Sri B Devaraja Vs State of Karnataka

THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED 29.11.2019 PASSED BY THE SPECIAL II ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN CRL.A.NO.10/2017 AND ORDER DATED 06.02.2017 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND J.M.F.C., HOSADURGA IN C.C.NO.197/2011 AND ALLOW THE CRL.RP.

¶19

2 -

¶20

NC: 2025:KHC:9952 CRL.RP No. 1468 of 2019

¶21

THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶22

CORAM: HON'BLE MR JUSTICE H.P.SANDESH

¶23

ORAL ORDER

¶24

Heard learned counsel for petitioner and learned

¶25

Additional SPP for the respondent-State.

¶26

This criminal revision petition is filed before this Court challenging the order of conviction and sentence passed in C.C.No.197/2011 convicting the petitioner for the offence punishable under Section 409 IPC and sentencing him to undergo rigorous imprisonment for three years and also pay fine of Rs.10,000/-. In default, to undergo simple imprisonment for a period of six months and also observed that the period of detention already undergone by the accused shall be set off against the sentence underwent in view of Section 428 Cr.P.C.

¶27

Being aggrieved by the judgment of conviction and sentence passed in C.C.No.197/2011, criminal appeal is preferred before the First Appellate Court in Crl.A.No.10/2017. The First Appellate Court vide order dated 29.11.2019 dismissed the appeal confirming the conviction and sentence. Hence, the present revision petition is filed before this Court.

¶28

3 -

¶29

NC: 2025:KHC:9952 CRL.RP No. 1468 of 2019

¶30

This Court heard the matter earlier and learned counsel for the petitioner brought to notice of this Court evidence of P.W.14, wherein P.W.14 stated that an amount of Rs.1,33,142/was paid, by depositing an amount of Rs.51,970/- on 30.12.2008, Rs.52,690/- on 31.12.2008 and Rs.28,482/on 09.01.2009 and balance amount of Rs.15,89,485.35/- has not been paid. Learned counsel also brought to notice of this Court P.W.14 admitted that entire amount has been paid. Hence, this Court directed learned Additional SPP appearing for the respondent-State to verify whether entire amount of Rs.17,22,627.35/- has been paid. Learned Additional SPP for the respondent-State has placed the document for having paid an amount of Rs.1,33,142/- in three installments and remaining amount was not paid. Now, learned counsel for the petitioner would submit that, since he has already undergone sentence for a period of 80 days, the same may be set off as against imposition of rigorous imprisonment for a period of three years, since he also lost his job and the Court has to take note of said fact into consideration.

¶31

Learned Additional SPP for the respondent-State

¶32

would submit that even though document Ex.P12 is very clear

¶33

4 -

¶34

NC: 2025:KHC:9952 CRL.RP No. 1468 of 2019

¶35

that he had admitted criminal breach of trust to the tune of Rs.17,22,627.35/-, only part payment was made and in view of undertaking given by the petitioner, this Court granted time to deposit the balance amount of Rs.15,89,485.35/- and notice was given on 26.03.2009 and inspite of the same, he did not repay the amount. Hence, law was set in motion by registering the case invoking Section 409 IPC and the same has been proved. Since, there is a clear admission on the part of the petitioner regarding criminal breach of trust for misusing the fund, question of giving set off for 88 days as contended by learned counsel for the petitioner cannot be accepted.

¶36

Having heard learned counsel for the petitioner and learned Additional SPP for the respondent-State and also the grounds urged in the revision petition, the points that would arise for consideration of this Court are:

¶37

(i) Whether the Trial Court committed an error in convicting and sentencing the petitioner for the offence punishable under Section 409 IPC and whether confirmation made by the First Appellate Court requires interference of this Court?

¶38

5 -

¶39

NC: 2025:KHC:9952 CRL.RP No. 1468 of 2019

¶40

(ii) What order?

¶41

Point No.(i)

¶42

Having heard learned counsel for the petitioner and learned Additional SPP for the respondent-State, the case of the prosecution is that on 26.11.2008, C.W.1-Co-operative Development Officer, visited the PACS during which period accused was in charge of Cloth Section and discharging his duties as Sales Clerk. On physical verification in Cloth Section, C.W.1 found deficit of stock worth Rs.17,22,627.35/-. Therefore, C.W.1 after obtaining sanction from the Assistant Registrar of Co-operative Societies lodged complaint against accused, before jurisdictional Police. In support of that contention, C.W.1 has given his evidence as P.W.1, who in his evidence has identified his signatures in Ex.P1-complaint and Ex.P2-Seizure Mahazar. He has also identified Ex.P3 an Ex.P4Stock Registers for the year 2008-09, Ex.P5-Audit Report, Exs.P6 and Ex.P7-Resolution Books of PACS, Ex.P8-Sanction Order, Ex.P9-Seizure Mahazar, Ex.P10-Letter of Explanation of accused, Exs.P11 to Exs.P13-Challans. The Trial Court having considered both oral and documentary evidence placed on record, as well as admission on the part of petitioner and also

¶43

6 - NC: 2025:KHC:9952 CRL.RP No. 1468 of 2019

¶44

taking note of payment made by the accused, total to the tune of Rs.1,33,142/- and also an undertaking was given that he will repay the balance amount, but he did not pay the amount. Hence, answered the point No.1 that prosecution proved the case against the accused that accused was in charge of Cloth Section and discharging his duties as Sales Clerk in the Primary Agricultural Co-operative Society Limited, Srirampura and he has misappropriated the stock to the tune of Rs.17,22,627.35/in the year 2008. Hence, convicted and sentenced the petitioner to undergo rigorous imprisonment for a period of three years.

¶45

The First Appellate Court also having reassessed the material on record with regard to conviction and sentence, in detail re-analyzed the material considering documentary evidence of Exs.P1 to P13 as well as both oral and documentary evidence placed on record, particularly evidence of P.Ws.1 to 17 and having reassessed the same, comes to the conclusion that including compliant as well as contents of seizure mahazar and also having considered the factual aspects of the case, defence was taken that President and Directors have misused the said amount with the help of earlier Secretary and

¶46

7 -

¶47

NC: 2025:KHC:9952 CRL.RP No. 1468 of 2019

¶48

purchased the clothes without making proper entries in the stock books and also not maintained the amount used for transaction of the clothes, sales and also not maintained the bills, challans etc., instead of that they have chosen to shift the allegation against this appellant, who is innocent. Having considered the said defence also, the First Appellate Court comes to the conclusion that though such defence was taken, the same is neither proved in the lower Court and not placed any material before the First Appellate Court, even when the appeal was filed and comes to the conclusion that the very defence has not been proved and confirmed the order of the Trial Court.

¶49

The main contention of learned counsel for the petitioner before this Court is that when this petitioner was in jail for a period of 88 days, during the course of investigation as well as during the course of trial and also subsequent to the judgment, the same can be given set off and also brought to notice of this Court admission given by P.W.14, wherein he has admitted regarding depositing the amount to the tune of Rs.1,33,142/- and he has also given clear admission that entire amount was repaid. The Court has to take note of charges

¶50

8 - NC: 2025:KHC:9952 CRL.RP No. 1468 of 2019

¶51

leveled against the petitioner that he misappropriated the amount to the tune of Rs.17,22,627.35/- and he admitted the same and made part payment on three occasions and the same is taken note. Ex.P12 is very clear with regard to causing of notice to repay the amount and though an attempt was made while giving evidence and stated that he paid the entire amount, taking note of admission of P.W.14, nothing is on record to prove that the petitioner had repaid the entire amount. The Court has to take note of both oral and documentary evidence placed on record and stray admission given by P.W.14 cannot be a ground to acquit him as contended by the learned counsel for the petitioner. The Court has to look into documentary evidence, since he has categorically admitted regarding misappropriation of the amount to the tune of Rs.17,22,627.35/- and only made part payment and documentary evidence prevails over the oral evidence. Hence, the very contention of learned counsel for the petitioner cannot be accepted.

¶52

The other contention of learned counsel for the petitioner is that petitioner may be given set off, since he has undergone sentence for a period of 88 days. The same cannot

¶53

9 - NC: 2025:KHC:9952 CRL.RP No. 1468 of 2019

¶54

be a ground having considered that fact that he was working in Cloth Section and mahazar was conducted and there was short fall of clothes to the tune of Rs.17,22,627.35/- and mahazar which is marked as Exs.P2 and complaint as Ex.P1 is very clear with regard to shortfall of clothes and also Stock Registers and Audit Report is marked as Ex.P5. When such being the admission regarding misappropriation and the stock clearly disclose the same, merely because he had undergone sentence for a period of 88 days, the same cannot be a ground to give set off as contended by the learned counsel for the petitioner, having considered the gravity of the offence and also the fact that he was working in the Cloth Section as Sales Clerk and he was having custody of the clothes and defence which was taken was not proved by him and though allegation is made against the President and Secretary, no cogent evidence has been placed that he was an innocent.

¶55

When such being the case, having considered the gravity and punishment imposed by the Trial Court, the same commensurate with the gravity of the offence. Hence, contention of learned counsel for the petitioner cannot be accepted and I do not find any error committed by the Trial

¶56

10 - NC: 2025:KHC:9952 CRL.RP No. 1468 of 2019

¶57

Court and also First Appellate Court and both the Courts have taken note of documentary evidence available on record apart from oral evidence in coming to such conclusion. The scope of revision is very limited and this Court can consider the material, if there is any perversity in appreciation of material on record and no such circumstance is warranted in the case on hand, having considered the gravity of the offence and also misappropriation of amount to the tune of Rs.17,22,627.35/-. Accordingly, I answer point No.(i) as ‘negative’.

¶58

Point No.(ii)

¶59