Shyamsunder vs State Of Karnataka on 9 January, 2009

[Cites 4, Cited by 0]

Karnataka High Court

Shyamsunder vs State Of Karnataka on 9 January, 2009

Bench: K.Ramanna

 'I   . . . . . ..
 ' ,B3r' pur Palice
 .Bja_M*1ga:]<§rI§v VCi§i3?. .   Cemmtm

 39'?";r/w 40} C12 PAC. praying to set aside the judment dated
=',2,3»8«2(}O3 passed by the XXIII AddI.C.CZ. Sr. S.J., Bangalore

VV "also set aside the easier dated ?'-6-1996 passed by the IV

IN THE HHEH COURT 0;? KARNATAKA AT   "
DATED THIS 'THE 9111 DAYQF'  V'
BEFOR$2'&V'%      ._ x  
THE HON'BLE   

CRIMINAL REVISEQN PE"}'fI'-3-'-IfV_A).}'<i. M35. 1i'15v.=r:«:{)::}3 cm:
1 1 1?] 20:}; 11 18.429013-<§':'.: V71" 1. 19/ 2003

BETWEEN:
Shyamsundcr'   ._ :_  V A .
56 yrs, sfc.-lam    V
No.41, ?th€B1o;e:gf '  
Jayanagar W.i¢$'£*¥: . .  
Bangaisréééﬁﬂ   _   Ckzmmon

 --      -- Petitioner

4' »  {vfR,L:{3€;pa1a$Wam§f, Adv.)

Responﬁent
(By Sri B Baktkrishna, HCGP)

'ibis czriminal ztvision pcfitéan is fried under Section

in C':r1.A.N0s.93/96, 96/96, 941% 5:. 9Sf96 mspectively and

Add1.C.M.M., Bangalore in c.c.Ncs,s89/36, 590/86, 591/86
8:. 592/86 respectively.



These cztiminai revision pctiﬁerns  '   .

'Dictating Orders' this day, the Court made the fé}§pwing£'

Ail these four rt::visia11' -};_~eiii:icV$r:~._s a1'e   

peﬁtioner challenging the  mgld  of cﬁnﬂcﬁon

and sentcnct: datctd G7'~;{}E6}19!.:§A6  the  A.C.M.M

Bangalore in    of 1986, which
has been    XXIII A.C..C. Court
Bangalom-ﬁzz'; 9éi,§4"a1:d";l5 of 1995 dated 23438-»
22003.  Vi   "  M

2. SE36 Vthé  as Well as respondent in ail

 t}:tes;t:.§«fou3*pctiti£>1:s¢a1t common and since common question

 of  are involved in the case they an: taken up

 of mnvcnicncc and to avoid repetition

cf fzéiirts  

 n  3. "'I;hc case of the prosccuﬁen in brief is that, the

  ';2;_§1;i'ii€f.£1cr was working as accounts clerk in M.S.Ramaiah

  -irxistritutc ofTcchnoiogy {mm August 1973. During the period

V from 1-4-1980 tn 31-»3~1984 3:14: was inchargc of accounts

' 1"?
 W

 -- "'



mcmths, for an offence punishable "under Section 42.0'.

Fmthcr to undergo RJ far 2 years and to   _

R$.3,000/- i,d., to pay fine to under go  " 

months for an oﬂisncc punishable uigcierb   _ 

5. However in C.C.Nos. 559,590  59;.'%¢::f'%'19é35  V

C:r1.R.P Nos. 2215, 11:'f"'.;m:   triai court
acquittcd the p¢§.j:iigncri"f5t'   undcr
Sccticm 429,      him for the
offence   IPC and aoccrdmgiy
scntcndgd  for 3 years and to pay £311: of
Rs.S,O{)O/ ~"V.iyd;,   further undergo R} tier one

ycar. '   tijy the said orsder of ccnviction anti

   péﬁﬁoncr preikrred appeal bcfom that XX§II

Eﬁ..VtV::;if3.V{'; 1:1 Cr;i.!& ;~:o.93, 96, 94 and 95 of 1996,

thé icaxnsd ﬁéééions judge after hearing the counsel for the

 'v{i;SIﬁiSSC€i ' the appeal, conﬁrming the order of

V'  [ {5.g3:1xri{?§i:ion and sentence passed by the trial (mart. Hana: this

  .« .}{'f'2£;iSiG11 under 397' and 401 Cr.P.C.



 "way be  on tilt? pciitioner without imposing any

h  V  A u MRANVIR (2006 AER SCW 2853) wherein it is hcki tilusi:

that mmpiamant took cheque ﬁnom him far  '
forcibly and that the said amount may be   u u
the aﬂcgcd naisappropliatcci amoghﬁt   
acquitted. Pmsecuﬁon has.    
has adﬁitmd that separate aceqgiﬁﬁﬁ Imgvc"
Twc; accczunts have been ggzivcrsity, one is
University account and §;3.¥..1o:fj11¢r  There

is dday 5;;  in the arrest.
when the V. and signed by the
admmisggégﬁfg "  _  xzoticrcd alleged
misapprgipﬁaﬁbn'   Alternatively, it is argued
by ieamcd    that the alleged oﬁhncc took

 V'  than  §*ééi's back and petitioner has deposited

 the amount even before the FIR

wéis  {ﬁe accused is aged 60 years, ihCI'Cf€3:I'€, fine

A V su;b:s;¥:22ntivc scntence. In support of his oontenﬁon, hf: has

mifaztd on the decision mportcd in STATE {ZIP H.P.. vs



8

" S.4{)9:-- Sentence --- accused Post 
Master convicted under 3.409 '" (§ﬁ'c:1_V1"<':r_*-,_"~._ 
committed 15 years back - accusg3xi-- . {:33 L' _, 
years. of age -- had dr::§::>3ii?c&."  '
misappxnpﬂated amount with intsrcét. awn'

before. me was ﬂied ~"."' »..Fi_1_1§: impéseri» on  
accused Without  any" '  s_ub'$'£3_3flli%3.,  f

ptmishment."

He has else relied on the deeissgnpi tiiév-lﬁelhj  jg  *

MUKIMUDDIN vs THE STATE (1_9i9-1:_CR_L. Lg: 29( 33} vviwhcrcin
it is held thtisz V  *  

,"_S.408--- Vﬂmachﬁ bf' East and
cmbs-,:zzit3mc;:]1t--C30_:3;tvi<:£:it3~i*_zV._ V---' Cixiginal books of
ac{§ou1i'ts_Vd.ces:1tsyed after' appeals were decided
by S:=,:§*;9;i<l;1s   CaOfE.3CtnCSS of canttricts in
b9o1{:i_s;~'0f a&*couiit9._<ia31n-xigt be ascertained --- other

 ~~~~  "--.w'a-m "'£r..2sf)iciou$ in nature ~--

Sjjeéimejé» sigriaturee for comgaarison taken by

* police' }{:Emi.=1g'=.i1i;vaesti;gation and when accuseci

V was  C-113t6€}y"':--""not admissible in ctvidcncc -
 ag:c=._1s£:fd_ ci21:ii1§:d;t{> acquittal."

 V,  _ &  "salsa  JHLESWAR DEAR VS STATE OF GRISSA

  ss:f:;_:3::.». 40(0RISSA)) wherein it is held thus:

.  "Fine latter did not Show that the accused
 eztimittcd any czriminal liability but he has just
 taken the responsibility of ahortage upon
himself, as he was in charge of the store and he
appears to have intasmded to avoid. ztnnecessaxy
conaplicacy although strictly speaking the
shortage may be due to other causes as stated



produced which clearly indicate that Exs.P--6 to S  *

pmdﬁceci before the auditor by the __ep€'*..ii_t4i():lZ3.(_»"'I.'V  V'.€1'r:u:i_i21't 

was conducted at the nelcvant  3'»-'eais, if

merely because auditors who atkiﬁegi bod}-:9'. of ..e1vei'y

year have not raised any ebjeciio;Q:..;}ot  there
is no misappropxtiation V Q' The
authoritties C0ﬂCCIP.ﬁd haye  'Vsthc books of
accounts of the   ease, the same
hae been  V 'I'he oral evidence of
P. W33     V petitioner was placed
inchazrge ei' 'Was colkcting fees fmm the

students, Leveici  did not sexiously dispute the

$az:;::'_._ I11é_.f'a  1ikeV'h'isappI"opx1'ation, oﬁence would come

 to__  Vaiiditigerefore there is no delay as such in ﬁling

the '   During 1994, when P.W.2 asked the

'pcﬁtioncirv £0 produce the cash beak pertainixxg to the year

  'it was stated that cash book was misplaced.

 ..__ ;I'herefore, it was rectmstmcted in the year 1994. Since the

 _ ﬁpetitioner was inchaxge of those books of accounts for the

.-»-"7 _ -,



period 1.-4-1980 tars 31-3-1984, he was expected §i~.:---

€113 same before higher authoxtities as and    b 

to do. Further the petitioner did   

books for reconstruction of cash    

petitioner digcloscs that theugifize h.ﬁg..éﬁ1ount. V

from tlm students by Wajﬁﬁf ff,'=-2§§' f;§_:r  fii'e.acadE:iﬁic"f§'car 1~«4~«

1980 to 31--3--198'-43.   has not
been cmditcq.    instiiuﬁon. The
receipts  and tilt: amount
dCE}0SiifLTd   does not tally. Thcmforc,
pcﬁﬁonef ljgéis, ﬁc:~t. his {iuties as accounts clcrk

hoﬁftﬁﬂff Land" the amounts collected by him

. .A"f:'Q;i-W  as  The amolmt if any subsequently

  is not a wound to absolve him far the'

 punishable under Section 408 IPC1. Further

  V'-the eviiiagtiitﬁ af pmsecutian 'Wi{'!1€$Sf:$ clearly" ciiacloses that

   the period from 1-44980 to 31--3-K1934 fake receipt

  bébk has bcten got piintxzd by pctificmcr through C5.W.3 and

u he issued fake: receipts to the students with an inteﬂﬁon in



nusappropriate the said amount. The matcriai   

record by the prosecution clearly <;iiscioses_   b 

commjttsd '£116 aforesaid oﬁhnccs.   'V

discazﬁ the evidcncc of p1'osec:;.tic:-:1 "sﬁitﬁésscs,   

forth by him cannot 13¢: bcIicv¢{1?..}:ud hf: fvita the

same. Therefore, vicswcdfijom   I db' Viiofﬁnd any

ilicgaiity" or I.I1C{):tf€QtB€ﬁ5';    and the
order of  by  Eiéiow in all the four

CELSCS.

 As  ground urged by the learned

couznsttl féir.   the appellant is aged 60

ycarsg 'a }*f.§.3fliC1:1'{"',.?._}'V1§VE"v" meija be taken by imposing only the ﬁne

   he rciicd on the KARANVIWS

 ::1,ccisigjnv-.¢:'t,;id Esxrpra. In 1113:: instant case, it is seen that

chéxirgc shcatnhéizs been ﬁled against the petitioner in the yeaﬁ"

  tat that time, he was aged about 37 years. As on

  he is agtzd about 59 years. He has znisappmpriatcd

 huge sum in all about ten Iakh belonging to the

 cducaﬁonai instimﬁon. Thcrcfom, he cannot be given

 .

.51' ilk beneﬁt ef the above ciecided law. The ratio laid aforesaid decision cannm be made appiicable gthei ' the cam: on hand. However, ta1ci;1:1g_.i12t;:§ , 4. petiﬁoner is facing the proceedingszfevr also consideﬁng his age, cndsjof-.j11stiee 1Vi7ou1d'}§ev.:me£VVif3 the L' order of sentence passed by hixza {<3 underga R1. for 3 ._aﬁr1ned by the leameci Sessions,_Judge..--f9:.r_ ;1~1§§.% gguﬁishahxe under Section 408

13. are partly aiioweci.

The passed in the aforesaid four are hereby conﬁrmed. But sentence oi: iretitioxler to undergo rigorous V. years for the oﬁence punishable {PC in all the four cases an': modiﬁed and he to undergo xigomus izxnprisonment for two &L'¥¢i[.t0 pay ﬁne of Rs.500{)/ --- for the afoxesaid oﬁence, A 1:1' ﬁeffault of payment Of ﬁne, to undergo R3 for six months . 4-4» 3 The sztntszncc impescd on the H C':.C.No.59'2/1986 i.c., ClrI.R.P. No. 1119/2::'9§3vjVf.:§z?F' offences punishable under scmognkza "éi"£ld _ hereby conﬁzmeii.

Considering the facts ahd.._§i:w:;;1m$tancesjGf 'base, it 'V is ordered that scntﬁncvzg of on the:

pcﬁﬁancr in aii thc ultbc sentence of iw-iﬁrisonmcnt A H " * " ' offences in Cr1.R.P.No. ;.1H3§9 - ,';:.£:'.V1xi:;.$g:§?;:}';1985 against the pcti?:ion;::'_$Ivj1'aﬂlf:' V:'Pctitio116r is entitled to beneﬁt it 55 petitioner should deposit the amoﬁni on him, {hr each of the oﬁbnccs in tgsisgs sapaiatcly.

Sd/~ Judge

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