Partly allowed

Shankar S/O Venkobarao Kshathri, v. the State

Karnataka HC28 Nov 2018CRL.RP/2021/2011

Case brief

AI extract

What is this about?

In a criminal revision under Section 397 read with 401 of Cr.P.C., the High Court of Karnataka confirmed the conviction under Section 409 IPC for criminal breach of trust but modified the sentence to one year imprisonment and a fine of Rs. 2,000, considering the nature of the offence and the petitioner's dependency.

What did the court decide?

Conviction confirmed under Section 409 IPC. Sentence modified to one year simple imprisonment and fine of Rs. 2,000.

Shankar S/O Venkobarao Kshathri, Vs the State — Corruption | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 28^th DAY OF NOVEMBER 2018

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BEFORE

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRL. R. P. NO.2021 OF 2011

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BETWEEN:

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SHANKAR S/O VENKOBARAO KSHATHRI, AGE: 45 YEARS, OCC: NIL, R/O BUDAGUMPA, TQ. & DIST. KOPPAL

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... PETITIONER

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(BY SRI. SABEEL AHMED, FOR SRI. A.S. PATIL, ADVS.)

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AND

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THE STATE THROUGH MUNIRABAD POLICE NOW REP. BY SPP, CIRCUIT BENCH, DHARWAD.

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... RESPONDENT

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(BY SRI. V.M. BANAKAR, ADDL. SPP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGEMENT OF CONVICTION AND SENTENCE DATED 21.12.2010 PASSED BY THE HON'BLE DISTRICT AND SESSIONS & FAST TRACK COURT-I AT KOPPAL IN CRL.A.NO.38/2009 CONFIRMING THE IMPUGNED JUDGEMENT AND ORDER OF CONVICTION DATED 08.10.2009 PASSED BY THE HON'BLE CIVIL JUDGE (SR.DN.) & CJM, KOPPAL IN C.C.NO. 74/2008.

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THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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In this revision petition, the

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petitioner/accused has challenged the judgment and order of conviction and sentence dated 08.10.2009 passed by the Court of Civil Judge (Sr.Dn.) and CJM, Koppal in CC No.74/2008, wherein he was convicted for the offence punishable under Section 409 of IPC and sentenced to undergo simple imprisonment for a period of two years and to pay fine of Rs.1,000/and in default of payment of fine amount, to undergo further simple imprisonment for a period of ten days and the judgment and order passed in Crl.A. No.38/2009 dated 21.12.2010 on the file of the District and Sessions and Fast Track Court-I, Koppal, confirming the conviction and sentence passed by the Trial Court.

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I have heard the learned counsel

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appearing for the petitioner and the learned Addl. SPP representing the respondent-State.

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The case of the prosecution in brief is that the accused while working as a temporary Postman at Budagumpa branch post office, committed criminal breach of trust by not giving the money orders sent from the Government to the maternity benefit holders in the form of maternity allowance and thereby misappropriated an amount of Rs.2,500/and thus, committed an offence punishable under Section 409 of IPC.

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In order to establish the guilt of the accused, the prosecution got examined PWs1 to 12 and marked Exs.P1 to P21 before the trial Court. The Trial Court after considering the oral and documentary evidence on record convicted and sentenced the accused for the offence punishable under Section 409 of IPC. The said judgment and

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order of conviction and sentence was confirmed in criminal appeal filed by the accused before the Sessions Court.

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It is the contention of the learned counsel appearing for the petitioner that the appointment of the accused was temporary and therefore, Section 409 of IPC was not applicable. He further contended that even otherwise there is no sanction order obtained by the Investigating Officer so as to prosecute the accused. He would further contend that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt since thumb impression found on the money orders i.e. Exs.P2 to P6 are not sent to FSL so as to establish that the said thumb impression was of the accused. It is also his contention that there is inordinate delay in initiating the prosecution and the post master was not examined in this case and that has seriously prejudiced his case. He submits

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that both the Courts below have failed to

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appreciate the defence put-forth by the accused and therefore, the impugned judgments and orders passed by the Courts below are not sustainable in law.

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Per contra, the learned Addl. SPP

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representing the State contended that there is no dispute that the accused was working as an Extra Departmental Delivery Agent as per appointment order at Ex.P1, at Budagumpa Branch post office between 23.12.1983 and 26.07.2005, and during the said period i.e., on 10.02.2005 and 11.02.2005, the accused misappropriated the maternity allowance which was meant for the beneficiaries namely, PW2, 3, 6, 7 and 9 to an extent of Rs.2,500/- and thereby abused his position as public servant and committed an offence punishable under Section 409 of IPC. He further contended that the beneficiaries who have given

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evidence before the Courts below have supported the case of the prosecution and apart from that the entrustment of money to the accused is also established, as such, both the Courts have rightly passed the order and there is no illegality committed and seeks to dismiss the Revision Petition.

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That the prosecution has examined 12 witnesses and got marked 21 documents to establish the charges leveled against the accused. P.W.1 is the Postal Inspector, the complainant in this case. He has deposed with regard to the work of the accused. The appointment order of the accused has been marked as per Ex.P-1. On the basis of the complaint with regard to mis-appropriation of amount, the complainant and others made a surprise visit and recorded the statements of beneficiaries and after submitting the report to the superior officers, complaint as per Ex.P-17 came to be lodged. The victims– beneficiaries have been examined as P.Ws.2, 3, 6, 7 and 9. The said witnesses have supported the prosecution. It is not the

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case of the accused that Money Order was also being given to other persons so as to distribute the same to the beneficiaries. The Exs.P-20 and 21 are the Registers maintained in the Post Office such as B.O. Journal Book and Day Account Book.

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From the material on record and the findings recorded by the Courts below it is seen that the accused was entrusted with the duty of delivery of posts within the jurisdiction of Budagumpa branch Post Office during the relevant point of time and the accused was entrusted with the charge of delivery of postal letters and postal Money Orders.

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That the contention of the learned counsel for the petitioner that accused is a temporary employee, and therefore, Section 409 of I.P.C. is not applicable does not hold water as he was performing public duty and he was in the service of pay of the Government. The act committed by the accused i.e., by forging the signatures of the beneficiaries or putting the LTM and mis-appropriating the

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public money cannot be said to be an act committed while discharging the official duty so as to seek protection under Section 197 of Cr.P.C., and therefore, the second contention of the learned counsel that the proceedings are vitiated on account of non-obtaining sanction also cannot be accepted. Though the prosecution has not sent the Money Order for the expert’s opinion with regard to the thumb impression found on the said Money Orders, however, it cannot be said that the prosecution has failed to establish its case since from the evidence and material on record it can be seen that the petitioner while working as Extra Departmental Delivery Agent during the relevant point of time was entrusted with the amount to be given to the beneficiaries, however, failed to do so and thereby he has mis-appropriated the amount meant for the maternity benefit holders. The Courts below have also considered the delay caused in filing the complaint and held that the same is not fatal. The case is pertaining to misappropriation of funds by the accused and it is seen that after the departmental enquiry a decision was taken to

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initiate criminal action, and therefore, delay in launching the prosecution has not prejudiced the accused and not fatal to the case of the prosecution.

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The learned Additional State Public Prosecutor submitted that the accused has been found guilty in the departmental enquiry and he has reimbursed the misappropriated amount and the admission of the accused in Exs.P-12 to 16 also goes to show that on 10.02.2005 and 11.02.2005 M.Os. of Rs.500/- each addressed to P.Ws.2, 3, 6, 7 and 9 was entrusted to the petitioner for making payment, however, the accused without paying the said amount to the said persons has committed criminal breach of trust.

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On a careful examination of the material on

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record I do not find any illegality or irregularity committed by the Courts below so as to interfere with the findings recorded therein.

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12. However, considering that the offence

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committed is of the year 2005 and the fact that the family members of the accused are depending on the petitioner for their livelihood as submitted by the learned counsel for

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the petitioner and also considering that there are no criminal background against the petitioner, I am of the view that the sentence imposed by the trial Court which is confirmed by the Appellate Court may be modified. Accordingly, I pass the following:

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ORDER

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i. The Revision Petition is partly allowed. ii. The conviction recorded by the trial Court against the accused under Section 409 of I.P.C. is hereby confirmed.

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iii. The sentence imposed against the accused/petitioner is modified as under:

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a) The accused shall undergo simple imprisonment for a period of one year and shall pay a fine of

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Rs.2,000/and in default of payment of fine he shall further undergo simple imprisonment for a period of 30 days.

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iv. The period of detention undergone, if

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any, by the accused shall be given set off as provided under Section 428 of Cr.P.C.

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Sd/JUDGE

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JTR/hnm

Shankar S/O Venkobarao Kshathri, v. the State

Case brief

What is this about?

What did the court decide?

Shankar S/O Venkobarao Kshathri, v. the State

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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