Karnataka High Court
Sri B Devaraja vs State Of Karnataka on 10 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:9952
CRL.RP No. 1468 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 1468 OF 2019
BETWEEN:
1. SRI. B. DEVARAJA
S/O B. NAGARAJAPPA
AGED ABOUT 56 YEARS
R/O SOMENAHALLY
HOSADURGA TALUK
CHITRADURGA DISTRICT-577501.
...PETITIONER
(BY SRI. S.G.BHAGAVAN, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY SUB-INSPECTOR OF POLICE
SRIRAMPURA POLICE STATION
HOSADURGA TALUK
Digitally signed
by DEVIKA M REP. BY STATE PUBLIC PROSECUTOR
Location: HIGH HIGH COURT OF KARNATAKA
COURT OF BANGALORE-560 001.
KARNATAKA ...RESPONDENT
(BY SMT. RASHMI JADHAV, ADDL. SPP)
THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C.
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER DATED 29.11.2019 PASSED BY THE SPECIAL II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA
IN CRL.A.NO.10/2017 AND ORDER DATED 06.02.2017 ON THE
FILE OF ADDITIONAL CIVIL JUDGE AND J.M.F.C., HOSADURGA
IN C.C.NO.197/2011 AND ALLOW THE CRL.RP.
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CRL.RP No. 1468 of 2019
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL ORDER
Heard learned counsel for petitioner and learned
Additional SPP for the respondent-State.
2. This criminal revision petition is filed before this
Court challenging the order of conviction and sentence passed
in C.C.No.197/2011 convicting the petitioner for the offence
punishable under Section 409 IPC and sentencing him to
undergo rigorous imprisonment for three years and also pay
fine of Rs.10,000/-. In default, to undergo simple imprisonment
for a period of six months and also observed that the period of
detention already undergone by the accused shall be set off
against the sentence underwent in view of Section 428 Cr.P.C.
3. Being aggrieved by the judgment of conviction and
sentence passed in C.C.No.197/2011, criminal appeal is
preferred before the First Appellate Court in Crl.A.No.10/2017.
The First Appellate Court vide order dated 29.11.2019
dismissed the appeal confirming the conviction and sentence.
Hence, the present revision petition is filed before this Court.
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4. This Court heard the matter earlier and learned
counsel for the petitioner brought to notice of this Court
evidence of P.W.14, wherein P.W.14 stated that an amount of
Rs.1,33,142/- was paid, by depositing an amount of
Rs.51,970/- on 30.12.2008, Rs.52,690/- on 31.12.2008 and
Rs.28,482/- on 09.01.2009 and balance amount of
Rs.15,89,485.35/- has not been paid. Learned counsel also
brought to notice of this Court P.W.14 admitted that entire
amount has been paid. Hence, this Court directed learned
Additional SPP appearing for the respondent-State to verify
whether entire amount of Rs.17,22,627.35/- has been paid.
Learned Additional SPP for the respondent-State has placed the
document for having paid an amount of Rs.1,33,142/- in three
installments and remaining amount was not paid. Now, learned
counsel for the petitioner would submit that, since he has
already undergone sentence for a period of 80 days, the same
may be set off as against imposition of rigorous imprisonment
for a period of three years, since he also lost his job and the
Court has to take note of said fact into consideration.
5. Learned Additional SPP for the respondent-State
would submit that even though document Ex.P12 is very clear
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that he had admitted criminal breach of trust to the tune of
Rs.17,22,627.35/-, only part payment was made and in view of
undertaking given by the petitioner, this Court granted time to
deposit the balance amount of Rs.15,89,485.35/- and notice
was given on 26.03.2009 and inspite of the same, he did not
repay the amount. Hence, law was set in motion by registering
the case invoking Section 409 IPC and the same has been
proved. Since, there is a clear admission on the part of the
petitioner regarding criminal breach of trust for misusing the
fund, question of giving set off for 88 days as contended by
learned counsel for the petitioner cannot be accepted.
6. Having heard learned counsel for the petitioner and
learned Additional SPP for the respondent-State and also the
grounds urged in the revision petition, the points that would
arise for consideration of this Court are:
(i) Whether the Trial Court committed an error
in convicting and sentencing the petitioner for
the offence punishable under Section 409 IPC
and whether confirmation made by the First
Appellate Court requires interference of this
Court?
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(ii) What order?
Point No.(i)
7. Having heard learned counsel for the petitioner and
learned Additional SPP for the respondent-State, the case of
the prosecution is that on 26.11.2008, C.W.1-Co-operative
Development Officer, visited the PACS during which period
accused was in charge of Cloth Section and discharging his
duties as Sales Clerk. On physical verification in Cloth Section,
C.W.1 found deficit of stock worth Rs.17,22,627.35/-.
Therefore, C.W.1 after obtaining sanction from the Assistant
Registrar of Co-operative Societies lodged complaint against
accused, before jurisdictional Police. In support of that
contention, C.W.1 has given his evidence as P.W.1, who in his
evidence has identified his signatures in Ex.P1-complaint and
Ex.P2-Seizure Mahazar. He has also identified Ex.P3 an Ex.P4-
Stock Registers for the year 2008-09, Ex.P5-Audit Report,
Exs.P6 and Ex.P7-Resolution Books of PACS, Ex.P8-Sanction
Order, Ex.P9-Seizure Mahazar, Ex.P10-Letter of Explanation of
accused, Exs.P11 to Exs.P13-Challans. The Trial Court having
considered both oral and documentary evidence placed on
record, as well as admission on the part of petitioner and also
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taking note of payment made by the accused, total to the tune
of Rs.1,33,142/- and also an undertaking was given that he will
repay the balance amount, but he did not pay the amount.
Hence, answered the point No.1 that prosecution proved the
case against the accused that accused was in charge of Cloth
Section and discharging his duties as Sales Clerk in the Primary
Agricultural Co-operative Society Limited, Srirampura and he
has misappropriated the stock to the tune of Rs.17,22,627.35/-
in the year 2008. Hence, convicted and sentenced the
petitioner to undergo rigorous imprisonment for a period of
three years.
8. The First Appellate Court also having reassessed the
material on record with regard to conviction and sentence, in
detail re-analyzed the material considering documentary
evidence of Exs.P1 to P13 as well as both oral and documentary
evidence placed on record, particularly evidence of P.Ws.1 to
17 and having reassessed the same, comes to the conclusion
that including compliant as well as contents of seizure mahazar
and also having considered the factual aspects of the case,
defence was taken that President and Directors have misused
the said amount with the help of earlier Secretary and
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purchased the clothes without making proper entries in the
stock books and also not maintained the amount used for
transaction of the clothes, sales and also not maintained the
bills, challans etc., instead of that they have chosen to shift the
allegation against this appellant, who is innocent. Having
considered the said defence also, the First Appellate Court
comes to the conclusion that though such defence was taken,
the same is neither proved in the lower Court and not placed
any material before the First Appellate Court, even when the
appeal was filed and comes to the conclusion that the very
defence has not been proved and confirmed the order of the
Trial Court.
9. The main contention of learned counsel for the
petitioner before this Court is that when this petitioner was in
jail for a period of 88 days, during the course of investigation
as well as during the course of trial and also subsequent to the
judgment, the same can be given set off and also brought to
notice of this Court admission given by P.W.14, wherein he has
admitted regarding depositing the amount to the tune of
Rs.1,33,142/- and he has also given clear admission that entire
amount was repaid. The Court has to take note of charges
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leveled against the petitioner that he misappropriated the
amount to the tune of Rs.17,22,627.35/- and he admitted the
same and made part payment on three occasions and the same
is taken note. Ex.P12 is very clear with regard to causing of
notice to repay the amount and though an attempt was made
while giving evidence and stated that he paid the entire
amount, taking note of admission of P.W.14, nothing is on
record to prove that the petitioner had repaid the entire
amount. The Court has to take note of both oral and
documentary evidence placed on record and stray admission
given by P.W.14 cannot be a ground to acquit him as
contended by the learned counsel for the petitioner. The Court
has to look into documentary evidence, since he has
categorically admitted regarding misappropriation of the
amount to the tune of Rs.17,22,627.35/- and only made part
payment and documentary evidence prevails over the oral
evidence. Hence, the very contention of learned counsel for
the petitioner cannot be accepted.
10. The other contention of learned counsel for the
petitioner is that petitioner may be given set off, since he has
undergone sentence for a period of 88 days. The same cannot
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be a ground having considered that fact that he was working in
Cloth Section and mahazar was conducted and there was short
fall of clothes to the tune of Rs.17,22,627.35/- and mahazar
which is marked as Exs.P2 and complaint as Ex.P1 is very clear
with regard to shortfall of clothes and also Stock Registers and
Audit Report is marked as Ex.P5. When such being the
admission regarding misappropriation and the stock clearly
disclose the same, merely because he had undergone sentence
for a period of 88 days, the same cannot be a ground to give
set off as contended by the learned counsel for the petitioner,
having considered the gravity of the offence and also the fact
that he was working in the Cloth Section as Sales Clerk and he
was having custody of the clothes and defence which was taken
was not proved by him and though allegation is made against
the President and Secretary, no cogent evidence has been
placed that he was an innocent.
11. When such being the case, having considered the
gravity and punishment imposed by the Trial Court, the same
commensurate with the gravity of the offence. Hence,
contention of learned counsel for the petitioner cannot be
accepted and I do not find any error committed by the Trial
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Court and also First Appellate Court and both the Courts have
taken note of documentary evidence available on record apart
from oral evidence in coming to such conclusion. The scope of
revision is very limited and this Court can consider the
material, if there is any perversity in appreciation of material
on record and no such circumstance is warranted in the case on
hand, having considered the gravity of the offence and also
misappropriation of amount to the tune of Rs.17,22,627.35/-.
Accordingly, I answer point No.(i) as 'negative'.
Point No.(ii)
12. In view of the discussion made above, I pass the
following:
ORDER
The criminal revision petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
