H.K. Swamy S/O Late Kalaiah, First Division Asst. Vs. State of Karnataka by Hunsor Town Police Represented by State Public Prosecutor - Court Judgment

Excerpt:
- [ k.n. keshavanarayana, j.] indian electricity act, 1910 - sections 39 and 44 - offences under - tampering electric meter - complaint - charges - order of acquittal on technical grounds -finding of the trial judge that the prosecution launched on the basis of the complaint lodged by p.w.4 who was not an authorised person in terms of section 50 of the act -scope of section 50 of the act - held, the prosecution launched on the basis of the complaint lodged by the official of the electricity board, who was working in the vigilance squad and who detected theft of electrical energy, was in fact a prosecution launched at the instance of the state or electricity board. - the prosecution launched at the instance of any official of the electricity board who detected the theft of electrical energy was in reality a prosecution launched at the instance of the electric supply company within the meaning of section 50 of the act - further held, in the case on hand also, p.w.4 is an employee of the k.p.t.c.l. working as an assistant executive engineer in the vigilance squad. - the prosecution launched on the basis of the complaint lodged by p.w.4 was in reality a prosecution launched at the instance of the k.p.t.c.l. therefore, the prosecution launched in this case was at the instance of one of the persons named in section 50 of the act, as such, it was competent. - under these circumstances, the court below is not justified in holding that the prosecution was not competent, therefore, the acquittal recorded on that basis is illegal and is liable to be set aside. - on facts, held, the learned trial judge accepted the evidence of p.w.s 1 to 4 and the finding recorded is justified - there are no grounds to differ from the said finding. in fact, the respondent/accused has not questioned the correctness of the said finding. - since the amendment of section 39 was subsequent to the detection of the offence in this case and also subsequent to filing of the charge sheet, the amended section cannot be applied to the case on hand. under these circumstances, the respondent/accused is required to be sentenced in terms of the unlamented section 39 of the act. - sentence is modified in terms unlamented section 39 of the act - indian electricity act, 1910 - section 50 - the phrase "at the instance" referred in the provision - discussed. (paras 12,13,14,15,16,18,19) criminal appeal is allowed.orderhuluvadi g. ramesh, j.1. this revision is against the order of the sessions judge/fast track court, mysore in criminal appeal no. 18/2001 wherein the fast track judge has confirmed the order of the learned magistrate in convicting and sentencing the accused for the offence under section 408 of ibc alleging misappropriation of rs. 6,690/-. the accused was sentenced to undergo one year simple imprisonment and to pay a fine of rs. 1,000/-, in default to undergo simple imprisonment for one month.2. the accused has said to be working as first division assistant in the office of the child development project office between 3-6-1995 to 19-3-1996 for nearly nine months. during the said period, that is during september 1995 he has misappropriated rs. 4,838/- belonging to p.w. 2; rs. 500/- towards arrears of dearness allowance of p.w. 4 for which, he was supposed to purchase nsc and rs. 800/- towards purchase of revenue stamps and another can of rs. 552/- which was due to be paid towards subscription of samyuktha karnataka daily newspaper. thus, in all rs. 6,590/- was misappropriated instead of remitting the said amounts. in this regard a case was registered against this petitioner. on the basis of the enquiry, a charge-sheet was filed and the charges were framed against the accused. during the trial, the prosecution examined in all 11 witnesses and got marked 10 documents. thereafter, the learned magistrate recorded 313 statement. since the defence of the accused was total denial, after hearing the arguments, the learned magistrate found the accused guilty of the offence punishable under section 408 of ipc and sentenced him. against which, an appeal was preferred.3. the appellate court namely fast track court-iii, mysore confirmed the order of sentence passed by the learned magistrate by convicting and sentencing the accused for the offence under section 408 of ipc, against which, the petitioner is before this court in revision on various grounds.4. heard the learned counsel for the petitioner and the learned government pleader.5. the grounds raised by the petitioner is that the necessary ingredients are not made out to constitute an offence punishable under section 408 of ipc and therefore, both the courts below have erroneously come to the conclusion that offence of section 408 has been proved. it its also contended that both the courts below have committed an error straight away believing the evidence of p.ws. 1 and 3 and also contended that these p.ws. 1 and 3 used to handle the cash and everyday p.w. 1 used to check the cash and sign the cash book. as such, p.ws. 1 and 3 are entrusted with cash and not this petition to allege misappropriation against him. it is also contended that the fact that one key of the almirah was with p.w. 1 would clearly envisage that there is no such entrustment to the petitioner over the property rather p.ws. 1 and 3 are responsible for handling the cash, as such throwing the burden on the petitioner on the say of p.w. 1 and p.w. 3 and coming to the conclusion that the accused has bean entrusted with the property is erroneous, it is further contended that p.ws. 1 and 3 are interested witnesses and there is lapse on their part. it is the contention of the learned counsel for the petitioner that if at all the salary and arrears of d.a. has not been paid to the concerned on such drawing, they could have raised their voice, but their silence speak to the effect that the petitioner is not involved in the commission of offence and unnecessarily he has bean implicated and convicted. another ground raised by the petitioner is that the panchanama conducted is not in accordance with law and it is done at the instance of p.w. 1. to throw burden on the petitioner, p.w. 1 created a scene as if the petitioner is solely responsible for the alleged misappropriation only on the ground that another key was with him. thus contending that there is improper appreciation of evidence on record and the version that the interested witnesses pw-1 and pw-3 wore also handling the cash has not been taken note of. accordingly sought for acquittal.6. in the light of the arguments advanced, the point that would arise for consideration is whether the courts below have committed any error or illegality in convicting and sentencing the accused?7. it is seen that as a matter of appreciation, pw-1 has lodged a complaint against the petitioner. however, as observed by the learned magistrate that the accused was absconding for several days and although allegations were made against him, he never turned up to discharge his burden. the learned magistrate has drawn a presumption that it is for the petitioner to explain the situation when the complainant makes prima facie allegation against the petitioner. as per the contention of the petitioner there is entry regarding remittance of cash. the learned magistrate looking into the documents has opined that although salary of one gouramma is drawn the same has not been paid to her. even in respect of other amounts regarding revenue stamps and newspaper bill is concerned, the learned magistrate has noted that there is no entry in the cash book.8. denying the arguments advanced by the accused the learned magistrate as well as the appellate court are of the view that there is admission on the part of the accused that he was dealing with the accounts and thus formed an opinion that the petitioner was dealing with the cash although he was under the supervision of pw-1. it is also noted that this petitioner did not account to p.w. 1 as to the alleged salary and other allowances due and also regarding purchase of revenue stamps and newspaper bill to be paid.9. might be that the accused has taken a contention before the learned magistrate as well as before the appellate court that p.ws. 1 and 3 were also dealing with the cash and accounts, but when the complainant-p.w. 1 has filed a complaint, the petitioner had not explained the situation except denial. he also contended that p.w. 1 was dealing with the cash and in the absence of any proper explanation, both the courts below have come to the conclusion to hold the accused guilty of the offence.10. the contention of the learned counsel for the petitioner is that merely on the ground that the petitioner was unauthorisedly absent and that one key was available with him, he was falsely implicated in the case. when the my herself was operating and handling the cash and writing the cash book, there was no scope for breaking open the lock of almirah. the further contention of the learned counsel for the petitioner is that there is inordinate delay of eight months in filing the complaint. the alleged misappropriation is during 15th march whereas the complaint is lodged during 8th october. regarding key is concerned, p.w. 3 shown to have accepted that one key of almirah was with p.m. 1 and another with the accused.11. in view of the arguments advanced by the learned counsel for the petitioner to the effect whether breaking open the lock of alrairah was very much essential or not. on the ground of unauthorised absence, he has been falsely implicated and there shown to be inordinate delay in lodging the complaint. simultaneously, along with petitioner p.w. 1 was also operating the cash and used to check the cash and enter the same in the cash book daily on routine basis. if that is so, there may not be difficulty to lodge the complaint regarding misappropriation immediately. also it is the case of the petitioner that every time he used to send the leave application and the same has been accepted. in view of the discrepancy, there was improper checking of cash on routine basis and also there is inordinate delay of 8-10 months in lodging the complaint. the prosecution version regarding misappropriation of accounts and the evidence on record shown to be not convincing and only to shoulder the responsibility exclusively on the part of the accused when simultaneously p.w. 1 and petitioner used to handle the accounts and cash a false case has been foisted.12. the undisputed fact is that when p.w. 1 is in-charge of cash and used to cross-check the cash as well as cash book, entry, necessarily why there in delay in filing the complaint belatedly after 8 months is not properly explained. although, the trial court as well as the appellate court shown to have drawn presumption that the accused was unauthorisedly absent, they were duty bound to come to tho conclusion that there should have been positive evidence on record. only on the ground that the petitioner was unauthorisedly absence for some time cannot form an opinion to hold the accused guilty of the offence. in the circumstances, there is no satisfying evidence to point out the guilty of the accused.13. both the courts below erred in holding the accused guilty of the offence only on the evidence of some interested witnesses that too p.w. 1 who also shown to have not properly explained the lapse especially delay in lodging the complaint that too after 8 to 10 months, when admittedly p.w. 1 used to crosscheck the accounts and cash. the say of p.w. 3 regarding the responsibility of p.w. 1 that she was also cross-checking the cash as well as the cash book has not been denied.14. in the circumstances, as it is the case of the prosecution itself that p.w. 1 was bound to check the amount as in-charge of the accounts. due to her lapse in discharging of duty, the accused cannot be shouldered with responsibility to explain the situation. mere non-explanation of the situation by the accused cannot form a basis to hold him guilty of the offence unless there is cogent evidence to establish the guilt of the accused by the independent witnesses other than p.w. 1. in the circumstances, the petition is allowed. the order of both the courts below is set aside for went of cogent evidence on record.15. while setting aside the order of conviction and sentence passed by the trial court confirmed by the appellate court, the bail bond stands cancelled.send back the records forthwith.

Judgment:
ORDER

Huluvadi G. Ramesh, J.

1. This revision is against the order of the Sessions Judge/Fast Track Court, Mysore in Criminal Appeal No. 18/2001 wherein the Fast Track Judge has confirmed the order of the learned Magistrate in convicting and sentencing the accused for the offence under Section 408 of IBC alleging misappropriation of Rs. 6,690/-. The accused was sentenced to undergo one year simple imprisonment and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for one month.

2. The accused has said to be working as First Division Assistant in the office of the Child Development Project Office between 3-6-1995 to 19-3-1996 for nearly nine months. During the said period, that is during September 1995 he has misappropriated Rs. 4,838/- belonging to P.W. 2; Rs. 500/- towards arrears of Dearness Allowance of P.W. 4 for which, he was supposed to purchase NSC and Rs. 800/- towards purchase of revenue stamps and another can of Rs. 552/- which was due to be paid towards subscription of Samyuktha Karnataka daily newspaper. Thus, in all Rs. 6,590/- was misappropriated instead of remitting the said amounts. In this regard a case was registered against this petitioner. On the basis of the enquiry, a charge-sheet was filed and the charges were framed against the accused. During the trial, the prosecution examined in all 11 witnesses and got marked 10 documents. Thereafter, the learned Magistrate recorded 313 statement. Since the defence of the accused was total denial, after hearing the arguments, the learned Magistrate found the accused guilty of the offence punishable under Section 408 of IPC and sentenced him. Against which, an appeal was preferred.

3. The Appellate court namely Fast Track Court-III, Mysore confirmed the order of sentence passed by the learned Magistrate by convicting and sentencing the accused for the offence under Section 408 of IPC, against which, the petitioner is before this Court in revision on various grounds.

4. Heard the learned Counsel for the petitioner and the learned Government Pleader.

5. The grounds raised by the petitioner is that the necessary ingredients are not made out to constitute an offence punishable under Section 408 of IPC and therefore, both the courts below have erroneously come to the conclusion that offence of Section 408 has been proved. It its also contended that both the courts below have committed an error straight away believing the evidence of P.Ws. 1 and 3 and also contended that these P.Ws. 1 and 3 used to handle the cash and everyday P.W. 1 used to check the cash and sign the cash book. As such, P.Ws. 1 and 3 are entrusted with cash and not this petition to allege misappropriation against him. It is also contended that the fact that one key of the almirah was with P.W. 1 would clearly envisage that there is no such entrustment to the petitioner over the property rather P.Ws. 1 and 3 are responsible for handling the cash, as such throwing the burden on the petitioner on the say of P.W. 1 and P.W. 3 and coming to the conclusion that the accused has bean entrusted with the property is erroneous, It is further contended that P.Ws. 1 and 3 are interested witnesses and there is lapse on their part. It is the contention of the learned Counsel for the petitioner that if at all the salary and arrears of D.A. has not been paid to the concerned on such drawing, they could have raised their voice, but their silence speak to the effect that the petitioner is not involved in the commission of offence and unnecessarily he has bean implicated and convicted. Another ground raised by the petitioner is that the panchanama conducted is not in accordance with law and it is done at the instance of P.W. 1. To throw burden on the petitioner, P.W. 1 created a scene as if the petitioner is solely responsible for the alleged misappropriation only on the ground that another key was with him. Thus contending that there is improper appreciation of evidence on record and the version that the interested witnesses PW-1 and PW-3 wore also handling the cash has not been taken note of. Accordingly sought for acquittal.

6. In the light of the arguments advanced, the point that would arise for consideration is whether the courts below have committed any error or illegality in convicting and sentencing the accused?

7. It is seen that as a matter of appreciation, PW-1 has lodged a complaint against the petitioner. However, as observed by the learned Magistrate that the accused was absconding for several days and although allegations were made against him, he never turned up to discharge his burden. The learned Magistrate has drawn a presumption that it is for the petitioner to explain the situation when the complainant makes prima facie allegation against the petitioner. As per the contention of the petitioner there is entry regarding remittance of cash. The learned Magistrate looking into the documents has opined that although salary of one Gouramma is drawn the same has not been paid to her. Even in respect of other amounts regarding revenue stamps and newspaper bill is concerned, the learned Magistrate has noted that there is no entry in the cash book.

8. Denying the arguments advanced by the accused the learned Magistrate as well as the Appellate court are of the view that there is admission on the part of the accused that he was dealing with the accounts and thus formed an opinion that the petitioner was dealing with the cash although he was under the supervision of PW-1. It is also noted that this petitioner did not account to P.W. 1 as to the alleged salary and other allowances due and also regarding purchase of revenue stamps and newspaper bill to be paid.

9. Might be that the accused has taken a contention before the learned Magistrate as well as before the Appellate court that P.Ws. 1 and 3 were also dealing with the cash and accounts, but when the complainant-P.W. 1 has filed a complaint, the petitioner had not explained the situation except denial. He also contended that P.W. 1 was dealing with the cash and in the absence of any proper explanation, both the courts below have come to the conclusion to hold the accused guilty of the offence.

10. The contention of the learned Counsel for the petitioner is that merely on the ground that the petitioner was unauthorisedly absent and that one key was available with him, he was falsely implicated in the case. When the my herself was operating and handling the cash and writing the cash book, there was no scope for breaking open the lock of almirah. The further contention of the learned Counsel for the petitioner is that there is inordinate delay of eight months in filing the complaint. The alleged misappropriation is during 15th March whereas the complaint is lodged during 8th October. Regarding key is concerned, P.W. 3 shown to have accepted that one key of almirah was with P.M. 1 and another with the accused.

11. In view of the arguments advanced by the learned Counsel for the petitioner to the effect whether breaking open the lock of alrairah was very much essential or not. On the ground of unauthorised absence, he has been falsely implicated and there shown to be inordinate delay in lodging the complaint. Simultaneously, along with petitioner P.W. 1 was also operating the cash and used to check the cash and enter the same in the cash book daily on routine basis. If that is so, there may not be difficulty to lodge the complaint regarding misappropriation immediately. Also it is the case of the petitioner that every time he used to send the leave application and the same has been accepted. In view of the discrepancy, there was improper checking of cash on routine basis and also there is inordinate delay of 8-10 months in lodging the complaint. The prosecution version regarding misappropriation of accounts and the evidence on record shown to be not convincing and only to shoulder the responsibility exclusively on the part of the accused when simultaneously P.W. 1 and petitioner used to handle the accounts and cash a false case has been foisted.

12. The undisputed fact is that when P.W. 1 is in-charge of cash and used to cross-check the cash as well as cash book, entry, necessarily why there in delay in filing the complaint belatedly after 8 months is not properly explained. Although, the Trial Court as well as the Appellate Court shown to have drawn presumption that the accused was unauthorisedly absent, they were duty bound to come to tho conclusion that there should have been positive evidence on record. Only on the ground that the petitioner was unauthorisedly absence for some time cannot form an opinion to hold the accused guilty of the offence. In the circumstances, there is no satisfying evidence to point out the guilty of the accused.

13. Both the courts below erred in holding the accused guilty of the offence only on the evidence of some interested witnesses that too P.W. 1 who also shown to have not properly explained the lapse especially delay in lodging the complaint that too after 8 to 10 months, when admittedly P.W. 1 used to crosscheck the accounts and cash. The say of P.W. 3 regarding the responsibility of P.W. 1 that she was also cross-checking the cash as well as the cash book has not been denied.

14. In the circumstances, as it is the case of the prosecution itself that P.W. 1 was bound to check the amount as in-charge of the accounts. Due to her lapse in discharging of duty, the accused cannot be shouldered with responsibility to explain the situation. Mere non-explanation of the situation by the accused cannot form a basis to hold him guilty of the offence unless there is cogent evidence to establish the guilt of the accused by the independent witnesses other than P.W. 1. In the circumstances, the petition is allowed. The order of both the courts below is set aside for went of cogent evidence on record.

15. While setting aside the order of conviction and sentence passed by the Trial Court confirmed by the Appellate Court, the bail bond stands cancelled.

Send back the records forthwith.