Karnataka High Court
Bagalkot Town Development Authority vs Abdulajij Dastagirsab Attar on 19 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
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CRL.RP No. 100149 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 100149 OF 2019
BETWEEN:
BAGALKOT TOWN DEVELOPMENT AUTHORITY,
BAGALKOT, REPRESENTED BY ITS
EXECUTIVE ENGINEER,
DIVISION NO.1, BAGALKOT,
SRI.MOHAN NAGAPPA GADAG,
AGE:56 YEARS,
OCC: EXECUTIVE ENGINEER.
...PETITIONER
(BY SRI MALA B. BHUTE, ADVOCATE FOR
SRI G.K.HIREGOUDAR, ADVOCATE)
AND:
1. ABDULAJIJ DASTAGIRSAB ATTAR,
AGE: 56 YEARS, OCC: FDA IN BTDA,
ANNAPURNA BAGALKOTE.
CHINNAPPA
DANDAGAL
2. RAJESAB S/O RAJESAB BAIRAGI,
Digitally signed
AGE: 58 YEARS, OCC: FDA IN BTDA,
by ANNAPURNA
CHINNAPPA
BAGALKOT.
DANDAGAL
Date: 2024.02.20
10:47:06 +0530 3. VEERASANGAYYA MAHADEVAYYA HIREMATH,
AGE: 59 YEARS, OCC: PEON IN BTDA,
BAGALKOT.
4. JYOTINATH VITHALRAO MADHUKAR,
AGE: 52 YEARS, OCC: PRIVATE TRADE,
BIJAPUR
5. THE STATE OF KARNATAKA
P.S.I. TOWN P.S., BAGALKOT,
REPRESENTED BY STATE PULBIC PROSECUTOR,
-2-
NC: 2024:KHC-D:3896
CRL.RP No. 100149 of 2019
HIGH COURT BUILDING, DHARWAD
...RESPONDENTS
(BY SRI N.L.BATAKURKI, ADVOCATE FOR R2;
SRI B.G.INDI, ADVOCATE FOR R4;
SMT. GIRIJA S.HIREMATH, HCGP FORR R5;
R1 AND R3 ARE DISMISSED AS ABATED)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENTS AND
ORDERS OF ACQUITTAL IN C.C.NO.81/2007 DATED 04.05.2010
PASSED BY THE CJM COURT, BAGALKOT AND CONFIRMING THE
ORDER OF THE TRIAL COURT IN CRL.A.NO.82/2010 DATED
22.03.2019 OFFENCES PUNISHABLE UNDER SECTION 409 AND 201
OF IPC, PASSED BY THE II-ADDL. DISTRICT AND SESSIONS JUDGE,
BAGALKOT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. The defacto complainant has filed this revision petition
under Section 397 read with Section 401 of Cr.PC with a prayer
to set aside the judgment and order of acquittal dated
04.05.2010 passed by the Court of Chief Judicial Magistrate,
Bagalkot, in C.C.No.81/2007 and the judgment and order dated
22.03.2019 passed by the Court of II Addl. District & Sessions
Judge, Bagalkot, in Cr.A.No.82/2010.
2. Heard the learned Counsel for the parties.
3. It is the case of the prosecution that accused nos.1 to 4
who were the employees of the petitioner herein had collected
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an amount of Rs.91,640/- from the public for the period
between April 2002 till March 2003 in respect of water
connection charges, house construction permission charges,
etc., and had failed to credit the said amount to the account of
the petitioner-authority, nor had they accounted for the same.
It is alleged that the accused had misappropriated the said
amount and had destroyed the evidence by destroying the
receipt book and other records relating to collection of the
aforesaid amount by them. The police after investigation in the
case had filed charge sheet against the accused for the offences
punishable under Sections 409 & 201 IPC.
4. The accused who had appeared before the Trial Court,
had pleaded not guilty and claimed to be tried. The prosecution
in order prove its charges against the accused beyond
reasonable doubt had examined 14 witnesses as PWs-1 to 14
and had got marked 25 documents as Exs.P-1 to P-25. The
accused who had denied the incriminating circumstances
appearing against them in the evidence of the prosecution
while recording their statements under Section 313 Cr.PC by
the Trial Court, however, did not choose to lead any defence
evidence. The Trial Court, thereafter, heard the arguments
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addressed on both sides and by its judgment and order dated
04.05.2010 had acquitted the accused for the offences
punishable under Sections 409 & 201 IPC. The defacto
complainant had challenged the said judgment and order of
acquittal passed by the Trial Court before the jurisdictional
Sessions Judge in Cr.A.No.82/2010 filed under Section 372 of
Cr.PC. The said appeal was dismissed by the Court of Sessions
Judge by judgment and order dated 22.03.2019. Being
aggrieved by the same, the defacto complainant is before this
Court.
5. Learned Counsel for the petitioner submits that the Trial
Court as well as the Appellate Court have failed to properly
appreciate the oral and documentary evidence placed by the
prosecution on record. She submits that the accused had
destroyed the evidence by burning the receipt books. The
accused have not produced the receipt books and other
documents for having collected the amount either before the
defacto complainant or before the court, and therefore, adverse
inference was required to be raised against them. Accordingly,
she prays to allow the petition.
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6. Per contra, learned Counsel for the respondents submits
that the courts below have concurrently recorded a finding of
acquittal against the accused and the same cannot be disturbed
by this Court in exercise of its revisional powers unless the
petitioner points out any legal infirmity either in the procedure
or in the conduct of the trial. In support of his argument, he
has placed reliance on the judgment of the Apex Court in the
case of BINDESHWARI PRASAD SINGH & OTHERS VS STATE
OF BIHAR & OTHERS - (2002)6 SCC 650. Accordingly, he prays
to dismiss the revision petition.
7. The Trial Court, after recording the oral and documentary
evidence placed on record by the prosecution, has observed
that the prosecution has failed to place cogent and acceptable
evidence before the court regarding entrustment of financial
transaction by the defacto complainant to the accused who
allegedly had committed criminal breach of trust. The Trial
Court also has recorded a finding that the prosecution had
failed to produce sufficient material to substantiate their
allegation that the accused had destroyed the evidence by
destroying the receipt books. Since the basic ingredients which
are required to prove the alleged offences were prima facie
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absent, the Trial Court had acquitted the accused for the
offences for which they were charged.
8. The Appellate Court, having re-appreciated the oral and
documentary evidence that was placed on record by the
prosecution, has confirmed the judgment and order of acquittal
passed by the Trial Court.
9. Undisputedly, the State has not challenged the order of
acquittal passed by the Trial Court. It was the defacto
complainant who had filed the appeal under Section 372 of
Cr.PC before the jurisdictional Sessions Court challenging the
judgment and order of acquittal passed by the Trial Court. The
said appeal has been now dismissed and the Appellate Court
has confirmed the judgment and order of acquittal passed by
the Trial Court.
10. The Hon'ble Apex Court in Bindeshwari Prasad Singh's
case supra at paragraph 14 has observed as under:
"14. We are, therefore, satisfied that the High
Court was not justified in interfering with the order of
acquittal in exercise of its revisional jurisdiction at the
instance of the informant. It may be that the High Court
on appreciation of the evidence on record may reach a
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conclusion different from that of the trial court. But that
by itself is no justification for exercise of revisional
jurisdiction under Section 401 of the Code of Criminal
Procedure against a judgment of acquittal. We cannot
say that the judgment of the trial Court in the instant
case was perverse. No defect of procedure has been
pointed out. There was also no improper acceptance or
rejection of evidence nor was there any defect of
procedure or illegality in the conduct of the trial vitiating
the trial itself. At best the High Court thought that the
prosecution witnesses were reliable while the trial court
took the opposite view. This Court has repeatedly
observed that in exercise of revisional jurisdictional
against an order of acquittal at the instance of a private
party, the Court exercises only limited jurisdiction and
should not constitute itself into an appellate court which
has a much wider jurisdiction to go into questions of
facts and law, and to convert an order of acquittal into
one of conviction. It cannot be lost sight of that when a
re-trial is ordered, the dice is heavily loaded against the
accused, and that itself must caution the Court
exercising revisional jurisdiction. We, therefore, find no
justification for the impugned order of the High Court
ordering re-trial of the appellants."
11. Under the circumstances, I am of the opinion that that
since the petitioner has failed to point out any legal infirmity
either in the procedure or in the conduct of the trial, the
concurrent findings of acquittal recorded by the courts below
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cannot be disturbed by this Court in exercise of its revisional
powers. Accordingly, the revision petition is dismissed.
Sd/-
JUDGE
KK
CT:GSM
