IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.208 of 2011 BETWEEN SMT. LAKSHMIDEVI, W/O SRI R.K. ASHOK KUMAR, AGED ABOUT 60 YEARS, FORMERLY AT No.C-26, SHANBAGH KRISHNAPPA LANE, CHIKKAMAVALLI, BANGALORE – 560 004. NOW RESIDING AT 56/4, UPSTAIRS, 1ST BLOCK, 2ND MAIN, THYAGARAJANAGAR, BANGALORE – 560 028.
(BY SRI B.S. SRIDHAR, ADVOCATE FOR SRI C.G. GOPALASWAMY, ADVOCATE) AND THE STATE OF KARNATAKA, BY COD, BANGALORE.
(BY SRI S.T. NAIK, H.C.G.P) ... PETITIONER ... RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397(1) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 30.10.2010 PASSED BY THE PRESIDING OFFICER, FTC- VIII, BANGALORE CITY IN CRL.A.No.188/2002 AND JUDGMENT & CONVICTION DATED 07/08.03.2002 PASSED BY THE IV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALORE IN C.C.No.3404/1984.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 07.01.2019 AND COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
ORDER This Revision Petition is filed by the petitioner under Section 397 (1) of Cr.P.C., 1973, being aggrieved by the judgment of conviction and sentence passed by IV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.3404/1984. He has been convicted for the offences punishable under Section 408, 477A, 420 and 120B of IPC and the same has been confirmed by the Fast Track Court – VIII, Bengaluru City in Crl.A.No.188/2002 vide judgment dated 30.10.2010.
2. Heard the arguments of the learned counsel for the petitioner and the learned High Court Government Pleader.
3. The rank of the parties before the trial Court is retained for the convenience.
4. Before adverting to the arguments of the learned counsel for the petitioner, it is worth mentioning the factual matrix of the case on hand.
5. The accused No.1 (the present petitioner), being the ledger clerk and the accused No.2, being the Manager in Vysya Co-operative Bank, V.V.Puram Branch, Bengaluru during the period between 18.11.1969 and 17.10.1979 having dominion over the accounts and funds of the Bank and both conspired together to cheat the bank and to cause wrongful loss to the bank and opened FD account on 23.12.1976 in LF No.7/103 in the said bank in the name of A.G.Susheelamma-PW.6 for Rs.300/- but issued FD receipt for an amount of Rs.1,300/- without receipt of Rs.1,000/- thereby caused wrongful loss to the bank and cheated the bank by falsifying the accounts of the bank in the Managers Scroll, Cashiers Scroll and other books of account facilitating the said Susheelamma to withdraw the amount of Rs.1,417/- though she was not entitled for so much amount and thereby the amount to the tune of Rs.1,100/- has been misappropriated and made personal gain.
6. Subsequently, one L.B.Joshi was appointed as Administrator and later, PW.1 N.S. Manohar was appointed as Administrative Officer on 24.07.1979 and after assuming the charge as Administrative Officer, he had found that the audit accounts of the bank for the year 1977-1978 was in arrears and he got audited the accounts of the bank through the auditor one Raghupathi and the auditor submitted the report as per Ex.P1 where it was revealed that the accused Nos.1 and 2 had opened the FD account in the name of PW.6- A.G.Sushelamma by receiving Rs.300/-, but issued receipt for Rs.1,300/- and also facilitated her to withdraw a sum of Rs.1,417/- and thereby, misappropriated Rs.1,117/- for their personal gain. Thereafter, by obtaining the authorization letter from the Deputy Registrar of the Co-operative Society and then lodged the complaint against the accused before the Central Police Station and later, the investigation was took up by the COD Police and after the completion of investigation, the charge sheet came to be filed against the accused Nos.1 and 2.
7. The accused appeared through their counsel, they have been released on bail after furnishing the charge sheet materials and the trial Court framed the charges for the above said offences. They are not pleaded guilty and claims to be tried. The prosecution in ordered to prove the case, in all examined 11 witnesses and got marked 47 documents. After closing the prosecution evidence, the accused were examined under Section 313 of Cr.P.C. The case of the accused was one of the total denial but not entered into any defence. After hearing the arguments, the learned trial Judge found the accused guilty and convicted and sentenced to undergo imprisonment for 6 months and to pay a fine of Rs.500/- and in default to undergo simple imprisonment for one month for the offence punishable under Section 408 of IPC. They have also sentenced to pay Rs. 500/- and to undergo simple imprisonment for 4 months and in default to undergo simple imprisonment for one month for the offence punishable under Section 420 of IPC; Further, sentenced to pay a fine of Rs. 500/- and in default to undergo simple imprisonment for one month for the offence under Section 477A of IPC. They also sentenced to pay a fine of Rs.500/- and in default to undergo simple imprisonment for one month for the offence punishable under Section 120B of IPC.
8. The accused challenged the conviction and sentence by filing Crl.A.No.188/2002 before the Fast Track Court-VIII, Bengaluru City which came to be dismissed by the Judgment dated 30.10.2010. Hence, the petitioner is before the Court on various grounds.
9. The learned counsel for the petitioner contended that the petitioner is innocent of the offence. PW.6 also not supported the prosecution case. The petitioner is not favoured or misappropriated any amount of the bank in order to cheat the bank. She was only a ledger clerk but not a cashier. She was not at all made any payment to PW.6 for the tune of Rs.1,417/-. She has only used to make entry in the ledger. Even assuming for the sake of arguments, the judgment and conviction are correct but the sentence imposed was disproportionate to the facts and circumstances of the case. She has faced the trial for more than a decade and half years. She has suffered mental and physical agony. She is also entitled for the benefit under Section 360 of Cr.P.C. The prosecution witnesses PWs.1 to 3 and PW.8 are all formal witnesses. The cashier was dominion over the accounts, but he was not made as the accused. Therefore, prayed for setting aside the judgment of conviction and order of sentence passed by the trial Court.
10. Per contra, the learned High Court Government Pleader contended that the accused No.1 is the Manager. This petitioner is the ledger clerk. Though the entry is available for receipt of only Rs.300/- from PW.6 for depositing money for getting FD, but they are shown as Rs.1,300/- and thereafter while repaying the amount they have calculated Rs.117/- as interest for Rs. 1,300/- thereby, they have caused wrongful loss of Rs.1,117/-. PW.6 is none other than the mother of the petitioner collided with accused No.1 and with her mother who has committed the offence. The documentary evidence is available in the trial Court. Therefore, it is contended that the trial Court not committed any error or illegality while convicting petitioner. Hence, prayed for dismissing the petition.
11. Upon hearing the arguments of both the counsel for the parties and perusal of the records of the trial Court, it is admitted fact, the accused No.2 –Nanjundeswaraguptha (not the petitioner before this Court) who was the Manager of the Vysya Co-operative Society, V.V.Puram Branch, Bengaluru and the petitioner was the ledger clerk during the period 13.11.1969 and 17.10.1979. PW.6-Susheelamma is none other than the mother of the petitioner. PW.1 was the Administrative Officer. After assuming the charge, he has ordered for audit and obtained Audit report as per Ex.P1. Ex.P1 has been proved and marked through PW.5-
Raghupathi. It is also not in dispute that PW.2-Gangadhara Shetty was the President of the bank and PW.3- Sathyanarayana Guptha was the Honorary Secretary of the said bank. The entire evidence of the prosecution was based upon the documentary evidence. This Court, being the revisional Court, cannot re-appreciate the evidence on record. When the concurrent findings of both the Courts below are available, this Court is required to find out whether any error or illegality committed by the Court below while passing the impugned judgments.
12. On the background of the principles laid down by the Hon’ble Apex Court and on perusal of the records which shows PW.1 who is the Administrative Officer of the said bank took over charge and he has ordered for auditing the accounts from the year 1969 to 1979 through PW.5 – Raghupathy. Ex.P1 is the original audit report. PW.2 is the copy of the audit report. PW.1 found that there is misappropriation of the funds, tampering of the documents and mismanagement of the accounts in the audit report. Therefore, he has obtained permission from the Registrar of the Co-operative Society and lodged complaint to the Police against the accused persons. The main allegation against the petitioner is that during relevant cheque period, accused No.2 was the Manager of the bank, this petitioner being the ledger clerk wherein, PW.6-A.G.Susheelamma, the mother of the petitioner obtained FD by depositing Rs.300/-. Ex.P7 is the Manager’s scroll and Ex.P8 is the challan which shows that the said Susheelamma has paid only Rs.300/- for the purpose of FD. Ex.P8 dated 28.12.1976 of Rs.300/- has been deposited for the purpose of taking FD and Ex.P9 is the FD receipt prepared by the accused. Petitioner has also obtained the signature by the Manager-accused No.2 wherein the amount of Rs.1,300/- has been mentioned. The FD was prepared or issued for short period of one year and to pay 9% interest. The receipt also prepared as per Ex.P10 for Rs.1,300/-.
13. Even though PW.6 deposited only Rs.300/- by way of challan, Ex.P8 for getting the FD, but accused Nos.1 and 2 were purposely shown the FD amount as Rs.1,300/-. Thereby, they shown Rs.1,000/- in excess in favour of PW.6. Subsequently, after one year, the FD was discharged on 17.11.1977. They have paid Rs. 1,417/- that means Rs.117/-
as an interest for Rs.1,300/-. Even though the said Susheelamma deposited only Rs.300/- by making false entry, issued false FD receipt. The accused Nos.1 and 2 caused loss of Rs.1,000/- in the beginning stage at the time of issuing the FD and later stage while discharging the amount, they have given more interest thereby they have calculated interest for Rs.1,300/-. The ledger-Ex.P25, the petitioner shown the amount of Rs.1,300/-, even though she has received only Rs.300/- from PW.6. The original FD receipt Ex.P26 copy and Exs.P.27 to 30 and Exs.P.39, 39A, 44 all shows that though PW.6 paid Rs.300/- but the FD receipt shows Rs.1,300/-. However, these documents were referred to PW.7- Lakshminarayana-Handwriting Expert and he had verified these documents and Handwritings including signature of the accused and opined the signature found on the disputed documents is that of the accused persons. Apart from the handwriting and signature of these accused persons were also identified by PW.4-Jayakeerthi, Cashier and PW.8-Bheemaraj, the clerk of the said bank at the relevant time were clearly identifies the handwriting of the accused persons in those documents. There is no rebuttal evidence from the side of the accused to show that they are not prepared this receipt and FD during the relevant period. On the other hand, they worked in the said bank during the relevant period. The Exhibits, FD receipt making entry for Rs.1,300/- inspite of receiving only Rs.300/- from PW.6 and while it is charging the FD amount, they released Rs. 1,417/- which has been proved by the prosecution from the documentary evidence.
14. These documents were corrected in the name of PW.6, who is the mother of the petitioner. The evidence of the auditor, handwriting expert, complainant, the cashier-PW.4, PWs.2, 3 and 9 clearly corroborates with each other and the complaint made by PW.1. There is nothing elicited in the cross-examination to disbelieve the evidence of these witnesses. Thereby, the accused petitioners have misappropriated the amount of Rs.1,117/- and cheated the bank and caused wrongful loss thereby the alleged offence has been proved by the prosecution with a documentary or oral evidence, beyond reasonable doubt.
15. The trial Court recently appreciated the evidence on record and First Appellate Court also re-appropriated the evidence on record and confirmed the judgment of the trial Court. This Court do not find any illegality or error in holding the accused petitioner was guilty for the offences punishable under Sections 408, 477A, 420 and 120B of IPC and sentenced as stated supra.
16. However, the learned counsel for the petitioner alternatively argued that the age of the accused-petitioner was more than 70 years. She is litigating the case almost 39 years. She has suffered mental agony and long back, she has been removed from service and the trial Court or First Appellate Court ought to have extended the benefit of releasing the petitioner on due admonition either under Section 360 of Cr.P.C. or under the Probation of Offenders Act, 1958. Hence, alternatively prayed for extending the benefit of Probation of Offenders Act, 1958.
17. Per contra, the learned High Court Government Pleader contended that the offence is heinous one and the trial Court has already imposed simple imprisonment and fine amount. Therefore, he submits that, it need not be required to reduce the sentence.
18. Upon hearing the rival contention of both the learned counsel and looking to the facts and circumstances, the alleged misappropriation amount was only Rs. 1,117/-. The petitioner suffered and litigating the case from 1980 till date and looking to the age and date of offence which was committed between 1969 and 1979 and the petitioner being the woman and looking to her age, it is deem fit and proper to modify the sentence of imprisonment awarded by the trial Court into fine that will meet the ends of justice.
19. Learned counsel for the petitioner also relied upon the order passed by this Court in Crl.R.P.No.1187/2005 in the case of the petitioner herself, wherein this Court granted the benefit of Probation of Offenders Act, 1958 and released the petitioner on due admonition.
20. After perusal of the said order, it goes to show that there were number of cases registered against the petitioner, wherein this Court already extended the benefit and in the first case, the petitioner has been granted benefit of Probation of Offenders Act, 1958. Therefore, in my considered opinion, the petitioner is not entitled for the same benefit for the subsequent offences committed by the petitioner. Therefore, in my considered view, the judgment of conviction passed by the trial Court is deserved to be upheld but the sentence is required to be modified. Accordingly, I pass the following order:
i) The Criminal Revision Petition is allowed in-part.
ii) The judgment of conviction passed by the trial Court in C.C.No.3404/1984 is upheld and the sentence of imprisonment is modified into only fine.
iii) The petitioner is ordered to pay fine of Rs.2,000/- in default, to undergo simple imprisonment for 15 days for the offence punishable under Section 408 of IPC;
She shall pay fine of Rs.2,000/-, in default, to undergo simple imprisonment for 15 days for the offence punishable under Section 477A of IPC;
She shall pay a fine of Rs.2,000/- in default, to undergo simple imprisonment for 15 days for the offence punishable under Section 420 of IPC; and She shall pay a fine of Rs. 1,000/- in default, to undergo simple imprisonment for one week for the offence punishable under Section 120B of IPC.
The Registry is directed to transmit the LCR to take further course of action.
Sd/- JUDGE GBB