Karnataka High Court
Kadappa S/O Jakkappa Kamble vs The State Of Karnataka on 24 January, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL No.200041/2015
BETWEEN:
KADAPPA S/O JAKKAPPA KAMBLE
AGE: 63 YEARS, OCC: RETIRED TALUKA
SOCIAL WELFARE OFFICER,
R/O SHAIKH COLONY, VIJAYAPUR
... APPELLANT
(BY SRI R.S.LAGALI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY THE P.I.,
VIJAYAPUR LOKAYUKTA P.S.,
... RESPONDENT
(BY SRI SUBHASH MALLAPUR, SPL. PP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION DATED 25.03.2015 PASSED BY THE PRINCIPAL
SESSIONS JUDGE/SPECIAL JUDGE, VIJAYPUR, IN SPECIAL CASE
(LOK) NO.6/2010 AND ACQUIT THE APPELLANT.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
Heard Sri R.S.Lagali, learned counsel for the appellant and Sri Subhash Mallapur, learned Special Public Prosecutor for the respondent-Lokayukta.
2. The present appeal is directed against the judgment of conviction and order of sentence passed in Special Case (LOK) No.6/2010 dated 25.03.2015 on the file of Principal Sessions Judge/Special Judge, Vijayapur.
3. Facts in brief for disposal of the present appeal are as under:
Complaint came to be lodged with Lokayukta Police, Vijayapur, by the complainant Sri Ramappa Kempanna Patil (PW.2) stating that on 22.02.2006 when he paid surprise visit to the Government Ashram School at Kannal village run by Social Welfare Department, Vijayapur, he noticed that only 20 3 students were present out of 125 students said to have been admitted in the school. On further enquiry and on verification of the attendance register, he noticed that accused No.2 being the Head Master of the school was not present and cupboard was kept under lock and key.
Thereafter, he was able to secure further relevant records of Ashram School from the office of Social Welfare Department, Vijayapur and in the inspection, he noticed that in June, 2005, admission was shown of 125 students and their presence was also shown from June 2005 to January 2006. Out of 125 students, 54 names have been shown in addition who are not at all studying in the said residential school and they were not inmates of the hostel.
On further verification of the records, it is noticed that only 41 students were present and 83 4 students were shown as absent. Likewise, for the month of March, 2006, the records displayed that 74 students were shown to be present, but 51 students were shown to be absent. He also noticed many alterations being carried in the attendance register regarding the presence of the students in the Ashram School. The complainant also noticed several other irregularities and the amount was drawn from the Social Welfare Department at the rate of Rs.350/- per month per student for a period of eight months resulting in loss to the tune Rs.1,51,200/- in respect of 54 students, though they were studying in different schools and thereby lodged complaint.
4. On receipt of complaint, the Lokayukta Police registered a case in Crime No.4/2006 for the offence punishable under Section 13(1)(c) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short, hereinafter referred to as 'PC Act') along with 5 Section 468 r/w Section 34 of IPC against the appellant, second accused who is the Head Master and cook by name Vijaysing.
5. After detailed investigation, the Lokayukta Police filed charge sheet for the aforesaid offences against the appellant and two other persons.
6. Gist of the charge sheet material reveal that such 54 students though were studying in different schools in Vijayapur, a sum of Rs.350/- per month per student was drawn from the Social Welfare Department to the tune of Rs.1,51,200/- as if they were studying in Ashram School and the bill was prepared to that extent, but the bill was not paid for want of funds.
7. In the charge sheet, the role that was assigned to the appellant is that he being the Taluka Social Welfare Officer was required to verify the 6 correctness of the bill furnished by the second accused/Head Master, sign the same and send it for counter signature of the higher officials of the Social Welfare Department in drawing the bill amount.
8. On receipt of charge sheet, the presence of the accused persons were secured before the Special Court and the charges were framed for the aforesaid offences. The accused pleaded not guilty and therefore, trial was held.
9. In order to prove the case of the prosecution, in all, 32 witnesses were examined on behalf of the prosecution as PWs.1 to 32 and 57 documentary evidence were relied upon by the prosecution which were exhibited and marked as Exs.P1 to P57
10. On conclusion of the prosecution evidence, the accused statement as contemplated under Section 7 313 of Cr.P.C., was recorded wherein the accused persons denied all the incriminatory circumstances. One person by name Channaveerayya Siddalingayya Annigerimath was examined as DW.1 on behalf of the accused through him Ex.D1 came to be marked. Ex.D1 is the report from PW.31 wherein he has stated that amount of Rs.1,51,200/- could not be paid on account of non-availability of the funds/grant for the period September, 2005 to March, 2006.
11. On conclusion of recording of the evidence and after hearing the arguments of both side, learned Special Judge convicted accused Nos.1 and 2 and sentenced them as under:
"The convicts/accused-1 and 2 are hereby sentenced to undergo Simple Imprisonment for two years and to pay a fine of `30,000/- each and in default of payment of fine they shall further undergo S.I for one year for the offence punishable 8 u/s. 13 (1) (c) r/w. sec. 13 (2) of the P.C Act, 1988.
Further the convicts/accused-1 and 2 are hereby sentenced to undergo simple imprisonment for two years and to pay a fine of `30,000/- each and in default payment of fine they shall under go S.I for one year for the offence punishable u/s.
468 r/w. sec. 34 of 1.P.C.
Both sentences shall run
concurrently."
12. Being aggrieved by the same, the appellant has preferred the appeal on the following grounds:
• "That, the Judgment & Order of Conviction passed by the learned Judge is against the facts, materials on record & the settled principles of law & suffers from non-application of mind. Thereby has resulted in miscarriage of justice.9
• The learned Judge has committed a serious error in convicting the Appellant without appreciating the evidence in its proper prospective. The reasons assigned by the learned judge to arrive at the impugned judgment are against the facts, materials and evidence brought on record by the prosecution.
• It is respectfully submitted at the out set that, the case of the prosecution stands vitiated for lack of propriety. It is settled principle of criminal jurisprudence that "Complainant himself cannot be the Investigation Officer in the very case". It is submitted that it is not in dispute that the Pw-2 Ramappa Patil the Police Inspector Lokayukta PS. Vijaypur is the Complainant in the case & that the case came to be registered on 25.03.2006. Further it is also not in dispute that the Complainant has conducted the major portion of 10 investigation namely he has recorded the statement of witnesses, conducted the spot mahazars & has seized several documents pertaining the case, inspected several documents and he gave investigation as he was transferred in month of January 2007 by then major portion of investigation was completed. It is respectfully submitted that, time and again this Hon'ble Court as well as the Hon'ble Apex Court have specifically disapproved such practice because the Complainant is required to appear as a witness on behalf of the prosecution whereas the Investigation Officer is required to appear as a witness for the purpose of narrating the sequence of the investigation and satisfying the court that it is in proper manner. Therefore the propriety demanded that the complainant should not have taken up the investigation. It is submitted that the Complainant is interested witness and it cannot be 11 expected that an impartial investigation would be conducted for the very fact that the Complainant himself is the investigation officer. The Complainant acting as Investigation officer would offend the basic principle of impartiality as far as the quality of investigation is concerned. On this count alone the trial court ought to have rejected the prosecution case.
• It is respectfully submitted that the reasons assigned by the trial court with respect to the Complainant being the investigation officer are in total disregard of the Judgments of this Hon'ble Court as well as the Hon'ble Apex Court. The trial court has held that some portion of the investigation has been conducted by Pw-32 and has lightly brushed aside the investigation conducted by the Pw-2 the Complainant. The trial court failed to note that it not the amount of the investigation 12 conducted but it is the very conducting of investigation which is impermissible.
• It is respectfully submitted that there is no valid sanction to prosecute the Appellant for the offence punishable U/S. 13 (1) (c) R/w. S. 13 (2) of PC Act. It is submitted that on bare perusal of sanction order which is marked as Ex.P.47 it is clear that an initial has been put by the case work below the signature of the sanctioning authority & the same is admitted in the cross examination by Pw-25 the sanctioning authority. It is clearly evident that the sanctioning authority has not independently applied its mind to all the materials placed before it to come to conclusion that the sanction should be given or withheld. The very purpose of sanction is to discourage vexatious prosecution and to safeguard the public servants. The sanctioning authority itself has to do complete and conscious 13 scrutiny of the whole records so produced by the prosecution and independently apply its mind after considering all the materials on record so as to grant or reject the sanction. It is submitted that in the present case no such independent & conscious exercise has been undertaken by the sanctioning authority / Pw-25/the authority has admitted in the cross examination that his sub-ordinate and the case worker have prepared the sanction order. It is submitted that the sanction order does not give out the details of the documents & materials considered by the authority while according the sanction to prosecute the Appellant. It is respectfully submitted that this Hon'ble court as well as the Hon'ble Apex Court have time & again held that sanction order must specifically mention the documents perused by the authority & has to independently apply its mind to the records placed by the prosecution for 14 grant of sanction. Even on this count the trial Court ought to have held that the prosecution of Appellant was vitiated for want of valid sanction.
• It is respectfully submitted that the trial court has given a specific finding that the Appellant has not challenged the sanction for having been defective at the earliest possible stage & has challenged the same only at the time of trial. It is submitted that the trial court has proceeded on totally erroneous & legally incorrect principle. It has been specifically laid down by this Hon'ble Court as well as the Hon'ble Apex Court that the stage to challenge the defective sanction depends on the facts & circumstances of each case & generally validity of sanction for none application of mind can be challenged only during the trial & not pre-trial stages. The trial court on misplaced legal reason has lightly brushed aside the defects in 15 sanction which go to the very root of the prosecution. The trial court considering all the aspects of the matter ought to have held that the sanction was defective & acquitted the Appellant.
• It is respectfully submitted that, the trial court has completely the ignored the materials elicited by the defence from the prosecution witnesses in the cross examination. It is submitted that, while the Complainant / Pw-2 was subjected to cross examination he has specifically admitted that the Appellant or the Accused No. 2 had no authority to admit the students to Ashram school. It has been specifically admitted by the said witness that the admission process is undertaken by a selection committee involving District Social Welfare department & other officers & it is this committee which would short list the students & send the list to the respective schools so that they are admitted & the 16 Appellant & the Accused No. 2 are bond by the list send by the selection committee. It is specifically admitted by the said witness that the Appellant does not have any role in the process of admission of the students. It is submitted that the trial court in this regard has failed to take note of the fact that the Appellant & the Accused No. 2 had absolutely no role whatsoever in the admission process of the student & infact they were bond by the list of students sent by the selection committee. In view of these admissions by the Complainant the evidence of Pw- 4 to Pw-20 that is the head masters, assist teachers & teachers will not in any manner further the case of the prosecution as the Appellant has no role in the admission process & he infact he is bond by the recommendations made by the selection committee with respect to the students.17
• It is respectfully submitted that, the trial court has held that there is sufficient corroborative piece of material to establish the case of the prosecution. It is submitted that the trial court relies on the evidence of Pw-22 to Pw-24 who are parents of the pupil who were studying the Ashram school. The trial court has blatantly disregarded the admission elicited in the cross examination that the children of the said witnesses were still studying in the said Ashram school. The evidence as whole of these witnesses namely Pw-22 to Pw-24 remains unchallenged and it would demolish the case of the prosecution. In view of the evidence of these witnesses would demolish the case of prosecution which was being made out from the evidence of Pw-4 to Pw20.
• It is respectfully submitted that, the Appellant had no role in supply or the payment of the vegetables, fruits & 18 groceries. It is submitted that vegetables & fruits were supplied by the HOPCOMS & groceries were submitted by one Ashwini Traders, Vijaypur. The District Social Welfare Department would entrust the supply of vegetables, fruits & groceries by inviting tenders. It is not in dispute that the Appellant has no role whatsoever in inviting tenders & also the role of giving indents for supply of vegetables, fruits & groceries. The evidence of Pw-21 & Pw-28 clearly demonstrates the fact of invitation of tender by District Social Welfare Officer & payment by the treasury through cheque. The trial court could not have ignored this material piece of evidence.
• It is respectfully submitted that on perusal of the evidence of Pw-21 & Pw-28 i.e. the Manager HOPCOMS, Vijaypur & the owner of Ashwini traders respectively that the Appellant had no role in inviting tenders for 19 supply of vegetables, fruits & groceries to Ashram school, Kannal as it was specifically undertaken by the District Social Welfare Department. Further, the bills so given for the supply of the said materials though prepared by the Appellant in the capacity of taluk Social Welfare Officer were to be counter signed by the District Social Welfare Officer & then advance them to Treasury Department for payment. The Appellant could not directly send the bills to treasury department. If at all there were any illegalities or irregularities then they would certainly be noticed by the District Social Welfare Officer & the auditors. The trial court has ignored the evidence of Pw-27 in this regard as he has specifically deposed before the court that the Appellant would prepare the bill & send the same to District Social Welfare Officer & the District Social Welfare officer would counter sign them & send it to treasury for payment. The 20 payments were made in cheque directly to the suppliers. This piece of evidence would clearly demonstrate that the Appellant in no manner could misappropriate the funds.
• It is respectfully submitted that the trial court has also placed heavy relies on the evidence of Pw-29 namely Ishwar Lamani the cook working the said Ashrama school. This witness does not in any manner further the case of the prosecution. It is submitted that, this witness specifically deposed that at the time of Lokayukta investigation there were 125 students studying the in school & they used to prepare food for 125 students. Therefore in view of the evidence of Pw-29 it clearly shows that every day food for 125 pupils was prepared & there was no any chance of misappropriation of funds.
• It is respectfully submitted that, the trial court has completely ignored the 21 evidence of Pw-31 who is the Deputy Director, Social Welfare Department, Bangalore. It is submitted that the said Pw-31 in his cross examination has admitted the issuance of Ex. D. 1 i.e. letter Dt. 29.04.2006 wherein it is specifically stated that there were no funds for allocation for Govt. Ashram School, Kannal from September 2005 to March 2006 & there was allocation of funds only from June 2005 to August 2005. In view of the categorical admission of Pw-31 the entire case of the prosecution is destroyed as it goes to the root of the prosecution case. It is submitted that the said letter has been marked by confronting the same to the author who has admitted the signature & the contents of the same. It is submitted that his evidence on this aspect remains unimpeached as the prosecution does not try to clarify by re-examination of the said witness. It is submitted that the investigation officer Pw-32 was cross-22
examined on this specific point & he pleads his ignorance. Further the investigation officer Pw-32 does not make any effort to investigate on these lines. So, on this count alone the trial court ought to have held that the entire prosecution fails miserably.
• It is respectfully submitted that the trial court on misplaced legal reasoning and fanciful imagination has completely disregarded Ex. D. 1 i.e. letter Dt. 29.04.2006 issued by the Pw-31 the Deputy Director, Social Welfare Department, Bangalore. The trial court has misled itself to hold that the letter was issue on 20.04.2006 for the alleged misappropriation of fund which took place from June 2005 to March 2006. This is an absurd reason assigned by the trial court as it can seen that the said letter Dt. 29.04.2006 specifically mentions regarding the non-availability funds from September 23 2005 to March 2006. It is submitted that the said document was marked by confronting the same to its author i.e. Pw-31 who has categorically admitted the issuance of the said letter & the signature & the contents thereto. The trial court in over zealous manner has doubted the said letter for it not being certified copy though no objections were raised from the other side while the production of the said document. Further the trial court rejects the said letter which was marked as Ex. D. 1 on the count that the said letter does not bear an outwarad number & it was a cyclostyled letter. It is submitted that on perusal of the said letter it specifically clear that the said letter bears a reference number & it by no stretch of imagination is a cyclostyled letter. The reasons advanced by the trial court to reject the letter are purely fanciful & imaginary.24
• It is respectfully submitted that another elemental error committed by the trial court is that the trial court has put forth identical question to the Appellant & the Accused No. 2. It is submitted that the statement of Accused recorded U/S. 313 Cr. P. C. is to personal seek the explanation of the Accused for the incriminating material which has come in the evidence of the witnesses. Naturally if there are different roles & different type of incriminating material against the Accused persons the trial court ought to record different statements seeking personal explanation of the Accused. In the present case admittedly the role played by the Appellant & the Accused No. 2 are totally different & the incriminating material available against them is also not akin. So, the trial court posing identical questions to both Appellant & Accused No. 2 would defeat the very purpose of seeking personal explanation of the 25 Accused U/S. 313 Cr. P. C. Serious prejudice has been occasioned to the Appellant for such procedural infirmity. Even on this count the Judgment & Order of Conviction require to be set aside.
• It is respectfully submitted that, the learned Special Judge has not at all appreciated the case of the Appellant in the light of human probabilities & the same has vitiated his findings. The reasons assigned by him in convicting the Appellant are illegal, erroneous, incorrect & perverse. The same has resulted in miscarriage of justice to the Appellant.
• The Appellant seeks leave of this Hon'ble Court to urge the others grounds at the time of final hearing."
13. Reiterating the above grounds, learned counsel for the appellant vehemently contended that 26 the first accused being the Social Welfare Officer had no direct hand insofar as preparing a false bill is concerned and at the most, he would be held liable for dereliction of his duty in not properly examining the correctness of the bills which are marked and relied upon by the prosecution vide Exs.P46 and 49 and therefore, offence under Section 13(1)(c) of the PC Act would not get attracted insofar as the appellant is concerned.
14. He also contended that there is no proper sanction order to prosecute the appellant under the provisions of the PC Act and he enjoys protection under Section 19 of the PC Act and therefore, sought for allowing the appeal.
15. Per contra, learned Special Public Prosecutor opposes the appeal grounds and supports the impugned judgment. He contended that no doubt, 27 the bill is prepared by the second accused who is the Head Master who is no more. However, just because that the bills at Exs.P46 and 49 are prepared by the second accused, it would not ipso facto make out a case that the appellant/first accused had no role in it, inasmuch as, he has already signed those bills for payment and recommended payment thereof without properly verifying the veracity or genuineness of the bills in question and therefore, the learned Special Judge has rightly convicted the accused for the aforesaid offences and sought for dismissal of the appeal in toto.
16. In view of the rival contentions of the parties, the following points would arise for consideration:
1) Whether the finding recorded by the learned Special Judge holding that the accused/appellant is guilty of the 28 offences punishable under Section 468 of IPC and Section 13(1)(c) r/w Section 13(2) of the PC Act is suffering from patent factual defect, error of jurisdiction, legal infirmity or perversity and thus, calls for interference?
2) Whether the sentence is excessive?
3) What order?
17. In the case on hand, the second accused being the Head Master of Government Ashram School is not in dispute. The first accused being the Taluka Social Welfare Officer in respect of Kannal village, Vijayapur Rural Taluk is not in dispute.
18. Under the Government Scheme, a sum of Rs.350/- would be paid per student per month for his welfare in the Government Ashram School. Needless to emphasize that inmates of such schools are the 29 people who cannot afford to have two meals a day and education. With a laudable object, the Government has established these schools. The role of the Social Welfare Officer is to look after the welfare of such children who are inmates of the Government Ashram School.
19. In the case on hand, the material evidence on record especially, oral testimony of PW.2 goes to show that he has inspected the school as a surprise inspection on 22.02.2006. He noticed that the second accused/Head Master was not found in the school and the records of Ashram School was kept in cupboard under lock and key.
20. Thereafter, he was able to get necessary records from the Social Welfare Department and noticed that inmates of the schools were not tallying with the admission register. Every month there was 30 a shortage of students and ultimately, he decided to lodge the complaint as there was a bill raised for students as per the admission register even though the number of students who were actually housed in the Ashram School were less in number.
21. Based on the complaint lodged by PW.2, the Lokayukta Police conducted detailed investigation and filed charge sheet.
22. The material on record especially, the information about the inmates who were missing from the school, who were found to be admitted into the school were marked as Exs.P17, 18, 20 to 45 and 51 to 57 would go to show that the students whose names are found in the admission register marked at Ex.P19 did not tally with those students who still continued to be housed in the Ashram School. 31
23. The necessary information who have been furnished by the parent/guardian of the students who were missing in the Ashram School are also examined before the Court and all of them have stated that their children/ward were not studying in the Ashram School at the relevant point of time.
24. Thus, it is a clear case of manipulation of admission register only with an intention to draw money from the Government by showing excess number of inmates in the admission register in the Ashram School, than actual number of students who were housed in the Ashram School.
25. There is no explanation offered by accused Nos.1 to 3 at the time of recording the accused statement.
26. Thus, from the material evidence available on record, the learned Special Judge came to the 32 conclusion that a false bill has been prepared by the second accused who is the Head Master and without proper verification thereof, the first accused/appellant has signed those bills and forwarded those bills for counter signature to the higher officials in order to release the money in respect of false bills and convicted accused Nos.1 and 2. Accused No.3 being Cook, the learned Special Judge felt that the material evidence on record is not sufficient to convict him.
27. Learned counsel for the appellant vehemently contended that the role assigned to the appellant/first accused was only to receive the bill, sign the same and send it for counter signature and said aspect is not properly appreciated by the learned Special Judge and he has been wrongly convicted.
28. Said argument is fallacious in nature. The appellant being the Taluka Social Welfare Officer, his 33 role is to make regular inspection to the Government Ashram School and find out the veracity/genuineness of the bills that would be produced by the schools and therefore, he cannot be permitted to say that he is not liable for criminal action. However, whether ingredients of Section 13(1)(c) of the PC Act would be attracted to the case on hand, is a question that remains unanswered by the prosecution in a proper manner.
29. Section 13(1)(c) of the PC Act reads as under:
"13. Criminal misconduct by a public servant.-
(1) (a)xxx
(b) xxx
(c) if he dishonestly or fraudulently misappropriates or 34 otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so;"
30. The material evidence on record clearly shows that the appellant/first accused did not have any role in preparing the disputed bills referred to supra. The only allegation as against the appellant/first accused is that he signed the bills and recommended for counter signature in order to release the amount covered under the bill.
31. The second accused being dead and no other material evidence is forthcoming on record, this Court is of the considered opinion that that offence under Section 13(1)(C) of the PC Act would not get attracted in the case on hand.
32. However, without verification of the genuineness of the bill, the first accused who is the 35 appellant before this Court having signed the disputed bills and recommended the same for counter signature and payment thereof, role attributed to the appellant would fall under Section 468 of IPC and the material evidence on record would justify his conviction for the offence punishable under Section 468 of IPC.
33. In view of the foregoing discussions, since the material documents are not in dispute and as on the date of inspection made by PW.2, 54 number of students were not found in the school and the bill has been prepared in respect of 54 students and an amount of Rs.1,51,200/- was sought to be drawn vide disputed bills, this Court is of the considered opinion that point No.(1) needs to be answered partly in the affirmative.
Regarding point No.(2):
34. In view of the finding of this Court on point No.(1) partly in affirmative recording finding that no 36 case is made out to convict the appellant/first accused for the offence punishable under Section 13(1)(c) r/w Section 13(2) of the PC Act, sentence of imprisonment and the fine amount ordered by the Special Court in respect of the said offence needs to be set aside.
35. Learned counsel for the appellant submits that since this Court has acquitted the accused for the offence punishable under Section 13(1)(C) r/w Section 13(2) of the PC Act and is maintaining conviction of the appellant/first accused for the offence punishable under Section 468 of IPC and since the appellant/first accused is a first time offender and aged 70 years, having lost his job soon after the registration of the case, this Court may consider grant of probation to the accused by exercising power under Section 4 of the Probation of Offenders Act, 1958 (for short, hereinafter referred to as 'PO Act'). 37
36. However, learned Special Public Prosecutor opposes for the same.
37. Taking note of the fact that the appellant/first accused has lost his job and he is aged 70 years and possibility of recurrence of offence would not be there, this Court is of the considered opinion that directing the appellant/first accused to pay fine amount of Rs.50,000/- and executing bond for a sum of Rs.50,000/- with one surety for the likesum to the satisfaction of the learned Special Judge, for his good behavior, which shall be for a period of three years, would meet the ends of justice. Accordingly, point No.(2) is answered partly in affirmative. Regarding point No.(3):
38. In view of the finding recorded by this Court on point Nos.(1) and (2) as above, the following order is passed:38
ORDER
(i) The appeal is allowed in part.
(ii) The appellant/first accused is acquitted of the offence punishable under Section 13(1)(c) r/w Section 13(2) of the PC Act.
(iii) The conviction of the appellant/first accused for the offence punishable under Section 468 of IPC is maintained.
(iv) However, appellant/first accused is granted probation by directing him to execute bond in a sum of Rs.50,000/-
(Rupees Fifty Thousand Only) with one surety for the likesum to the satisfaction of the learned Special Jude to be in force for a period of three years, for his good behavior and directed him to pay fine amount of Rs.50,000/- inclusive of fine amount imposed by the Trial Court.
39
(v) Time is granted to pay fine amount
and to execute the bond till
15.02.2023.
(vi) In the event of failure to execute the bond or to pay fine amount, appellant/first accused is convicted to serve the sentence of two years and to pay fine amount as ordered by the learned Special Judge in respect of the offence punishable under Section 468 of IPC.
Office is directed to return to the Trial Court records forthwith along with a copy of this judgment.
Sd/-
JUDGE NB*