R
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF APRIL, 2018
BEFORE
THE HON’BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO. 690 OF 2013
BETWEEN
1. H.K. Shivappa,
S/o Kariyappa,
Aged about 54 years,
Head Master,
Government Higher
Primary School,
Chiradoni,
Channagiri Taluk,
Davanagere District.
2. N.D. Parameshwar,
S/o Devendrappa,
Aged about 38 years,
Ex-President,
School Development
Managing Committee,
Government Higher
Primary School.
Chiradoni,
Channagiri Taluk,
Davanagere District.
… Appellants
(By Sri. B.V. Pinto, Advocate for A1.
Sri. G.M. Chandrashekar, Advocate for A2.)
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AND
State by Lokayuktha Police,
Davanagere.
Represented by the Learned
State Public Prosecutor,
High Court Buildings,
Bengaluru.
… Respondent
(By Sri. Venkatesh S. Arabatti, Spl.P.P.)
This Criminal Appeal is filed under Section 374(2)
Cr.P.C. Praying to set aside the judgment and conviction
and order of sentence dated 25.06.2013 passed by the Prl.
Dist. and S.J. and Spl. Judge (Lokayukta), Davanagere in
Spl. (Lok) case no. 2/2008 – convicting the appellants/
accused for the offence punishable under section 13(1) (c)
R/w 13(2) of the prevention of corruption act, 1988 and
Sec. 409 and 406 of IPC. The appellant/accused no.1 is
sentenced to undergo simple imprisonment for 1 year and
pay fine of Rs. 3,000/-, in default to pay fine, he shall
undergo simple imprisonment for further period of 3
months for the offence punishable under Section 13(1) (c)
R/w 13(2) of prevention of corruption act, 1988. The
appellant/accused no.1 is sentenced to undergo rigorous
imprisonment for 1 year and pay fine of Rs. 2,000/-, in
default to pay fine, he shall undergo simple imprisonment
for 2 months for the offence punishable under Section 409
of IPC. The appellant/accused no.2 is sentenced to
undergo simple imprisonment for a period of 1 year and
pay fine of Rs. 5,000/- in default to pay fine, he shall
undergo simple imprisonment for further period of 3
months for the offence punishable under Section 406 of
IPC. The sentences imposed on accused no.1 shall run
concurrently. The appellant/accused prays that they be
acquitted.
This criminal appeal having been heard and reserved
for judgment on 27.03.2018 coming on for
pronouncement this day, the court delivered the following:
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JUDGMENT
This appeal is directed against the judgment of
conviction and order of sentence passed by the Court of
the Principal District Sessions Judge and Special
Judge (Lokayukta), at Davanagere in Special (Lok) Case
No.2/2008 by convicting the accused for the offences
punishable under Section 13(1)(c) read with Section
13(2) of the Prevention of Corruption Act, 1988
(hereinafter referred to as ‘the PC Act’, for brevity) and
under Section 409 of the Indian Penal Code, 1860
(hereinafter referred to as ‘the IPC’, for brevity). The
appellant – Accused No.1 was sentenced to undergo
simple imprisonment for a period of one year and to pay
a fine of Rs.3,000/-, in default to pay fine, he was to
undergo simple imprisonment for further period of 3
months for the offence punishable under Section 13(1)
(c) read with Section13(2) of the PC Act. He was further
sentenced to undergo rigorous imprisonment for a
period of 1 year and to pay a fine of Rs. 2,000/-, and in
default to pay fine, to undergo simple imprisonment for
2 months for the offence punishable under Section 409
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of IPC. The appellant – accused no.2 was sentenced to
undergo simple imprisonment for a period of 1 year and
pay fine of Rs. 5,000/- and in default to pay fine, to
undergo simple imprisonment for a further period of 3
months for the offence punishable under Section 406 of
IPC. The sentences imposed on accused no.1 were to
run concurrently.
2. The brief facts of the case of the prosecution are
as under:
Accused No.1 was the Headmaster of Government
Higher Primary School, Chiradoni, Chennagiri Taluk
and Accused No.2 was the President of the School
Development Managing Committee (hereinafter referred
to as ‘the SDMC’, for brevity) of the said school. As
such, both the accused were said to be public servants.
During the year 2005-06, the Chief Executive
Officer, Zilla Panchayath, Davanagere is said to have
sanctioned a sum of Rs.50,000/- in respect of the said
school, for construction of a kitchen in the said school
premises, under the ‘Mid Day Meals’ Scheme. On
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3.11.2005, the Chief Executive Officer (hereinafter
referred to as ‘the CEO’, for brevity), Zilla Panchayath,
Davanagere had issued a cheque for Rs.50,000/- in the
name of SDMC. The aforesaid cheque was handed over
to Accused No.1 who was the Head Master of the said
school, on 8.11.2005. Subsequently, the said cheque
was deposited in the Bank Account maintained in the
name of the SDMC by deducting Rs.150/- towards
commission. The remaining amount of the said cheque
in a sum of Rs.49,850/- was credited to the account of
the Committee as maintained. There was some more
amount in the said Account of the Committee
maintained, totally amounting to Rs.51,000/-.
Subsequently, it is the allegation that both the accused
persons withdrew the amount of Rs.51,000/- from the
said Account through seven cheques jointly signed by
them. Out of the said amount, they had spent
Rs.1,802/- towards the cost of digging up foundation for
construction of the kitchen in the school premises.
However, by filling the same with boulder stones they
had closed the foundation which was dug. There was a
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direction to complete the construction of the kitchen for
the Mid Day Meals before 19.04.2006, whereas the
accused persons did not comply with the said direction
issued by the authorities. They did not spend the
amount withdrawn from the said account sanctioned
towards construction of kitchen, but are said to have
mis-appropriated the amount of Rs.48,048/-.
Subsequent to coming to know the said fact, the higher
officer of Accused No.1 had issued a notice to the said
accused. However, the accused did not give any reply to
that notice received. Subsequently, a report came to be
published in the daily newspaper ‘Prajavani’ relating to
misappropriation of the funds granted towards
construction of kitchen in the school premises, by these
accused. On seeing the said news item, CW-27 – the
Police Inspector, Karnataka Lokayuktha, Davanagere
registered a case against the accused. Subsequent to
registration of the crime, the investigation was taken up
and he visited the said school along with panch
witnesses. On verification of the spot, he found that
kitchen was not constructed by the accused persons
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even though they had withdrawn the amount
sanctioned for construction of kitchen under the ‘Mid
Day Meals Scheme’. Subsequently, CW-28 and CW-29
had conducted further investigation and laid a charge-
sheet against the accused for the offences punishable
under Section 13(1)(c) read with Section 13(2) of the PC
Act, besides Section 406 of the IPC. Subsequently, the
Trial Court has framed the charge against the accused
for the aforesaid offences where the accused did not
plead guilty but claimed to be tried. Accordingly, the
plea of the accused has been recorded. Subsequently,
in order to prove the guilt of the accused, prosecution in
all examined PW-1 to PW-12 and got marked 64
documents. No material objects have been got marked.
Thereafter, after hearing the arguments advanced by the
learned Special Public Prosecutor for the Lokayuktha
and defence counsel for the accused, on an appreciation
of the entire evidence on record, the Trial Court has
convicted accused No.1 for the offences punishable
under Section 13(1)(c) read with Section 13(2) of the PC
Act and Section 409 IPC. Accused No.2 was convicted
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for the offence punishable under Section 406 IPC as
incorporated in the impugned judgment. It is this
judgment which is under challenge in this appeal by
urging various grounds.
3. Heard the learned counsel Shri B.V. Pinto for
appellant No.1, the learned counsel Shri G.M.
Chandrashekar for appellant No.2 and Shri Venkatesh
S. Arabatti, the learned Special Public Prosecutor for the
respondent – State.
4. On hearing the learned counsel for the parties,
the point that would arise for consideration in this
appeal is,
“Whether the judgment of conviction
and sentence held against Accused Nos.1
and 2 by the Trial Court in Special
(Lokayuktha) Case No.2/2008 dated
25.06.2013 is justified in law?”
5. The learned counsel for the appellant during
the course of his arguments has contended that the
Trial Court has erred in considering the evidence on
record which negates all the incidents narrated in the
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complaint filed by the Police Inspector of Lokayuktha,
Davanagere. The complaint is a suo moto complaint
filed by him on visiting the scene of crime with panch
witnesses and then recording FIR and thereafter
proceeding with the case for investigation. But the
entire evidence on record placed by the prosecution
does not fortify the allegation made against Accused
No.1, a Government servant who was working as a
headmaster of the Government Higher Primary School,
Chiradoni, Chennagiri Taluk. It is the contention of the
learned counsel that though 12 witnesses have
examined for the prosecution, all are government
officials and not even a single independent witness has
been examined to support the case of the prosecution.
It is the further contention of the learned counsel
that particularly, PW-4 – The Assistant Director of
Education Department in Taluk Panchayath, PW-5 –
Block Education Officer and PW-10 – Assistant
Executive Engineer who are said to be most important
witnesses, were duty bound to follow-up the progress of
the construction of the kitchen, but they have not done
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so. Hence, the Special Judge, relying on their evidence
and having come to the conclusion that the appellants
had committed fraud, cannot be accepted. Considering
all these non reliable evidence for the prosecution, the
Trial Court has erroneously come to the conclusion that
Accused Nos.1 and 2 have committed the alleged
offences, by ignoring the principles of criminal
jurisprudence relating to the offences levelled against
these accused.
It is the further contention of the learned counsel
for the appellants that the learned Special Judge has
not considered the evidence in its entirety and that
there were discrepancies in material aspects. In that,
the higher officers of the appellants though had
sanctioned the amount of Rs.50,000/- for construction
of kitchen, they did not issue any instructions regarding
the guidelines as to when and how the construction
requires to be completed. They had not even bothered
to visit the spot to look into the progress of the
construction. Only after registration of a suo moto
complaint by the Police Inspector, Karnataka
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Lokayuktha, Davanagere, the higher officers had issued
instructions and guidelines to the appellants regarding
the mode of construction and date of completion.
6. In view of these discrepancies, the entire
evidence on record requires to be re-appreciated.
Though the offences alleged against the accused has not
been proved by the prosecution by placing cogent and
consistent evidence, the Trial Court has proceeded to
convict the accused for the offences alleged under
Sections 13(1)(c) read with Section 13(2) of the PC Act
as well as Section 409 of IPC against Accused No.1
being the Headmaster of a Higher Primary School which
does not attract as there are no ingredients for the said
offence in respect of which charge-sheet has been laid
against the accused. Further, the charges against
Accused No.2 being the President of the SDMC, does not
attract, as he is not a Government servant. The Trial
Judge has wrongly justified his omission for considering
the evidence on record relating to roping the accused in
a case which has been registered as disclosed in the
news item. The concerned higher authorities ought to
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have monitored the work relating to construction of
kitchen under the Mid Day Meals Scheme, despite of
which the crime came to be registered based upon the
suo moto complaint filed by the Police Inspector,
Lokayuktha, Davanagere.
There was lacuna on the part of the higher
authorities and the action of the Police Inspector in
having initiated suo moto action against the first
accused – a Government Head Master, is in itself
vindictive in nature. The first accused had served for a
considerable period as a Senior Teacher. He did not
have any blemishes in his record. The same is required
to be considered in this appeal including the
discrepancies which had crept in the evidence adduced
by the prosecution to prove the guilt of the accused.
Further, the amount was sanctioned during November
2005 and the same had been withdrawn by way of
seven cheques in December 2005. In the month of
December 2005, Accused No.1 had purchased building
materials such as 50 bags of cement, sand, crushed
stones, steel, etc., utilizing the said amount, in respect
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of which he had also produced receipts obtained from
the concerned shops. But however, since he was the
Headmaster managing all the affairs of the school, he
was not able to execute the building work in time.
Added to his regular work as a Headmaster, he was to
take care of the room construction which was an
additional responsibility on him. Hence, there may have
been delay occasioned in starting the construction work
which requires summoning all the concerned persons
such as Engineer, mason, plumber, electrician,
labourers, etc. Moreover, the accused were not issued
any terms and conditions regarding completion of the
construction within a time frame. Even without fixing
a time frame and without issuing any instructions,
coming to the conclusion that the appellants had
misappropriated the amount sanctioned, has led to a
miscarriage of justice.
In criminal law, the case of the prosecution ought
to be proved beyond all reasonable doubt, which is the
dictum rendered by the Hon’ble Apex Court and also
various courts. The said aspect ought to have been
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taken into account by the Trial Court while convicting
the accused on the basis of the evidence adduced by the
prosecution by examining PW-1 to PW-12.
7. Learned counsel has taken exception to the
observation made by the Special Judge in paragraph 23
of the judgment wherein it is observed that during the
course of cross-examination of the witnesses for the
prosecution it was suggested that the kitchen was
constructed in the school premises within seven days
after the crime came to be registered. In fact the
accused also had produced the photographs of the
kitchen which was constructed under the ‘Akshara
Daasoha’ scheme by utilizing the amount of
Rs.50,000/- sanctioned by the Chief Executive Officer,
Zilla Panchayath. The Special Judge had observed that
though photographs of the kitchen constructed have
been produced by the accused, but that would not
absolve the accused as it was crystal clear that they had
withdrawn the amount about two to six months prior to
registration of the case against the accused and that
amount has not been spent for constructing the
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kitchen. The learned counsel submits that this
observation of the Special Judge is bad in law having
regard to the discrepancies committed by the
authorities in not mentioning the time limit for
completion of the construction.
It is further observed in the impugned judgment it
is a fact that the accused persons had withdrawn the
amount by way of seven cheques from the month of
December 2005 till the month of March 2006. But, the
said amount has not been utilized for the purpose of
construction of the kitchen. As regards this observation
made by the Trial Court, the learned counsel for the
appellant has stoutly addressed arguments relating to
the duty of Accused No.1 being the Head Master in the
Higher Primary School, Chiradoni. Added to managing
the affairs of a Headmaster, he was required to take
classes for the students, monitor the classes of the
other teachers and take care the concern of the parents
as well. Added to these responsibilities, he was
burdened with the work of taking up the initiative to
construct the kitchen in the premises of the said school,
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in respect of which work he was sanctioned a sum of
Rs.50,000/- by the CEO, Zilla Panchayath, Davanagere.
The scheme was introduced by the concerned
authorities for the benefit of the students in order to
provide them Mid Day meals.
The withdrawal of the amount from the joint
account maintained by the first accused as well as the
second accused cannot be said to have been
misappropriated by them, since the same amount has
been spent towards purchase of material for
construction and towards labour work, in respect of
which receipts have been produced by the accused.
That aspect also ought to have been considered by the
Trial Court. Hence, the evidence on record placed by
the prosecution has not been appreciated by the Trial
Court in a proper perspective.
8. It is further contended that based upon the FIR
which has been recorded by the Police Inspector,
Lokayuktha, the case has been proceeded further
against the accused. The Deputy Director of Public
Instructions, Davanagere District, Davanagere, has
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issued a letter dated 27.05.2014 making reference to
the present appeal wherein this court by order dated
27.12.2013 has suspended the sentence and enlarged
the appellants on bail. The DDPI has indicated in the
said letter that in case the accused was acquitted, the
Disciplinary Authority requires to revise his order and
the first accused could rejoin in service and continue in
the service and he would be entitled for all benefits as
indicated in this letter.
Under all these grounds which has been urged by
the learned counsel for the appellants in tenor of this
letter received by the DDPI dated 27.05.2014, he seeks
for allowing the appeal by setting aside the judgment of
conviction and sentence held against the accused.
9. The Police Inspector, Lokayuktha, Davanagere,
based on the newspaper report had suo moto filed a
complaint by recording an FIR for the aforestated
offences and had laid the charge-sheet on visiting the
scene of crime situated in the school premises along
with panch witnesses. But, no superior officer in
Davanagere District relating to the Education
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Department had inspected the school prior to the said
Police Inspector, Lokayuktha filing the complaint.
Merely by verifying the premises by the Police Inspector
recording the FIR as well as laying the charge-sheet
against the accused do not constitute sufficient
grounds to convict the accused. The guilt of the
accused needs to be proved by the prosecution beyond
all reasonable doubt relating to the allegation of
misappropriation. The kitchen was constructed in the
school premises within seven days after the registration
of the case by the Police Inspector by recording an FIR.
The same has not been appreciated by the Trial Court in
a proper perspective. Merely because evidence has been
adduced by the prosecution, the Trial Court has
convicted the accused which is vindictive in nature
when the alleged misappropriation said to have been
committed by Accused No.1 with Accused No.2 not
having been proved beyond all reasonable doubt.
Therefore, on all these grounds urged, he seeks for
intervention of the impugned judgment of conviction
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and sentence held by the Trial Court by re-appreciating
the entire evidence on record.
Insofar as Accused No.2, the President of the
SDMC, Government Higher Primary School, Chiradoni,
Chennagiri Taluk, who has been convicted for offences
under Section 406 IPC, had also subscribed his
signature on the cheque for withdrawal of the amount.
But there is no specific evidence as placed by the
prosecution in order to prove the guilt of the accused
relating to misappropriation of funds. Therefore, the
offence under Section 409 of IPC against Accused No.1
and the offences under Section 406 IPC even against
Accused No.2 has not been proved by the prosecution
by placing cogent and consistent evidence to probabilise
that the accused have misappropriated the amount
sanctioned for the purpose of construction of kitchen in
the premises of the Government Higher Primary School.
But, the kitchen was constructed in the school within
seven days after the case was registered. That means to
say, the amount has not been misappropriated by them.
This aspect requires to be considered by re-appreciating
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the entire evidence on record. Accordingly, he seeks for
allowing the appeal relating to this accused No.2 by
setting aside the impugned judgment, seeking acquittal
of the offences levelled against both the accused.
10. Per contra, learned Special Public Prosecutor
for the Lokayuktha has taken me through the entire
evidence of the prosecution. In all, he has examined
PW-1 to PW-12.
PW-1 is the FDA, PW-2 is the Police Inspector,
PW-3 is the CEO, Zilla Panchayath, Davanagere, PW-5
is the BEO, Chennagiri, PW-6 and 7 Headmaster and
Assistant Teacher. All these witnesses for the
prosecution have stated in their evidence that the
averments made in the complaint Exhibit P-21 filed by
PW-2 being the Police Inspector of Lokayuktha,
Davanagere and so also the allegation made in the FIR
which has been recorded by him are true. Apart from
that, Exhibit P-7 Entrustment mahazar has been
conducted by the Investigating Officer. Exhibit P-26 to
P-32, in all seven cheques have been encashed by the
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accused. Exhibit P-33 is the covering letter of the DCC
Bank regarding cheques. Exhibit P-36 is the sketch
relating to the kitchen which was to be constructed for
the purpose of Mid Day Meals Scheme. Exhibits P-37,
38 and 39 are the memos issued to Accused No.1 by the
BEO. Exhibit P-63 is the hand-writing expert opinion
report placed by the prosecution. Exhibit P-64 covering
letter of the sanction order relating to prosecute the
case against Accused No.1. The Trial Court has
appreciated the entire evidence on record oral as well as
documentary in a proper perspective and had convicted
the accused. The amount of Rs.50,000/- sanctioned by
the CEO, Zilla Panchayath, Davanagere towards
construction of kitchen under the ‘Akshara Daasoha’
scheme to the appellants having been misappropriated,
the Police Inspector, Lokayuktha had filed a suo moto
complaint on seeing the newspaper report. The kitchen
was constructed by these accused in the school
premises within seven days after the case was
registered. That itself reflected the demeanor of the
accused, that too being the Head Master of the
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Government Higher Primary School, Chiradoni, as well
as the President of the SDMC. The Trial Court did not
absolve the accused in respect of the offence relating to
misappropriation of funds under Sections 409 and 406
IPC respectively and Section 13(1)(c) read with Section
13(2) of the PC Act in respect of Accused No.1. As the
Trial Court rightly came to the conclusion that the
prosecution has proved the guilt of the accused beyond
all reasonable doubt, no perversity has been committed
by the Trial Court in convicting the accused and hence,
there is no infirmity found in the impugned judgment.
Therefore, the impugned judgment of conviction and
sentence held against the accused does not call for any
interference by this court. On all these grounds which
has been urged by the learned Special Public Prosecutor
for the Lokayuktha, he seeks for dismissal of the appeal
as being devoid of merits by confirming the judgment of
conviction and sentence held by the Trial Court against
the accused.
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11. Having regard to the strenuous contentions
taken by the learned counsel for the appellants –
accused as well as the learned Special Public Prosecutor
for the Lokayuktha as stated supra, it is relevant to
extract the scope of Section 406 of the IPC including
Section 409 of IPC as thus:
“406. Punishment for criminal breach of
trust. – Whoever commits criminal breach of
trust shall be punished with imprisonment of
either description for a term which may extend
to three years, or with fine, or with both.
409. Criminal breach of trust by public
servant, or by banker, merchant or agent. –
Whoever, being in any manner entrusted with
property, or with any dominion over property in
his capacity of a public servant or in the way of
his business as a banker, merchant, factor,
broker, attorney or agent, commits criminal
breach of trust in respect of that property, shall
be punished with [imprisonment for life], or with
imprisonment of either description for a term
which may extend to ten years, and shall also be
liable to fine.”
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In order to establish the charge of criminal breach
of trust, the prosecution has to prove the principle
ingredients of the offence, being dishonest
misappropriation to constitute the offence under Section
409 IPC. There must be dishonest misappropriation by
a public servant in whom confidence is reposed as to
the custody or management of the property in respect of
which breach of trust is committed. Therefore,
essentially, the prosecution has to prove that the
accused was entrusted with the property or domain over
it and the intention of having misappropriated the
property or disposed of the property in violation of the
said trust.
In order to prove the offences under Section 406 of
IPC against the accused, the prosecution has to prove
that the accused was entrusted with property or he had
domain over it and the accused misappropriated that
property in violation of the trust reposed in him.
Whereas the prosecution has alleged the offences
against Accused No.1 under Section 13(1)(c) read with
Section 13(2) of the PC Act and so also the offences
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under Section 409 of IPC. In so far as the ingredients
relating to the aforesaid offences are common even
though the offences are distinct. Therefore, the
prosecution has to prove the ingredients relating to the
offences under Section 13(1)(c) of the PC Act as well as
Section 409 of IPC insofar as the accused being a
Government servant.
12. In the instant case, accused No.1 is a public
servant, that too headmaster of the Government Higher
Primary School, Chiradoni, Chennagiri Taluk. The
allegation made against him is as regards embezzlement
in a sum of Rs.50,000/- which had been sanctioned by
the Chief Executive Officer, Zilla Panchayath,
Davanagere for construction of kitchen in the premises
of the said school under the ‘Akshara Dasoha’ Scheme.
Embezzlement is constituted when the property
has been received by the accused for or in the name of
on the account of the master or employer of the accused
and is complete when the accused fraudulently
misappropriates that property. In this case, the amount
in a sum of Rs.50,000/- was released to the said
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Government Higher Primary School under ‘Akshara
Dasoha’ scheme for construction of kitchen. The
amount was withdrawn by the first accused being the
Government servant and the second accused being the
President, SDMC by way of seven cheques signed by
them jointly. But the allegation against these accused
is that they did not construct the kitchen within the
specified time and they have misappropriated the said
amount.
Therefore, it is relevant to refer to the evidence of
PW-1 being the employee of Davanagere Municipal
Corporation wherein he has stated that on 10.05.2006,
on the direction of his superior officer, he went to
Lokayuktha Police Station, Davanagere at about 11 a.m.
and he met the police officer wherein he has briefed that
there was a complaint about the headmaster of the said
Government Higher Primary School, Chiradoni and the
President of the SDMC regarding mis-appropriation of
Rs.50,000/- sanctioned for construction of kitchen
under the Mid Day Meals Scheme, wherein accused
No.1 was also brought to the police station and his
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specimen signature was got in Exhibits P1 to P6, and
that PW-1 had signed the sheets on which the specimen
signature of Accused No.1 was taken by the police
officer. In regard to that, the police officer has drawn
up a mahazar as per Exhibit P7 in which he subscribed
his signature. He has specifically stated in his evidence
that inside the premises of the said school, foundation
was dug and the same was found to be closed again
with earth and there was no new building construction
there. Accused No.2 was also brought to the police
station, wherein his specimen signatures were taken at
Exhibits P-8 to P-13. He has also signed those sheets.
He has further stated that on 11.05.2006, again
he went to the Lokayuktha Police Station, Davanagere
and DDPI, Davanagere had come along with a register
evidencing the issuance of cheque to Accused No.1.
Exhibit P-14 is the photocopy of the said register which
was brought by him.
In the cross-examination, he has specifically
stated that the Police Inspector, Lokayuktha Police
Station has not secured any person in that locality
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relating to enquire whether foundation was dug and soil
was removed and thereby filled up again.
He did not know specifically that the amount of
Rs.50,000/- was sanctioned for the purpose of
construction of kitchen under the ‘Akshara Dasoha’
Scheme in Chennagiri Higher Primary School by way of
presenting a cheque to the Headmaster of that school.
As the Headmaster having power to withdraw the
amount, but he did not know specifically whether any
guidelines or otherwise a direction was issued to him for
construction of kitchen in the premises of the school
within a stipulated period.
PW-2 being a Police Inspector, Lokayuktha Police
Station he was in charge of the post of Police Inspector,
Davanagere from 05.04.2006 to 20.09.2006. On
09.05.2006 he received information that Rs. 50,000/-
released for construction of kitchen under the Akshara
Dasoha Scheme in the premises of the school, was mis-
appropriated. After receipt of information, he visited the
office of the Block Education Officer at Channagiri and
verified the documents and found that Rs. 50,000/- was
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released to the said Channagiri School for construction
of kitchen. The said cheque was also encashed. On
visiting the premises of the said school, he found that
no new building was constructed. Therefore, he
apprehended accused No.1 on 10.05.2006. He
apprehended accused no.2 during the course of
investigation and brought them to the Lokayuktha P.S.,
Davanagere and obtained their signatures by drawing
up a mahazar. Therefore, suo-moto he had registered a
complaint by recording an FIR. The complaint has been
marked as Ex.P.21 which bears his signature. Ex.P.22
is the FIR recorded by him. Ex.P.7 is the spot mahazar
which was drawn by him in the presence of panch
witnesses which bears his signature.
In the cross-examination, PW-2 has specifically
stated that the concerned BEO of Davanagere district in
Channagiri Taluk has not taken any action relating to
mis-appropriation of the amount, but he has submitted
a report as per the guidelines issued for construction of
kitchen. He did not make any enquiry even though
aware of which date guidelines has been issued to
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accused no.1 for construction of kitchen in the premises
of the said school. He did not make any enquiry about
how much rupees has been utilized for digging the
foundation for construction of the kitchen. He has
averred that he did not remember whether the school
was running when he visited the scene of crime situated
in the premises of the Government Higher Primary
School, Channagiri. He did not verify any room in the
premises of the school for having placed the building
materials.
PW.3 said to be the CEO, Zilla Panchayath has
stated in his evidence that the cheque has been issued
dated 03.11.2005. The same has been credited into the
Bank Account maintained. The same stands in the
name of the Head Master and the President of SDMC.
On 04.05.2006 there was a news item in the ‘Prajavani’
Daily Newspaper about mis-appropriation of the amount
released for construction of kitchen in Chiradoni
School. The same was informed to DDPI telephonically.
In the cross-examination he has specifically stated that
he could not remember on which date the first accused
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was kept under suspension. He did not know the
compliant came to be registered against accused by the
Lokayuktha Police. As per the government order the
kitchen has to be constructed within a period of four
months. The copy of the government order has not
been furnished to the Lokayuktha Police. But there
were conditions relating to release of the amount as
granted to that purpose for construction of kitchen. The
guidelines relating to the conditions has been forwarded
to the Head Master. Subsequent to granting the
amount in a sum of Rs. 50,000/- he did not visit the
Chiradoni School and he did not know whether any
officers had visited the said school.
P.W.4, has deposed that he was working as an
Assistant Director of Akshara Dasoha Scheme in
Channagiri Taluk. Chiradoni Govt. Higher Primary
School was also selected for construction of kitchen and
Rs. 50,000/- cheque was given to the said school. The
same has been received by accused no.1 being the Head
Master. The construction of the kitchen was to be
completed within four months. Accused no.1 had
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encashed the cheque for Rs. 50,000/- through DCC
Bank, Basavapatna. Accused no.2 had withdrawn the
amount through the cheque. As per the guidelines,
construction was to be completed within a period of four
months. In the cross-examination he has stated that
there is no necessity for seeking permission to withdraw
the amount for all the stages by the accused. He did
not visit Chiradoni School along with the Lokayuktha
Police. He did not visit the said school prior to enquiry
made by the Lokayuktha Police. As per the guidelines
issued, the concerned officers visited the said school
situated in Chiradoni.
P.W.5 has stated in his evidence that he was
working as a Block Education Officer of Chanangiri
Taluk and the amount of Rs. 50,000/- was released to
Chiradoni Government Higher Primary school under the
Akshara Dasoha Scheme for construction of kitchen.
When he visited the said school, the kitchen was not
constructed which he specifically noticed. But
foundation pit was dug in the area 10 X 10 feet. When
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he visited the said school accused no.2 was not
available, he being the President of SDMC.
In the cross-examination he has stated that the
Block Education officer shall verify the quality
maintained to put up foundation. Every month, the
report was to be submitted to the Taluk Panchayath
Office, Channagiri. The DDPI had the power to keep
under suspension the Head Master if he conducted any
mis-conduct. To that effect there is a government order.
P.W.9 has stated in his evidence that he was
working as a Manager in DCC Bank, Basavapatna.
Chiradoni school was maintaining an account in their
Bank. Exhibits P-26 to P-32 are the cheques relating to
Chiradoni School. He furnished the account
maintained in that bank relating to the said school.
P.W.11 – Deputy Superintendent of Police,
Karnataka Lokayuktha has stated in his evidence that
since 20.09.2006 to 27.12.2007 he was discharging the
duties as a Police Inspector in Lokayuktha Police
Station, Davanagere. On 20.09.2006 he took over the
case file for further investigation from the Police
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Inspector Gurudatta. He has deposed that he had
recorded the statement of witnesses on 30.01.2007,
namely Ramakantha, S. Jannu, C.H. Gurupadappa, K.
Basavarajappa, G.R. Tippeshappa, H. Hanumanthappa
and B.R. Jagadish. He completed the entire
investigation and forwarded the entire report to ADGP
with a request letter seeking to accord prosecution
against accused no.1 government servant who was
working as a Head Master in the Chiradoni Government
Higher Primary School, Channagiri Taluk.
P.W.12 was the investigating officer who had laid
the charge sheet against the accused by securing
permission to prosecute against accused no.1 as per
Ex.P.60.
13. These witnesses have been examined for the
prosecution. Most of the witnesses are official witnesses
and they have been examined to establish the guilt of
the accused. In this case there is no dispute that
accused no.1 was working as a Head Master in the
Chiradoni Government Higher Primary School during
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the year 2005 and there is no dispute that the
Davanagere Zilla Panchayath had sanctioned a sum of
Rs. 50,000/- for construction of kitchen under the
Akshara Dasoha scheme for preparing food in the
premises of the said school and the same had been
entrusted with the Head Master who has been arrayed
as accused no.1 and accused no.2 being the President
of SDMC of the said school. The joint account of
accused nos. 1 and 2 was maintained in DCC Bank,
Basavapatna. The prosecution has alleged that the
amount was given to the accused persons on 3.11.2005.
Subsequently on a different date during the period from
20.12.2005 to 23.03.2006, the amount in a sum of Rs.
50,000/- was withdrawn by way of cheques. But the
Trial Court has made an observation that it would be
difficult for the prosecution to prove that accused nos.1
and 2 had actually used the amount withdrawn from
the account of SDMC for their personal use.
The evidence on record for the prosecution reveals
that the account was operated jointly by accused nos.1
and 2. The same was maintained in DCC Bank,
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Basavapatna branch. It is relevant to consider whether
the accused had utilized that amount in a sum of
Rs.50,000/- withdrawn from the bank account
maintained by the SDMC for their personal use. But
the case of the prosecution is that accused persons had
not constructed the kitchen till 10.05.2006 though they
had withdrawn the amount entrusted for the work.
P.W.5, the Block Education Officer, Chennagiri
Taluk in his evidence has stated that on 21.03.2006 he
visited the Chiradoni School and verified and found that
except digging foundation pit in the area of 10X10 feet,
no other work was undertaken. Naturally, the
construction requires to be done by securing materials
such as boulders, sand, cement, steel and other
materials for putting construction of the kitchen in the
premises of the school and so also by securing the
labourers. This aspect has not been whispered in the
evidence of the prosecution for having subjected to
examination several witnesses relating to the case as
has been registered by P.W.2 suo moto by visiting the
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scene of crime which news was revealed in the
newspaper. Therefore, the evidence of P.W.1 to P.W.5
ought to have been appreciated by the Trial Court in a
proper perspective relating to the charges framed
against accused nos.1 and 2.
Accused No.1 being the head master of the
Chiradoni Government Higher Primary School,
Channagiri Taluk had purchased the construction
materials but there was delay in construction of the
kitchen is false. The same has been observed by the
Trial Court in its impugned judgment.
The police had alleged that the accused persons
had spent around Rs. 1,200/- for digging the
foundation and they had misused the remaining
amount. But in paragraph 23 of the impugned
judgment, at this stage it is relevant to notice that the
kitchen in the premises of the school was constructed
within seven days after the case was registered suo-
moto by P.W.2 Police Inspector, Lokayuktha
Davanagere. He had visited the scene of crime after
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coming to know through the news item in the ‘Prajavani’
Daily News Paper. In fact the accused have produced a
photograph of the kitchen constructed in the premises
of the said school subsequent to the registration of the
case suo moto. The accused had withdrawn the
amount about 2-3 months prior to the registration of
the case against the accused. There is dereliction of
duty of accused no.1 being a government servant
working as head master in the Chiradoni Government
Higher Primary School, Channagiri Taluk alleging that
accused nos.1 and 2 had not spent the money for the
construction of the kitchen. Therefore, the entire
evidence on record requires to be re-appreciated along
with the documents that have been got marked as
Ex.P.1 to P.64. More importantly, the evidence of P.W.1
to P.W.5 coupled with the evidence of P.W.11 and
P.W.12 and so also the complaint at Ex.P.21 as well as
the allegation reflected in the FIR at Ex.P.22 and so also
the fulcrum of the mahazar at Ex.P.7 relating to the
charges levelled against the accused as well as the
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second accused being the President of the SDMC
Chiradoni, Channagiri Taluk.
14. Learned counsel for the appellant had
produced a letter issued by the DDPI dated 27.05.2014,
regarding the disciplinary action initiated against the
government servant as per Circular No.
¸ÀA:¹.C¸ÀÄE09/¸ÉÃE« 95 ¢£ÁAPÀ:26/06/1996 as per the
guidelines. The letter states that if the accused were to
be acquitted, disciplinary authority has to revise his
order. This contention has also been taken by the
learned counsel for the appellant. The accused has
preferred this appeal challenging the judgment of
conviction and sentence held against him in Special
(Lokayuktha) Case no. 2/2008 by urging various
grounds as contended supra.
15. Whereas learned Special Public Prosecutor for
the Lokayuktha brought to the notice of this Court Rule
14 of the Karnataka Civil Services (CCA Rules) 1957
which reads as under:
: 40 :
14. Special procedure in certain cases.-
Notwithstanding anything contained in Rules 11 to
13]–
(i) where a penalty is imposed on a Government
servant on the ground of conduct which has led to his
conviction on a criminal charge; or
(ii) where the officer concerned has absconded,
or where the officer concerned does not take part in
the inquiry or where for any reasons to be recorded
in writing it is impracticable to communicate with
him, or where the Disciplinary Authority, for reasons
to be recorded in writing, is, satisfied that it is not
reasonably practicable to follow the procedure
prescribed in the said rules; or
(iii) where the Governor is satisfied that in the
interest of the security of the State it is not expedient
to follow such procedure, The Disciplinary Authority
may pass such orders thereon as it deems fit;
Provided that the Commission shall be
consulted before passing such an order in any case
for which such consultation is necessary.”
These rules have been brought to the attention of
this Court by the Special Public Prosecutor, Lokayuktha
where charges framed against accused no.1 was proved
by the prosecution by placing evidence. Therefore, it
does not arise to call for any interference of the
: 41 :
impugned judgment of conviction and sentence held
against him.
In support of rule 14 of the said rules he has
placed reliance on a judgment of this Court in the case
of D. Chandrashekar vs. State of Karnataka W.P.
No. 28473/2005 (S-KAT) dated 24.03.2016 rendered by
a Division Bench of this Court. He has mainly relied on
para no.10 of the said judgment where the criminal
Court after hearing the delinquent officer who may be
accused in the said matter, has delivered the judgment
in a manner known to law.
In para 13 it has observed that even if the
punishment was to be imposed on the basis of
conviction by the criminal Court, it was required for the
authority to apply its mind on the proportionality of
punishment and then to impose punishment. As per
the scheme of Article 311 of the Constitution of India,
three punishments are provided: one is dismissal,
another is removal and third is reduction in rank. The
submission is that the order of the disciplinary
authority does not show application of mind from that
: 42 :
angle. Therefore, the mandatory requirement is not
followed.
16. On considering this judgment keeping in view
the contention as taken by the learned counsel for the
appellant as well as the learned Special Public
Prosecutor for the Lokayuktha for re-appreciation of the
entire evidence on record, I find that the Trial Court has
misdirected as well as misread the evidence of P.W.1 to
P.W.5 coupled with the evidence of P.W.11 and P.W.12.
The totality of the evidence of these material witnesses
for the prosecution shows that there is camouflage and
the evidence required to have been appreciated by the
Trial Court in a proper manner to hold conviction
against accused nos.1 and 2, which has not been done.
The prosecution has not placed cogent, consistent and
acceptable evidence to prove the guilt of the accused
beyond all reasonable doubt relating to the allegation of
misappropriation of the amount in a sum of
Rs.50,000/- by accused Nos.1 and 2. But the Trial
Court has made an observation it is a fact that the
accused persons had temporarily misappropriated the
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amount by withdrawing the amount from December
2005 onwards and had not spent that amount for
construction of the kitchen in the premises of the said
school under the Akshara Dasoha Scheme. In order to
prove the guilt of the accused in criminal justice system,
prosecution is required to place consistent evidence.
But in the present case though the prosecution had
examined several witnesses, such as official witnesses
by securing them and also recording their statements
during the course of investigation but there is no
acceptable evidence placed by the prosecution.
The Apex Court in the case of R. Venkatkrishnan
vs. Central Bureau of Investigation (2009) 11 SCC
737, while referring to Section 405 IPC has held that,
an act of breach of trust simpliciter involves civil wrong
of which the person wronged may seek his redress for
damages in a civil court but a breach of trust with mens
rea gives rise to a criminal prosecution as well. Breach
of trust simpliciter is not an offence as it is not
associated with an intention which is dishonest. The
: 44 :
term ‘dishonestly’ defined in Section 24 IPC means
doing anything with the intention of causing wrongful
gain to one person or wrongful loss to another. So, the
offence is completed when misappropriation of the
property has been made dishonestly. Even temporary
misappropriation falls within the ambit of the said
offence.
The above decision of the Apex Court, squarely
applies to the facts of this case.
17. In the instant case, it is seen that after PW-2
the Police Inspector, Lokayuktha P.S., Davanagere
recorded an FIR, within a period of seven days, the
kitchen was constructed in the school premises by
utilizing the amount of Rs.50,000/- sanctioned by the
CEO, Davanagere Zilla Panchayath towards the Akshara
Dasoha Scheme. The same has been observed at
paragraph no.23 of the impugned judgment which is
under challenge in this appeal.
Therefore, it is seen that there are various
discrepancies as contended by the learned counsel for
the appellant. Hence, the judgment of conviction and
: 45 :
sentence held by the Trial Court requires to be set
aside, as there is perversity committed by the Trial
Court in convicting the accused.
18. Consequently the appeal is allowed. The point
framed by this court is hereby answered in the negative.
The impugned order dated 25.06.2013 passed by the
Principal District Sessions Judge Special Judge
(Lokayukta), Davanagere in Spl.(Lok) Case No.2/2008 is
hereby set aside. Accused Nos.1 and 2 are acquitted of
the charges levelled against them. The bail bonds shall
stand cancelled.
An application has been filed by the appellant /
Accused No.1 under Section 391 Cr.P.C. seeking
permission to produce some documents as additional
evidence. In consequence upon disposal of this appeal,
this application also stands disposed of.
Sd/-
JUDGE
KS
