Karnataka High Court
Shivanand S/O. Ningayya Resmi vs The State Of Karnataka on 4 July, 2012
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 04TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
CRIMINAL REVISION PETITION No.2037/2012
BETWEEN:
Shivanand
S/o. Ningayya Resmi
Aged about 36 years
Occ: Coolie
R/o. Sasvihalli
Taluk: Navalgund
District: Gadag. ...Petitioner
(By Sri Anand R.Kolli, Advocate)
AND:
The State of Karnataka
Rep. by PSI, Ron
By Govt.A.P.P. H.C.C.B at Dharwad. ...Respondent
(By Sri V.S.Kulkarni, HCGP)
This revision petition is filed under section 397 r/w
401 Cr.P.C., praying to set aside the judgment and order
dated 06.01.2012 passed in Criminal Appeal No.21/2011, on
the file of District & Sessions Judge at Gadag, confirming the
judgment and order dated 18.06.2011 passed in Criminal
Case No.168/2008, on the file of Civil Judge & JMFC at Ron
& etc.
This revision petition coming on for admission this
day, the court made the following:
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ORDER
The petitioner (hereinafter referred to as 'accused') was working as a Cashier in Shri Veer Pulikeshi Sahakari Bank Niyamit (for short, 'the bank') On 15.03.2006 at about 5.30 p.m., a team of officials of Reserve Bank of India inspected the bank and checked cash section and found deficient cash of Rs.86,500/-. The accused admitted that he had misappropriated a sum of Rs.86,500/-. The accused was given 24 hours time to repay the said amount. The accused did not pay the said amount within 24 hours. Therefore, first information was lodged on 17.03.2006. The accused had repaid entire amount of Rs.86,500/- on 18.03.2006. PW7- Harishkumar P.M. & PW8-Fakirappa Lingadal took up investigation of first information registered against accused. After completion of investigation, final report was filed against accused for an offence punishable under section 409 IPC.
2. There are concurrent findings of courts below that accused being a Cashier of the bank had misappropriated a 3 sum of Rs.86,500/- on 15.03.2006 and repaid the same on 18.03.2006 after first information was lodged on 17.03.2006.
3. The courts below on appreciation of evidence of PW1-Pampanna Kashatti, the then General Manager of the bank, PW2-Yallappa Neelagund (a pigmy agent), PW3-Shivanand Halakurki, the then Branch Manager of the bank and PW4-Shekharappa Abbigeri, the then Junior Assistant of the bank and documentary evidence such as cashier scroll book, passing officials scroll book, cash withdrawal scroll book, cash diaries, cash credit receipts, cash certificate, expenditure receipts and debit receipts have held that accused had misappropriated a sum of Rs.86,500/- on 15.03.2006.
4. In a decision reported in 1999 CRl.L.J. 1443 (in the case of State of Kerala -vs- Puttumana Illath Jathavedan Namboodiri), the Supreme Court has held:-
"5. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But 4 the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
In view of what has been held in the above decision this Court can interfere with concurrent findings if any glaring feature which would otherwise tentamount to gross miscarriage of justice is brought to the notice of this Court.
5. The learned counsel for petitioner has made following submissions:-
I. The petitioner was working as a Cashier of Shri Veer Pulikeshi Sahakari Bank Niyamit, therefore, he was not a public servant as defined under section 21 IPC. 5 II. The petitioner had been given 24 hours time on 15.03.2006 to repay the misappropriated amount. The accused had repaid entire amount of Rs.86,500/- on 18.03.2006 within a day after registration of crime against him. In the circumstances, the courts below should not have held the accused guilty of misappropriation.
III. The courts below have not taken into consideration mitigating circumstances in favour of accused while sentencing him to undergo simple imprisonment for two years for an offence punishable under section 409 IPC.
6. The learned HCGP for respondent, relying on the judgment of the Supreme Court, reported in 1983 SCC (Cri) 173 (in the case of Vishwa Nath Vs. State of Jammu & Kashmir) would submit that if a public servant after detection of misappropriation were to deposit the amount, that would not absolve the offence committed by him. Therefore, submission of learned counsel for accused that 6 accused cannot be held guilty of misappropriation cannot be accepted.
7. After going through the oral and documentary evidence, I find that accused being a Cashier of the bank had misappropriated a sum of Rs.86,500/-. The cash book and Scroll Book of the bank which were maintained by accused would reveal that on 15.03.2006, total cash balance was a sum of Rs.5,51,933/-, however actual cash available was a sum of Rs.4,65,433/-. Thus, there was deficient cash of Rs.86,500/-. The accused has not disputed that he was the cashier when he had made cash entries in cash book and scroll book. The accused had shown a sum of Rs.86,500/- in suspense account, without mentioning the nature of suspense account.
8. It is seen from the contents of Ex.P.14 (computerised extract of subsidiary cash book), on 15.03.2006, there was deficient cash of Rs.86,500/-. It is seen from the computerised extract of subsidiary cash book dated 18.03.2006, accused had credited a sum of Rs.86,500/-, and 7 the same is shown as misappropriated cash credited by Sri S.N.Reshmi (accused). The accused has not denied that he had received a notice on 15.03.2006 to repay a sum of Rs.86,500/- within 24 hours. The accused did not repay the amount within 24 hours. On 17.03.2006, first information was lodged against accused.
9. In view of above oral and documentary evidence, the concurrent findings recorded by courts below that accused had mis-appropriated a sum of Rs.86,500/- on 15.03.2006 and repaid entire misappropriated amount of Rs.86,500/- on 18.03.2006 do not call for interference.
10. Even in this petition, accused has contended that he had repaid entire misappropriated amount of Rs.86,500/- on 18.03.2006 and criminal proceedings should not have been initiated against him.
11. In the judgment reported in 1983 SCC (Cri) 173 (in the case of Vishwa Nath Vs. State of Jammu & Kashmir), the Supreme Court has held that after detection of 8 misappropriation refund of money by accused do not absolve the accused of an offence of embellishment of money entrusted to him. Therefore, the contention of accused cannot be accepted.
12. The accused was working as a cashier in a co- operative Bank. In a decision reported in AIR 1958 MYSORE 82 (in the case of Karnam Siddappa Vs. State of Mysore), this court has held that the President of a Co-operative Society is not a public servant within the meaning of the expression in Indian Penal Code.
13. This court has held that misappropriation committed by a clerk or a servant of co-operative society would attract an offence punishable under section 406 IPC. Therefore, I am of the considered opinion that courts below should have held the accused guilty of an offence punishable under section 406 IPC.
14. The learned counsel for accused submits that accused had deposited entire misappropriated amount of Rs.86,500/- 9 within a day after first information was registered. The accused does not bear any criminal antecedents. The accused was aged about 35 years at the time of incident. He had wife and children to care for. The accused had lost his job. The accused had chances to reform himself. Therefore, a lenient view may be taken in the matter of sentence.
15. The learned counsel for accused would submit that sentence of fine would meet the ends of justice.
16. The learned HCGP would submit that accused has committed criminal breach of trust. The facts and circumstances of the case do not warrant a lenient view in the matter of sentence.
17. The accused does not bear any criminal antecedents; he was aged about 35 years on the date of incident; he has wife and children to care for; he has chances to reform himself; accused had remitted the entire misappropriated amount of Rs.86,500/-, within a period of two days from the date of incident. The learned trial Judge has not considered aggravating and mitigating circumstances. 10
18. In the decision reported in AIR 1958 MYSORE 82 (in the case of Karnam Siddappa Vs. State of Mysore), this court has sentenced the accused to pay a fine of Rs.200/- by taking into consideration that accused had paid entire sum except a small sum of Rs.149/-. In the aforestated case, accused was found guilty of misappropriation of a sum of Rs.7,849/- during period between 30.06.1953 and 18.01.1954. It is needless to state that value of money during aforestated period was very high.
19. An offence under section 406 IPC is punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both. I have narrated the mitigating circumstances in favour of accused. The accused has chances to reform himself. On overall consideration of facts and circumstances of the case, I deem it proper to sentence the accused to pay fine of Rs.50,000/- (Rupees Fifty Thousand only), in default to undergo simple imprisonment for a period of six months for an offence punishable under section 406 IPC.
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20. In the result, I pass the following:-
ORDER The revision petition is accepted in part. The impugned judgment is modified. The accused is acquitted of an offence punishable under section 409 IPC. The accused is convicted for an offence punishable under section 406 IPC. The accused is sentenced to pay fine of Rs.50,000/- (Rupees Fifty Thousand only), in default to undergo simple imprisonment for a period of six months for an offence punishable under section 406 IPC. Office is directed to send back records along with a copy of this order to execute the sentence.
Sd/-
JUDGE SNN