Karnataka High Court
Shri Jotiraj Tirakappa Lalage vs The State Of Karnataka on 24 March, 2025
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2025:KHC-D:5383
CRL.RP No. 100021 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL REVISION PETITION NO.100021 OF 2023
(397(CR.PC)/438(BNSS))
BETWEEN:
SHRI JOTIRAJ TIRAKAPPA LALAGE
AGE: 43 YEARS, OCC. NIL,
R/O. KODACHAWAD, TAL. KHANAPUR,
DIST. BELAGAVI.
...PETITIONER
(BY SRI VITTHAL S. TELI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH PSI, NANDAGAD,
NANDAGAD P.S., NANDAGAD,
TAL. KHANAPUR, DIST. BELAGAVI,
REPRESENTED BY THE STATE PROSECUTOR,
Digitally
HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.
signed by V
VN
N BADIGER ...RESPONDENT
BADIGER Date:
2025.03.29
11:41:31
(BY SRI PRAVEENA Y. DEVAREDDIYAVARA, HCPG)
+0530
THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397
R/W. 401 OF CR.P.C. 1973, SEEKING TO CALL FOR RECORDS IN
CRIMINAL APPEAL NO. 164/2022 ON THE FILE OF II ADDL. DISTRICT
AND SESSIONS JUDGE, BELAGAVI AND IN CC NO. 348/2010 ON THE
FILE OF ADDL. CIVIL JUDGE AND JMFC-KHANAPUR AND SET ASIDE
THE ORDER DATED 19.11.2022 PASSED BY THE II ADDL. DISTRICT
AND SESSIONS JUDGE, BELAGAVI IN CRIMINAL APPEAL NO.
164/2022 AND THE JUDGMENT AND ORDER OF SENTENCE PASSED
BY ADDL. CIVIL JUDGE AND JMFC-KHANAPUR IN C.C.NO. 348/2010
DATED 19.05.2022 FOR OFFENCE U/SEC. 409 OF INDIAL PENAL
CODE AND THEREBY ACQUITTING THE PETITIONER/ACCUSED AND
ANY OTHER RELIEFS.
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NC: 2025:KHC-D:5383
CRL.RP No. 100021 of 2023
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)
Heard Sri Vitthal S. Teli, learned counsel for revision
petitioner and Sri Praveena Y. Devareddiyavara, learned
High Court Government Pleader for respondent.
2. Though the matter is listed for admission, by
consent of the parties, matter is taken up for final
disposal.
3. Revision petitioner is the accused in
C.C.No.348/2010. After due trial, he has been convicted
for the offence under Section 409 of Indian Penal Code,
(for short, 'IPC') and sentenced to undergo simple
imprisonment for a period of six months and to a pay fine
of Rs.1,000/- with a default sentence of seven days simple
imprisonment.
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4. Order of conviction and sentence on challenge,
was subject matter of Crl.A.No.164/2022 on the file of II
Additional Sessions Judge, Belagavi.
5. Learned Judge in the First Appellate Court on
re-appreciation of the material on record, dismissed the
appeal of the accused and confirmed the order of
conviction and sentence.
6. Being further aggrieved by same, accused is
before this Court.
7. Sri Vitthal S. Teli, learned counsel for revision
petitioner reiterating the grounds urged in the revision
petition, vehemently contended that both the Courts have
not properly taken note of the attendant facts and
circumstances of the case and wrongly convicted the
accused resulting in miscarriage of justice and sought for
allowing the revision petition.
8. Alternatively, Sri Teli would contend that in the
event this Court upholding the order of conviction, taking
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note of the fact that accused is now aged 44 years and has
got a family to maintain and further taking note of the fact
that he is a first time offender, sentence of imprisonment
may be set aside by enhancing the fine amount
reasonably.
9. Per contra, Sri Praveena Y. Devareddiyavara,
learned High Court Government Pleader for respondent
opposes revision grounds with vehemence.
10. He would further contend that the entrustment
and the misappropriation of the funds is established by
placing necessary oral and documentary evidence on
record.
11. Admittedly, accused was working as a
Postmaster at Kodachawada Post Office and he had
misused the deposit made in the names of the minor
children. Therefore, no mercy can be shown to the revision
petitioner and if any leniency shown to people like revision
petitioner, it would not only send a wrong message to the
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society but also would encourage the similarly placed
perpetrators of crime and sought for dismissal of the
petition.
12. Having heard the arguments of both the sides
in detail, this Court perused the material on record
meticulously.
13. Having regard to the limited scope of rivisional
jurisdiction, having regard to the fact that prosecution is
successful in establishing the ingredients to attract the
offence under Section 409 of IPC as there was automatic
entrustment and misuse is predominantly based on
documentary evidence, hardly there is any scope to
interfere with the order of conviction.
14. However, the alternate submission made on
behalf of the accused needs to be considered taking note
of the fact that the misappropriated amount is paid in full.
15. It is settled principles of law and requires no
emphasis that repayment of the amount or the settlement
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of the civil liability ipso facto would not efface the
criminality and even temporary misappropriation is
punishable under Section 409 of IPC.
16. View of this Court is supported by the principles
of law enunciated by the Hon'ble Apex Court in the case of
Gian Singh vs. State of Punjab and another1.
17. However, since the misappropriated amount is
now paid, accused is the first time offender and having
lost his job as a Postmaster, if the amount of fine is
enhanced to a sum of Rs.25,000/- by setting aside the
imprisonment, ends of justice would be met. Accordingly,
following order is passed.
ORDER
(i) Criminal Revision Petition is allowed in part.
(ii) While maintaining the conviction of the
accused for the offence punishable under
Section 409 of IPC, sentence of
imprisonment ordered by the Trial Magistrate
2012 910) SCC 303
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confirmed by the First Appellate Court is
hereby set aside subject to payment of
enhanced fine amount of Rs.25,000/- on or
before 30th April, 2025.
(iii) Failure to make the payment of enhanced
fine amount would automatically result in
restoration of the sentence of imprisonment
ordered by the Trial Magistrate confirmed by
the First Appellate Court.
Office is directed to return the Trial Court records with
a copy of this order for issuing the modified conviction order.
SD/-
(V.SRISHANANDA)
JUDGE
NAA
CT:PA
