Karnataka High Court
K.C. Umesh vs The State Of Karnataka on 6 November, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:44790
CRL.RP No. 424 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.424 OF 2016
BETWEEN:
K.C.UMESH,
S/O CHANDRAPPA,
AGED ABOUT 42 YEARS,
R/O ANAVERI VILLAGE,
HOLEHONNUR HOBLI,
BHADRAVATHI TALUKA,
SHIMOGA DISTRICT-577227.
...PETITIONER
(BY SRI.UMESH FOR SRI.R.B.DESHPANDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
HOLEHONNUR POLICE STATION,
BHADRAVATHI TALUKA-577227.
(REPRESENTED BY SPP,
Digitally
signed by HIGH COURT BUILDINGS,
MALATESH BANGALORE-560001)
KC ...RESPONDENT
Location: (BY SRI.VINAY MAHADEVAIAH, HCGP)
HIGH
COURT OF THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
KARNATAKA ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND
ORDER DATED 28.12.2010 PASSED BY THE IV ADDL. DISTRICT
AND S.J., SHIMOGA, SITTING AT BHADRAVATHI IN
CRL.A.NO.61/2014 AND JUDGMENT AND ORDER DATED
22/24.02.2014 PASSED BY THE I ADDL.CIVIL JUDGE AND
J.M.F.C., BHADRAVATHI IN C.C.NO.1928/2008 AND ACQUIT
THE PETITIONER OF ALL THE CHARGES LEVELED AGAINST
HIM.
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CRL.RP No. 424 of 2016
THIS PETITION, COMING ON FOR FINAL DISPOSAL, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri Umesh, advocate for Sri R.B.Deshpande,
learned counsel for the revision petitioner and learned High
Court Government Pleader.
2. Accused who suffered an order of conviction in
C.C.No.1928/2008 dated 22.02.2014 on the file of the I Addl.
Civil Judge and JMFC, Bhadravathi, for the offence punishable
under Sections 408 and 409 of the Indian Penal Code
sentencing to undergo rigorous imprisonment for a period of
two years with fine of Rs.5,000/- and to pay Rs.19,942.94 as
compensation to the Anaveri Milk Production Co-operative
Society within a period of two months from the date of the
Order, confirmed in Crl.A.No.61/2014 dated 28.12.2015 on the
file of the IV Addl. District and Sessions Judge, Shivamogga,
sitting at Bhadravathi, is the revision petitioner.
3. Facts of the case in brief which are utmost necessary for
disposal of the present revision petition are as under:
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A complaint came to be lodged by Sri H.C.Manjunatha
Singh, with Bhadravathi Police contending that accused being
the Secretary of Anaveri Milk Production Co-operative Society
mis-appropriated a sum of Rs.19,942.94 which has come to the
light in the annual audit for the year 2003-2004. Based on the
complaint, police registered a case and after thorough
investigation, filed charge sheet against accused for the
offences punishable under Sections 408 and 409 of the Indian
Penal Code.
4. Presence of the accused was secured and plea was
recorded. Charges were framed. Accused pleaded not guilty
and therefore, trial was held.
5. In order to bring home the case of the prosecution,
prosecution examined eight witnesses as P.Ws.1 and 8 and
placed on record eleven documents exhibited and marked as
Exs.P.1 to 11 comprising of Order of the Assistant Registrar of
Co-operative Society, Shivamogga, dated 31.12.2007,
complaint, audit report, pass book, appointment order, duty
report, letter regarding handing over the charge, cash register,
charge list, seizure mahazar, spot mahazar and FIR.
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6. Detailed cross-examination of prosecution witnesses did
not yield any positive material so as to disbelieve the version of
the prosecution except for the fact that prosecution witnesses
P.Ws.3 and 4 have turned hostile to the case of the
prosecution.
7. On conclusion of the recording of evidence of the
prosecution, learned Trial Judge recorded the statement of the
accused as is contemplated under Section 313 of the Code of
Criminal Procedure, wherein, accused has denied all
incriminatory material and did not offer any written statement
as is contemplated under Section 313(4) of the Code of
Criminal Procedure.
8. But, accused got examined himself as D.W.1 and deposed
before the Court that he is not responsible for the alleged short
comings in the cash register. He admits that he was Secretary
of the Anaveri Milk Production Co-operative Society and he has
been handed over the charge, cash register and other
documents.
9. He deposed that present case is filed against him alleging
mis-appropriation of Rs.19,942.94. He has also answered that
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auditor demanded a sum of Rs.5,000/- and if the said was paid
by him, auditor had assured him that all mis-appropriation
would not be brought to light.
10. In the cross-examination, D.W.1 admits that the case of
the prosecution is based on the audit report. He further admits
that he has not taken any objection with regard to alleged
discrepancy in the audit report. He also admits that he did not
challenge the order of dismissal. He admits that he has studied
upto PUC and was working as Secretary of Anaveri Milk
Production Co-operative Society. He also admits that he has
not taken any action based on Ex.D.1. He admits that the
signature found in Ex.P.8 is his signature and same has been
marked as Ex.P.8(b).
11. Based on the above evidence, learned Trial Judge heard
the parties and on cumulative consideration of the material on
record, passed an order of conviction and sentence as under:
"Accused is convicted and sentence to undergo rigorous
imprisonment for a period of 2 years with fine of
Rs.5,000/- for the offence punishable u/Sec 408 of IPC.
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Accused is further convicted and sentence to undergo
rigorous imprisonment for a period of 2 years with fine of
Rs.5,000/- for the offence punishable u/Sec. 409 of IPC.
Acting u/Sec 357(3) of Cr.P.C., accused is directed to pay
Rs.19,942.94 as compensation to the Anaveri Milk
Production Co-operative Society within a period of 02
months from the date of this order.
In default of payment of compensation, accused shall
undergo simple imprisonment for a period of 01 years.
Both the sentences shall run consequentially.
Bail bond executed by the accused surety stands
cancelled."
12. Being aggrieved by the judgment passed by the learned
Trial Judge, accused filed an appeal before the First Appellate
Court.
13. Learned Judge in the First Appellate Court after securing
the records, heard the parties in detail and concurred with the
findings recorded by the learned Trial Judge and dismissed the
appeal.
14. Being further aggrieved by the same, accused is before
this Court in this revision petition.
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15. Sri Umesh, learned counsel for the revision petitioner
reiterating the grounds urged in the revision petition,
vehemently contended that the accused has been made
scapegoat in the incident and he has not misappropriated any
amount.
16. He further contended that when there was an illegal
demand by the auditor, he failed to meet the same and
therefore, a false case is hoisted against him and he has been
unceremoniously removed from the Secretaryship of the
Society and therefore, sought to allow the revision petition.
17. Per contra, learned High Court Government Pleader
opposes the revision grounds by contending that the signature
of the accused is found in Ex.P.8 which is relevant entry and
same is marked as Ex.P.8(b). During cross-examination of
D.W.1 and very fact that accused has deposed before the Court
that auditor demanded money and he did not pay the same
itself shows that there was many misdeeds that has taken
place during the conduct of the business of the Society and
therefore, sought for dismissal of the revision.
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18. In reply, Sri Umesh, learned counsel contended that in
the event of this Court upholding the conviction, there can be
reduction in sentence as it is an isolated incident and accused
has been removed from the Secretaryship and he has already
made good Rs.19,942.94. In addition to the same, he has
Rs.75,000/- to the Society and therefore, suitable Orders be
passed.
19. Having heard the learned counsel for the parties in detail,
this Court perused the material on record, meticulously.
20. On such perusal of the material on record, taking note of
the admission made by the accused in his cross-examination,
fact of entrustment of cash register and mis-appropriation vide
Ex.P.8 entry sufficiently establishes the charges leveled against
the accused for the offences punishable under Sections 408 and
409 of the Indian Penal Code which has been rightly
appreciated by the learned Trial Judge and confirmed by the
learned Judge in the First Appellate Court. Therefore, order of
conviction cannot be found fault with.
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21. This would take this Court to the alternative submission
made on behalf of the revision petitioner.
22. Accused is now aged 52 years. He has already paid
Rs.19,942.94 as compensation to the Society. In addition to
the same, he has paid Rs.75,000/- to the Society.
23. Taking note of these aspects of the matter and taking
note of the fact that there is no criminal antecedents nor any
further criminal cases filed against the revision petitioner and
also taking note of the fact that accused has been removed
from the Secretaryship of the Society, this Court is of the
considered opinion that treating 03 days custody period
undergone by him during the trial as the period of
imprisonment and directing to pay enhanced fine amount of
Rs.60,000/- would meet the ends of justice.
24. Accordingly, the following:
ORDER
(i) Criminal Revision Petition is allowed in part.
(ii) While maintaining the conviction of the
accused for the offence punishable under
Sections 408 and 409 of the Indian Penal
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Code, 03 days period of judicial custody
undergone by the accused is treated as the
period of enhancement by enhancing the fine
by Rs.60,000/-.
(iii) Fine amount of Rs.60,000/- inclusive of the
fine amount already paid in respect of both
offences is ordered to be paid on or before
31st December 2024, failing which accused
shall undergo simple imprisonment for a
period of two years.
(iv) Office is directed to return the Trial Court
Records along with copy of this Order,
forthwith.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
