestly used or disposed of the receipt book. But in

the instant case, it is not only receipt books, but

corresponding cash register, stock register and daily sales

register were produced and accused failed to produce the

voucher. However, it is not his case that the vouchers were

available. Considering these facts and circumstances, the

principles enunciated in the above cited decision will not

come to his aid in any way. He has further placed reliance

on a decision of the Sikkim High Court in 'PUSPA KUMAR

RAI VS. STATE OF SIKKIM', 1978 Cri.LJ 1379, but the

facts and circumstances being entirely different and hence

the said principles cannot be made applicable to the case in

hand.

28. He has further placed reliance on a decision of

Orissa high court in NETRANANDA SAHU VS. THE STATE

OF ORISSA', 1993 CRi. LJ 1272, but in the said case,

there was no evidence that there was any physical

verification of stock in question. But in the instant case,

there is a specific evidence regarding stock verification and

it is for the accused to explain and hence, the said

principles will not come to the aid of the accused in any

way. He has also placed reliance on a decision of Orissa

High court in 'OKILA LUHA VS. STATE OF ORISSA',

1984 II OLR 585, but the facts and circumstances being

entirely different and the accused having admitted

entrustment and domain over stock and cash, he is required

to explain and hence, the principles enunciated in above

cited decision will not assist him in any way.

29. He has also placed reliance on a decision in

'VIJAYA VS. STATE OF MAHARASHTRA', AIR 2003 SC

3787, but in said case there, omission was completely vital

and even substance of accusation was totally different from

what was established by the prosecution. It was a case

under Section 302 and 201 of IPC regarding murder and

causing disappearance of evidence. The charge was

different and attempt was made to prove it differently and

in that context, it was held that the omission was vital and

substance of accusation being totally different is fatal. But

the said principles are not applicable to the facts and

circumstances to the case in hand in any way.

30. He has further placed reliance on a decision

reported in 'ASARAM BHAVANDIN YADAV VS. STATE OF

MAHARASHTRA', 1991 (2) Bom CR 397, but the facts

being entirely different the said principles cannot be

applicable to the case in hand.

31. He has lastly relied on decision reported in

'S.HARNAM SINGH VS. THE STATE', AIR 1976 SC

2140, but in the said case, there was wrong entries in

marking cum loading the register and in that context, it is

held that there was no mens rea and prime witness were

not examined. But the facts and circumstances are entirely

different and in the instant case, the entrustment and

domain being established, the burden shifts on the accused

to substantiate his contention, but he has not done so.

Hence, the said principles cannot be made applicable to the

case in hand.

32. The learned Magistrate has considered the

evidence in detail from entry to entry and analyzed the

evidence of the auditor in detail and has rightly convicted

the accused. The first appellate court has also done the

same thing, but reduced the sentence. As observed above,

the first appellate court should not have entertained single

appeal against three judgments of convictions which is

against settled principles of law. The court is empowered to

consider it in this revision regarding illegality committed by

lower appellate court and it could restore the order of

sentence passed by the trial Court. However, the State has

not raised any issue on this point. Further, lot of water was

flown in between and looking to these facts and

circumstances, in my considered opinion the judgment of

conviction and order of sentence passed by the appellate

court does not call for any interference though the appellate

court without jurisdiction reduced the sentence portion.

Considering these facts and circumstances, the revision

petitions being devoid of merit does not survive for

consideration. Accordingly, the point under consideration is

answered in the negative. As such, I proceed to pass the

following:

ORDER

(i) The revision petitions stand dismissed.

(ii) Send back the records to the trial Court with a direction to secure the presence of the accused for serving the sentence.

Sd/-

JUDGE

SS