IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5975 OF 2016 BETWEEN:
1. VENKATESHA AGED ABOUT 36 YEARS, S/O RAMA SHETTY, WORKING AS ACCOUNTS SUPERINTENDENT, CITY MUNICIPAL COUNCIL, ARASIKERE, & R/A DOOR NO.2124, MISSION HOSPITAL ROAD, 3RD CROSS, HASSAN-573201 2. SHIVA KUMAR AGED ABOUT 52 YEARS, S/O LATE D RAMANNA, WORKING AS REVENUE OFFICER, CITY MUNICIPAL COUNCIL, HASSAN, & R/A SIDDESHWARA KRUPA, ADLIMANE, SHIVAJYOTHI NAGARA, HASSAN-573201 ... PETITIONERS (BY Ms. SUVARNA M.L., ADVOCATE FOR SRI: M NAGAPRASANNA & ASSTS) AND STATE BY POLICE INSPECTOR, CITY POLICE STATION, HASSAN-573201 (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP) ... RESPONDENT THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS BEFORE THE COURT OF PRL. C.J. AND J.M.F.C., HASSAN IN C.C.NO.6558/2015 IN SO FAR AS IT PERTAINS TO THE PETITIONERS/ACCUSED NO.4 AND 5.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners are accused Nos.4 and 5 in the charge sheet laid against them under Rules 25, 32(3) (4), 33 and 141 of The Karnataka Municipalities Accounting and Budgeting Rules, 2006(for short ‘Rules 2006’) and sections 114, 201 and 149 of IPC.
Heard learned counsel for petitioners and learned Addl.
SPP for respondent.
2. Learned counsel for the petitioners’ submits that the allegations made in the charge sheet do not make out the ingredients of the offences charged against the petitioners; Accused No.4 was the Accounts Superintendent of City Municipal Council, Arasikere at the relevant time; accused No.5 was the Revenue Officer of City Municipal Council, Hassan. The Karnataka Municipalities Accounting and Budgeting Rules, 2006 does not cast any obligation on the petitioners relating to collection of bills or remittances of cash and cheques. Under the said circumstances, the prosecution of the petitioners is wholly illegal and without jurisdiction.
3. Learned Addl. SPP appearing for respondent-State however argued in support of the impugned action contending that the material collected by the investigating agency clearly disclose large scale misappropriation by the accused. Petitioner No.1/accused No.4 being the Accounts Superintendent was required to look into the alleged misappropriation and petitioner No.2/accused No.5 being the Revenue Officer was required to deposit day-to-day tax amount to the account of Municipal Council, Hassan. Since, petitioners have failed to discharge their duties, the prosecution has rightly charged the petitioners for the above offences and hence, there is no ground to quash the proceedings.
Considered the rival submissions and perused the records.
4. Undisputedly, the petitioners herein are charged under Rules 25, 32(3) (4), 33 and 141 of ‘Rules 2006’ and sections 114, 201 and 149 of IPC. It is not in dispute that at the relevant time, petitioner No.1(accused No.4) was working as Account Superintendent, City Municipal Council, Arasikere and accused No.5 as Revenue Officer, City Municipal Corporation, Hassan. Rule 25 deals with Collection by the Bill Collectors. Section reads as under:-
“25. COLLECTION BY BILL COLLECTORS. — (1) Every Bill Collector or municipal employee entrusted with the collection of municipal revenue shall be supplied with a Collection Register in KMF NO.16 and Receipt Books. The Collection Register shall be in the personal custody of the Bill Collector and the particulars in it shall be written up from the original receipts issued at the time of collection. The Receipt Books and Collection Register may be maintained separately for each fund if found convenient.
(2) Every Bill Collector shall invariably remit his collections daily to the Cashier before 4.30 PM. Before doing so, he shall take with him his Collection Register as well as the Receipt Books in his charge to the First Grade Revenue Inspector or the Revenue Officer or a staff of the Municipality duly authorised by the Municipal Commissioner or the Chief Officer as the case may be, in this behalf and get it verified by him. Then, he shall remit 19 the cash to the cashier and take the cashier’s acknowledgment in the Collection Register.
Provided that in case such First Grade Revenue Inspector or Revenue Officer or the authorised staff is not available at the appointed time, he shall first remit the cash to the Cashier on the same day of collection obtaining Cashier’s acknowledgement in the Collection register and then get his Collection Register and receipts verified by the First Grade Revenue Inspector or the Revenue Officer or the authorised staff within the closing hours of next working day”.
Undisputedly, petitioners were not entrusted with the duty of collecting bills. As such, provision of Rule 25 is not applicable to the petitioners.
Rule 32 deals with Remittance of cash and cheques.
Section reads as under:-
32. Remittance of cash and cheques — (1) Every day morning the cashier shall first remit the amount held by him at the close of the previous day into the treasury or bank concerned. In case of unusually large collection in a day, the 23 Municipal Commissioner or the Chief Officer as the case may be, shall make special arrangement for its deposit into the bank on the same day or make special arrangement for security at the Municipal Office.
(2) For remittance into the treasury or bank, the Cashier shall fill up the necessary challan or pay- in-slip prescribed by the treasury or the bank and shall remit the amount to the treasury or bank duly obtaining the acknowledgement of the concerned treasury officer or bank cashier in the counterfoil. He shall then paste the counterfoil in a separate Remittance Book according to a running serial number. Remittance book shall be in the custody of the Cashier.
Under Sub-Rule (3) of Rule 32, duty is cast on the Office Manager and the Municipal Commissioner or Chief Officer to verify the Remittance Book on a daily basis and weekly basis respectively. Under Sub-Rule (4) responsibility is cast on the Accountant to get bank statements collected on a weekly basis. As the petitioners herein were neither the Office Manager nor Municipal Commissioner or the Accountant requiring to ensure compliance of the said Rule, petitioners cannot be prosecuted for violation of said Rule. As such, the prosecution of the petitioners under Rule 32(3) & 32(4) also cannot be sustained.
Rule 33 deals with Misappropriation of Municipal monies etc., which is not a penal provision, rather it deals with procedure to deal with enquiry in cases of misappropriation of Municipal monies.
5. There are no allegations against the petitioners that the petitioners herein were involved in any misappropriation of municipal monies or causing destruction of evidence so as to attract Sections 114, 201 and 149 IPC. The allegation of misappropriation are directed only against accused No.1. Petitioners herein are sought to be prosecuted for negligence for not keeping supervision over the activities of their subordinates. Since the rules referred above do not cast any obligation on the petitioners to keep watch and ward over the activities of accused No.1, in my view, the prosecution of the petitioners under Rule 33 also cannot be sustained.
6. Finally, petitioners are charged under Rule 141 of Rules 2006, which reads as under:-
141. RECEIPT BOOKS – Receipt Books shall, on receipt immediately in the Municipal Office; be counted, numbered and entered in the Stock Book of Forms. Each Receipt Book shall be serially numbered and paged and a certificate of the number of pages each book contains shall be furnished in each book and signed by the Municipal Commissioner or Chief Officer or the Officer duly authorized by the Municipal Commissioner or Chief Officer in this behalf. The issue of Receipt Books shall be in order of their numbers and the signature of the receiver obtained in the stock register. No fresh book shall be issued before the previous one is completely exhausted and returned to the Municipal Office. Each page of every copy of all kinds of Receipt Books, tickets, etc., shall be impressed with the common seal of the Municipality before issue from the stock of books of the Municipal Office.”
There are no allegations in the charge sheet that the petitioners were entrusted with the duty of maintaining Receipt Books. Even otherwise said Rule does not provide for any penal consequences. Under the said circumstances, there is absolutely no basis for prosecution of the petitioners for the alleged violations. Consequently, the petition deserves to be allowed.
Accordingly, the petition is allowed. Proceedings in C.C.6558/2015 pending on the file of Prl. Civil Judge & JMFC, Hassan District, Hassan are quashed only insofar as the petitioners viz., accused Nos.4 and 5 are concerned.
Sd/- JUDGE *mn/-