Karnataka High Court
The State Of Karnataka vs Krishna Bhat on 24 October, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 689 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 689 OF 2022
BETWEEN:
THE STATE OF KARNATAKA
BY VITTLA POLICE STATION
VITTLA, DAKSHINA KANNADA
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
...PETITIONER
(BY SRI. VINAY MAHADEVAIAH, HCGP)
AND:
KRISHNA BHAT
S/O GOPAL KRISHNA BHAT
AGED ABOUT 49 YEARS,
R/AT SRI. KRISHNA NILAYA
Digitally MALLIKATTE, PUNACHA(V),
signed by
MALATESH BANTWAL (T) - 574211
KC ...RESPONDENT
Location: (BY SRI. RAVISHANKAR SHASTRI, ADVOCATE)
HIGH
COURT OF
KARNATAKA THIS CRL.RP. IS FILED UNDER SECTION 397 R/W 401
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
13.05.2016 PASSED BY THE CIVIL JUDGE AND JMFC D.K.,
BANTWAL IN C.C.NO.1267/2004 AND THE ORDER PASSED IN
CRIMINAL APPEAL NO.35/2017 DATED 02.02.2021 ON THE
FILE OF THE VI ADDL. DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALORE AND ETC.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 689 of 2022
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri.Vinay Mahadevaiah, learned High Court
Government Pleader counsel for the State/revision
petitioner and Sri.Ravishankar Shastri, learned counsel for
the accused/respondent.
2. The present revision petition is filed by the
revision petitioner challenging the order of conviction and
sentence passed in CC No.1267/2004 dated 13.05.2016
for the offence punishable under Sections 409, 465, 468,
477(A) of IPC which was confirmed in Criminal Appeal
No.35/2017 dated 02.02.2021.
3. Brief facts of the case which are utmost
necessary for disposal of the revision petition are as
under:
3.1. Accused was the Manager of Punacha Seva
Cooperate Bank of Bantwal Taluk. A complaint came to be
lodged with Vitla Police, Mangaluru stating that on
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22.11.1995, there was a credit of Rs.1,00,000/- to
S.B.Account No.1 maintained in Punacha Seva Cooperate
Bank. Respondent/accused said to have not taken credit
of the said amount and has credited the said amount
towards loan account of Koragappa Poojary by creating
false debit and credit slips and thereby committed criminal
breach of trust.
3.2. Likewise, there was also another incident that
was noticed on 15.07.1998 in respect of sum of
Rs.5,00,000/- and accused has shown the same as sum of
Rs.6,00,000/- and misappropriated sum of Rs.1,00,000/- .
There were few other misdeeds of the accused which was
complained and Vitla police registered the case and
investigated the matter.
3.3. After thorough investigation, Vitla police filed a
charge sheet against the accused.
4. The learned Trial Magistrate after completing
necessary formalities, took cognizance of the aforesaid
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offences and summoned the accused. Accused entered
appearance and engaged the services of an Advocate and
charges were framed against the accused. Thereafter, plea
was recorded and accused pleaded not guilty. Therefore,
the trial was held.
5. In order to prove the case of the prosecution,
on behalf of prosecution, 10 witnesses were examined as
P.W.1 to 10. To support the charges leveled against the
accused, prosecution placed on record as many as thirty
five documents which were exhibited and marked as
Exs.P.1 to Ex.P.35.
6. On conclusion of recording of the evidence,
learned Trial Magistrate recorded the accused statement
wherein accused has denied all the incriminatory
circumstances found against him in the prosecution case.
7. However, accused did not chose to place any
material evidence on record.
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8. Thereafter, learned Trial Magistrate heard the
arguments of the parties in detail and by judgment dated
11.05.2016, acquitted the accused.
9. Being aggrieved by the same, a belated appeal
came to be filed by the State in Criminal Appeal
No.35/2017.
10. Learned Judge in the First Appellate Court
heard on the application filed by the State seeking
condonation of delay of 188 days and by considering the
material evidence on record, dismissed the application
seeking condonation of delay and consequently, dismissed
the appeal.
11. Being further aggrieved by the same, State is
before this Court, in this revision.
12. Sri.Vinay Mahadevaiah, learned High Court
Government Pleader counsel for the revision petitioner
reiterating the grounds urged in the revision petition,
contended that both the Courts have failed to consider the
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case of the State in proper perspective and acquittal of the
accused and dismissal of the appeal has thus resulted in
miscarriage of justice and sought for allowing the revision
petition.
13. He further pointed out that appeal of the State
has been dismissed by the First Appellate Court only on
the ground of delay in filing the appeal. As such there was
no re-appreciation of the material evidence on record
resulting in miscarriage of justice and sought for allowing
the revision petition.
14. He further contended that the order of the First
Appellate Court needs to be set aside by condoning the
delay and matter be remitted to the First Appellate Court
for fresh disposal on merits by allowing the revision
petition.
15. Per contra, Sri.Ravishankar Shastri, learned
counsel for the respondent/accused supports the
impugned judgments.
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16. He further contended that the learned Trial
Judge has taken into consideration the material evidence
placed on record in paragraph No.27 of the impugned
order and discussed that there was no misappropriation as
the audit report and the material evidence on record did
not substantiate the alleged misappropriation and thus,
rightly acquitted the accused. Therefore, the revision
petition needs to be dismissed.
17. Insofar as dismissal of the appeal filed by the
State on the ground of delay is concerned, Sri.Ravishankar
Shastri, learned counsel contended that learned Judge in
the First Appellate Court has passed a detailed order,
supplementing the proper and cogent reasons as to why
huge delay of 188 days is not condoned and therefore,
dismissal of the appeal is just and proper and sought for
dismissal of the revision petition.
18. Having heard the parties in detail, this court
perused the material meticulously. On such perusal of the
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material on record, following points would arise for
consideration.
i. Whether the revision petitioner / State points out
the factual error or error of jurisdiction in Trial
Magistrate acquitting the accused.
ii. Whether the revision petitioner / State makes out a
case that the First Appellate Court committed an
error in not condoning the delay and therefore the
revision needs to be allowed and matter be
remitted to the First Appellate Court.
iii. Whether the impugned orders/judgments are
suffering from legal infirmity or perversity and thus
calls for interference.
iv. What order?
REGARDING POINTS 1 TO 3:
19. In the case on hand the respondent/accused,
being the Bank Manager of Punacha Seva Sahakari Bank is
not in dispute. According to the prosecution, accused has
misappropriated the amounts that were deposited into the
Punacha Seva Sahakari Bank on different occasions.
Based on the complaint, police registered a case and
conducted detailed investigation and filed charge sheet.
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To substantiate the case of the prosecution, ten witnesses
have been examined.
20. The learned Trial Judge in paragraph No.27
discussed in detail about the material evidence on record.
While so discussing, the material evidence on record,
learned Trial Judge not only bestowed its evidence to the
oral evidence on record, but also the documentary
evidence placed on record by the prosecution itself.
Learned Trial Judge has recorded a categorical finding that
neither in Ex.P.2 or in Ex.P.25, there is no material to
substantiate that there was misappropriation of the
amount. Likewise in respect of amount of Rs.2,50,000/-,
as per Ex.P.19, there was an allegation that the accused
has misappropriated a sum of Rs.50,000/- for his personal
use. The same is considered by the Trial Magistrate and
has noted that neither in Ex.P.23 or in Ex.P.26, the
allegation leveled against the accused is forthcoming.
21. It is also noticed that the oral evidence of PW.2
depicts that he joined the bank in the year 2001 and he admits
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that every year the accounts of the Punacha Seva
Sahakari Bank was being audited and the alleged misuse
or misappropriation has not been noticed by the auditors
who have conducted the audit of the accounts of the bank
regularly.
22. Learned Trial Magistrate also noted that in
order to substantiate the allegations leveled against the
accused, no original ledgers were placed on record nor the
same was seized by the investigation officer. The Trial
Judge further discussed that PW.3 in his cross examination
has admitted that he cannot say in whose handwriting the
entries are found in Ex.P.5 to P.12. Further admissions of
PW3 that he cannot identify his handwriting found in
Ex.P.13 to P.22 which are the debit and credit slips is
taken note of in the impugned order. PW.3 admitted that
the Chief Secretary of the Bank is the person who used to
assign the work for the bank officials in different branches.
PW.3 also admits that difference accountant who has to
maintain the cash book and necessary debit and credit
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slips in respect of the cash book. PW.3 further admits that
at times debit and credit slips will also be written by other
employees of the bank, but he cannot specifically say as to
who has made the entries in the disputed registers and the
slips marked at Ex.P.5 to Ex.P.12 and Ex.P.13 to Ex.P.22
respectively.
23. The Trial Magistrate also taken note of the
principles of law enunciated in the judgment of Madras
High Court reported in N.Nagarajan Vs. State - 1996
(3) Crimes. 446 while not considering the voluntary
statement of the accused that it is he who has written the
contents of disputed documents as it amounts to
confession.
24. Based on the oral and documentary evidence
placed on record, the learned Trial Magistrate recorded a
categorical finding that the prosecution is unable to
establish that it is the accused and accused alone who has
made entries in the disputed ledgers, registers and debit
and credit slips so as to establish the fact that the accused
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has misappropriated the amount credited/debited to
Punacha Seva Sahakari Bank. Ingredients to attract the
offence under Sections 409, 465, 468 and 477A were not
found in the prosecution evidence in the categorical finding
recorded by the Trial Magistrate in as much as the
prosecution was not able to establish that the entries
found in the disputed registers and disputed debit and
credit slips is that of the accused. Therefore, the Trial
Magistrate accorded the benefit of doubt in favour of the
accused and acquitted the accused.
25. Being aggrieved by the same, State preferred
belated appeal before the District Court.
26. Learned Judge in the District Court notified the
accused about the belated appeal. The accused filed
detailed objections for the application filed by the State
seeking condonation of delay.
27. Learned Judge in the First Appellate Court
having heard the counsel for the State and counsel for the
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accused, considered the principles of law enunciated in the
reported judgments and thereafter dismissed the
application seeking condonation of delay and inter alia
holding in paragraph No.16 as under:
"16. The present situation in the case on hand
is no better than the situation discussed at the
above para. The noteworthy is that, as per the
record placed by the appellant, the director of
the prosecution took more than 7 months to
consider the opinion of the senior law officer so
as to forward the matter to the Deputy
Commissioner of Dakshina Kannada district on
04.01.2017 for permission to file the present
appeal. Who in turn has accorded the
permission on 08.02.2017. The above
information crystallizes the clear picture that
though the certified copy of the judgment in
question was obtained well in time, the authority
concerned has delayed the process of obtaining
the permission for no reasons. Thus, the
negligency and lethargic approach on the part of
the concerned cannot be a ground for
condonation of unreasonable delay of more than
6 months only on the ground that it is the
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government appeal. In the circumstances, it is
relevant to reflect the ratio of law laid down by
their Lordship in the matter of State of Mysore
Vs. Laxman Sharanapa Shiraguppi and Another
reported in AIR 1965 Mysore 31. By referring
article 157 and Section 5 of the Limitation Act (9
of 1908), it was held that:
"No distinction to be made between the
state and private person. Delay between tracing
of the file and sanctioning the prosecution is not
sufficient cause."
The position of law as such is clearly
applicable to the case on hand. Therefore, the
only reason assigned by the appellant that the
delay was taken place in the process of obtaining
the permission from the higher authority is not
at all the ground to condone the delay. But at
the same time the authority at whose instance
the delay has been taken place shall be held
responsible. In the absence of satisfactory
reasons and proper explanations by the
prosecution, I am forced to accept the objections
raised by the respondent/accused that it is not a
fit case to condone the delay as sought for in the
absence of convincing reasons. Thus, needless
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to conclude that the application under section 5
of the Limitation Act is not deserve to be
allowed. As the appeal is hopelessly barred by
time, the question of deciding the correctness or
otherwise of the impugned judgment would not
arise. On the strength of the above discussion
point No.1 is answered in the negative and point
No.2 accordingly. In the result. I pass the
following:
Order
The application under section 5 of the
Liminatation Act filed by the appellant/State is
hereby rejected as devoid of merits.
The appeal filed under section 378, 382 and
386 of the Code of Criminal Procedure by the
appellant/state is hereby dismissed as barred by
time.
Consequently, the judgment of acquittal
order of the learned Addl. Civil Judge and JMFC.,
Bantwal in C.C.No.1267/2004 dated 13.05.2016
is hereby confirmed.
Return the trial court record along with the copy
of this judgment for information."
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28. On re-appreciation of the above factual and
legal aspects in the light of the argument advanced on
behalf of the parties, this court is satisfied that the finding
recorded by the Trial Magistrate while passing an order of
acquittal is based on sound and proper appreciation of
material evidence on record which in the normal
circumstances even assuming that delay is condoned and
the appeal was heard on merits by the First Appellate
Court would be a possible view.
29. It is settled principles of law and require no
emphasis that when a duly constituted court records an
order of acquittal accused enjoys double presumption.
Firstly, the presumption in favour of the accused as is
enshrined in Constitution of India that every accused is
presumed to be innocent till the charges leveled against
the said accused is proved beyond reasonable doubt.
30. Secondly, the order of acquittal reinforces the
innocence in the accused.
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31. Therefore, before the First Appellate Court the
complainant or the prosecuting agency is required to place
such material on record which would be sufficient enough
to remove the double innocence in favour of the accused.
32. Likewise it is equally settled principles of law
that in a set of a factual circumstances if two views are
permissible the view that favours the accused must be
preferred. These principles are enunciated by the Hon'ble
Apex Court in the case of Chandrappa Vs. State of
Karnataka - (2007)4 SCC 415, (2007) 3 AIR KAR R
235. The principles of law enunciated by the Hon'ble Apex
Court in Chandrappa's case is consistently followed in the
subsequent judgments as well.
33. In the light of the above cardinal principles in
the background, when the material on record is re-
appreciated, this court is of the considered opinion that
dismissal of the appeal by the State by not condoning the
delay though needs a interference in the normal
circumstances, in the case on hand taking note of the crux
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of the matter, this court is not inclined to take recourse to
the submissions made on behalf of the State that delay be
condoned and matter be remitted to the First Appellate
Court for fresh disposal in accordance with law for more
than one reasons. Firstly the application filed seeking
delay is a vague application without there being proper
and good reasons seeking condonation of delay.
34. Secondly on merits. The First Appellate Court in
the normal circumstances would have taken the same view
as that of the Trial Magistrate inasmuch as the grounds of
appellant do not make out compelling reasons for the First
Appellate Court to reverse the finding recorded by the Trial
Magistrate having recorded the overwhelming admissions
obtained in the cross examination of the prosecution
witness by the accused.
35. Therefore, this court is of the considered
opinion that even though the appellant is not heard on
merits by the First Appellate Court and has been dismissed
only on the ground on delay, given the attendant facts and
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circumstances this court is of the considered opinion that
no grave injustice has been caused by dismissing the
appeal by not condoning the delay.
36. In view of the aforesaid discussions, points
referred above are answered in negative.
REGARDING POINT NO.4:
37. In view of the finding of this court on points
no.1 to 3, following order is passed.
ORDER
i. Revision petition is meritless and hereby
dismissed.
ii. Bail bonds, if any, stands cancelled.
Sd/-
(V SRISHANANDA)
JUDGE
KAV/SD
