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H K Shivappa vs State By Lokayuktha Police on 11 April, 2018

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
: 28 :

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
: 30 :

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
: 31 :

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
: 32 :

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
: 33 :

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
: 34 :

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
: 35 :

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,
: 36 :

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
: 37 :

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
: 38 :

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
: 39 :

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
: 43 :

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

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