Karnataka High Court
K Gunavelu S/O Late Kaliappan vs C.B.I., Acb, Bangalore. on 9 February, 2012
Author: V.Jagannathan
Bench: V.Jagannathan
Hf COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH HIGH COURT GF KARNATAKA HIG ~C.B.L, ACB, Bangalore. IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 9! DAY OF FEBRUARY 2012 BEFORE ms THE HON'BLE MR.JUSTICE VJAGANNATHAN CRIMINAL APPEAL NG. 1698! 2006 EN. | -- 1. K.Gunavelu s/o late Kaliapoan, Age 61 years, No.63,. KDM road, Frazer town, Bangalore. 2. Sri.P.M.K. Vintod Kumer, a Sub-Asst. Supervisor, Age 34 years,. Militery Farm, an Bangalore. Oe & 3. Sri. Siva Reddy, me Age 45 years, s/o late Linga reddy, R/o Suitanpur village. Seadur taluk, Bellary district. .. APPELLANTS : By SiC. M. Nagesh, Senior Counsel for Al, Sti.Ganesh Kumar Adv. for A2, Sri. R. B. Deshpande, Adv. for A3} . RESPONDENT _ | ~ (By Sri.C.H Jadhav, Adv.) HIGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CC This CrLA. is filed u/S.374 (2) of Cr.P.c praying against the judgment dated 31.08.06 passed by. 21" AddLC.C. & S.J., & SplJudge for CBI cases, Bangalore, in Spl.C.C.No.191/00 -- convicting the appellants. for offences punishable under Sections 126-5 & Section - 420 r/w 120-B of IPC and under Section 2341 naa He ; 13(2) of the P.C Act, 1988 & eto., | _---- This CrLA. coming. on for hearing thin day, the Court delivered the foliowing:- ma The appellants whe were 2 Ai to AB respectively in the trial court. call in "question their conviction and sentence passed by the court below in respect of the offences 'punishable 'under Sections 120-B, 420 r/w | 120-8 of IPC as well as Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. 2. 'The trial court having convicted At to A3 in | - reapect of an offence under Section 420 r/w 120-B of wos a IPS and sentenced A2 to 4 years RI. with Rs.25,000/- -- _ fine, Al and A3 were sentenced to 3% years and to pay Rs.10,000/- as fine with default sentence. In respect of b ----
HIGH COURT OF KARNATAKA HIGH COURT OF KARMATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH the conviction under Section 120-B (2) of IPC, Al to A3 were sentenced to undergo R.I. for 4 months and to. pay Rs.3,000/- as fine and finally, in roenedt ofthe.
P.C.Act. [AL ae A2 were sentnoed andere foe 2 years and to pay fine of Re. 10,000/- exch with default .
sentence of one year.
3. The case of the prosecution in - short is that, during the year 1995-96, Al K. Guravelu was working in the capacity of the Farm offices of the Military Farm, Hebba', Bangelore, and. AQ PM.K.Vinod Kumar was working as Sub-asaistannt supervisor in the same Farm and A3 A.Siva Reddy was the contractor for | | procurement of hay to the military farm. It ia the case of the prosecution that the bills produced by A3 in oe reepect of supply of hay was passed by the other : " accused and i in that process, there was short supply of : ; i, 104 401 MT of hay and additional payment for the |. short supply was put at Rs.7,83,572/-. It is therefore the case of the prosecution that all the accused committed the offence under Section 120-B of IPC and aoa "
HIGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CC secondly, cheated the Government of India as there was short eupply of hay valued at Rs.7,83,572/-. Thus, 'the accused committed an offence under Section. 420 the -
120-B of IPC and finally, as far as Al and AQ are ;
concerned, being the public servants, 'they 'have committed the offence under the PC.Aet, referred to 7 earlier.
4. In respect of the aforesaici facts, the Court of enquiry was constituted ord following the receipt of the report, PW- 12 Brig Ravi Sankar filed the complaint as per Ex. PIS and the contents: of the complaint are the gist of the angjuity. report submitted by the Court of enquiry. The said complaint led to the investigation | being taken 'up ending up in filing of the charge sheet. At the trial, following the accused not pleading guilty, oe the prosecution examined PWs 1 to 16 and produced 49 : documents, Accused statement was followed by the | 7 eared trial Judge hearing the parties as accused _ shows lead to no evidence in their defence. After evidence appreciation, learned trial Judge accepted the case of the prosecution as having been proved beyond » VA HIGH COURT CF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH reasonable doubt and hence, considered the evidence of PWe, 1, 9 and 14 apart from relying on the letters given by the acoused themselves and the Court sf fey learned trial Judge held that the prosecution 'bad = brought home the guilt of the accured beyond all reasonable doubt. The conviction followed $0 also the sentence referred to earlier
5. I fave. heani earned 'Senior Counsel Sri.c VNogesb for. Al, "Sri.Ganesh Kumar, learned Counsel for A2 and Sri. .B Deshpande, learned Counsel for A3 and Sri.c. Haladhae, learned Counsel for the respendent-C2t 'and "perused the entire material on : record.
-- 6. = Counsel SriGanesh Kumar opening the arguments on behalf of A2 at the outset submitted ee > that, the prosecution haa considerably failed to prove its _ 7 case, because the corpus-delicti is not proved, in the . sense, no evidence is placed to show as to what was the quantity of hay that was available as opening stock and & HGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO what was the shortage. The shortage itself was not proved by the prosecution and more importantly, the prosecution case as well as the approach ot iia! - question of A3-the contractor cupping tay does. not ee arige, because the job entrusted te AB was: only to - harvest, cut, stack and transport the hay ¢ to different parts of South India. The hay, an such. was available in & vast extent of fand epreading over 3, 200 acres which comprised of military land cs well as the State Government Jand. Therefore, 'the question of A3 supplying hay does not arise and the payment that was made to 'AB was 'only im respect of the work of oS harvesting, cutting and transporting the hay. The
- . prosecution has failed to place any document before the trie) court to show what was the exact quantity of short | fall deficiency of the hay. It is also argued that from the
-- - evidence of PW-6, it is ckar that no audit objection has
--_ - 'been raised in respect of the bills pertaining to A3. 'The
-- _ shortage of hay could also takes place due to various factors like hay exposed to sun and rain, pilferage and be HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH | transportation and even the water contents would alao jack up the weight of the hay. Under these circumstances, when no clear evidence is. laosd te & court could not have convicted A2 or the other eocased :
as well.
7. Referring to the evidence of PWs 13 and 14, it is argued that PW-3 assumed the office only after Al remits the office tual up to the end of March, there were no discrepancy found é in' 'the stock, put long after that, the delect or error in the short fall is spoken to by PW-
13. It is. then argued that during the course of the evidence, the prosecution got marked only the Xerox copies and not the originals of Ex.P29 and other "Yocuraacita, 'Trial court could not have accepted the | | 7 xerox copies in the absence of originals. It is then ms contended that the basis for the present FIR lies in the : Court of enquiry report and without giving the accused : aM opportunity to cross-examine the witnesses during the Court of enquiry proceedings, the trial court could not have placed reliance on the said proceedings and L ae JGH COURT OF KARNATAKAHIGH CGURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COi learned trial Judge ought to have assessed the cage on the basis of the evidence let in before the trial court and could not have banked upon the enquiry report, itis | the factor of menarea or conspiracy. On rs the other hand, .
PWe 13 and 14 give the impression that their testimony is in the nature of hear say eviience as they were not present during the time of Al end AZ were in the farm affairs at the farm at Bangaiore, Triad court ought not to have placed reliance. en the 'testimony of PW-14. As PW. 13 alse. returned trot Calcutia only on 18.03.1996, his eviderice abso could 'not have been given much importance by the rial court.
| 8. Roferring to the evidence of PW-9 Ratan lal and . Pw- 6 Ta. }Papany, submission made is that, initially they | : were algo shown as accused in the FIR but they turned me . out to be the witnesses for the prosecution and this also shows that all was not well with the prosecution case.
: 'Learned Counsel for A2 also contended that, even if some short fall was noticed, it could be due to various reasons as mentioned earlier and also could be the case ye "
HIGH COURT GF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH ( of negligence but that could not attract the offence of conspiracy under Section 120-B of IPC nor the offence of cheating.
9. As far as the accused having remitied { oertain amount is concerned, submission made is that in the :
circumstances, under which the accused was s placed, mere remittance of certain amount could 'not be construed as accused having accepted the guilt. But, on the other hari, in order to avoid mental tension, the accused might have deposited certain amount but that cannot be taken as an indication of the accused accepting. their guilt, At 'the most, the amount given | could be called as 'caution deposit. Therefore, the trial . - ; court could not h have banked on the said conduct of the | 7 submissions are sought to be supported by relying on oe the _ judgments reported in MANU/SC/0109/ 1956 . (D.D.04.12.1956), AIR 1930 Oudh 324, Cri. Misc.P.No.67/ 1991 of Rajasthan High Court & Ciil Appeal No.52/2005 (SC) (D.D.27.08.2010). L ae HIGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CC -10-
10. Learned Senior Counsel Sri.C.V.Nagesh for Al at the outset referred to the charge framed and contended that the charge under Section 18 wae) of = Al, because no pecuniary advantage « was 'und to bave = occasioned to A3-the contractor and | be) charge under > 13(1)(aT) has been framed against AS. 'Therefore, the question of Al committing the offence under Section 13(1)}(ay) cannot arise when 1 to such charge ie framed against AZ himself. 'Secondly, it is = argued that the trial court could | not have 'relied on ary pre-determined evidence for recording its findings and the entre enquiry proceedings 'ought to have eschewed from consideration by the trial court, but unfortunately, the
- wat court t took into account the evidence of witnesses in the Court, of enquiry proceedings rather than a - considering the evidence adduced before the trial court | "by the prosecution. On this fact itself, judgment of the _ 7 trial court is liable to be set aside. Referring to the
-- - evidence of the prosecution witnesses, it is submitted that Al had any authority to depute any person to & ' HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH 4
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Thorangal and therefore, not much act of Al can be found im deputing A2 to Thorangal. It was _PW-6 ~ Ratanlal who was incharge of Thorangal station ate he -
later on, given up. The evidence -- of P+ that he .
physically verified the stocl: itself i is net acceptable in : | view of the contrary statement sade by. him in the course of his cross-exarrinatior: 4 "Phe only circumstance relied on to convict. Ai are. the posting of A2 to Thorangal, | passing the 'itl of Aa 'for payment and thirdly, Al having addressed a letter as per Ex.P29(a). Ag far a8 this circumstance 38 concerned, submission made is thet the evidence on record shows that Al had od the power to send ary person to Thorangal and he had
- . the . jurisdiction to officiate as Farr officer at Thorangal.
oa | Referring to the evidence of PW-16, it is ns -_ out that for any shortage, the officer at / : Taorangal is responsible and A2 was posted to 'horangal by one NPS.Sirohi as per Ex.P29(c}. As far as the passing of bills is concerned, it is submitted that the stock of hay was to dealt with the budget and then bills we 4IGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO -12- were submitted by the Thorangal office and therefore, Al could not have held responsible for any "short payment or losa to the military farm when ys ee _ In this connection, Ex.P3 was referred to by the learned a Senior Counsel. Since, no audit objections » were rained, question of Al having committed. any irregularity irl passing the bills alo doee not arise. Referring to the evidence of PW-14, submission mede is that the contractor cuts the hay on herresting and then the papers are dealt 'By. fodder clerk and then by the head clerk and officer inchange of the military farm and fully, the biils are forwarded to Al for passing and therefore, the question of Al committing the act of
- . comspiracy or trying to gain for himself any pecuniary teens also. cannot be conceded in the light of the | os - evidence on record, The audit report was not produced | ky the prosecution. Referring to the letter Ex.P2Q%{a) _ 7 which is the Xerox copy, submission made by learned
-- Senior Counsel is that nothing irregular has been mentioned in the said letter and all that was stated was = HIGH COURT GF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH -13- Al would indicate to collect the amount and therefore the contents will not make it a case of Al confeesing to the guilt.
12. Evidence of material witnesses were referred c :
in detail by the learned Senior Counsel to contend that -
the trial court could not have convicted the accused and rehance was placed in support of the above submissions on the decision rendered by this Court in CrLA.No.1855/ 2003 (D.D.27.06.2011 7
12. Finally, learned Counsel Sri.R.B.Deshpande for AS on his part argued that A3 was only doing the contract work and his joh ends with harvesting, cutting i and stacking of the hay but the weighing will be done by
- . the . officers in the Thorangal station ie., PW-9 and therefore, A3 could not have been convicted as more | witnesses have epoken to the fact of A3 had made any false elaim by presenting the bills and no objection was | raised in respect of the bills passed in favour of A3, 'The
-- | . prosecution had failed to produce the essential document namely, the stock register. Therefore, the ke HIGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CC
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trial court was error in convicting A3 also. Referring to the evidence of PWs 6, 13 and 14, it is submitted that nothing is spoken to by these witnesses against A. Ae :
such, learned Counsel while adopting the other arguments of other Counsel submitied 'that conviction:
of A3 also be set aside. i = |
14. Sri.C.H. Jadhav, "earned Counsel for respondent-CBI on his part referred te. 'the evidence on record and sutoritted that AL had shown undue interest in a2 by posting a2 ta 'Thorangal ignoring the names of other seniors and pointing to the evidence of PW-1, it is submitted that Al used to supervise the farm and therefore, from the evidence of PWe 1, 9, 13 and 14, it is clear that Al had conspired along with other eocused j it, causing loss on account of shortage of hay.
oe The physical verification was done and shortage was "found out and this is clear from the evidence of PWs 13 and i4. The admission of the guilt by the accused is also established from the letter written by them and amount of Rs.2 lakhs having been deposited by the accused. Referring to Exs.P18 to P28, submission made Ee HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH -14- is that the prosecution had placed several documents to prove its case and in respect of the Court of enquiry proceedings, submission made is that the documents --
were brought on record through the eviderwe of EW- 10. oe No explanation is forthcoming from. the. accused, in .
regard to the payment made by. them. Evidence of PW- 7 B.A.Lonappan would go to show that AL had shown more interest m A2 then the cther officer. PW-13 hae spoken to the audit report for. the year 1995-96 and therefore, the trial cout took: note of all these factors and has referred to the prosecution material at para-23 of its judgment and iased on the said material, the tria! court has rightly convicted the accused persons. Hence, ne interference i is called for.
a 1S, Having thus heard the submissions made by learned Counsel for the parties, whether the conviction es of the appellants by the trial court can be held to be ; : sustainable in law in the face of the material on record.
16, The F.LR. that is filed in this case as per Ex.P-15 ws based on the Court of Enquiry report ae ton GH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO -16- submitted by P.W.10 Col M.N.Shankar, who was directed to hold an enquiry against the persons said to have committed a fodder scam at the Mater arin at - and the documents. Based on the said J reports, PW.12 .
Brig. Ravishankar filed a corinin ax oe BaP i iS. -
17. The complaint, which i in at x.P-18 refers to certain aspects which are not to be found in the charge framed by the trial court against the accused persons. The complaint mentions that, Al, in collusion with other persons, forged the documents and induced the Government of. India. te part with a sum of Rs. 10,32, 409, 68 and the complainant also alleges that | the 0 said kes was caused and the persons who obtained the pecuniary gain were A-1 Gunavelu, P.W.9 Rathanial,
- Raghuraj Singh (not examined), A-2 P.M.K. Vinod me > ieammr and P.W.6 T.G.Pappan and he also mentions in s the complaint that A-2 had made false entries in the books of account showing the loss of 250 metric tonnes of hay due to fire accident, though no such accident had taken place and the complainant further alleges that on de HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH |
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accounit of fictitious entries made by A-2 Vinod Kumar, a sum of Rs.16,45,041/- was paid during December 1995 and March 1996 towards purchase of hay to Acs i Shiva Reddy. a
18. Though the complaint allegations are of the -- above nature, the charge that is frauned against. the | accused is only confined to short cupply of 1 104. 401 metric tonnes of hay and the payment for the short supply is equal ti Rs. 7,83 872)-. "Thos, the charge does not refer te all the complaint allegations. Since the complaint itsel is based en the Court of Enquiry reports and the learned trial judge also having placed heavy reliance on the material forming part of the Court of
-- Baguiry 'proveedings and also observing at paragraph- 33 ai f of his judgment that the evidence available against
- the accused to prove the act of short supply of hay | ws among other things also includes the Court of Enquiry | proceedings, the firet point to'be considered is whether . 'the trial court was justified in referring to the Court of . Enquiry proceedings to convict the appellants herein.
be 1GH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COt
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19. It is a settled law that the trial court in a before it and not to go by the other materials. whic are = entire Court of Enquiry proceedings * referred to by the a trial court was altogether « 'different proceedings: and the acoused persons in the instant case had no opportunity to cross-examine the witnesses examined during the Court of Enquiry.
20. That apart at 'the initial atage, the witnesses examined before the trial court viz, P.We.6 and 9, were also the accused. 'Thereivre, by merely marking the enquiry proceedings could the trial court act upon such material ia 'the first 'point for consideration. In this "vegard, the. 'feicinion referred to by learned senior counsel Siri C.V.Nagesh for A-1 requires to be taken : 7 "nove of.
21. This court, in the case of CBI Vs. J.Alexander (Criminal Appeal No. 1855/2003), has considered thie aspect of the matter and, after referring = HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH ¢ -19- to the judgments of the Apex Court, this court had observed at paragraphs-67 to 71 thus:
"67. In the case of P. Jayappan Vs a | S.K.Perumal (AIR 1984 $.C.1693), dealing with the pendency of cccmeeeir Sie proceedings anzd whether © weuld constitute as a bar to the eroend prosecution for offences punishable andin Section 276 C or 'Section Q77 of the Act, the Apex Court had observed thus: 7 "In the ctiainal case all the ingredients of the offence in question have to be _ tatablished. in order to secure the a conviction of the accused. The 'criminal court.no doubt has to give | due regard to the result of any oe, "proceeding under the Act having a | hearing on the question in issue and in
-- an appropriate case it may drop the _ proceedings in the light of an order passed under the Act. It does not, 7 "however, mean that the result of a proceeding under the Act would be binding on the criminal court. The vefore it Otherwise there is a danger be 4GH COURT OF KARNATAKAHIGH CQURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COl -26- of a contention being advanced that whenever the asseasee or any other to convince the authorities im the oS not deliberately made any 'tine _ statement or that he has not fabricated any material evidence, the conviction vont of such person should invariably follow in the criminai court." * .
68. In the case of Khatri Vs State 1 of Bthar (AIR 1981 5.c. 1068) the Apex 'Court has observed. 'thet, when tie Court trying the writ petition 'procesdings to inquire into the iseue whether the petitioners were blinded by police officials wt the time of arrest or
-whilst in police custody, it does so not for | the purpose of adjudicating upon the guilt of | ging particular officer with a view to puniahing him but for the purpose of " deciding whether the fundamental right of the petitionera under Article 21 has been "wiolated and the State is liable to pay compensation to them for such violation. The court further held that, the nature and object of the inquiry i# altogether different from that in a criminal case and any ke HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH ¢ ~-21- decision arrived at in the writ petition on this issue cannot have any relevance much lese ary binding effect, in any criminal - 7 proceeding which may be taken against a 7 that the pendency of a criminal sponiatigs ;
cannot be urged as a bar agninet the Court . trying a civil proceeding or a writ petition ; where a similar issue ia involved and the two are entirely distinct. and 'separate proceedings and neither is a bar against the other. | | .
69. In the case of Kishan Singh Vs Gurpal Singh & others ((2010)3 SCC (Cri) 1091), the Apex Court has laid down the law on this aspect thus at para. 18:
"18, ; Thus, in view of the above, _ the law on the issue stands . ctyetaltised to the effect that the findings of fact recorded by the civil court do not have any bearing so far "as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cages it ig proof beyond reasonable doubt.
ye
1. IGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT UF RARNAIARA For eu. There ia neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal _ a . proceedings shall be binding between cases have to be decided on the basis of the evidence adduced | therein.
However, there may. be CHBES where 2 the provisions of Seisti 8 41 te 43 of the Evidence Act, mae se with subsequent! CASES may be taken into consideration." =
70. 'Yet, . another ease to be taken note of is that® of Anil Behari Ghosh Vs Smt. Latika Bala Desai (AIR * 1955 S.C.566) and where in
- ea proceeding for revocation of the grant of
- probate u/s 263, Succession Act, the _ question is, whether the son of the testator * murdered him, it cannot be assumed on the basis of a previous judgment of a Criminal : Court convicting the son of the murder of his father and sentencing him to transportation for life, that the son was the murderer of the testator. The Apex court observed that the judgment of the criminal de "
HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH ¢ -23- court is relevant only to show that there was such a trial resulting in the conviction and - mS seritence of the son to transportation for life. oy | It ig not evidence of the fact that the son was _ wy the murderer of the testator aud that question has to be decided on evidence. Be
71. There is great "substance: in the ;
argument advanced by the learned senior counsel Sri. C.V.Nagesh "referring to the aforesaid decisions of the Apex Court, that the criminai court will have to decide on the basis of evidence let in before it whether the respondents herein have = committed the offences with which they | were charged and put on trial. As the evidence placed before the trial court by the prosecution does not establish the charge levelled against the accused persons beyond all reasonable > deubt, the decision rendered by this court in
- the aforementioned Division Bench ruling ~ eannet itself be taken as having established the guilt of the accused persons."
. ht is, therefore, clear from the Apex Court decisions . yeferred to above that the criminal court has to judge the case independently on the evidence placed before it.
ke iGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNAIAKA Micri wut
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22. In the light of the aforesaid position in law, in the instant case, the learned trial judge has committed serious error in referring to the enquiry proceedings and S . Court of Enquiry. As the appellants in the present case _ had no opporturity to verify the veracity of the - statements made before the Court of Enquiry, the trial court was, therefore, not justifind iat referring to the material forming 'Part of the. 'Court of Enquiry proceedings. This s &. verious flaw i in 1 the judgment of the trial court. i.
23. "Leaving 'sport. the Court of Enquiry proceedings, whether the prosecution has proved its . case beyond. reasonable doubt insofar as the charge "iavelled 'against the accused is the pomt to be : considered now. The specific case of the prosecution as OO pth charge is that, the accused had conspired
- together and caused loss to the tune of Rs. 7,83,572/-
as there wae short supply of 1,104.40 metric tonnes of hay. From the evidence placed by the prosecution, the following picture can be visualized.
HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH 24, P.W.1 Ramesh Kadam speaks to the fact of A- 1 working in the military farm as a Farm Officer and Ad as an Assistant Supervisor in Harvesting, incharwe of Ba respect of the fodder. He has depoosd to the fact thet "
A-2 used to harvest the hay and used to transport the | hay in the lorries andi A-1 used to supervise the farm. There is nothing i in the evidence of this witness to show as to what was. the opening stock of hay and what exactly \ was the shortfall and the emount in that regard.
se. P.W.6 T.G.Papan has deposed in his evidence to the effect that, as a Fodder Clerk working in the od Fodder Section at Hebbal Military Farm, it was his duty
- wm | check uD the bills with the Way Book Stock and Sell Over Register and after cheoking the said bis, he used "to pur up before the Head Clerk and after the checking | was done by the Head Clerk, he used to put up before no - the Officer in charge for the purpose of passing of the pills, This witness says that he has not visited Je 4IGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CC
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Toranagallu at any point of time. He has also stated that A-3 never used to come along with the bills,
26. P.W.7 B.A.Lonappan, who was the Caster ae in :
Military Far, Hebbal, during the relevant geried, has 7 | stated that A-2 used to bring the bills and the bills were © passed by A-1 and says that Ar2 was - in charge of harvesting of the grace at that time and it is left to the discretion of the officer in charge to sign the bills by himself or by the concerned officer. This witness also does not speak about the quantiey of hay found at the beginning anf what wae the quantity found when the shortfall was asacseed.
_ P.W.9 Rathanlal has deposed in his evidence ° . vat A-2, who was working at the Military Farm, Hebbal, was subscientiy poated to the Military Farm at Thoranegaliu and A-2 used to assist P.W.9 and also a says that a person working at Hebbal Farm can be we : posted to Thoranagallu for the purpose of harvesting of : hay procurement centre. It is also in his evidence that A-1 visited Thoranagallu Farm 4 or 5 times after A-2 Ee HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH ( 2 was posted and A-2 was in exclusive control of A-1 and P.W.9 was neglected though he was the superior officer.
28. In the crogs-examination of Pa 7 ie = .
it will be baled and weighed from time tot time and they . take only dry hay and not the green hay and whenever they take the hay, they weigh it and stock it and again will weigh. He further admnits that Al and. A-2 were not present personally during April ard. September 1996. This witness: aiso 'doce not eve & clear picture of what was the stock actually available and what was the stock that was tranaported and what was the actual shortage.
29, Pw. 10 Col. M.N.Shankar is the officer who ane the enquiry report as per Ex.P-28. There is nothing in. the evidence of P.W.11 Major G.S.Gill to
- denow as to what was the quantity of stock avnilable at
-- the first instance and what was the shortage after oo 7 supply. This witness only speaks to the Court of Enquiry proceedings. P.W.12 Brig. Ravishankar apeaks L-
GH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO to the complaint Ex.P-15 being given by him based on the Court of Enquiry reports.
30. The crucial witnesses, whose evidence has :
been taken into consideration by the trial court, are ; | P.We.13 and 14. P.W.13 Mahesh Kumar Sarge hes . deposed in his evidence that be reported for. duty on 18.3.1996 from Calcutta - and when he went to Thoranagallu for taking charge during the month of March 1996, he found that the eck shown i in the stock register was not 'matching with: the physical storage available, When ne did the inspection in that regard, A-1 was alse present along with him and he noticed that there were no weighment receipts and there was no
- stacking of | hay. This witness has also stated that A-1 "did not permit Raghuraj Singh and Rathanlal for doing any y documentation, supervision or teat checks and saya we ~ 'thet the entire harvesting operation was concentrated in __ the hands of A-2.
31. It is also in the evidence of P.W.13 that every responsibility and activity were concentrated in the J HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH ( hands of A-2 by A-l, and A-1 entrusted all responsibilities like harvesting, drying, tranmporting, stacking, baling and deapatching to A-3, who was & ES course of his evidence that checking ¢ and measurement = of stock will be done by taking the density of the haystack and for this, the Iength, breadth, height, middle height and corner lengths of beth sides would be taken into consideration and thereafter, they arrived at the shortage and i it Was. 778 metric tonnes of loose hay.
32. "Baa 'ie sted about A-2 and A-3 also paying Rs.70,000/+ ty the Military Farm, Hebbel, for making goed the shortage of hay and A-1 had giving in writing ot: 3. 5.1996 that he ia responsible for any . ubortage and Al had undertook the total responsibility | _ to collect the complete amount and get it deposited to _ government treasury in his letter dated 22.7.1996, ; which is at Ex.P-29. This witness also saya that A-1 . had written another letter on 21.7.1996 for having sent a banker's cheque for Rs.20,000/- and the said letter is Ex.P-29(b}. bk NGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COi -30-
33. In the course of cross-examination, P.W.13 has stated that the Auditor's Report for the year . 1905- 7 embeazlement of over Rs.10,00,000/- bui, | 'without : | seeing the original, he is not itt a position to say anything about the audit report for the years 1994-95 and 1995-96. He further admits in the course of crose- examination that he -- did 'not "physically visit Thoranagallu HC for. taking physical charge of the atocks and he' did 'net m measure or get the hay weighed dusting hin vit ane be farthor says that the hay was lying in a loose manner all around and it was not caparbie of being measured or weighed. This witness | ; has stated that he recorded about the physical state of "efi existing 'at Thoranagallu after he took over the
- charge. | 34, P.W.14 S.P.Singh, another important witness
- verifying the entries in the ledger regarding the stock with reference to physical availability of the stock, & a HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH (|
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tentatively he came to the conclusion that the shortage was much more than what was initially assessed by the Station Board Officers during April 1996. It is also in " - the person responsible for the smooth sanctioning cf the farm and the Manager is also "responsible for proper accounting of stocks and he has stated thet Rathanlal (P.W.9)} was the Manager at the relevant point of time. The supervisory tal working under Rethanlal at that time, according, in. this witness, were » Raghuraj Singh (not mentioned as'en ecoused in. che complaint and was not examined betas the court and Vinod Kumar (A-2).
BW, 14 has also stated in his evidence that A-
| om waz & depute to work at Thoranagallu as Assistant to "inchenge, end, "the order was signed by one N.P.S.Sirohi
--- (Bx.P-29(o) is the document referred). It has come in ON ee evidience of P.W.14 that the bills of the contractor
- will be paid only after counter checking by different : 'officials with regard to the correct quantity credited in the Weigh Books and Stack and Silo Register and the received quantity should be taken tot he Weigh Books E NGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT CF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO' ao -42- by the person in charge of the stock holding and Stack and Silo Registers should be maintained by Fodder Clerk in the main office. It is also the over orate | 1995-96, was not properly maintaine4.
36. It is the further orice of rong that when the contractor submits a bill for cutting and carting loose hay, the person in charge of che harvesting has to verify and certify the correctness of the quantity and thereafter, the bil is sent tte the Fodder Clerk who, after verification, will send. it. to the Head Clerk and after recommendation by the. Head Clerk, it is placed before the officer in charge of the Military Farm ie., A-1. This . 7 witness | hos clearly deposed that only after the officer in charge af. Thoranagallu gives the certificate regarding the correctness of the quantity and the amount and ; " > forwards it to the officer in charge of the main farm at s Bangalore, only then, the officer in charge of the main . 'farm at Bangalore will pass the bill and then it comes to HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH |
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37, In the crose-examination of P.W.14, it has been brought out that Rethanlal was the Manager and he had the responsibility of monthly physica! cheoking, _ admits that when loose hay is baled, che moisture in the = hay should not exceed 8% ond. between: the time when 2 the hay is brought to the stacking yard and it is. stacked finaly for the purpose of despatching, there will be some loss in the weight and. P, We, if prepared a tentative estimation of the chortage, based orl the book balance and actually what Was available on 1 the ground.
38. PW. 14 further 'admits that Exa.P-19 to P-24 and ! Rug bills were subjected to local audit and he did | "hot know whether any objections were raised or not. It "is eo admitted by this witness in the cro | - examination that the final weighment of the hay was not done in his presence but they arrived at the total "shortage during the court of enquiry based on the . 'records only and the reports submitted by the officer in charge of the H.P.C. & HGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO
39. P.W.16 Brig. V.P.Singh has deposed in his evidence that A-1 was officiating as Farm Officer in charge at Hebbal having jurisdiction over mr Thins = hay harvesting farm and it had: a "separate a respormible for harvesting, stozing, despatch, protection ; . and accounting for the stock and one Rathenlal (P.W.9) was the Manager ani one Ragiuraj Singh and Vinodkumar (2) were the. "supervising staff at Thoranagallu Military Farm and T.G.Pappan (P.W.6) was alge posted te look, ater the office at Thoranagallu.
40. Aa far an the sol of Ae1 is concerned, P.W.16 has stated that the work of A-1 was that of providing 7 adaainiatrative support like providing budget, making the payments based on the documents received from Thoranagallu Military Farm and for all the harvesting, i stocking etc, the officer in charge of Thoranagallu unit ; 2 was responsible and saya that both A-2 and Raghuraj Singh were working under the supervision of Rathanlal,
- Manager of Thoranagallu unit. It is also his evidence that all the officials working in the Military Farm at a HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH
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Thoranagallu had to work under the supervision of Rathanlal. It is also in the evidence of this witness in the cross-examination that A-2 will submit the bile me. . have to send the bills to the Military F Fasm at t Hebbal for for releasing of payment and for any shortage 'or. aver ; . payment in respect of the harvest of hay, the officers at Thoranagaliu are entirely respons ible,
41. From the aforesaid evidence of the prosecution witnesses, it ia, therefore, dlear that whatever the assecs:nent of f shortage is made, is on the basis of the reports contained in the Court of Enquiry proceedings. independent of that, the prosecution has not been able "te show from: the aforesaid teatimony of the witnesses as p: what exactly was the actual stock of hay available | - and what 'was the quantity that was despatched and "Sates th acl brags
42. As far as the bills passed by A-1 are . concerned, the bills have been produced at Exs.P-3(1) to P-3(40) and a look at the description of the work done L oo NGH COURT OF KARNATAKAHIGH CGURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO! -46- by A-3 reveals that the work done was either cutting, curing, getting the loose hay or transportation of the loose hay from the hill top to the stock yard: Tn vate. | were made to the contractor for eupply of hey." On the .
other hand, as rightly subsmiited by earned counsel Shri Ganeshkumar for A-2, the hay was found in the land itself and the only task of the contractor was to harvest it, cut it and transport it to the stock yard for stocking. AS s such, the question of A-3 supplying the hay docs not. arke and the charge iteelf, therefore, is very defective in nature and does not reflect the actual case of the: prosecution and the learned trial judge has a alee, italy euaees this important aspect of the case.
43. When no supply of hay was done by A-3, the 7 question of the other accused being guilty of the act of
- : commpiracy along with A-3, therefore, does not are. | From the evidence of the prosecution witnessea, it 7 cannot be gathered that the witnesses have been able to establish what was the actual quantity of hay that was stocked at a particular point of time and what was the a "
HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH :
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actual shortage after the hay was despatched to various units. 'The evidence of the material witnesses is of the nature of conjectures and surmises and no = viet quantity of hay found and the difference afer the 1 despatch of a particular quantity of hay. Thereiore, the ; . prosecution cannot be said to have proved its case insofar as the shortage of hay veyors reasonable doubt and consequently, the accuned having caused loss of Rs.7 83,572) also. doce net 'stand Proved beyond reasonebic doubt.
44, Apart from this, when it has come in the evidence, of the Prosecution witnesses that the bill | " aubinitiod by. the contractor has to go through several . hands anid the Manager in charge of Thor. Ll was | : mainly reaponsible and as it has come in the evidence of mee the progecution witnesses themselves, Rathanlal was : the Manager at the relevant time and Raghuraj Singh . 'aleo assisted along with A-2. The said two persons,
- Rathanlal and Raghuraj Singh, though have been shown as the accused initially, have been given up for .
a NGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO' reasons best known to the prosecution and even P.W.6 Papan wae also working as Fodder Clerk and his presence was ruled out and only A-2 has bean chosen _ who was in charge of the Thoranagal unit. as 2 Manager re viz., Ratheanlal, is given Z. clean. chit, | ununderstandable as to how the persona, who work below him and send Lille t "Rathenla! who certifies tem, are hel seperti : re
45. he far as Ari is concerned, he staya at Bangalore and only passes 'the bills that ultimately come to bien | from the Manager at Thoranagallu. If at all there ic any loss caused by the accused, there would . 7 have beet: audit report at some point of time. Though . vore prosecution witnesses deposed about the | irregularities noticed by the Auditor, no evidence is me > planed in regard to the said fact and the original audit / . report itself is not placed on record to substantiate the said oral testimony of the witnesses. Under the above circumstances, it cannot be said that the prosecution , "a HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH t ~ 39-
has brought home the guilt of the accused beyond all reasonable doubt. | -
46. One another aspect to be taken note of = | that, the documents produced by the prosecution are :
nerox copies and though they have been marked in evidence, in the absence of the originals being | produced, the trial court could not have taken note of the said xerox copies. In this 'connection, a decision referred to by the learned senior counsel for A-1 viz., JK.Srinivasa Murthy Ys. 'state of Karnataka, (Criminal Revisicn Petition No. 708/2010, dis posed of on 5.9.201 1) also has to be taken note of and in the said case, this court relied on the Apex Court ruling in LC. of India V8 | Ram Pai Singh Bisen, reported in 2012(2) Supreme 144, wherein the Apex Court has held that mere ; admission of a document in evidence does not amount os its proof and the contents of the document are . required to be proved either by producing primary or : secondary evidence and at the most, admission of a document may amount to admission of the contents but not its truth. In the instant case, the production of the & SIGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT GF KARNATAKA HIGH CO xerox copies, which are not the original, ought not to have led the trial court to take note of the said documents.
47. Yet another aspect to ke taken note of 18 'that, | : | as eubmitted by the learned. counsel for A-2, the Court - of Enquiry proceedings ought. not to have. een 'relied | upon by the trial court in view of Section 33 "of the Evidence Act. The learned coumel, referring to the said provision, hes submitted that 'the. relevance of the evidence in other proceedings would be relevant provided the sdverve party inthe first proceeding had a right and. opportunity eo 'cross-examine the witnesses.
In thas instant case, "the accused had no euch "opportunity 'to question the witnesses examined during the Court of Baquiry proceedings and for this reason also, the learned trial judge could not have banked _ : upon the proceedings of the Court of Enquiry.
48. Yet another factor to be taken note of is that, el seems to be in charge at the end of March 1996 and four months afterwards only the allegations came to oa HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH
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surface and during the said period, the person who was in charge wae P.W.13, who took over on 18.3. 1996. Likewise, P.W.14 also visited the Thorangella re these periods, there could have been many other factore i.
which could have led to the weight « of the bay being reduced and some of the factors have been spoken to by the witnesses themsaives. : "Under the said circumstances, it cannot be said that the prosecution has proved the sane again: the accused beyond all reasonable doubt.
49. $0 far az thes act of conspiracy is concerned, no witness speaks to this fact and nothing can be _ gathered from the evidence of the prosecution witnesses "ae te to when. 'and in what marmmer, the accused had | 7 conspired. 'As far aa the pecuniary gain caused to them me is concerned, as already referred to by me earlier, in the s light of the submissions made by Shri C.V.Nagesh, learned senior counsel for A-1, no charge of pecuniary advantage is there againat A-3 and consequently, A-1 could not have been charged with the said offence when as 3GH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO no gain, either for himself or A-3, has been shown to have been caused on account of the acts of the accused.
Since all the bills have been passed Pm Ak. . ie bills approved by the Thorenagall. Fart office, Act cannot be held guilty of any of the offences as the bill come to him only at the last stage after having been checked and verified by all other officers of Thoranagallu office and more particularly, the Manager in charge at hat re via, Rather.
50. "One lant aapect to be considered ia. the payment of certain amounts by the accused. The trial court has made much of the act of the accused in "making ceriain payments and held that the said act "itself is sufficient to hold that the accused had admitted their guilty. "The said finding of the trial court also os 'cannot 'be considered as having any rational basis behind it. Merely because the accused makes certain payment or undertook to collect the money, that cannot be a reason to put the blame on the accused and the
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HIGH COURT OF KARNATAKA HIGH COURT OF KARMATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH prosecution will have to establish by proper evidence, the guilt of the accused. .
91. In this connection, a decision retorred to 2 by os, Prasad Vs. Emperor, reported 3 in ALR, +1930. Oud 224, | will have to be preased into service. In the said c case, it | has been held that different parsons are "differently constituted and that some "accused, even though inriocertt, deliberately: abecond, 'rather than face the ordeal of a corianinal trial and that some other innocent accused do equally foolish things such as make a false admission of guilt or poy off the amount said to have been stolen or embeazied in the vain hope that they may | - eecape a criminal prosecution or get off with a light punishment. ' Such subsequent conduct cannot os dispense with the positive proof of the guilt of the me accused, the burden of which hes upon the prosecution. a When once the Crown has established the guilt of the . 'accused by the evidence of prosecution witnesses then such subsequent conduct may be utilized as furnishing further proof of the correctness of the conclusion as to aa HIGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CC
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the guilt of the accused drawn from the evidence of the prosecution witnesses; by itself, however,
52. Therefore, applying the aforesaid principles to :
the case on hand, merely because Al undertvok "te collect the amount and the other ACK? used also made | certain payments, that wilt not absoive the prosecution from proving its case beyond al! reasonable doubt. In the instant pasa, {be evidence 'on. the whole taken together, gives the inpreesion that the witnesses for the proseciition simpiy retied ox "the Court of Enquiry proceedings and. speak with the help of that, without any iudependent evidence being placed by them with
- "regard to the actual stock of hay available and whatever the quantity dispatched to various units and what was oe the actual shortage. As the bills produced by the me "-presecution itself only speak about the work of A-3 in . s outing, harvesting and transporting hay from the farm _ to the stockyard, they aleo do not establish as to what a was the actual quantity of hay found at the relevant point of time and what was the actual shortage.
Ze KA HIGH COURT OF KARNATAKA HIGH HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATA,
53. For the aforesaid reasons, the conviction of the appellants by the court below cannot be sustained -
ni aes te matey eet ile not have relied on the Court of Ena procesdings.
54. Hence, the following o otder i is passed, The appeal is ellowed and the Judgment of conviction passed by the trial court against all the appellants . stand, set aside, All the accused are acquitted. of ail 'the offences with which they stood charged. Thais bail bonds shall etand cancelled Fine amount, if. any "deposited, shall be refunded to the a apretlants.
Sd/-
JUDGE