Karnataka High Court
A Vijaykumar vs The State Of Karnataka on 14 February, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.RP No. 200003 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 200003 OF 2019
BETWEEN:
A VIJAYKUMAR S/O SRINIVASULU,
AGE:47 YEARS, OCC:CONTRACTOR OF ELECTRICAL
AREAGELA CONSTRUCTION,
R/O. H.NO.MIG-340, APHB COLONY,
ANANTAPUR, ANDHRA PRADESH
...PETITIONER
(BY SRI SHIVANAND V. PATTANASHETTI, ADV.)
AND:
THE STATE OF KARNATAKA
Digitally signed by
R/BY ADDL. SPP,
SHIVAKUMAR HIGH COURT OF KARNATAKA,
HIREMATH KALABURAGI BENCH - 585106.,
Location: HIGH
COURT OF (THROUGH KAVITHAL P.S.,
KARNATAKA TQ.MANVI, DIST.RAICHUR -587101).
...RESPONDENT
(BY SRI VEERANAGOUDA MALIPATIL, HCGP)
THIS CRL.RP IS FILED U/SEC.397 OF OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT DATED 09.10.2018 PASSED BY
THE PRL. DIST. AND SESSIONS JUDGE, AT RAICHUR, IN
CRL.A.NO.52/2015 AND FURTHER BE PLEASED TO SET-ASIDE
THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 17.11.2015 PASSED BY THE CIVIL JUDGE AND JMFC AT
MANVI IN C.C.NO.424/2009 FOR THE OFFENCE PUNISHABLE
U/SEC.406 OF IPC AND ACQUTI THE PETITIONER/ACCUSED.
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CRL.RP No. 200003 of 2019
THIS PETITION, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. This revision petition is filed under Section 397 read with
401 of Cr.PC, assailing the judgment and order of conviction
and sentence dated 17.11.2015 passed by the Court of Civil
Judge, Manvi, in C.C.No.424/2009 and the judgment and order
dated 09.10.2018 passed by the Court of Prl. District &
Sessions Judge, Raichur, in Crl.A.No.52/2015.
2. Heard the learned Counsel for the parties.
3. Petitioner herein was charge-sheeted by Kavital Police
Station, Manvi, in Crime No.15/2008 for the offence punishable
under Section 406 IPC.
4. It is the case of the prosecution that the petitioner-
accused was the sub-contractor of the defacto complainant -
M/s. SPML Electrical Contractors and he was awarded the work
of reconditioning of 11 KV line at Manvi and Devdurga Taluks,
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and accordingly, a sub-contract agreement was executed at
Bengaluru, on 01.01.2007.
5. It is the case of the defacto complainant that they have
been regularly issuing 11 KV line materials from their main
store at Raichur, to the sub-contractor who had two stores, one
at Devadurga and the other at Kavital. The allegation against
the sub-contractor is, that while verifying the store, the
complainant found shortage of materials in the stock room of
the accused. It was found that the materials issued and the
materials used for the work done differed, and on verification of
stock on 14.02.2008, it was found that materials worth
Rs.53,50,055/- was found short. It is under these
circumstances, the defacto complainant had approached the
police and lodged the complaint on 14.02.2008 which was
registered in Crime No.15/2008 against the petitioner-accused
for the offence punishable under Section 406 IPC.
6. The police after investigation, have filed charge sheet
against the petitioner for the aforesaid offence. The petitioner,
who had appeared before the Trial Court in response to the
summons issued to him, had claimed to be tried. The
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prosecution, therefore, had examined nine charge-sheet
witnesses as PWs-1 to 9 and got marked 34 documents as
Exs.P-1 to P-34 and closed its side. Thereafter, the statement
of the accused was recorded under Section 313 Cr.PC.
However, no defence evidence was led on behalf of the accused
nor was any document marked in support of his defence.
7. The Trial Court after hearing the arguments addressed on
both sides, vide the impugned judgment and order dated
17.11.2015 passed in C.C.No.424/2009 convicted the petitioner
for the offence punishable under Section 406 IPC and
sentenced him to undergo simple imprisonment for a period of
one year and pay fine of Rs.5,000/- and in default to undergo
simple imprisonment for a period of one month. The said
judgment and order of conviction and sentence was
unsuccessfully challenged by the petitioner before the
jurisdictional Sessions Court in Crl.A.No.52/2015, which was
dismissed by judgment and order dated 09.10.2018, confirming
the judgment and order of conviction and sentence passed by
the Trial Court. Being aggrieved by the same, the petitioner is
before this Court.
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8. Learned Counsel for the petitioner having reiterated the
grounds urged in the revision petition, submits that the courts
below have erred in convicting the petitioner for the alleged
offence. He submits that oral and documentary evidence placed
on record does not conclusively prove the charge against the
petitioner. There is no material to show that petitioner had
misused and misappropriated the material supplied by the
defacto complainant. It is only after a dispute arose between
the parties with regard to payment of bills, the defacto
complainant for extraneous reasons has filed a false complaint
against the petitioner. The courts below have failed to
appreciate this aspect of the matter and have erred in
convicting the petitioner for the charge-sheeted offence.
Accordingly, he prays to allow the petition.
9. Per contra, learned HCGP has opposed the petition. He
submits that the Trial Court as well as the Appellate Court have
recorded concurrent findings against the petitioner. The
evidence of PW-1 & PW-4 read with the documentary evidence,
would conclusively prove the charge against the petitioner and
the prosecution has proved its charges beyond reasonable
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doubt against the petitioner. Accordingly, he prays to dismiss
the petition.
10. The prosecution in order to prove its charges against the
petitioner, has examined nine charge-sheet witnesses as PWs-1
to 9. PW-1 to PW-3 were the employees of the defacto
complainant during the relevant period. PW-1 who was working
as a Project Manager of the defacto complainant and PW-3 who
was working as a Site Engineer have supported the case of the
prosecution, while PW-2 has not supported the case of the
prosecution and he has been treated as a hostile witness.
11. PW-1 & PW-3 have spoken to about the supply of 11 KV
line materials to the petitioner herein from April 2007 to
November 2007 and they have stated that the materials
supplied were received by PW-4 - Gopal who was the
representative of the sub-contractor - M/s. Sree Arigela
Constructions, and receipt of the same was acknowledged by
him. They have spoken about the supply of materials for the
period from November 2007 to January 2008 as per the terms
of the contract - Ex.P-5, and they have stated that it was
noticed by the complainant-company that for the period from
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November 2007 to January 2008, the work entrusted was not
completed, and there was a huge difference in the materials
supplied and the work completed, and thereafter, on
verification of stock, it was found that materials worth
Rs.53,50,005/- was short.
12. PW-4 - Gopal has deposed about receiving the materials
supplied by the defacto complainant at Kavital store room of
the sub-contractor. Exs.P-6 to P-26 are the documents which
prima facie show about the supply of material by the defacto
complainant to the store room of sub-contractor at Kavital and
receipt of the materials has been acknowledged by PW-4. It is
not in dispute that he was the authorized person to receive the
material on behalf of the sub-contractor. PW-4 who has
deposed about receiving the material in the store room at
Kavital, has not stated anything about the usage of materials,
and on the other hand, he has stated that he had subsequently
gone to Ananthapur to attend work and he does not know much
about the usage of materials. Though this witness was cross-
examined by the Prosecutor, nothing material has been elicited
from his mouth with regard to the usage of the materials. This
witness during the course of cross-examination has stated that
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certain materials were returned to the complainant-company.
Therefore, this witness was partially treated as hostile.
13. PW-5 & PW-6 are the panch witnesses to Ex.P-31 - spot
mahazar. These witnesses have not supported the case of the
prosecution, and therefore, they were treated as hostile
witnesses.
14. PW-7 was working as Accountant in the office of the
defacto complainant. This witness has deposed that in the year
2006, he had received bills for the work done by the accused
and after verification, he had forwarded the same to their Head
Office at Bengaluru. This witness has further stated that he
does not know anything further about the said bills, and
therefore, this witness was treated as hostile witness and
cross-examined by the Public Prosecutor. During the course of
cross-examination by the Prosecutor, he has identified the bills
at Exs.P-32 to P-34 which were forwarded by him to their Head
Office at Bengaluru. During the course of cross-examination of
this witness on behalf of the defence, he has stated that he had
not prepared the bills as per Exs.P-32 to P-34.
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15. PW-8 is the PSI of Kavital Police Station who had
registered the FIR in Crime No.15/2008 and conducted the
preliminary investigation. He has stated that while registering
the FIR, he had not verified the documents of the defacto
complainant.
16. PW-9 is the PSI of Kavital Police Station who had taken
over the investigation from PW-8 and after completing the
investigation had filed the charge sheet against the accused.
17. Petitioner has been charge-sheeted in the present case
for the offence punishable under Section 406 IPC. The word
'criminal breach of trust' is defined under Section 405 IPC,
which reads as under:
"405. Criminal breach of trust.- Whoever,
being in any manner entrusted with property, or with
any dominion over property, dishonestly
misappropriates or converts to his own use that
property, or dishonestly uses or disposes off that
property in violation of any direction of law prescribing
the mode in which such trust is to be discharged, or of
any legal contract, express or implied, which he has
made touching the discharge of such trust, or wilfully
suffers any other person so to do, commits "criminal
breach of trust".
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18. Section 406 IPC provides for punishment for criminal
breach of trust.
19. From the material evidence on record, it is very clear that
the prosecution has, at best proved that the defacto
complainant had entrusted certain materials of its to the sub-
contractor who was awarded the work of reconditioning of 11
KV line at Manvi and Devdurga Taluks. However, the oral and
documentary evidence placed on record on behalf of the
prosecution does not conclusively prove that the property which
was entrusted to the sub-contractor has been dishonestly
misappropriated by him and that he had converted the said
property for his own use, or dishonestly used or disposed of
that property in violation of any direction of law prescribing the
mode in which such trust is to be discharged. Neither PW-1 nor
PW-3 have spoken about the misappropriation of materials
entrusted to the sub-contractor.
20. The allegation against the sub-contractor is that the work
completed by him during the relevant period compared to the
materials supplied was disproportionate, and therefore, it is
alleged that the materials supplied has been misused by him
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since shortage of material was allegedly found in the store
room of the accused.
21. The material on record would go to show that much prior
to the defacto complainant making allegation of criminal breach
of trust against the accused, the accused had submitted bills in
respect of the work done by him, but the said bills appears to
have not been paid by the defacto complainant who is the
contractor, and on the other hand, subsequently he has made
an allegation that the materials supplied by him has been
misused or misappropriated by the sub-contractor who is the
accused in the present case, and thereby he has suffered loss
to the tune of Rs.53,50,055/-. However, such an allegation
made against the accused is not supported by any oral or
documentary evidence made available to the court. The
prosecution has only proved that certain materials were
supplied by the defacto complainant to the accused who is a
sub-contractor herein. But the prosecution has not proved
beyond doubt that the materials supplied by the defacto
complainant who is a contractor to the accused who is a sub-
contractor has been misused or misappropriated by him.
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22. It is the allegation of the complainant that the sub-
contractor has not carried out the work satisfactorily by utilizing
the materials which he had received from the store of the
complainant. The courts below, unfortunately, have presumed
that the materials supplied have been misused or
misappropriated by the accused as the complainant had made
an allegation that there was shortage of materials found in the
store room. However, there is no material to show that what
was the quantity of materials used by the accused for the work
done by him and in the absence of material to establish the
same, it is difficult to arrive at a conclusion that accused has
misused the materials supplied by the defacto complainant.
23. The prosecution has failed to examine any expert who
could have spoken about the materials necessary for the work
done by the accused. But unfortunately such an exercise has
not been done in the present case. Only on the basis of the
deposition of PW-1 & PW-3 who have spoken about the supply
of materials to the accused, the courts below have proceeded
to convict the petitioner for the alleged offences, and in my
considered view, the said approach of the courts below is
patently illegal, and therefore, the impugned judgment and
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order of conviction and sentence passed by the courts below
cannot be sustained and the same deserves to be set aside.
Accordingly, the following order:
24. The revision petition is allowed. The judgment and order
of conviction and sentence dated 17.11.2015 passed by the
Court of Civil Judge, Manvi, in C.C.No.424/2009 and the
judgment and order dated 09.10.2018 passed by the Court of
Prl. District & Sessions Judge, Raichur, in Crl.A.No.52/2015, are
set aside. The petitioner is acquitted of the offence punishable
under Section 406 IPC. The fine amount, if any, deposited,
shall be refunded to the petitioner.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
KK
