D.Samuel S/O. D P Joseph Vs B.Gabriel S/O. B Samuel

D. SAMUEL S/O. D.P. JOSEPH AGED ABOUT 57 YEARS, OCCUPATION: SERVICE, R/O. QUARTERS NO.693/B, VINOBHA NAGAR, GADAG ROAD, HUBBALLI - 580 020, DISTRICT - DHARAWD, PRESENTLY AT:PLOT NO.62, KARUNYA COLONY, GADAG ROAD, HUBBALLI - 580 020, DIST:DHARWAD.

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...APPELLANT

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Digitally signed by (BY SRI. RAVI HEGDE, ADVOCATE) V N BADIGER Location: HIGH COURT OF AND: KARNATAKA

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B. GABRIEL S/O. B. SAMUEL AGED ABOUT 57 YEARS, OCC:DELIGHT COMPUTER INSTITUTE, UNKAL CROSS, HUBBALLI - 580 031, DIST:DHARWAD.

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K BARNABAS S/O. ABRAHAM AGED ABOUT 77 YEARS,

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OCC:RETIRED RAILWAY SERVANT, R/O. NO.868/A, VIDYARANYA NAGAR, GADAG ROAD, HUBBALLI - 580 020 DIST:DHARWAD.

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B DEVPRASAD S/O. BENZAMIN AGED ABOUT 62 YEARS, OCC:RETIRED RAILWAY SERVANT, R/O. NO.184/A, DOWN CHAWL, GADAG ROAD, HUBBALLI - 580 020, DIST:DHARWAD.

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THE STATE OF KARNATAKA BY KESHWAPUR POLICE INSPECTOR REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD.

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…RESPONDENTS

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(BY SRI. C.N. HARLAPUR, ADVOCATE FOR R-1 TO R-3 SRI. ABHISHEK MALIPATIL, HCGP FOR R-4)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 28.04.2018 PASSED BY THE II-JMFC COURT, HUBBALLI, IN C.C.NO.1773/201 AND THEREBY CONVICT THE RESPONDENTS/ACCUSED FOR OFFENCE PUNISHABLE UNDER SECTION 403, 420 & 465 READ WITH SECTION 34 OF IPC AND SENTENCE THEM IN ACCORDANCE WITH LAW.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 29.11.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: THE HON’BLE MS. JUSTICE J.M.KHAZI

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CAV JUDGMENT

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(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI)

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In this appeal filed under Section 378(4) of the Code of Criminal Procedure, appellant who is complainant has challenged the judgment and order passed by the trial Court acquitting the respondents/accused persons for the offences punishable under Sections 403, 420 and 465 r/w Section 34 of IPC.

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For the sake of convenience, parties are referred to by their ranks before the trial Court.

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Complainant filed a complaint under Section 200 Cr.P.C, contending that the ABM Telugu Baptist Church situated at Gandhiwada, Gadag Road, Hubballi is a church registered under the Charity Commissioner, Belagavi. It is run by the Managing Committee constituted as per the approved By-laws. Complainant and one K.Yohan are the elected Secretary and President of the said Church during

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the election held on 16.11.2001 for a period of three years and the said Committee is approved by the Charity Commissioner, Belagavi. The Church is having an account at Canara Bank, Railway Extension Counter, Hubballi, which is operated by two of the office bearers amongst the President, Secretary and Treasurer by furnishing specimen signatures.

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3.1 Accused Nos.1 and 3 are the members of Christian Community. Accused No.2 is the Ex.Secretary of the ABM Church. Accused Nos.1 and 3 are not even the members of the ABM Church. Accused No.1 in collusion with accused No.2 filed O.S.No.369/2003 on the file of I Addl.Civil Judge, Hubballi against complainant and other office bearers for permanent injunction. It is resisted by the complainant and he has also filed a counter claim. Accused Nos.1 and 2 tried to intimidate and threaten the complainant. In this regard, complainant filed complaint before the Police Commissioner. Accused Nos.1 and 2 have given undertaking not to interfere with the affairs of the ABM Church.

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Accordingly, the Police Commissioner has issued an endorsement.

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3.2 However, accused Nos.1 and 2 claiming to be the President and Secretary of the ABM Church tried to operate the account of the ABM Church. When complainant filed objections, accused Nos.1 and 2 approached the regional office of Canara Bank and succeeded in getting permission to operate the said account by furnishing false and forged documents claiming to be the office bearers of the ABM Church and succeeded in withdrawing the amount from the account of the ABM Church and thereby they have committed the offences punishable under Sections 193, 200, 201, 403, 341, 420, 504, 506 r/w Section 34 of IPC.

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3.3 The said complaint was referred for investigation under Section 156(3) Cr.P.C to the Keshavapura Police. However, a 'B' report came to be filed. Complainant filed protest petition and led evidence by examining himself and two witnesses. Based on the same, the trial Court took

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cognizance for the offences punishable under Sections 403, 420 and 465 r/w Section 34 IPC.

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3.4 Accused challenged the same in

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Crl.P.No.11360/2012 before the High Court, Dharwad Bench. It came to be dismissed, reserving liberty to the accused to agitate their rights before the trial Court at the stage of framing charge. Accordingly, the accused filed applications under Section 245(2) of Cr.P.C, which came to be rejected.

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3.5 The trial Court framed the charge against the accused for the offences punishable under 403, 420 and 465 r/w Section 34 IPC. Accused pleaded not guilty and claimed trial.

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In order to prove the allegations against the accused person, including the complainant, 3 witnesses are examined as PWs-1 to 3 and Exs.P1 to 33 are marked.

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During the course of his statement under Section 313 Cr.P.C, accused have denied the incriminating evidence led by the complainant.

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Accused have not led any oral evidence, but got marked Ex.D1 to 7 during the cross-examination of the complainant's witnesses.

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Vide the impugned judgment and order, the trial Court dismissed the complaint.

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Aggrieved by the same, complainant has filed this appeal contending that the impugned judgment and order is erroneous, illegal and unsustainable in law. Despite complainant leading sufficient evidence and establishing the allegations against accused beyond reasonable doubt, the trial Court has not appreciated the same. The reasons assigned by the trial Court are not sustainable. There is no application of judicial mind. Ex.P12 to 26 are cooked up documents and relied upon by the accused. Viewed from any angle the impugned judgment and order are not sustainable and pray to set aside the same by allowing the appeal, convict and sentence the accused in accordance with law.

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On the other hand learned counsel representing

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the accused supported the impugned judgment and order of the trial Court and sought for dismissal of the appeal.

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In support of his arguments, learned counsel for

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accused has relied upon the following decision:

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(i) State of Karnataka by Holalkere Police Station Vs. Kenchaveerappa and Ors. ( Kenchaveerappa )¹

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Heard arguments and perused the record.

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Thus, it is the definite case of the complainant

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that at the relevant point of time he was the Secretary and one K.Yohan was the President of ABM Telugu Baptist Church. He has alleged that accused Nos.1 and 2 claiming to be the President and Secretary of the ABM Church tried to operate its account and despite resistance by the complainant and others, they succeeded in withdrawing amount from the account of the ABM Church and therefore without any alternative complaint came to be filed.

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1 ILR 2023 KAR 1395

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On the other hand accused have specifically contended that in the election held at the General Body Meeting dated 28.04.2003, accused No.1 was elected as President and accused No.2 was elected as the Secretary and in fact complainant handed over the charge of the Secretary and also concerned Registers and since then they were discharging the duties and operated the account. Concealing all these facts, the complainant has chosen to file a false complaint.

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In the light of the specific defence taken by the accused it is necessary to examine whether the allegations made in the complaint are tenable and whether the trial Court is justified in dismissing the complaint.

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According to the complainant in the General Body Meeting dated 16.11.2001, he, PWs-2 and 3 were elected as the Secretary, President and treasurer for a period of three years. Though the complainant has disputed that election was held on 28.06.2003, during his cross-examination, he

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has admitted that on 06.06.2003, a meeting was held in connection with election for the new executive body and notice dated 06.06.2003 was issued for the members to be present on 21.06.2003 for the General Body Meeting. Ex.P17 is the meeting notice, according to which the meeting was not held on 21.06.2003, but it was postponed to 28.06.2003. Though the complainant has disputed that on 28.06.2003, General Body Meeting was held, the resolution copy at Ex.D4 disclose the name of elected members which includes accused Nos.1 and 2 and as admitted by PW-1 it is in his handwriting.

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As per Ex.P19 (Ex.D1) letter dated 13.07.2003,

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written by the complainant to the Assistant Charity Commissioner, it is stated that he had handed over the charge of the Secretary to accused No.2 K. Barnabas and Ex.D6 the list of files and registers handed over by complainant to accused No.2 K. Barnabas. These documents are contrary to the case putforth by the complainant. On this aspect he has come up with an explanation that he was

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forced to write these letters and documents and he has filed complaint against the accused persons for forcing him to do so. However, as rightly observed by the trial Court, complainant has not chosen to produce any evidence to show that he has filed any such complaint.

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As rightly observed by the trial Court, as the newly elected office bearers, the accused persons have made transaction with respect to the accounts of the ABM Church maintained in Canara Bank as well as State Bank of India. They have deposited the amount withdrawn from Canara Bank into the Church account with State Bank of India. On the directions of the Civil Court, they have withdrawn the amount from the State Bank of India and deposited the same before the Court. Therefore, the allegations of misappropriation of the funds belonging to the ABM Church is also not established.

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On appreciation of the oral and documentary evidence led by both parties, the trial Court has come to a

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correct conclusion that the allegations made against the accused are not proved and acquitted them. As held by the Division Bench of this Court in Kenchaveerappa referred to supra, with the acquittal the presumption of innocence of the accused would be fortified and only in case of perversity, the Appellate Court may interfere with the judgment of the trial Court. However, this Court finds no justifiable grounds to interfere with the impugned judgment and order. In the result, the appeal fails and accordingly, the following:

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ORDER

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(i) Appeal filed under Section 378(4) of Cr.P.C. by the complainant is

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dismissed.

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(ii) The impugned judgment and order dated 28.04.2018 in C.C.No.1773/2010 on the file of JMFC-II, Hubballi is hereby confirmed.

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