Court quashed FIR and criminal proceedings against former employees regarding alleged misappropriation of gold and silver found missing during a post-closure transfer, relying on a coordinate bench that held criminal proceedings unsustainable where civil suits were pending.
FIR, charge sheet and criminal proceedings quashed qua the petitioner.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CRL.P No. 643 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 643 OF 2022
BETWEEN:
…PETITIONER
(BY SRI. B.R.VISWANATH., ADVOCATE)
AND:
Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA
CRL.P No. 643 of 2022
BGML
K.G.F. – 563 120.
…RESPONDENTS
(BY SRI.K.S.ABHIJITH, HCGP FOR R1)
THIS CRL.P. IS FILED U/S 482 OF CR.PC PRAYING TO QUASH THE FIR FILED BY THE FIRST RESPONDENT POLICE IN CR.NO.6/2016 DATED 21.01.2016 AND CHARGE SHEET IN C.C.NO.930/2017 VIDE CHARGE SHEET NO.7/2016 DATED 31.03.2017 FOR THE OFFENCE P/U/S 403, 408, 409 R/W 34 OF IPC AND ALSO CRIMINAL PROCEEDINGS IN C.C.NO.930/2017 PENDING ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE (JR.DN) AND J.M.F.C., KOLAR GOLD FIELDS, VIDE ANNEXUREA B AND D RESPECTIVELY BY ALLOWING THIS PETITION WITH COSTS.
THIS PETITION COMING ON ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.B.R.Vishwanath, learned counsel appearing for the petitioner and Sri. K.S.Abhijith, the learned High Court Government Pleader appearing for respondent No.1.
CRL.P No. 643 of 2022
for offences punishable under Sections 403, 408 and 409
read with Section 34 of IPC.
“3. Brief facts as projected by the prosecution are as follows:
Both the petitioners were employees of the erstwhile Bharat Gold Mines Limited at Kolar Gold Fields (hereinafter referred to as 'BGML' for short). The BGML, pursuant to the decision of the Central Government was closed on 28.02.2001. Prior to its closure, proceedings of the employees of BGML being relieved on voluntary retirement had set in or under a scheme. It is at that point in time, both the petitioners retire from service on acceptance of VRS or otherwise.
4. In the year 2012, after about 11 years of the closure of BGML, statutory audit takes place
CRL.P No. 643 of 2022
in the BGML and it was found that the certain gold nuggets, samples of pure gold and ore samples were missing. Pursuant to which, the records according to the learned counsel appearing for respondent No.1 would reveal that an enquiry was conducted and it was found that about 222 gms of gold and 384 gms of silver was missing. On the said report, a complaint was sought to be registered against the petitioners and several others.
5. Since the entire issue sprang from the complaint, the complaint is extracted hereunder for the purpose of quick reference:
"Sub: FIR in connection with loss of 222
grams of Gold & 384 grams of
Silver reg.
----
It is informed you that BGML, KGF was closed on 28/02/2001. As per the available records in BGML, during 2003-2004 available Gold Bulliion and silver was transferred from Nundydroog Mill smelting plant room to Corporation Bank locker, Robertsonpet, KGF. During the process of transfer 222 grams of Gold and 384 grams of Silver was missed.
The loss was noticed during the inspection of Statutory Audit during 2012, while a physical
CRL.P No. 643 of 2022
verification was made in respect of gold nuggets, samples of pure gold and ore sample in possession of BGML which were kept in the locker of Corporation Bank, Robertsonpet Branch, KG.F., the first ever physical verification of the valuables after the shifting of Gold and Silver from smelting room safe to Bank locker on 16th August, 2003.
Due to the above reason, the date and time of lost is not known. Also the exact place of lost is not known and no FIR in this regard was made.
In connection with the loss of the Gold and Silver, as per the direction of the Competent Authority, one enquiry committee was constituted. In the said matter, the loss of Gold by misappropriation by below said in -charge of
the N.D. Mill and BGML Office.
1. Shri. Sampathkumar (Ex.Manager incharge.)
2. " C. Yadavan (Ex.Acting Manger, Mills) 3. " P.K. Sharma (Ex.C.S.O.)
4. " A.S. Thanigachalam (Ex.CSO)
Also the officer identified for loss of silver is Shri. T. Srinivasa (Ex. Labour & Welfare Officer).
CRL.P No. 643 of 2022
As per the recommendation of the enquiry committee the competent Authority has directed to lodge an FIR. Also as per the report of the Enquiry Committee the cost of lost gold of 222 gms is Rs.6.9 Lakh and Silver of 384 gms is Rs.18,240/-.
Therefore, you are requested to lodge an FIR in the matter of loss of 222 gms of Gold and 384 grams of Silver and take further necessary action."
6. The allegation in the complaint is that when the gold bullion and the silver was transferred from Nundydroog Mill smelting plant room to the Corporation Bank locker, the aforesaid amount of gold went missing. The gold was being transported even according to the complaint in the year 200304 long after the termination of the petitioners and closure of BGML on 28.02.2001 and on 13.11.2012. The complaint also narrates that the date and time of the loss of gold is not known. Pursuant to which, an FIR is registered on 21.01.2016 for offences punishable under Sections 403, 408, 409 read with Section 34 of IPC.
7. It transpires that the police have also filed their final report/charge sheet against the petitioners. The afore-narrated facts are not disputed that the employees, the petitioners herein
CRL.P No. 643 of 2022
were all terminated on 28.02.2001 on account of closure of BGML. The complaint itself narrates that as per the available records in the year 2003-04, gold bullion and silver were transferred during the year 2003-04. If the transfer has taken place in the year 2003-04, the petitioners were not even in service, the BGML was not functioning. It indisputably stood closed on 28.02.2001. It was not known who was responsible for the said loss of gold or silver as the case would be. The petitioners cannot be made scapegoats for the said offences which the complainants themselves do not know. The Audit appears to have taken place in the year 2012 and shifting of the valuables from the smelting room to the locker takes place on 16.08.2003. The undisputed fact of the petitioners being relieved from service after the closure on 28.02.2001 is divulged in the order passed relieving the petitioners on special terminal benefit package on 13.11.2002 and the order reads as follows:
"BHARAT GOLD MINES LIMITED
(A Government of India Enterprise)
PERSONNEL DEPARTMENT
APPLICATION NO.H-6 SUVARNA BHAVAN
DORGAUM P.O., KGF-563120
REF:PD/DE/PER.276/2002-03 DT: 13.11.2002
CRL.P No. 643 of 2022
Sri. C. Yadavan
PE.NO.032929
No.L37 New Electric Quarters
Dorgaum Post
K.G.F. 563 120.
Sub: Special Terminal Benefit Package - Heavy Industry Package.
10.10.2002.
2. Our letter No.PD/DE/PER.276/2000-01 dt.19.12.2000.
I am directed to inform that your application for Special Terminal Benefit Package has been accepted by the Management with effect from 28.2.2001.
The package provides for the following:
a) Since three month's notice has already been served and you have received notice pay for the period from 19th December 2000 to 28.2.2001 you will be paid balance notice pay as per rules.
b) The balance in your P.F. Account, payable as per P.F. Rules,
CRL.P No. 643 of 2022
c) Cash equivalent of accumulated Earned Leave including proportionate leave subject to a maximum of 300 days and Casual Leave at credit as on 28.2.2001 as
per rules.
d) Gratuity payable as per Gratuity Scheme; if not taken earlier.
e) Ex-gratia/STEP payment equivalent to 45 days emoluments (pay + DA) for each completed year of service or the monthly emoluments at the time of retirement multiplied by the balance months of service left before the normal date of retirement, whichever is less. However, if you have completed not less than 30 years of service, you will be eligible for a maximum of 60 (Sixty) months salary/wage as compensation. This will be subject to the amount not exceeding the salary/wage for the balance period of service left (at the rate of monthly salary/wage as on 28.2.2001). It is further clarified that payment of ex-gratia for the service rendered or left over service before superannuation as well as the amount payable for the notice period should not exceed the basic pay plus DA that would have been paid till the date of superannuation. f) Disbursement of these shall however subject to
CRL.P No. 643 of 2022
i) Submission of all necessary clearances and ii) Clearances/closure of cases of vigilance/court/disciplinary action are pending and other recoveries if any.
You are advised to file necessary forms duly filled with enclosures and NOCs to the AM(F), CC&PRU for further processing."
Therefore, the offence that is alleged of an event that takes place on 16.08.2003, the petitioners who stood relieved latest by an order dated 13.11.2002 cannot be made against the petitioners for loss of gold. It also transpires that BGML has filed civil suits in O.S.No.50/2016 and S.C.No.04/2014 seeking recovery due to the loss of gold and silver. The civil suits are pending adjudication before the competent courts and it is for the BGML or the petitioners to pursue the said suits and the Courts would take those proceedings to its logical conclusion. Insofar as the criminality attached to the loss of gold or silver in these proceedings, the same is rendered unsustainable in light of the aforesaid observations.
8. For the aforesaid reasons, the following:
ORDER
i. Criminal Petitions are allowed.
CRL.P No. 643 of 2022
learned HCGP representing the State.
Co-ordinate Bench of this Court (supra) and for the reasons aforementioned, the following:
ORDER
(i) Criminal Petition is allowed.
CRL.P No. 643 of 2022
Sd/JUDGE
SJK List No.: 1 Sl No.: 17
1 issue framed by the court
Whether FIR and charge sheet regarding loss of gold and silver during company closure can be maintained when petitioners were already relieved of service.
Colour shows how this judgement treated each authority
Crl.P.No.9469/2018 c/w Crl.P.No.8291/2018Relied on¶33
2 provisions across 2 enactments
Mr. S. Sampath Kumar
The State of Karnataka
M/s Bharath Gold Mines Ltd.
Sri. R.K. Behera
M. Nagaprashanna
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
