Allowed

M. Thippesha v. the State

Karnataka HC18 Apr 2024CRL.RP/200042/2018

Case brief

AI extract

What is this about?

Criminal revision petitions challenging the rejection of discharge applications under Section 227 Cr.P.C. The Court allowed the petitions and discharged the petitioners, holding that the charge-sheet lacked material to establish conspiracy, criminal breach of trust, or cheating, especially given their exoneration in a departmental inquiry.

What did the court decide?

Discharge of the petitioners from the offences punishable under Sections 120(B), 406, 409, 420 of IPC and Section 3(1)(ix) of SC/ST (PA) Act.

M. Thippesha Vs the State — Quashing and FIR | Karnataka HC (2024)

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NC: 2024:KHC-K:3180 CRL.RP No. 200042 of 2018 C/W CRL.RP No. 200064 of 2018

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IN THE HIGH COURT OF KARNATAKA,

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KALABURAGI BENCH

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DATED THIS THE 18^TH DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE C M JOSHI

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CRIMINAL REVISION PETITION NO.200042 OF 2018 (397)

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C/W

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CRIMINAL REVISION PETITION NO.200064 OF 2018 (397)

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IN CRIMINAL REVISION PETITION NO. 200042/2018

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BETWEEN:

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M. THIPPESHA S/O B.C.MAHALINGAPPA AGED ABOUT 62 YEARS, OCC: RETIRED GOVERNMENT SERVANT, R/O DOOR NO.90, PANDHARI, 5^TH CROSS, 3^RD BLOCK, 4^TH MAIN THYAGARAJANAGAR, BENGALURU-560028.

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…PETITIONER

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(BY SRI SANJAY A. PATIL, ADVOCATE)

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Digitally signed by KHAJAAMEEN L MALAGHAN Location: HIGH COURT OF KARNATAKA

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AND:

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THE STATE THROUGH SADAR BAZAR POLICE STATION, RAICHUR, REPRESENTED BY S.P.P.OF, HIGH COURT OF KARNATAKA, KALABURAGI BENCH.

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…RESPONDENT

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(BY SRI JAMADAR SHAHABUDDIN, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF CR.P.C PRAYING TO, ALLOW THIS REVISION PETITION BY CALLING FOR THE RECORDS AND SETTING ASIDE THE ORDER DATED 04.05.2018 PASSED ON THE APPLICATION

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FILED BY ACCUSED NO.1/REVISION PETITIONER HEREIN UNDER SECTION 227 OF THE CODE OF CRIMINAL PROCEDURE IN SPL. C.C.NO.233/2017 ON THE FILE OF THE I ADDITIONAL DISTRICT & SESSIONS JUDGE AT RAICHUR AND PASS ANY OTHER APPROPRIATE ORDERS, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN CRIMINAL REVISION PETITION NO. 200064/2018

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BETWEEN:

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MALLIKARJUN GOPASHETTY S/O G. SHARNAPPA AGE:53 YEARS, OCC: AEE, CITY CORPORATION, R/O RAICHUR-585401.

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…PETITIONER

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(BY SRI ISHWARAJ S. CHOWDAPUR, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA THROUGH SADAR BAZAR P.S. RAICHUR, REPRESENTED BY, THE ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, KALABURAGI BENCH-585103.

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…RESPONDENT

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(BY SRI JAMADAR SHAHABUDDIN, HCGP )

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED IN SPL.A.C.NO.233/2017 ON 06.10.2018 PASSED BY I ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAICHUR FOR THE OFFENCES PUNISHABLE UNDER SECTION 120(B), 406, 409, 420 OF IPC AND UNDER SECTION 3(1)(IX) OF SC/ST (PA) ACT. AND REVISION PETITION BE ALLOWED BY DISCHARGING THE PETITIONER FOR THE SAID OFFENCES.

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THESE PETITIONS COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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These two criminal revision petitions are filed against the order passed by the learned I Additional District and Sessions Judge, at Raichur in Spl.CC.No.233/2017 dated 04.05.2018 and in Spl.AC.No.233/2017 dated 06.10.2018, whereby the applications filed by these petitioners (who are accused Nos. 1 and 2 ) under Section 227 of Cr.P.C., for discharge came to be rejected.

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The factual matrix of the case is that the petitioners herein were working as the Officers of the Town Municipality, at Raichur, in the year 2015. On the basis of the complaint filed by a successor in office of the petitioner in Crl.Rev.Petition No.200042/2018, the police have registered the case in Crime No.238/2013 for the offences punishable under Section 409 and 420 read with Section 34 of IPC and investigated the matter. After the investigation, a charge-sheet was filed against these petitioners for the offence punishable under Sections 120(B), 406, 409, 420 of IPC read with Section 34 of IPC and under Section 3(1)(ix) of SC and ST (PA) Act,1989. It

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was alleged that in the year 2011 the petitioners herein were working as the officials in the Town Municipal Corporation, at Raichur. Certain amount was earmarked for the development and betterment of Scheduled Caste and Scheduled Tribes. Out of such grant, 22.75% of the grant was to be used for the purpose of construction of the house and various other activities for the up-liftment of the SC and ST community people. In the guidelines issued by the Government as per the Circular dated 26.08.2009, it was stated that the person who is the beneficiary should have a site which is not exceeding 400 square meters, he should have paid the property tax to the Municipality, money has to be released to the beneficiary in installments after verifying the progress of the construction of the house. Even then the petitioners herein had not adhered to the said circular. They had released the grant by way of cheques to CWs.7 to 16 without verifying whether they possess a site of the requisite measurement, but only after verifying their caste and identification, they had released the sum of Rs.30,000/-

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each and thereby had caused loss to the extent of Rs.1,05,000 and Rs.1,20,000/- to the Government. It was alleged that the petitioners had not verified whether they possessed the site of the requisite measurement and they did not verify that the house has been constructed as per the guidelines or not. Apart from that, in the year 2010-11, out of 22.75% of the amount earmarked, had received the applications from the beneficiaries for the purpose of providing training for the Competitive Examination for the IAS at Spardha Chaitra Training Center and had released the money to the said Spardha Chaitra Training Center, but did not verify whether the training had been provided to the beneficiaries in a proper way. It was also alleged that the identities of the beneficiaries were not ascertained by the petitioners. Therefore, money released to the betterment of scheduled caste community was not proper and correct.

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The petitioners, who are accused Nos.1 and 2

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filed the applications under Section 227 of Cr.P.C. before

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the concerned Special Court and the said applications came to be rejected by the Trial Court.

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Being aggrieved by the same, the petitioners

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have approached this Court in these revision petitions.

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The learned High Court Government Pleader

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has appeared for the respondent/State.

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The arguments of the learned counsel

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appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent – State were heard.

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The learned counsel appearing for the petitioners would submit that the petitioners were subjected to a domestic enquiry by the Department. In the said Departmental Enquiry, these petitioners were exonerated on the ground that the allegations made against them were not proved. It is contended that on the same set of allegations made in the charge-sheet when the Disciplinary Proceedings were initiated against these

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petitioners have ended in an exoneration, there is no material on record to show that these petitioners had committed offences alleged against them. It is contended that the alleged action was of the years 2008 to 2011. The complaint was filed on 07.12.2013 and the charge-sheet was filed in the year 2017 almost after more than 03 years. It is contended that the complaint and the chargesheet material does not indicate any specific offence against accused Nos.1 and 2. After lapse of a such long time, the complaint and the charge-sheet is filed against accused Nos.1 and 2, which is unjust. Therefore, the dismissal of the applications under Section 227 of Cr.P.C., is not proper and correct. It is contended that there is no material against these petitioners to prove the offences alleged against them. It is not the case of the prosecution that the money had been misappropriated by these petitioners. The allegations against these petitioners is that they have not followed the guidelines issued for the purpose of spending the money earmarked for the betterment of Scheduled Caste and Scheduled Tribe. Therefore, it is contended that the allegations made were

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not prima-facie disclose from the prosecution papers. Therefore, the petitioners are liable to be discharged.

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Per contra, the learned High Court Government

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Pleader would submit that the charge-sheet papers would clearly disclose that the petitioners had not taken sufficient precautions while releasing the grants to the various beneficiaries. It is contended that the petitioners were entrusted with the money earmarked for the beneficiaries and they did not ascertain whether such amount is properly spent or not. Therefore, it is contended that such dereliction amounts to misappropriation of money and the petitioners had manipulated the records as if they had inspected the premises and had taken care of all the guidelines issued by Government. Therefore, the dismissal of the applications for discharge by the Trial Court is proper and correct. He has supported the case of the prosecution and the impugned order passed by the

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Trial Court.

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When an application is filed under Section 227 of Cr.P.C., the prosecution papers alone are to be looked into. If the prosecution papers show that there is a primafacie case is made out against the petitioners, then the Trial Court has to proceed with the trial. In the case of Siddanth and others vs. State of Karnataka and another, a Co-ordinate Bench of this Court had laid down that while considering the application for discharge, Court has to consider whether there is a ground for presuming that the offences have been committed and it has to consider whether a ground for conviction is made out. It was observed that once the accused has been exonerated from the Departmental Enquiry, allegations against the accused persons in a criminal case requires to be considered as not proved. In this regard, trial Court had placed reliance on the judgment of the Hon’ble Supreme Court in the case of State of Tamil Nadu vs. N. Suresh Rajan¹ . Keeping in mind the principles laid down in

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1 2014 (1) Crimes 1 SC

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various decisions, this Court has to verify whether chargesheet papers make a prima-facie material to show that the offences alleged are made out.

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In the light of the above submission made by

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the learned counsel for both the parties, the points that arise for consideration are :-

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i. Whether the impugned order passed by the Trial Court rejecting the applications for discharge of these petitioners is sustainable in law?

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ii. Whether there is a prima-facie case against these petitioners in respect of the offences alleged?

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Re.Point Nos. 1 and 2:

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The first allegation of the prosecution is that the revision petitioners while working in the Town Municipality, Raichur, had not taken care to see that the guidelines issued by the Government were not followed by them. It is pertinent to note that the offences alleged are under Sections 120 (B), 406, 409 and 420 read with Section 34 of IPC and under Section 3(1)(ix) of SC and ST (PA) Act,1989. As noted above, in order to prove the offence

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punishable under Section 120(B) of IPC, a criminal conspiracy has to be established. From the careful perusal of the charge-sheet, there is no such criminal conspiracy is forthcoming. It is not the case of the prosecution as may be seen from the charge-sheet papers that, petitioners who are accused Nos.1 and 2 had conspired in order to gulp the money which was earmarked for the benefit of the SC and ST community. There is no such evidence which would show that while they disbursed the amount to the various beneficiaries, namely, CWs.7 to 12 and CWs.13 to 16, they had made a plan to make the benefit for themselves. None of the witnesses have stated that any of the amounts received by them had been paid back to accused Nos.1 and 2 as kickback. Therefore, at no point of time, none of the witnesses had stated that the money received by them, was reverted back to the petitioners herein. There is no allegation in the charge-sheet papers which would show that accused Nos.1 and 2 and other accused, who were named in the charge-sheet, had hatched out a plan to gulp the money earmarked for the

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benefit for the beneficiaries. Therefore, it is not known on what basis, a charge-sheet was laid alleging the offence under Section 120(B) of IPC.

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Section 406 of IPC deals with the Criminal Breach of Trust. The definition of the Criminal Breach of Trust is found under Section 405 of IPC. The ingredients of the Criminal Breach of Trust under Section 405 of IPC is that "a person who was vested with the property or dominion over the property dishonestly misappropriated the property or converts the said property for his own use and uses or dispossess that property in violation of any direction of law, prescribing the mode in which the trust is to be discharged, it can be said that he commits the criminal breach of trust".

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Section 406 of IPC prescribes the punishment for the Criminal Breach of Trust. Section 409 of IPC deals with the Criminal Breach of Trust by the public servant. In

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a case on hand, there is no doubt that the petitioners herein are the public servants. Therefore, the punishment,

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if Criminal Breach of Trust is proved has to be under Section 409 of IPC, but not under Section 406 of IPC.

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Section 420 of IPC is concerning the punishment for Cheating. Section 415 of IPC deals with the definition of Cheating and it says that a person by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person, then it can be said to be cheating. In the case on hand, the prosecution does not allege that the petitioners had induced any person to part with the property and such inducement or fraud was with an intention to deceive. The dishonest intention in the accused has to be inferred from the subsequent conduct. It is relevant to note that the case of the prosecution is not that the petitioners had received the money from the beneficiaries and thereby they were dishonest in disbursement of money. Evidently, the petitioners had not insisted for the property records, tax payment receipts and etc. However, the proposals for disbursement of the money to beneficiaries, who allegedly

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are not properly identified by the petitioners, was placed before the General Body of the Town Municipality of Raichur. On 08.07.2010, the General Body had approved such proposals made by the petitioners. Therefore, it cannot be said that the petitioners had any dishonest intention while disbursing the money to the beneficiaries who were, in fact, not eligible for it. Therefore, it is relevant to note that the inducement with an intention is not at all available from the charge-sheet papers. Evidently, the person who is allegedly induced has not filed any complaint. The General Body of the Municipality has not alleged any cheating. It is the police officer who has lodged the complaint. Evidently, he was not a person who had been cheated. Therefore, it is unclear as to how the act of the petitioners herein has amounted to the offences punishable under Sections 406, 409 and 420 of IPC read with Section 34 of IPC and under Section 3(1)(ix) of SC and ST (PA) Act,1989.

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The next ground contended by the petitioners is that they were subjected to a domestic enquiry. A retired

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Judge had been appointed as an Enquiry Officer. The Enquiry Officer has submitted his report to the Secretary, Urban Development Department of the Government on 02.02.2016. In the said enquiry, the charge and the Articles of Charge leveled against these petitioners were exactly the same as mentioned in the charge-sheet. A perusal of the Enquiry Report shows that the charges No.1, 2 and 3 leveled against the petitioners herein were exactly as mentioned in the charge-sheet. The Enquiry Officer has examined the evidence placed before him. As many as 20 documents were placed before him by the Presenting Officer. The petitioners herein who faced the enquiry produced Exs.D.1 to D24. After examining all those documents, the Enquiry Officer has come to the conclusion that the Articles of Charge leveled against the petitioners have not been proved. He has also observed that all the transactions which are now alleged against the petitioners were approved by the General Body of the Town Municipal Council and none of the records show that there was any dishonest act committed by these

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petitioners. Therefore, after thorough enquiry, he came to the conclusion that the Articles of Charges leveled against the petitioners were not proved. Accordingly, he exonerated both these petitioners.

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The other records which are placed before this Court would show that the allegation is that the beneficiaries are not identified properly by the petitioners; they had not sought for required documents from them; therefore, the guidelines issued by the Government for disbursement of the money at 22.75%, were not properly followed. It is pertinent to note that the disbursement of the money was not a dishonest intention to make unlawful enrichment for the petitioners. They had stated before the Enquiry Officer that since there were floods, there was a need for a construction in their own properties and therefore, the money had been sanctioned. This was brought to the notice of the General Body of the Town Municipal Council and also the Deputy Commissioner, concerned. In categorical terms, these petitioners had

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stated that the disbursement of money was within the knowledge of Members of the Town Municipality and also the Deputy Commissioner. Therefore, the Enquiry Officer has come to the conclusion that the allegations made against these petitioners were not proved beyond reasonable doubt.

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Evidently, the report of Enquiry Officer is based on the principle of preponderance of probability. If the standard of evidence placed on record before the Enquiry Officer did not meet the standards required by applying the principles of preponderance of probability, then obviously, it does not satisfy the standard of proof of beyond all reasonable doubt. Therefore, from the careful scrutiny of the charge-sheet papers, it is evident that there was no such dishonest intention that could be found from the acts of these petitioners. They did not enrich themselves by misappropriation also. The trust reposed in them as public servants was discharged by them within the knowledge of the Members of the Town Municipal

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Council and also the Deputy Commissioner concerned. Therefore, it cannot be said that the charge-sheet papers clearly establish that there was a Criminal Breach of Trust by the petitioners and that they had dishonestly and deceitfully induced somebody and appropriated the property themselves. Obviously, the complaint was not filed by any of the beneficiaries or the person who suffered

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by way of such inducement. Therefore, none of the charges for the offences punishable under Section 406, 409 and 420 of IPC are established.

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What can be seen from the charge-sheet is that the Urban Development Department had issued certain Guidelines and some of the Guidelines were not followed by the petitioners, while disbursing the money. Such Guidelines was well within the knowledge of the Town Municipal Council as well as Deputy Commissioner as found by the Enquiry Officer. It is not the allegation of the prosecution that the petitioners had unlawfully enriched themselves and misappropriated the public money for

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their benefit. The money was disbursed to the beneficiaries, who are cited as witnesses in the chargesheet. Therefore, it cannot be said that there was a Criminal Breach of Trust or Cheating. Evidently, the ingredients of Sections 405, 406, 409 and 420 are not made out. Therefore, this Court does not find any substance in the allegations made in the charge-sheet.

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A perusal of the impugned orders of the Trial Court would show that it did not go into the details of the allegations made against these petitioners. The first charge was that the sanction of the money for construction of the house was not in accordance with the Rules or the Guidelines issued by the Government. The second contention or allegation was that, the subsidy or the grant was made without obtaining the report of the Revenue Inspector. The third allegation was that, the petitioners had not insisted for the tax payment receipts of the houses before disbursement of the money. All these allegations were thoroughly examined by the Enquiry Officer and he came to the conclusion that there is no

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material to show that the charges leveled against the petitioners.

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Under these circumstances, when there is absolutely no material on record to show that the petitioners had unlawfully enriched themselves out of the money which was disbursed to the alleged beneficiaries, the offences alleged against were not made out. This aspect was never considered by the Trial Court. Therefore, the impugned orders are not sustainable in law.

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If the allegations made in the charge-sheet are prima-facie seen, it is evident that the essential ingredients of Section 120(B) of IPC is also not made out. There is absolutely no material on record to show that prior to disbursement of the money, the petitioners had conspired each other. The criminal conspiracy is also not established. It is needless to say that there is no intention

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on the part of the petitioners to make unlawful gain out of the funds earmarked for the SC and ST community.

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Hence, the impugned orders are not sustainable in law. The petitioners should have been discharged from the charges leveled against them. Hence, the points raised above are answered in favour of the petitioners. Accordingly, the following;

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O R D E R

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(i) The revision petitions are allowed.

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(ii) The impugned orders passed by the trial Court in both the criminal revision petitions are set aside.

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(iii) The petitioners are discharged for the offences punishable under Sections 120(B), 406, 409, 420 of IPC read with Section 34 of IPC and under Section

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3(1)(ix) of SC and ST (PA) Act,1989.

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(iv) The bail bonds, if any, executed by the petitioners stand cancelled.

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KJJ List No.: 1 Sl No.: 40 CT:PK

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Sd/JUDGE

M. Thippesha v. the State

Case brief

What is this about?

What did the court decide?

M. Thippesha v. the State

Case brief

What is this about?

What did the court decide?

What the court decided

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