R Chandramohan Rao Pawar vs State Reptd By Inspector Of Police on 3 September, 2010

[Cites 10, Cited by 1]

Karnataka High Court

R Chandramohan Rao Pawar vs State Reptd By Inspector Of Police on 3 September, 2010

Bench: N.Ananda

2%

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED TRIS THE OBRD DAY OF SEPTEMBER 2010 
BEFORE I I

THE HONBLE MR. JUSTICE N ANA:\1_I;2A';"'---.:.  I

CRIMINAL APPEAL NO.9;I4 EOE? :.?OQ3j ~
C/W.     _  
CRIMINAL APPEAL NQ_I925"QF* 2oO3i .  

BETWEEN:

R CHAAIDRAIAOHAN RAO PAWAR I 

S/O RAMA RAO EAWAR  

FGRMERLY JUNIOR CLERK _A "     
OFFICE OF THE SENIOR AEROOROI/:;I::HVO'FE1CE_R V 
CIVIL AVIATION DEPARTMEN? ' 'I «  

BANGALORE     
RESIDIRO AT No.21/C).'%;u'I3iI"2s_LOCA  .  
RAJAJINAGAR, RAN<::ALORE."'~v'*-'..'    '2...ARPEI_LANT
   ' '   I {COMMON IN BOTH
 ~~~~ __      CASES)

(BY SRI},_K A C:~1A'N'L:RASs+EKARA.,__AOQOCATEI

AND:

STATE RE RRESE:\:TEO"' 
BY_.INSPEC.?-QR OF POLICE' A I
C.ENT~R.A; BU REAR, OE A1N\!EE3T1<3;3ﬂ'ION

BANGALORE. ...RESPONDENT

(COMMON IN BOTH THE CASES) (RTSVRI: C H JIADVI-IAV, ADVOCATE) 'CRIMIi\EAL-- APPEAL NO824/2003 IS FILED UNDER SECTION 374(2) OF C "COD.i§'v»OF'CR§§'4INAL PROCEDURE AGAINST FHE RJDGMENT DATED 26.4.2003 "=F'A"SSED"B.Y THE XXI ADDL. QC. AND S]. ANS SPL. EUDGE FOR CBI CASES, 8 'I.._BA.l\£€§ALORE IN Sf3LICC.NO.§.§.7/1989, CONVICTING THE APEEELLANT/ACCUSED THEEOFEEMIES PUNISHABLE UNDER SECTION 409 OF INDIAN PENAL CODE R) AND SECTION 5(2) READ WITH SECTION §m{c} DE RREYENTION OF CORRUPTION ACT, IRA}: AND SENTENCIND HIM TO DNDFRDO RI EOR ONE YEAR AND TD PAY A F:NE OF RS. 10,GO{},!-- AND IN DEFAULT DF PAYTAENT OF FINE, TO UNDERDO FURTHER RI. FOR A PERIOD DE THREE NONTHSFFOR THE DEFENCE UNDER SECTION 409 OF INDIAN PENAL CODE AND SEN'r'E.N_'C--ED.,TO UNDER:-3O R.I. FOR ONE YEAR AND TD PAY A RINE DF RS. 1C%.;«€}.G§},=".: AND"I..N DEFAULT OF PAYMENT OF FINE AMOUNT, TO UNDERCSO FURTjHER'T.R';--«I., FOR, THREE HONTNS FOR THE OFFENCE UNDER SECTION 5(2) REEx1XtZ3.WETF"H..S'ECTIQ§\i ' S(:)(<:) OF THE PREVENTION OF CORRUPTION ACT, _.;Y:3--A.7__jf, 'DDTH T_HE.. PRINCIPIXL SENTENCES TO RUN CO?\£'CURRENTLY,..» - CRININAL APPEAL r\3{).92.'3;'20€}3 IS FILED-.DNjD'ERF SEC_T1'{'>_N 3:%lN2§Tv.DE CODE DE CRIMINAL RRDCEDURE AEAINST THE IUDCINENT D;ATEAD'~2E;:4.'2.o03, PASSED RY THE ><><I ADDL. CC. AND S63: AND SPL,_ 3'ifDGEE"FORv.CE>I CASES, > BANGALORE IN SPL.CC.NO.116_,f1989, CON-UICTING THE ;s.RPE.LLANT'_,kACCUSED' FOR THE OEFENCES PDNISHADLE UNDER SECTTON 409 OFINDIAN RENAL CODE AND SECTION 5(2) READ WITH SECTION "vS(};}_{C} OF»P_REvENTIDN OF CORRURTION ACT, 19437 AND SENT~EV_NCIN<; H'I?4'TO"E,_JNDERGO R.I. EOR ONE YEAR AND TO PAY A FINE OF RSI ;1,0,"300;f-- AND "I--NVDEFADLT OF PAYMENT OF FINE, TO UNDERGO FURTHER RT, FORA RE_RIO.D OFTHREE MONTHS FOR THE OFFENCE UNDER SECTION A09 OF INDIAN .PENALr'COD.E AND SENTENCED TO DNDERGO R.I. FOR ONE YEAR AND"*':*O.PAY'-A"»FfINE'_OLF RS. 10,000+ AND IN DEFAULT OF PAYMENT C§~',Fh"\JE AMOUNT', 'TO"vbjN§3ER€3O FURTHER R.I. FOR THREE MONTHS FOR THE OFFENCE 'UNDER SECTION 'R2; READ WITH SECTION S(1){C) OE THE PR_E'\;'E":"J.TI©I>.!;--_ OF4.__--C_OR_RD'~PTIONH ACT, 1947. DOTH THE PRINCIRAL SENTENCES TO RUN 'CONCUjRIRE'NTEY§'»3 ' THESE CRINIINAL7TA'R_PEA.LS*«.CC:.IAIN.C5_' ON FOR HEARING BEFORE THE COURT THIS DAY, THE C'OURT"MADE TEiE"FQ£.LOWING:. g;t2._D.Lé-..mmARM E N T '=€L.r'i:T:iirIé! i.af}[}G§?I! E\.JOV.A92'isf2OO3 is filed Rgamsi me judgmsént and conx,?iY:s;'_is':~;: "TAAY:§I f".*A,::fSpI.CC.NoL1:E/1989 and Cmnmai appeal :T 'IXi.D.,:924/I5:O.{j'3 _isfIied against the jLJdgrDe:'R: made in _ §{_)_!,CC_.NO,§.1?/3:989 DD the file Of XXI Addl. Ciiy Civil argd SeSSiOnS E 5}L'riA RIDE. 1- 'I '€51 d--ii"sp.o»s'a'§« by this Comrnon judgment.

2. The appellant in both the cases is common. He was arrayed as an accusedin SQLCC No 116/398$ and sptcc;ao.117;:9a9 "The learned trial Judge found accused guifty of ah offertce_'pLiV§ii:§ha'biVe under Section 469 of IPC and also for an offence unde':f._:Sei:*t.io'i;Rsgé}7 r,/w. Section S{3}(<:} of the Prevenition of"{forru_o'_t:i"on (tor 9 shod'UM2Ac€) V 'exit' "pd-.ai""

3. In both the cases, accosediiiwas» charge.d"'w"i:hziafoirestatedi offences as he had misappro";;.ijiatedV.'tithe:4fioense fee°o'aid by the Cootractor to whom the ficense 'during the period 1.10.1982 and 30.9.19-?3.¢S'_~to iookga:tter..Vt'hi§...ca'r"parking area of Civif Aerod rome.

4. SincetvvbothAthegca_se's identical facts and the evidence adduced is sirhi.l_ar tried in two cases as the misa§9§r0@ria'tivon tin ithevvfirst case related to the months of ar;1d v'i"{3iecEeé'i:r.";b§eAij«_ 198A3'i'ii;é;'aa the rnisappropriation afieged in the se<:or§d.. toﬁthe months of June 3984 aod July 1984, two iv_"sepai*ate trials w.e_i*'e.-- held. Therefore, in order to avoid repetition of '«.taets"and ovér~_lappiog of facts, these two appeals are takeo up for / §/V <::§ir--"~- 5% 'N5';-we S. In brief, the case af prosecution is as follows:

During the years 198265, tine accusecl was working as Junior Assistant in the office of Senior Aerodrome Officer, Civil ,A'v.iation Department, Bangaiere Airport, At this juncture, it is relevantVV"to,"at'a.te that regional office of Civil Aviatipn Department is sittiate The revenue from the estate of Bangaiore.:A'i'rp---ort ='{vas,§"e:iri_;;xsie,etto the regional office at Madras.

As a Junior Assistant in the 0ff'i'ce"of the~Se'ri-for 'Aerodrome Officer, Civii Aviation Depas"tm.e:'r:t,,A_ 8a_«n§a_ioa~re ai's'por't, the outy of the accused was to receive the revenue'froth'allffe.;,é'r§At:'V~slo_i.,irces like Eicense fee, rental charges, §?:ntAty"_'.feeIA_an,d after getting the counter signattirle ""O,lf: Se1iffzlit:r_"'Aerods".enie Offices", Civii Aviation Department, Bva-ncia.loVre- accused after preparing the receipts in the afor.es'ai.ci"V-.rna.n:i'e}~ was expected to prepare cash rece'i;3tVs in._':p}r.intefc§ .,CPWA'#i1vI-------receipt forms and also i"ﬂ3§(€ necessary ei1lZl'l'€;'$'li?}V""L?~i.'<':E ~§eve':*.,.tie--._cash book, The accused was expected to :7Vprepa:*e *t,he.i'abs't--Ea--ct',1= of revenue receipts and forwarti cash to ecoiicei-necl oufficiaiés 'fer obtaining Demand Qrafts In favour of Regieaeﬁ C.o&r2t:'pi.lVeii uf4_Aerodi"o:ne Office, Madras, tat? \._..s:'-"I--«~ mi hi Quring the period between Ev$}-"@1982 and 30.9.1983 license to coiiect parking charges from the car' owners in the car §3E3%"§<i'!,;§:.g';€3F'€:.'E3, Bangalore Airport was granted to PW3*i\i.Chai'idi'ashekar'a.&ah'_»{.ccidi=fr:'oifi in both the appeais). The duration of the iicense was V' license fee was Rs.24,934/» per month.

That on 25.64983, the accused coilected"«Licensesf'fee"fr'oir;, 333/adevaiahaiah (representative Chandrashekaraiah) in a sum Rs,2'éi';9?»:/;"€"r..._?heaccused did not issue receipt maintained in theioiffice.' theierthie-:r_ hand, he issued receipt on a white paper" VSi:}!KVV:CUC<Evl6/1989) and affixed the sea! of,the" not e_t>tairi the counter sigeature from the accused did not prepare CPW/>i«1II recevi'pt'f0rm.. did not make eetries in the revenue cash boo§<°a.nd miS-.appr'e'p'riated the said sum. Thatenv <"E."}«2KEvVg{'3i?3!' theeccused after i'eCEEiVi¥ig iicense fee ef' RsQ2V4,§34{"§ F§¥fx1é}~Jayadeveiah did net issue receipt maintained én the"'C=._fi'i~c_._i_--;§.iA the receipt on a white paper, (marked as in S'p.irC.C.'1-Ii'5/N89} He did not obtain the ceueter signature i'4'f£€5.iii..VVt'iieVsLSeni'e--i5 Aerodrome Officer. The accused did not prepare { §'xk_§» 5'-fféé. 'L M za<_3_er~..r PW3e C:PWA-III receipt form. The accused did not make entries in the revenue cash beak and misappropriated the said sum fer him;ée"if,. Even in the month of June 1984 and Juiy 198%..

after receiving iicense fee 0? Rs.2-4,934/~ fe;;ﬂeac:h_--'i1*:'<3e*:t.if;.t:*t3r;*i.,Pi5i$?i§¥' » Jayadevaiah instead of issuing receipts frem t'i":e.ibepiﬁsi.rh'aihtaineéi_'in the office, issued receipts preparedioh a white ;3a;:e"r,.,jv{nj;ar_i¥:edi Ex.P3 and Ex.P4 in Spi.C.C.117f198§5"e'ff'r:<iVhg 'his._Vv:si:c_inatfi3re on the office sea: and gave them diiti hot prepare CPWAJH receipt forms' The entries in the revenue cash book of Rs.24934/- on 25.6.1984 and a After the expiry of the iicense"perioti,.v_vth'e:'fV"CohCe.fr1edAxefiieiais in the regionai office, Madras, issueclintiﬁtiice 'VF:.'V.V\'i._i:;'..',5'~'€ti'_:1AV:";-za,§i2=ashei<araiah (contractor) that he had not paid the iiitzense. feehf.:_>i*tiie period of said 4 months. He had pa-i-':i~ iiCen:;;::e3'«:.fe;,e,AV'fe.r a pe'ria;i--.«a'f 32 months. Therefore, he was calieid, up<V33--'.~..A 'te.V"p-ay'v.iiCeh'se'-fee for the remaining four months. PW3--

:7"__Charidrashieiaara.iVah--'V."Qntz"e<:eipt of notice promptiy repiied that he had paid iéécense 'fee the ehtire period of 36 months. However, during the month 33383 and .C}e;:emé:2er 1983 and also fer the months of iune 1984 and ihstead of oﬁficiai receipts, provision-ai receipts had been if §'v,g::i".g'*s "'"*-""§i'3-";1ké?é§"{"=a = "mi issued. PW3~Chaiid:'ashe§<araiah has aiso sent the abstract of the accounts inamtairied for having paid the license fee for the ;:erriod of 36 months. The Divisional ixccotmtant from the Eiﬁepaztrrient at Madras came over to Aerodrome Office,fEsangal'ore,v' and verified the accounts and found that:'the"'i';cer:-.se.;fee"eaya't5le for 7 the months of June 1983, December:983A:};}ui-Jed ~.JtiVi'3:/u"1,i9V't3~<?iV had not been accounted for, CoLinte'r_Vs:i"i~ieps iiiaintaieeci iiinitiie iileceiot books did not show the receiptof suchvvVa'fno'L:..n.ts. ' T%'i'e.re..»vi;vas rowing enquiry to verify whether the're.mit'tt§i§i*ce made to some other accounts. Dui*ing:'enc;uirg/'it' the acctised was in--charge of cash . license fee on the aforestated dat_esg official receipts had issued Di'OVi;'Ei_l_Ol'!E:i' -' E><s.P2 and P3 (in Spl.CC i\§o.116,i'1989) 23"ni€lL:E:<s"F"3'~ :a;i$[;'i has-.._;i'a'.1.spicc No.11?/1989) and lie had iiiisap9zopri;at'ed. the s'an_i"e.V" the accused had not obtained the counter Si:.(¥«L§.~r_3v¢¥73'i':{:;Ei"~3:'V:fT'$n%'n::§héA"SeﬂlOi"HmAéFOC§fOFl§€ Officer. The accused had not preparedi._Q'?&'ii'u'v!§§f>rI§i fotm (biils for remittance)i The accused not rh'a__de _e:itrviie'siin the revenue cash book. The saici amouiit was in daily abstract. It appears there was ielucttance on the officials including the Senior Aerocérome Gfficer, H to inform the matter to the Police. The Police Inspector of /?\J . g .. cs 241/'<r?'<5 $5 CB1 on receipt of credibie information about the misappropriation of iicense fee for the aforestateé period registered a caseit'..a*gainst accused aria one Lakshmana Rao who was working as S'e.o_ior:'Cs!erk" in the same office. The investigating officer coilec't-edVjjnevcessa.r\,2--v'~_ dOCl}J"i'iei'"£tS and fciund that accused had is:stied";"ece;pt.s »«;3§eVr'E$<si'P2 and P3 (in Spl.CC 940,116/1989) and Ei><s.bF"--3V_xanci.'_--§4' No.1:i7/1989) on 15.6.1983, :.12.'1sss~,25;;s.19's4:ar{ti""30.?.19s4'D respectiveiy and niisappropri-ated Rsﬂ.98--,.T?3véi3/~. The investigating otficer {€CO§"d€3{é'H£ii€ witnesses anti collected necessary sanction from p\fV10"K.B.GE3{1€Sh:,. .,:.'i/\JG,i'vi(A§iTVE'(;'}' vfaisiviiitiie Deputy Director (cieneiaij of Department, New Deihi, submitted accused for the aforestateé offences, The _ s. it sp:.cc'" rii.V.i>ii:gVi'_'i"1'f13iV:i3ii/3.989, PW1wB.V.Ramanujam, PW2~ KiiiiiVen:i<atachbaiaAian';*~. P_W3«N ilhandrashekaraiah, PW-4sR.Jayadevaiaha, pw5--s"raih-iii.s'ai%_iv;i;ati§*"i<umar, i>w6-A.s.e.i<iimar, P\i'\z'7rQi?.Dir1gfa, V".;-éififiii-Rajaii"<.aniv;"'Pii?V§-A,?.Gopaiai<ristma, PW3i€J~i<.8.Ganesh were i"nsSpi.CC No.11?/3,98%, very same Witi'i€SSES were ii"fexariiiriedr-in*'Athe very orcéer. In SQLCC i'\io.116,f1989_, the tiociirnents g\'"'§' \'<«.,- \.... ,«§'V""'~'"-* '_ _ 'ttsem'eV but vchetnge in the period during which t produced by the prosecution were rnarkeé as E><s.P1 to P104. The documents produceci by accusee were marked as E><s.D1 tojbT;f. in Spl.CC No.33"?/E989, the Gocurnents produced by prosVeC_ut§fon.:'Were marked as E><s.P§ to P119. The documents produced by'.__exccjusett§"twe'_tet'V' marked as E><s.D1 to $2'

7. The learned Sessions JLJdgeVfram'e'd__ the foiloenng po:e\t'sﬂfo~r'u consideration 'en Spi.CC No.1}t6/1989.

1) Whether the sanction order'-.E><hP-104 is"a*-A~.raVtid sanction order for pmﬂsecutie;n;of'the «accused?

ii) Whether T s2i.!fOS<3:_CVtiti'OI'=:; thetthe accused has 1o:tfen.cej-Vtpunéshabfe unéer s .409: gr weinatmsngreads as aileged?

iii) further proves that the accusecét bei'ng""e' servant has committed the ouﬂ"e._nce..v" ofhi crirninal rnisconeuct under ._'f?S.E_E§uAV(1)_(c) "rm ttttt t.s.5(2; of the Prevention of A _V CorT<upp'o--n__Act, 1947, as aileged?

In'.S"pf.CcCA §§'J'§.jo§E'1vV7g/E989, the points fer consideration were the he ameunt was 3 .. , ; 4 ,».s 'V _.Tn:'s3..§f§>ro9rI.€§ted ftjia {cc .5, kg/wﬁ ? 10

8. As aiready stated, the learned triaé hinge has convicted the accused for offences punishabie under Section 409 of Int§i2;'i'é'----,Pei2a¥ Code and Section S(1)(c} punishabie under Section Prevention of Corruptiori Act, 1947. Therefore, the fo.§__ijow:ing"t' would arise for consideration.

i) Whether the prosecution V>1L.'ﬂ.._oit",t|i.en accused woricirig as }tii'i'i'or"Assistant in of Senior Aerodrome C'ivii«_VV:iA':viat:ion Department, ¥3ahg_aiorei,'W thethperiod between 1983wi'9aé- '"'re}fe:ivecisi.V:t_'~_som of Rs.24934/«yon from ".F5W?:P.J..a§?adevaiah totvards;"iici-1;U_Se fee aricf:is'soed.'fab_ijicated receipt as per 16/1989) with dishVoi'i'es_t"'ii*t1t@o_tion* priate the same?

ii) Whe_ther7.jth.e_VA3'pAroSe'Cti_tion_' had proved that the aticusecit \.i'J(V)Vr.i<.Vi:ri':~f_;1haﬁ:t3LJ:n.iOl" Assistant in the office o? uSenio.r "',:iérQdr§n'we Officer, Civil Aviation _;"D'epartm'en_t,"' Bengaiore, cftiring the oerioof ' be'tween 1«98"3'¥v1984 received 3 stirr: of on 1.12.1983 from P\/V4~Jay.at7ievaia§i :".----.gto\;te'rrjs'i;§icetise fee and issued fabricated receipt a;:,ﬁp};ai;-'V E><.P3 (in spicc tto.11ts/1989) with _ , 'dVivsi:;o:"iest intention to misappropriate the same?

"..ﬂiiAi}'*.._Whether the orosecution hao' oroveti that the it t " it " °'a<:cused workéizg es Junior Assistaiit in the office of Senior Aerocérome Officer', Civii {aviation g:

2':

;.:

if {X3 i ".9; 'i...\. W we 11 Department, Bangaiore, during the period between 1983-1984 received a sum o§--___ Rs.24934;'-- on 25.6.1984 from PW4--Jayadevaira_h-,»_i'~». towards iicense fee and issued fabricated as per Ex.P3 (in SpE.CC No.11?/19'S_::9)w;i:: dishonest intention to misappropriagte Whether the prosecution r3r.Qvedis,.ti<3a't- accused working as Junior Assiistant in th!-:.'o'ffi'ce':': of Senior Aerodrome '-v.,e4C)"'i'fi>cer,V' vCiv5-i._g ";{\\}'iavtVi'o'n it bepartrrient, 8angaiore,__ﬂ'during .the__ pei-iod between 1983««;._1_€§84 rece"rv_edvVi""«. a of Rs.24934f~ on 30.7.-1983;frorn_..:i§\;'ii}';i.a':|a_yadevaiah towards license regsangi fabricated receipt as pert: E>;i;s>};i rm tsamv gi~'\'i;>".'1':';'7,/1989) with dishonest"'i_nte'r:--ti.o:n":it'o.urhisapifiropiriate the same? .'.i'it'f"l€'£}]é'ijf 'pro-s»ecutiion"'has proved that the :'accusedV'a'forestated acts, being a pubiic se'rya'nt, co_rh:€1i--tted_:"cri'ri1inai breach of trust and _ therefore, ac-omsfnitted an offence punishabie under SectioVn___{iO9 of Indian Penai Code and that being a pubiic servant by misusing his ii;)o_'sition obtained pecuniary advantage in A a (}'fVRs.99,736/~ and thereby committed an o-fiferuce under Section 5(1)(<:) punishable under iiﬁeittion 5(2) of Prevention of Corruiation Act, it 1947? 5 " W4 =--... gfﬂ. is-«-gfégw 3;?

12 vi} Whether the prosecution has proved that it had obtained valid sanction to prosecute the accused? H vii} Whether the learned trial Eotége has goi'ooeiftys'_r=.. appreciated the evioence on record? 3

viii) Whether the impugned gudgments ca'li7 ll".

interference and to what order?

9. I have heare Sri.K.A.Chanclrashek5ei', *;'ea~:"ir2eoi.tcoiinseiiiorwfhe Y accused and Sri,C.H.3adhav, iearraed 'cVo'u..r}sel ao;3veerinlQ;.: 1- ' have been taken through evidence alruiev meing" recordeie by the learned trial 3udge. As aireao.g.i.V:t"s_tated;;_iEh'eV.\'wi'tnesses examined in both the cases are one and the T.hee'-iideiiciei 'given by them in both the cases is almost Eden-tidal. 3_The _do_cu:9her;'tary evidence is also aimost identical. "Fhe't§efence o§t'i~1.e accused is also identical.

10. Before epprecie*tio'ii'o»-fefizidence, it is necessary to consider whether the;prosecution.V_had obtained vaiid sanction to prosecute the actfoseei forwthe;"'at'or;es_tated offences. PW10»l<.8.Garaesh had accorded sanction:ii'i."_bothv'the At the relevant time, PW1O was woykieg l'v._aA%V"Deouiy"-Diz'eV§:tcr_{Seoeral) of Civil Aviation, New Deihi. He has '"i:;iei_oi:.se'eAA lZF1Ei£'v...l;l7E3 Director (Administration) of Civii Aviation

7..4'{}--epai"tit3eﬂ.t eorripeteni: to remove the accused from the service. He fr: it;

ﬁx} , '2, "E. 1» *a?'§:,'l;«",\§ 1?» has deoosecl that at the relevant time, the post held ox; him was above the rank of Director (Administration). :'~"rorn theT'°c.ross* exarnination of Pwzo, I find that competence to accord S-'fill§iUci¥"i'-:'{i:.£'lCl'i'if.l' has not been called into question. From the evidence':.__of the contents of sanction order marl<e:§""atu§>{..tPZfIi<§}V'V.i'iii'Sgo!.CC b M116/1989 and E><.P1;l{) in Sp|.CC l\lo.11bA:'§'/21:9_l8A.E';?, ElffinAo'~that"

on examination of inveetigation recorrjs_"'made"a\.{ai'laVb!'e t;'o'"h'ir'o; after"

being satisfied that there is pr,---inna far:-ie c"a*se"-against'vtheaccused to prosecute accused for the aforeéstateo' offe31ce;»:haVS "accorded sanction. E do not find any infii"mit\V,? in th-efsanctio_n'«or{ier§- Arjcordingly, I answer point E\lo.(vi) in the «a_*'i'irn%IiaV.ti_'>.Ie', _:

11. In thlelllgiﬂiilt of the accused for an offence onderE7Sectiori-- Penal Code and also for an offence under Frevention of Corruption Act, the ir1_;3'r'e:.:l_ient.§_j'§"iofE»".iiri'ii,ch aAAre'rs§.m«i'lar,, the prosecution has to grove that accLiaedr'Vi}iiasoAe~nt%iivstet£---.with the ooty of receiving revenue receipts in ' "i..nf;_i1e office ofSeniolrfelerodroine Officer, Sangalorer The accused in his _V:icapa.city ..oLiE:.:»lic servant cornmitted criminal breach of trust in .A"~4"_'~1S;~5;1§'3§,Hi..12.1983, 25.6.1984 and 307.1984. gr crvevaisleistiiolfthe license fee received by him from PW4--Jayactevaiah on E 9*»-E, e7"$'"'* "W '>»"~5".2u-A. 14

12. As regards nature of duty entrusted to the accused, we have both oral and documentary evidence. PWs.1 to 7 have deposed that the accused was working as Junior Assistant in the Ca.shi'-Diliaiision of the office of Senior Aerodrome Officer, Bangalore,;'_'"T'he'_'vaccu-vsed was receiving cash such as license fee, toll charges,-»..fenta--!~.:fee as Junior Assistant of Cash Division. The accused,'Airta4s,,>pteparin'g.__'offjci'aE ' receipts maintained in the officeend he'._i}v=as oistaiifiinglg couiiteti, signature of PW7. In the normal coiursie, the accused after issuing receipts (from the receipt»t3o.ok Hxoffice) was preparing CPWA--III receipt forms l't'hieirea~fter.l,jroa_kirig entries in the revenue cash receipt, accused1_was abstract of the cash receipt and ryirwaraiag loiotavillning the Demand Drafts in favour of Relief-ona.i VCoVnt.foil,e'r=«..VoF.,',n.er.odrome Office, Madras. The accused was uaIsol"expecte--dlto' ﬁiaintain the counter files of receipts w_iti':~ n_ece.g§f3;ar3,{._,leiztries in 'tnecounter files. in order to prove receipts were :tii..e accused, the prosecution has relied on Bfcggidencepliiolf 7'i>wai, PW5, PW6, PW7 and documentary .:l_i,e.v.i,4de_nce asvper Exs.P3 to P109. From the above oral and evidence, it is proved that the receipts were H and signed by the accused and countersigned pay the Senior 5; 'ya ._ 52;, set " s..AApVrosecu't%.c>r:~;' 15 Aerodrome OffEc:er--PW7. After the issuance of receipts, the accused was preparing CPWA--III receipt forms. The accused was aiso preparing the abstract of cash receipts. Accused was mai<ing_.__entries in the cash book and preparing the abstract of cash rece§ptsf'«--.he--fore obtaining Demand Drafts in favour of Regionaigi?:on:t'ro:i'--ier:"~----of.» Aerodrome Office, Madras. From the Ci'OSS.J-:eV)(f:3'i11E!1'r':'¥fi"{')f'i'1',.,P15\(4'," . 1 PW5, we and PW"7, I find that their evidiepncegirn:'respe'et"'of'n:at_urer_rof work entrusted to accused and naturevof worir perfoa*m'e..r;vb_y a_.-:c:use.dt* has not been disputed. The iearnedtéttcotunpsei 'f'or..V:the accused has contended that the job card ret-atirng d£$.tr§b.ution_of work of the staff in the office of Senior__Aerodrorne-.VGfficer"'hvas':».nVet been produced.

Though the job distributj§onV card n.ot.V:b'e.e'n---produced to prove the nature of-" wor'k"eVntr=us}t_ed'« from the nature of work performed byf'the-- that accused was receiving the cash and he ii'espVonsit>A'ie-fiforiaccounting the same by making necessary eratrises t.hAe"a1forfe$tated documents. Therefore, the first in<;rred.ient':so'i' the offence'vth"at"accused was entrusted with the property ancif-..Ah'e.e.Vh'ad_ 'vd4orn_ain"--Qver the property has been proved by the go, 17 K.N.\feriE<atacha|aiah; who was them working as Senior Aeiedrome Qffice: had issued a Fetter' to PW3 that he had not paid Iiczerzse fee for a period of 4 months. This letter was written on 27.6.1985_4vgi_Qi.n§~w.the details of payment of iicersse fee. PW3{bandrashek_;§_raia'Ei.'jcafu§s_ed_V repiy dated 15.17.1985 stating that hemhad .'pa'ivd:f..a'fsunw Rs.8,~<i7,7S8,46/w towards the iicense feeiafor Z"$€:3V:'rIfr_~<)et.hAs and he had aiso encfosed anne><ure.s'. -.__C!n §;%eVi"i'ficatioir,'h"vit._yvas_:';found"a. that on 15.6.1983, 1.12.1983. 2S.6.19v'v8°4._V'and 3Ci'.7.§§8?'iL, the accused had issued unofficial E'€C€ip'tt:3'\~..,,g1S .";§her.VE'i:'«._s.Pij«/;..Mand in Spi.CC No.13.6/1989 and as per Exsp3e;..a.te%pm s.'pi..c€.i":VN'e.117/1989. The accused had not pre'pa'red' Ci5.WAa}§f3i 'r'ece'--i.;jt._fo}«:ns in dupficate For receipt of sum Of€.RS..2'4'>,§V.3.é$,="# t'i1e"'afor'estated dates. The said amount iwas -not'"e;i.tee<ed"-.to~----_in' the revenue cash book. The accused had issued Exs.VP2"'a.nd S;:»I.CC N<;>.l15[§989 and E><s.P3 and P4 in_f3tjI.CC by affixing the seai of the Senior Ae'rodrd0me"Ofi'i'ee:*."Ciyii Aviation Departrneht, Bangalore. TF'iou"g*h been subjected to Eengthy crosswexammation. _$rI_fi'n':irnuch ofVitijenvcrosssexamination is directed towards the admitted .1 facts..fanAci'it%1ne admitted documents such as official receipts issued by 'A'~"'_the~..i.'.aec;zsed. The accused had made unsuccessful attempts ta /= /;= 2' ".-

i}'\__%_ V 5/32%» ,f...é;:ia' establish that Pvt/e«_ia\,/atlevaiah was remitting the amount on behalf of PW3~Charidrashel<araiah, therefore PW3 was not aware of the transactions. The accused had sought to establish tha.t"'---.PW4« Jayatievaiah, who was remitting license fee on behalf _of_'--i?i.?i:'3'~i.h'ati misappropriated the iicense fee for the aforestateﬂ"p.ei'iVoci'"

fabiicated Ex$.P2 and P3 in Spl.CC Ne.11e,f-1'9'89«and_ E>g;§§'PV;'3i'aiie«.iP4'i';.n Spl,CC No.11?/1989 to satisiy ﬁne" 1CalitF£3C«tO'iiA}"P'ilh:'éif Ciiandrashekaraiah, At this jiincturel, ~i.t:"is_Vrelei'/ant'toV PW3" V who was maintaining accounts ,.in regiiia-riA.coutse vvas'ih.AApo..ssession of the receipts marked as Exs.P2'"a'ncl"--:?3E--.it.; 510.115/1989 and E><s.P3 anti P4 in Spl.CCj"NQ.11i7]1'9'Ei9 Ttlefence of acctiseci that PW4 iiad fabricatediiireegfeipte_'n1_ark.etifat E};%g;".e2 arid P3 in Spl.CC i\io.116/1989 anci_ i:»{§;e3ii..;;ii-.ir;lTaif'-i--ri sei.cc No.117/1989 to deceive P\!ii'3--his mastericatrmot '_ 15.v§iift14v»§}'ayade'v'a-iahljes cieposecl that on 15.6.1983 on behalf of Pi/V3 had paid:a--.sum of R32-4,934/~ to the accused towards the T'g_license" issued receipt marked as EXKP2 {in SELCKSV v7Ti\io.116/1E§.89)."----i¢'t'h'e'n PVV4 insisted the accused to give officiai receipt, toici Pifwi that the receipt book had been exhatieted, he "':.SVs'iie: official receipt sometime Eater. Pwewjayadevaiah had 5', I '*~ xi--- ! 3.9 deposed that he had paid a sum of Rs.24,934/- to the accused on 1.12.1983 towards the license fee and he had issued anothehreceipt on white paper (marked as Ex.P3 in Sp|.C.C. No.116',{.11§8§}<;f~V:'i*he accused did not sign the receipt in the presence identified the receipt marked at Ex.P3 ahd"signature of;thea_ccu--aed.'a$ ii' per Ex.P3(a). PW4 has deposed that re'ceiptVA'rnari<ed"as«. Spi.C.C.11?/1989 was issued by the after' 'sum of Rs.24,934/- from PW4 towards license-*'ee:.j During the cross--examinati.o'n'tofu'Fiwgi;.d.h»e_'h.as reiterated the version given in exarrii.dat'i.on-i§n--chie.f. deinied the suggestion that the contents€~i"~.'s~'cg not in the handwriting of accused. signatures marked at Ex.P3(a) and of the accused. He has denied the suggesition"that--. he-._ha~dVmisappropriated the iicense fee. At thiS'~jvdnct._u:i;'e, is reileiiavrm-A50 state that prosecution has produced recei--ptei.v"ahd'vpiiisi-.:f0--r the period subsequent to 30.7.1984 tiii *theVA.i1'icense granted to PW3 expired. If PW4 had not _$=.pa'idiicense teem; the aforestated period, the accused, who was in- ; ofiiﬁuashii Section would have brought it to the notice of Senior dc."sgercidrioirnieﬂOfficer-PW7. In the abstract prepared hby the accused

1.. . -ugh,-_ ;§ 20 these amounts are not shown, The accused has not given reasons for not showing these amounts. Therefore, the defence of accused that Exs.P2 and P3 in sercc No.116/1989 and Ex$.P3 arad«V.,i€>.«_?-4§_A»vi'ri__'riE§;p:i"."CC No.11?/1989 were fabricated by PW4 and PW4 rhi.sa'ppropf_r'i.atedi' amount entrusted to him by PW3 cannot beitaccepdted. .y

16. At the reievant time PWS, was woriking as..".L¥ppe'r Diiiivsiiond Cierk in office of Senior Aerodrome"'t'ifficer at"'Bariga=ioAre'.'H has deposed that he was instructedpto froimvvthevijaccused in the month or Fei:)ruarY 1985a' twrmeriiarndétae the charge, the accused informed PVil.5 in respect of car parking license :a.cc.§:sed did not inform PWS about the issuance' anybody.

During has deposed that there was no specific Post, W t4'coE.1:¢¢Qtr.v"the- iicense fee in the office of Senior ._ATheV Jamar Assistant was entrusted with handling the ca_sh._:_ the.:o_;ities of the Junior Assistant was to receive the and issue receipts. PW5 has deposed that

-.i.i.i'_i'eve'h.ue cash _book was maintained by the cash handling cierk. PW5 ttep.oVse'd that he was not sure whether the Contents and initiais of V. viidere in the handwriting of the accused. At this juncture, it is I\,,?. «:'t;:.g.""t -«e. re».

21 relevant to state that PW5 took charge from the accused in the month of February 1985 after the accused was kept under susdension. Therefore, the evidence of PW5 regarding signature in Exs.P2 and P3 in SeE.CC i\Eo.M6/1989 and E><s.P3 and:

NO.117/1989 would not entire to the heneifitiiofatcusedi. 1?. At the reievant time PW6~AT.S.R.i<'umar_ was \f¢'or'i<'ing as"Peon, in the office of Senior Aerodrome at B'~ang~a!.ore§.rVP"W6 has deposed that he was a Peoni'"attach»ed' Section "of office of Senior Aerodrome Officer from customers used to pay the amount due to--t;he_Ci\.{ji either by way of Demand Drafts or§'cash..i that contents of Ex.P3 are in the hasiuaiiso identified the contents of EXP-4 and of Ex.P4 are in the handwriting of the accused. huring cri-)sA<,5.4'.e)V<'ea"iriiriation, PW6 has deposed that the contenits Aandiiihi----i--eok like handwriting of the accused. At thiaj,unctdi*e, ivreievant to state that evidence of PW6 that he was :"V'<._i?eon attachied Section of office of Senior Aerodrome Officer _rha$'n0t been centiroverted. He was familiar with the handwriting of ajccusiecl, Therefore evidence of PW6 that contents of Exs.P3 and are in the handwriting of the accused cannot be suspected. [ g ;j':§-"1 '<«._ cccc ..g-Tm» M:-';§¥..i,. 22' 18" At the reievant time, PW7»O.P.Dingra was working as the Seriior Aerodrome Officer. PW? has deposed about the prdtzedure relating to preparation of Cash receiets and entries in revenue cash book and the preparation of PW7 has identified the contents of receipts x'R3ub in SpE.CC No.116/1989 and E><s.P3 and PW"? has deposed that contentsVioiatthesevh vreceripfps the handwriting of accused and th€">"._be3??t'5'i'9;i5§l~tuE*e_ of 'aacc'used}. WV? has deposed that accused had not issuance of unofficial receigats marE{ed___as f\io.116,/'1989 and as E><s.P3 and} in i\%t§i;117/£389, During cross examination oVf'V¥5W?.,.1/'his wa's_Wd'ravvvn to admitted documents and he has adzmititedittzté 'cotntein_ts--.o't_the same. PW7';h"as.adn1'i»tted'1that he was arrayed as accused in CC the«i_._aiiegat'i'on of misappropriation of funds of Civii Aviatiioa tie has denied the suggestion that he has T'vriidentifiedthe §:ic_;naj'tuii"es of accused on E><s.P2 and P3 as he had been "".~tih'i*eateAned tayrfjiﬁi. Apart from the fact that PW? was arrayed as i»nr(:C $40.55,/'1988, E city not find any other materéat to discard 2% ' Vh 93 t'":3'_:'Vi '9" CE' - gag u 5, .. ..g.'3L {NJ U)

19. At the relevant time, PW8-Rajarnani was working as Aerodronie Officer in the Civil Aviation Department. He wasvin%<:<ha_i*ge of estate matters in respect of Madras region WhiCh.-:_:i'litfi'tiV%;§'G.(;f --'-t_hV'ei_ Airports in the State of Andhra ?radesh,_mTamil Keraia and Pondicherry. After the expimraof t-hefieéaise..a'greernentiiof WV3 on 39.94985, PW8 noticed tiiat.»i>ii{3 ii.=_i"c._nct Del{i"'t!ji€t§3cen';'3efee";

for the entire period of 35 months. triVi"l's.\,§;:e'r'e ovigtstanding. PW8 wrote a letter as per to replied by stating that he had paid the license period of 36 months and also Wi/8 came to Bangalore and that four provisional receipts had receipts) and they had not been issued the hooks maintained in the office) PW8 has, depuosewd"-thvat.tt:.ee_rnotint mentioned in EXSP2 and 93 in SQEJCC; taridiv-.i.n..--««Exs.P3 and ?4 in SoI.CC $40,117/1989 were not "er.iteretiiiogitlae revenue cash booic E>«:.P3--Lrnoffi<:ial receipt riot"::>e"alr Signature of Senior Aerodrome Officer, but it "leyi:as' initiaieo' the coricemed Cierk.

QU-F_li_l§ crosswexarriination, PW8 has deposed that he has: not iibtroiigljtﬁthe order issued by the Regional Sirector to investigate the ,5.

"§"'»c.i g'i:,.{jt.-i.,. g7?°i.t 24 matter. He cannot remember the date on which receipts E:-<s.P3 and P4 were shown to hind by PW3. Apart from this, nothing has been eiicited to disbelieve the evidence of PW8.

20. At the reievant time, PW9--A.P.Gopa%akr"is.hV_n.a"téirva-a_Tith_e_ Inspector of Police; CIBI. PW9 has given evidence':r.rei'ati'nAg investigation of the case. The defence has tried ito4"e.strab'iEsi'ithat: he had not given the name of first im'ortn*ia_nt. ﬁi;f'y'§)' was;C'ro::sfe><a:mE:ied"; about the nature of information i'eceive'd'ibny him the name of the inforirnanti At this juncture' if;_o'»,%st*a.te that ?t'V9 had suo motto registered case on the Therefore, PW9 was not iiable 't3iAsoiﬁioseI._t§1e ,%_n_toi'ihation or name of informant. Pvijéiiihiaisii heihaidvtvnot obtained the specimen signatures QF'».,aC:C;1--,|5VeC! of the same by the handwritingE_;<bei't:~PW9:has'-.adithVEtted that the ﬁrst information was reg"isteAred..':%a53'ga§_'oVst the ai;£:'uvsed'and one Csitakshmana Rao. PW9 has {7.i€2[3VC)'St"£'€t§v,'"(§tlfi"ﬂ.g'"fi'ii£§zV€.OLIFS€ of investigation, he did not: find any ."V"s»..Anf:»ateriai'against Lakshmana Rad, therefore? he did not fite _ti.:haiigVe sheet..aigainst him.

/~= in' W 6?" i-i:;..i 25

21. The evidence of PWIO relates to sanction accorded by him. In the discussion made supra, I have dealt with the com;:;ei::ehce of PWIO and vaiidity of sanction accorded by him.

22. The learned counsel for the accused has conteridedwithatr» investigation officer had not sent admitted 'sig-natures_.of'tfiexaccused ' and disputed signatures found on i\io.116/1989 and E><s.P3 and Pé=il._:'ia.V1%spi;c:(:iioi.:1'i§_7/*193:9 for comparison to handwriting Expert. iearned"'cioAuns§el for the accused wouid submit that alb-olive. said,Vj.La'i<s'iirna.na Rao, who was custodian of official seaiwas arrayeid in first information, he has not been e>;a.m.ine::iii'V:i;iefo':r=e the trialfe' The iearned counsel would also having misappropriated the amount and co'.1cocted' per E><:s.P2 and P3 in Sp!.CC No.116/1989. _Vand'las P4 in Sp|.CC i\iG.117/1989 has notlbeeri eo}rnQletev!.y e|irni'n'a'ted by the prosecution. The evidence of PW7#vQ.PrDT.i"i:graoptioespnot inspire confidence. PW7 was the Senior j"Aerodroriie'Offic;e'r;f'i__ iiie was expected to verify the revenue receipts _jt'_ie\{_ery._n1onth forward the abstract to the regional office at Madras. H that not orziy PWs.3 and 4, but also other officiai witnesses have V"i2A?i.,__§r_i,C.H.}adhav, learned counsel appearing for (IE1 wouid If 26 identified the signatures and handwriting of accused. The evidence of these witnesses who were conservant with signature and handwriting of the accused does not suffer from any discrepancy. There isjnothing on record to indicate that these witnesses had obiique mrotive.__'acj'airi~st the accused. The prosecution has proved misappropriat.ionfofiiicense ' fee on the aforestated dates by the accu'sed."En_ the»:

faiiure of investigation officer to send Vadmitted:'sVionatur_--eAand signature of accused to handwriting e;:;§eq: is notf'ata_i'_:to":the' case of the prosecution. The prosecution has";3ia'Lced"-overvvhe'irnEric; evidence in proof of duties entrusted tofféftiifé.gzcsufsed;.treceiptyof license fee by accused from PW4; faiiure of.the" the same in the revenue cash booi:§.--a§'nc| fjotwyyythef iioenywsewifee received by him. Therefore, for;_absenAce"Vo'f~-_o'pin'ioni'ef the handwriting Expert which in the nature of wouid: of corroborative evidence and would not to bene.f_it'of accused.

"~..AIr3i.Vt'i'i--ey made supra, I have referred not oniy to :7V.._evidence'.o'f7PWs*.3j_ 4, but aiso to evidence of other officiai devitnesses, auédzoéied to prove that receipts E><.P2 to EXP4 are written and the aoifused. The above witnesses have identified the sighaturee u"~.:".«.and4'_"h.a'nd_vv'ri'Ling found on E><s.F'2 and P3 in SDLCC No.1}%§/1989 and on g\;_ ("*i":':._ «t. .....g--«.. i.__».i\}

ix) '\J E)-:s.P3 and P4 in Spl.CC 960.117/1989. Therefore, for failure of prosecution to obtain ooinion of iiariciwriting Expert on adrnitt-ed and disputed signatures of accusedgbenefit of doubt cannot be accused.

24. The Investing officer has admitted that at*t_i1e'Ar"e_i:e'van}t'tirhc:, Lakshrnana Rao was working as Upper _li)ivisifo.nlfC..|erl< in.the"said'i*ioffice;..L The said Laksiimana Rao was arra'y.ed. as a'cc_u'sed in the first information report, he was ri'o*t_'exa'i*nin'e.d4 iljézfore the Court. The accused has contended that 'iivas custodian of official seal used for:ai"fi:>i:i'n.g There is nothing on record to was the exclusive custodian of 'iiot"'avai|ab|e to accused. From perusal of in Sol,CC i\io.116/1989 and Exs.F'3 and 94 inxxsipi.cci\i.o}'i.,_i?,r--i989, I riiici that Ex.P2 bears seal of i5\:.'i..ii'&;3~*:._§€'3Aii _Aviati"on.. ____ Departinent, Bangalore. E><.P3 bears gene.ral,.sé:a.lj 'vr§o~~i.»¢n§'m_ent of India, Civil Aviation Department'. The IV_Investig'ati"ng C)ffiVcer;uI=va;3art from registeririg first information repiort Vitagainst said "igakhslimana Rao, ciid riot find inateriai against said ; «t,aks.i'im"ai1fa'_. Rao. Above all said Lakshmana Rad was not entrusted tiLity of receiving cash such as license f€'€3f_E3l"id toll charges if 5 f cw _ rs». K1. -:"§-R, 3 28 Therefore, investigating officer did not proceed against him. The prosecution has not examined said Lakshsiaana Rao, however, the accused has not established the purpose for which he Sh{)VL5'l'Cl.> have been examined. '

25. On overall appreciation of evidence,...I..,.ufiinVd'ftiaet the pi'{)S€'CL§tiOn has proved that on 15.6.1983 a.cc'L4iAse.d'-be_Liino__in» charge of Cash Section of the office ef the 'Senior Aere--d.rd'rr§e €3ff'i<:er',g received a sum of Rs.24,93-4% §roni'V"i's»!?:W4 tow'ard'Sr--t-heffivilicense fee payable by PW3 and issued"~~..L;nof'fi'c'i'a'lr-ifrece-i.pt (E'>{'.'P2'V in Sp|.CC E\lo.116/1989) under the sealﬂof 'S'enior_.-.:_A'eArodrome Gfflcer. On 1.12.1983 the accuse.d*h.ei'_ng Section of the office of the Senior sum of Rs.24,934/-- from PW4 towardslvvthe by PW3 and issued unofficial receipt (E><V.P_v3 lilelflﬁié/1989) erider the seal of Senior f§n"2.S....6.:98~<% the accused being inwcharge of Casi; Seefienp o_fV'th'_eoff--i_ce of the Senior Aerodrome Officer, received a :7"u,_sLim of"R.s';i24,v9f3--?ig':ftfreih PW4 towards license fee payable by PW3 hand'isstiedéuunofficial receipt (E><.P3 in Spl,CC l'\lo.}17"'f1989) under the 4: iséa:'];o.r"sen.ioi"Aerodrome Officer. On 30.11984, accused being in- Cash Section of the office of Senior {--'ierodrome Officer, 29 received a sum of Rs.2»»'i«,934f-- from PW4 towards process fee payable by PW3 and issued unofficiai receipt (E><.P4 in Spl.CC No.11?/£1989) under the seal of Senior Aerodrome Qfficer. The accused"..d'i--d."vvnot prepare CPWA-EII receipt forms. The accused 4_ amount to the cash book by making necessary' enttrtieslf ai'_iho'u.ntV ' s. was also not included in abstract. The ac:cused*~ failed_Ato"VaccoiJnfi}ifi1?r the same and misappropriated the said"'a_n2ou'n't, .

26. The learned triai Judge on."lp'ro'per Va'ppreciatViVon"of evidence has held that accused is guilty 'of.'offe'nces under Section 409 of Indian_Penai_,Code_and also:guVilt»§i_j_e~oVf'offence under Section 5(1)(c) of .1947, punishable under Section 5(2) of'i5re've.iivit_ion::f:ijf Clo~;:;:uption'V'A'ct, 1947.

27. Theitiearned'-coun::e'l"--dfoir accused has contended that ingredientsiofoffence's..punishable under Section 409 of Indian Pena! Co'd_e"Van.dAV'Sect'io'n1 :"S{.3:)(c) of Prevention of Corruption Act are similar. The have been tried and counted for both the 'offences.

'AuV'4':'s.28.iS4ri.CV§'H.Jadhav, learned counsel appearing for CB1, relied on reported in AIR 1995 SC 1437 in case of MADHUSUDAN Br ' E R} 4 <L1';'.J$"~ "N --5» "V"'-51$; aw 30 SINGH 8: ANR \/KS. STATE OF BIHAR wherein the accused was tried for offence eunishabie under Section 409 of Indian Penai Cetie and eiso for offence under Section 5{1)(c) read with Section.._'5_'{.§:3'_.}i-ofiéhe Prevention of Corruption Act. In the said judgrnent, H"("J!.fl:'b'3§§'StJ;;iJ'E'{ﬁ_eV' Court has heici that as the erose<.:ution jtiaiiiied'«to-,9i'ov.e:"»tr_;ev'o'i'fen'ce 7 punishabie uneer Section 409 of Inciian Pena)'-.§iode,.'eccusede.ee~nvn'et be convicted for an offence punishebie."'~;.;nt§ei'" S.ect--i..on_; the Prevention of Coiwiﬁtion Act conV>,'i'ctio:h 'f0r_.offence*-veneer' Section 5(1)(c) of the Prevention of sustained. In the circumstances it can:io__t beheid are conceetuaiiy inciosive.

'{herefoa*e;'"i;h.e'tie nogvqbar' Af'oVi""'ti1e prosecution to try the accused for theAafo_re'state.d=.ofife_nit:es

29. "the ieeruned' cotznsiei 'tor the accused submitted that the arettuised is'i-a':'ph3i"3iceiiv aiséiaiiiéa eerson and he had suffered iI'Eil.iF'ﬂE3 of triai'fi:ornv.t'he:§feer' to 2003 and trauma of conviction from the 20'()3_'htiii The accused had iost his service. He has ..i_iodeneh.dants t'o_c°;:2re for. Therefore, the sentence passed by the trial 5 é reduced, 51; , £:)£#\,._;_ 'L I 31

30. Fhe accused has been sentenced to undergo imprisonment for one year for an offence punishable under Section 409 of Indian» Penal Code and also sentenced to undergo imprisonrnent for a .period4c:'ofWone year for an offence under Section S(1)(c) read with "o'r7.V_the'»4_ Prevention of Corruption Act. The accusedfss a.4white;c'o§'§a.ljed' d'fffen'der'i. ' and he had misappropriated nearly a lakh of:':.rui.:?ees'lVwai;. baek in ::ti':gV'l§:igar 1984. The accused was Conscious of'the.vconsec:uenCes',_0f».his,.acf:st The accused has committed n"iisappropriatio_n_l:id-airing. dil*Fei'ent" periods leaving sufficient intervals probably underfa_n 'impprielss-i.on'that acts committed by him would go unnoticed,_ TherefO.Fé,»_1 reason to reduce the sentence. circumstances of the case, I am of the of imprisonment imposed in both the caseshas'toirun:iégoiﬁciirrentlyi'asprovided under Section 427 of Code of Criminal appeals are accepted in part. The conviction of accused in bo'f:the impugned judgments is confirmed. ']v'v}_~'.e,ﬁ'.f>ei1t€f'ii{;:Z.e'V:'i§'A>' mvodii'§e'CL.V___Itpcis ordered that sentence of imprisonment irnposiedi-.iriV spi«..ci..c'."ilQ.115/1989 and Spl.C.C.i\lol117'/1989 shall run concdrrent.l_y« as under section 427 Cr.P.C.

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Karnataka High Court