R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO. 703 OF 2011 Between:
Sudesh Kumar S/o B. Seenappa Aged about 34 years Ex-Post-Master Kanchakal Post Office Kachakal, Somlapura Village Koppa Taluk Chikamagalur District.
... Petitioner (By Sri Umesh P .B – Advocate for Sri R .B. Deshpande - Advocate) And:
The State of Karnataka By Koppa Police Station.
... Respondent (By Sri Thejesh .P - HCGP) ****** This Criminal Revision Petition is filed under Section 397 r/w Section 401 of the Code of Criminal Procedure, praying to, set aside the order dated 24.03.2006 passed by the Presiding Officer, Fast Track Court-II, Chikmagalur in Crl.A.No.4/2000 and order dated 17.12.1999 passed by the J.M.F.C., Koppa in C.C.No.578/1994.
This Criminal Revision Petition coming on for Hearing, this day, the Court made the following:
O R D E R This criminal revision petition is filed by the petitioner challenging the judgment dated 24.03.2006 rendered by the Presiding Officer, Fast Track Court – II, Chikmagalur dismissing the appeal and confirming the judgment of conviction and order of sentence rendered by the trial Court in C.C.No.578/1994 dated 17.12.1999. By the said order dated 17.12.1999, the Trial Court had sentenced the accused to undergo simple imprisonment for two years and to pay a fine of Rs.1,000/- for the offence punishable under Section 408 IPC and had sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs.1,000/- for the offence punishable under Section 477-A IPC and both the sentences were to run concurrently. The Appellate Court by order dated 24.03.2006 directed the Trial Court to pay a sum of Rs.1,000/- to PW.1 - Ramesha Acharya as reward out of the fine amount of Rs.2,000/-. To that extent, the operative portion of the judgment of the trial Court was modified.
2. The factual matrix of the case of the prosecution is as follows:
The accused – petitioner herein was appointed as Post Master of Kachakal Post Office as on 14.07.1988 and since then, he was doing the duty as such in the said post office. The petitioner while discharging his duties in the said office during the period from 29.10.1989 to 23.10.1992, is said to have withdrawn the following sums of money from the following account numbers: a sum of Rs.40/- from out of the R.D.Book bearing No.117358 pertaining to P.W.2 – Yogendra; a sum of Rs.817/- from out of the R.D.Book of P.W.3- Smt.Jainabi bearing No.842865; a sum of Rs.1065/- from out of the R.D.Book bearing No.846068 pertaining to PW.4 Smt.Sunanda; a sum of Rs.1,500/- from out of the R.D.Book bearing No.842231 pertaining to PW.5 – T.T.Govindegowda and he also withdrew a sum of Rs.500/- from the R.D.Book bearing 842231 by getting the withdrawal form signed by PW.5 Govindegowda. In respect of the above transactions, the accused had not made any endorsements in the concerned books of accounts and thus, in all he is said to have misappropriated a sum of Rs.3,922/-.
Further, it is stated P.W.1- Ramesha Acharya, who is the Sub-Divisional Inspector, Koppa Postal Sub- Division, when inspected the post office at Kachakal, had found the mistakes committed by the accused during the said period and lodged a complaint with the Koppa Police Station, along with annexures requesting the police to take suitable legal action against the accused. On receipt of the complaint, the Koppa police registered a case in Crime No.86/1993 against the accused for the offences punishable under Sections 408 and 477A IPC and had sent the FIR to the JMFC, Koppa. During the course of investigation, statements of accused and witnesses were recorded, necessary documents were seized and after completion of investigation, laid charge sheet before the trial Court in C.C.No.578/1994.
After appearance of accused, charges were framed, read over and explained to the accused, but the accused did not plead guilty and claimed to be tried. In order to prove the case of the prosecution, in all ten witnesses were examined as PWs.1 to 10 and documents as per Exs.P1 to P28 were got marked. The trial Court after hearing arguments advanced by the learned counsel on both sides, passed the judgment of conviction and order of sentence convicting the accused for the offence punishable under Section 408 of IPC and sentenced him to undergo SI for a period of two years and to pay fine of Rs.1,000/- and in default to pay the fine amount, to undergo SI for a period of three months. Further, the accused was sentenced to undergo SI for a period of two years and to pay a fine of Rs.1,000/- and in default to pay the fine amount, to undergo SI for three months, for the offence punishable under Section 477 (A) of IPC.
Aggrieved by the judgment of conviction and order of sentence passed by the trial Court, the accused preferred an appeal in Crl.A.No.4/2000 before the lower Appellate Court. The Appellate Court vide judgment dated 24.03.2006 dismissed the appeal and confirmed the judgment rendered by the trial Court in C.C.No.578/1994. Further, the Court below ordered to pay Rs.1000/- to PW.1 – Ramesha Acharya as reward out of the fine amount of Rs.2000/-. To that extent, the operative portion of the judgment of the trial Court was modified by the Appellate Court. Hence, this petition by the petitioner/accused seeking to set aside the order of conviction and sentence passed by the Trial Court which has been affirmed by the Appellate Court.
3. Learned counsel for the petitioner – accused contends that both the courts below have not at all appreciated the evidence on record in a proper perspective. In that, the necessary ingredients of the offence of criminal breach of trust as defined under Section 408 IPC or the ingredients of Section 477A of IPC have not been established by the prosecution in order to convict the petitioner. Further, that there is a long and unexplained delay in filing the complaint.
It is the further contention of the learned counsel for the petitioner that the petitioner was working as a Post Master on a temporary basis and had no authority to enter the pass book as mentioned in Exhibit P2 Duty chart. Hence, he contends that the petitioner had deposited all the amounts to the Head Post Office, Koppa and the prosecution has not at all produced any material to show that the petitioner was entrusted with the alleged transaction. Hence, the learned counsel contends that without legal entrustment by the postal authorities, the conviction of the petitioner under Section 408 IPC and subsequently under Section 477-A IPC is bad in law.
Further, the courts below have erred in convicting the petitioner since the prosecution witnesses PWs 2 to 6 who were the account holders and panchas have not supported the case of the prosecution. It is his contention that the court below had convicted the petitioner on the sole evidence of PW.1 who is an interested witness. The same not being supported by independent evidence, it goes to the very root of the prosecution case and thus renders the case of the prosecution doubtful.
Further, that the courts below ought to have seen that evidence of PW-9, the hand-writing expert and the contents in Exhibit P.27 opinion is contrary to the evidence of PW-10 Investigating Officer in view of the fact that PWs 2 to 6 have denied their statements and their signatures recorded by PW-10 which was sent to PW-9. This is a serious flaw in the case of the prosecution. Hence, the Trial Court has erred in convicting the petitioner and sentencing him as aforesaid. In view of the fact that the case of the prosecution itself was doubtful, both the courts below ought to have extended the benefit of doubt to the petitioner and acquitted him. Further, the courts below have also erred in convicting the petitioner based on his own voluntary statement as per Exhibits P21, 22 and 28, which is opposed to law.
The spot mahazar Exhibit P-20 bears the signature of PW-1, PW-6 and PW-7. But PW-6 and PW- 7 who are said to be the panch witnesses secured by the I.O have not at all supported the contents in the fulcrum of Exhibit P-20 of the spot mahazar said to be conducted by the I.O. in their presence. The entire case of the prosecution revolves around the evidence of PW- 1, PW-9 and PW-10. PW-8 the Head Constable who received the complaint as per Exhibit P-19 and recorded the FIR, has stated in his evidence that PW-1 came to the police station and gave a complaint in writing and based upon his complaint, the crime came to be registered in Crime No.86/1993 for the aforesaid offenses by recording an FIR.
PW-9 is said to be the hand-writing expert who subjected to examination the hand-writing of the accused as per Exhibit P-27, but his evidence runs contrary to the evidence of PW-10 who laid charge-sheet against the accused. Further, PWs 2 to 5 have not supported the case of the prosecution and they have denied the statements said to have been recorded during the course of investigation. The Trial Court has not appreciated this evidence in a proper perspective. The voluntary statements of the accused have been recorded by the I.O. as per Exhibits P-21, 22 and 28 but the same have not been appreciated by the Trial Court as well as the Appellate Court. In the totality of circumstances put forth by the prosecution, the Trial Court as well as the Appellate Court have misinterpreted the evidence of PW-1, PW-9 and PW-10 and have failed to prove the case put forth by the prosecution beyond all reasonable doubt. Hence, the learned counsel prays that the judgment of conviction and sentence rendered by the Trial Court which has further been affirmed by the Appellate Court be set aside, the petitioner be acquitted of the offences leveled against him.
4. Per contra, learned HCGP for the respondent – State contends that though there may be some flaws in the case of the prosecution, the petitioner/accused himself having admitted the misappropriation and breach of trust that he has committed, the Trial Court has rightly held the accused guilty of offences under Sections 408 and 477-A IPC which has as well been affirmed by the Appellate Court. He contends that the prosecution has proved the guilt of the accused beyond reasonable doubt and proved the fact that the accused being a Post Master in the postal department committed criminal breach of trust by utilizing the amounts deposited by customers in SB and RD Accounts, totally amounting to Rs.3,922/- without crediting the same in their respective accounts and committed fraud by not entering the deposited amount in any of the ledger books. Since he has not credited the amounts deposited by the customers into their respective accounts, the petitioner/accused has clearly committed offence under Section 477(A) in addition to the offence under Section 408 of IPC. The courts below on appreciation of the entire evidence and materials available on record, have rightly convicted the petitioner/accused for the aforesaid offences. The petition being devoid merits is ought to be dismissed. Hence, he contends that the judgments passed by both the Trial Court as well as the Appellate Court being just and proper, needs no interference in this revision petition.
5. On a careful consideration of the contentions advanced by the learned counsel for the petitioner – accused and the learned HCGP for the State and having regard to the material on record, it is seen that PWs 2 to 5 were subjected to examination on the part of the prosecution in order to prove the guilt of the accused. But they did not withstand the version of their statements and they have given a go-by to the version of their statements which were recorded by PW-10 Investigating Officer. Further, their evidence is contradictory to the evidence of PW-1. It is also seen that the prosecution witnesses PWs 2 to 5 who were the account holders and panchas have not supported the case of the prosecution and the courts below have convicted the accused solely on the evidence of PW-1 who is an interested witness. Any independent witness has not been examined to prove the guilt of the accused, which goes to the very root of the prosecution case and thus renders the case of the prosecution doubtful, as contended by the counsel for the petitioner.
It is also seen that the evidence of PW-9, the hand-writing expert and the contents in Exhibit P-27 his opinion, is contrary to the evidence of PW-10 Investigating Officer in view of the fact that PWs 2 to 5 have denied their statements and their signatures recorded by PW-10 which was sent to PW-9. Hence, the Trial Court has erred in convicting the petitioner and sentencing him as aforesaid. I find that the courts below ought not to have convicted the petitioner based on his own voluntary statement as per Exhibits P21, 22 and 28, which is opposed to law as contended by the counsel.
Further, though the spot mahazar Exhibit P-20 bears the signature of PW-1, PW-6 and PW-7, those witnesses namely PW-6 and PW-7 who are said to be the panch witnesses secured by the I.O have not at all supported the contents in the fulcrum of Exhibit P-20. The entire case of the prosecution revolves around the evidence of PW-1 / complainant, PW-9 / FSL Officer and PW-10 / Investigating Officer.
Though the voluntary statements of the accused have been recorded by the I.O. as per Exhibits P-21, 22 and 28 but the same have not been appreciated by the Trial Court as well as the Appellate Court. In the totality of circumstances put forth by the prosecution, the Trial Court as well as the Appellate Court have misinterpreted the evidence of PW-1, PW-9 and PW-10 and have failed to prove the case put forth by the prosecution beyond all reasonable doubt as contended.
Further, the courts below lost sight of the fact that though the petitioner was working as a Post Master, he was appointed only on a temporary basis and had no authority to entry the passbook as mentioned in Exhibit P-2 Duty Chart. In spite of the same, on being intimated about the discrepancy, the petitioner has deposited the misappropriated amount with the postal department. Under similar facts and circumstances in respect of a similar offence committed by a Post Master wherein in the said case also the misappropriated amount was deposited even before the FIR was lodged, the Apex Court in the case of STATE OF HIMACHAL PRADESH vs. KARANVIR (AIR 2006 SC 2211), has held as under:
“For the aforesaid reasons, the impugned judgment cannot be sustained and it is set aside accordingly.
The question, however, would now arise as to whether in the facts and circumstances of this case, the respondent should be sent back to jail. The respondent is aged about 60 years. The offence is said to have been committed 15 years back. He was arrested by the police. He might have been in custody for some time.
Having regard to the peculiar facts and circumstances of this case and keeping in view the fact that the respondent had deposited the entire amount before the First Information Report was lodged, we are of the opinion that the interest of justice would be subserved if any substantial punishment is not awarded. Accordingly, we impose a fine of Rs.4,000/- upon the respondent, which will be apart from the amount of fine of Rs.1,000/- imposed by the learned Trial Judge. It is directed that in default of the payment of the said amount, the respondent shall undergo simple imprisonment for three months. The appeal is thus allowed.”
In the case on hand, it is seen that the offence has been committed prior to 26 years. Hence, the judgment of the Apex Court in AIR 2006 SC 2211 is directly to the point and in this case as well, the petitioner need not be awarded substantial punishment.
However, it is relevant to refer to Section 405 of the IPC relating to criminal breach of trust, 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 of that property in violation of any direction or 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 willfully suffers any other person so to do, commits “criminal breach of trust”.”
Further, Section 408 of the IPC reads thus:
“408. Criminal breach of trust by clerk or servant.—Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
It is seen that Section 405 as well as Section 408 of the IPC are relatable to ‘criminal breach of trust’. In the case on hand, these two offences ought to be read together to understand the meaning of ‘criminal breach of trust’. The ingredients of Section 405 IPC is akin to Section 408 IPC.
The necessary element of the offence of ‘criminal breach of trust’ as defined in Section 405 IPC is that there must be entrustment of property to the accused; there shall be evidence to establish the modus operandi of the accused to commit the embezzlement or misappropriation. The conviction of a person for the offence of criminal breach of trust may not in all case be founded merely on the failure to account for the property entrusted to him or over which he has dominion even when a duty to account is imposed upon him, said to be an accused in the instant case. But where he is unable to account or renders an explanation for his failure to account and this aspect is required to be established by the prosecution beyond all reasonable doubt and also with acceptable evidence on the part of the prosecution.
The essential ingredients in respect of ‘criminal breach of trust’ has to be proved as to whether the accused was actuated by dishonest intention the failure to account for the amount proved to have been received by the accused, but account of its use is generally considered to be a strong circumstance against the accused. But in the instant case, PW-1 who has filed a complaint as per Exhibit P-19 and the same has been appended to Annexure-“A” relating to the account in respect of the depositors, but PW-2 to PW-5 did not support the case of the prosecution and even PW-5 T.T. Govinde Gowda did not withstand the version of his statement recorded by PW-10 I.O., during the course of investigation regarding withdrawal of the amount of Rs.500/-. But his evidence is contrary to the evidence of PW-10 who is an I.O. and who thoroughly investigated the case and laid a charge-sheet against the accused. But in the complaint at Exhibit P19 at paragraph no.4 it is specifically stated that the amount which the accused is alleged to have misappropriated has been deposited. Therefore, the entire evidence which has been put forth by the prosecution is not consistent with each other even to the extent of evidence of PW-1 coupled with the evidence of PW-9 and PW-10. They are the material witnesses on the part of the prosecution in order to prove the guilt of the accused.
So far as Section 408 of the IPC, it reveals as criminal breach of trust by clerk or servant. In the instant case, it is alleged that the accused by working as a Post Master at Kachkal Branch in Koppa Taluk had committed criminal breach of trust in respect of the amounts deposited by the depositors. This offence being an aggravated form of criminal breach of trust, must naturally possess all the ingredients which are set out under Section 405 of the IPC in the definition as provided in the said section.
In the instant case, the accused had deposited the defalcated amounts. Therefore, the prosecution is required to show any dishonest misappropriation by putting forth evidence in that regard for the offence under Section 408 IPC.
As far as criminal breach of trust is concerned, though the burden of proof never shifts from the prosecution to the defence, nevertheless the fact that the accused failed to show what has happened to the money which was collected by him from the depositors coupled with the other circumstances, certainly may justify the inference that he has misappropriated it. But the dishonest intention of the accused must be established by putting forth strong evidence on the part of the prosecution. But in the instant case, the essential ingredients of Section 408 IPC as regards dishonest misappropriation has not been established by the prosecution by putting forth cogent, corroborative and acceptable evidence. Though PW-1 to PW-10 have been subjected to examination and cross-examination, the prosecution has mainly banked upon the evidence of PW-1, PW-8, PW-9 and PW-10 in order to convict the accused for offences under Sections 408 and 477A of IPC.
But Section 477-A deals with ‘falsification of accounts’. But the scope of this section only requires the falsification of accounts with intent to defraud.
Willfully as used in Section 477-A IPC means intentionally or deliberately. But the accused who was working as a Post Master at Kachkal Branch Post Office had received money from the depositors and had not credited the same to the SB / RD Accounts maintained by them and the said amounts were said to be misappropriated by him. It is this allegation that is made in the complaint at Exhibit P-19. But however, the accused had deposited the misappropriated amounts to the tune of Rs.5,466/-. The accused was clearly acting in the capacity as a Post Master. But the judgment reported in AIR 2006 SC 2211 (supra) squarely applies to the present case on hand.
6. Hence, at a cursory glance of the evidence of the witnesses PWs 1 to 10 as well as Exhibit P20 spot mahazar said to be conducted by PW-10, I am of the opinion that the prosecution has not put forth positive, corroborative and cogent evidence in order to prove the guilt of the accused. Hence, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Since the said evidence has not been appreciated by the trial court as well as appellate court in a proper perspective, it has resulted in a miscarriage of justice. In view of several discrepancies found in the evidence of the prosecution, I am of the opinion that benefit of doubt needs to be extended to the petitioner. Interest of justice would be subserved if any substantial punishment is not awarded. However, the fine imposed by the Trial Court shall be kept intact. Hence, I proceed to pass the following:
ORDER This revision petition is allowed in part. The judgment of conviction and order of sentence passed by the Trial Court in C.C.No.578/1994 dated 17.12.1999 which was confirmed by the Appellate Court in Crl.A.No.4/2000 dated 24.03.2006 are hereby set-aside.
As a result, the sentence to undergo simple imprisonment of two years for the offence under Section 408 IPC as well as the sentence to undergo simple imprisonment of two years for the offence under Section 477-A IPC are hereby set aside.
However, the fine amount of Rs.1,000/- imposed by the Court below for each of the offences under Sections 408 and 477-A IPC remains intact.
Sd/-
JUDGE KS