Karnataka High Court
Fakirappa S/O Parvateppa Shettar vs The State Of Karnataka on 11 July, 2017
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 11th day of July 2017
Before
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
Criminal Revision Petition No.2195/2011
c/w
Criminal Revision Petition No.2196/2011
Criminal Revision Petition No.2459/2010
Criminal Revision Petition No.2462/2010
In Crl.R.P. No.2195/2011
Between
Fakkirappa s/o Parvateppa Shettar,
Age: 68 years, Occ: Retired Teacher,
R/o: Shiggaon, Tq: Shiggaon,
Dist: Haveri.
...Rev.Petitioner
(By Sri. G.S.Hosakeri, Advocate)
And
The State of Karnataka,
Represented by Addl. State
Public Prosecutor,
Office of the Advocate General,
High Court of Karnataka, Circuit
Bench At:Dharwad.
...Respondent
(By Sri.R.Raghavendra Naik, HCGP)
2
This Criminal Revision Petition is filed under
Section 397 read with Section 401 of Cr.P.C. seeking to
set aside the order passed by the District and Sessions
Judge (Fast Track Court), Haveri, In Crl.A.No.18/2004
dated 27.11.2009,Confirming the order of conviction,
passed by the Civil Judge (Jr.Dn) and Prl. JMFC, Court,
Shiggaon in C.C.No.5/1994 dated 14.01.2004, by
allowing this Revision Petition.
In Crl.R.P. No.2196/2011
Between
Fakirappa s/o Parvateppa Shettar,
Age: 68 years, Occ: Retd. Teacher,
R/o. Shiggaon, Tq. Shiggaon,
Dist. Haveri
... Rev. Petitioner
(By, Sri. G. S. Hosakeri, Advocate)
AND
The State of Karnataka
Represented by Addl. State Public Prosecutor,
Office of the Advocate General,
High Court of Karnataka, Cirucuit
Bench At: Dharwad.
... Respondent
(By Sri.R.Raghavendra Naik, HCGP)
3
This Criminal Revision Petition is filed under
Section 397 read with 401 of Criminal Procedure Code
seeking to set aside the order passed by the District and
Sessions Judge (Fast Track Court), Haveri, in Criminal
Appeal No.24/2004 dated 27.11.2009, confirming the
order of conviction, passed by the Civil Judge (Jr.Dn)
and Prl. JMFC Court, Shiggaon in C.C.No.13/1994
dated 14.01.2004, by allowing the revision petition.
In Crl.R.P. No.2459/2010
Between
The State of Karnataka,
Represented by Addl. State
Public Prosecutor,
Office of the Advocate General,
High Court Circuit Bench Unit,
Dharwad.
...Rev. Petitioner
(By Sri.R.Raghavendra Naik, HCGP)
And
Fakkirappa s/o Parvateppa Shettar,
Age: 63 years, Occ: Retired Teacher,
R/o: Shiggaon, Haveri.
...Respondent
(By, Sri. G. S. Hosakeri, Advocate)
This Criminal Revision Petition is filed under
Section 397 read with Section 401 of Cr.P.C. seeking to
set aside the judgment and order dated 27.11.2009
passed by the District and Sessions Judge, Fast Track
Court, Haveri, in Crl.A.Nos.24/2004 to the extent of
order on sentence consequently confirming the order on
sentence dated 14.01.2004 imposed by the JMFC in
C.C.No.13/1994.
4
In Crl.R.P. No.2462/2010
Between
The State of Karnataka,
Represented by Addl. State
Public Prosecutor,
Office of the Advocate General,
High Court Circuit Bench Unit,
Dharwad.
...Rev. Petitioner
(By Sri.R.Raghavendra Naik, HCGP)
And
Fakkirappa s/o Parvateppa Shettar,
Age: 63 years, Occ: Retired Teacher,
R/o: Shiggaon, Haveri Dist.
...Respondent
(By, Sri. G. S. Hosakeri, Advocate)
This Criminal Revision Petition is filed under
Section 397 read with Section 401 of Cr.P.C. seeking to
set aside the judgment and order dated 27.11.2009
passed by the District and Sessions Judge, Fast Track
Court, Haveri, in Crl.A.Nos.18/2004 to the extent of
order on sentence consequently confirming the order on
sentence dated 14.01.2004 imposed by the JMFC in
C.C.No.5/1994.
These Criminal Revision Petitions coming on for
Hearing this day, the Court, made the following:
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COMMON ORDER
Since all the revision petitions are in respect of the same accused person, and since similar questions of law and facts are involved in all the revision petitions, and also to avoid repetition of discussion, they are taken up together to dispose of them by this common order
2. Crl. R.P. No.2195/2011 is preferred by revision petitioner/accused No.1 in respect of Criminal Case No.5/1994. In this revision petition, the revision petitioner/accused No.1 has challenged the judgment and order of the Trial Court, whereby the revision petitioner/accused no.1 has been sentenced to undergo imprisonment for six months for each of the offences i.e. under Sections 408 and 477A of the Indian Penal Code and to pay a fine of Rs.1,000/- for each of the offences and, in default, to undergo further imprisonment for a 6 period of three months on each counts. Further, he has also challenged the judgment and order of the First Appellate Court passed in Crl. A. No.18/2004 by the District and Sessions Judge, Haveri, whereby the appeal came to be partly allowed, modifying the sentence imposed by the Trial Court to that of paying fine of Rs.2,000/- for each of the offences and, in default, to undergo simple imprisonment for a period of three months each; and setting aside the sentence of imprisonment.
3. Crl. R.P. No.2196/2011 is also by the same accused in respect of Criminal Case No.13/1994 before the Civil Judge (Jr. Dn.) and JMFC, Shiggaon. In this revision petition also, the revision petitioner has been convicted and sentenced by the Trial Court to undergo imprisonment for six months for each of the offences i.e. under Sections 408 and 477A of the Indian Penal Code and to pay a fine of Rs.1,000/- for each of the offences and, in default, to undergo further imprisonment for a 7 period of three months on each counts. Further, he has also challenged the judgment and order of the First Appellate Court passed in Crl. A. No.24/2004 by the District and Sessions Judge, Haveri, whereby the appeal came to be partly allowed, modifying the sentence imposed by the Trial Court to that of paying fine of Rs.1,000/- for each of the offences and, in default, to undergo simple imprisonment, for a period of two months each; and setting aside the sentence of imprisonment.
4. In respect of the cases in Criminal Revision Petition Nos.2195/2011 and 2196/2011, the State has also preferred two revision petitions - Crl. P. No.2459/2010 and Crl. P. No.2462/2010, challenging the judgment and order of the First Appellate Court modifying the sentence to one of fine only in place of six months imprisonment. The State has come up in the said two revision petitions contending that the sentence imposed by the First Appellate Court is totally 8 inadequate and the revision petitioner/accused No.1 ought to have been convicted for the higher sentence of imprisonment instead of payment of fine only.
5. Looking to the case of the prosecution in both the revision petitions, the revision petitioner was the accused, he was convicted for the offence under Section 408 and 477A of the Indian Penal Code. The allegations as against the revision petitioner/accused No.1 that he, being the Secretary in the Co-operative Society, misappropriated the amount and whatever the amount he had drawn by cheque through the bank, he has not taken the same into kirdi book and whatever the amount that he has collected from the persons, it was also not accounted into the Society's account and thereby misappropriated a sum of Rs.5,013.20 ps., and in another case with similar allegations that he has misappropriated a sum of Rs.1,935/-. After considering the merits of the case in both the criminal cases. i.e., C.C. Nos.5/1994 and C.C.No.13/1994, the revision 9 petitioner/accused No.1 was convicted by the Trial Court and he was sentenced to undergo six months imprisonment and, in addition, to pay fine amount in both the cases. When the accused preferred the appeals before the First Appellate Court, the appeals came to be partly allowed. The First Appellate Court confirmed the conviction passed by the Trial Court, but modified the sentence of imprisonment and payment of fine to that of payment of fine only and, in default, to undergo simple imprisonment. Aggrieved by the same, the above four revision petitions are filed - two by the revision petitioner/accused and other two by the State.
6. Heard the arguments of the learned counsel appearing for revision petitioner-accused, in respect of all the above four petitions and so also the arguments of the learned HCGP in respect of all the above four revision petitions.
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7. Learned counsel appearing for the revision petitioner-accused made the submission, that the petitioner-accused is now aged of 75 years. He submitted that, the alleged offences are of the year 1975-1977. He also made the submission, that looking to the judgment of the First Appellate Court challenged in Crl.R.P. No.2195/2011 at paragraph No.16, it is noticed by the First Appellate Court that the revision petitioner-accused herein, has already deposited an amount of Rs.18,000/-, though he was alleged to have misappropriated a sum of Rs.5,013.20/- in one case and Rs.1,935/- in another case. Hence, learned counsel made the submission, that because of his old age and as the alleged offences are pertaining to the year 1975- 1977, the sentence imposed by the First Appellate Court, setting-aside imprisonment and imposing only the fine amount may be retained he also submitted that the two revision petitions preferred by the state seeking enhancement of the sentence and to impose 11 imprisonment, may be dismissed and the revision petitions preferred by the revision petitioner-accused may be allowed and in view of the submissions made by him the sentence of only fine may be retained. In support of his submissions learned counsel appearing for the revision petitioner-accused relied upon the judgment of the Hon'ble Apex Court reported in (2000) 10 SCC 260 in the case of Bore Gowda v/s. State of Karnataka.
8. Per contra, the learned HCGP representing the revision petitioner-State in two revision petitions made the submission, that the sentence imposed by the trial court i.e., imprisonment for six months and payment of fine was reasonable and proper. The First Appellate Court ought not to have modified sentence, when it has confirmed the judgment of conviction passed by the trial Court. The learned HCGP also made the submission, that the accused being the secretary of the said cooperative society misappropriated the 12 society's amount and as the offences are serious in nature, First Appellate Court, ought to have confirmed even the sentence of imprisonment for six months imposed by the Trial Court. Hence, learned HCGP submitted that, the judgment of the First Appellate Court to the extent of modifying the sentence aspect is illegal and it is not sustainable in law. Hence he submitted that the revision petitions preferred by the state seeking enhancement of the sentence be allowed and the revision petitions preferred by the petitioner- accused may be rejected.
9. I have perused the grounds urged in all the four petitions, so also the judgment and order of conviction passed by the trial Court, in both the criminal cases i.e., C.C.No.5/2004 and C.C.No.13/2004. So, also I have perused the judgment and order of the First Appellate Court in both the matters. The First Appellate Court though concurred with the judgment of the Trial Court regarding the 13 conviction aspect, it modified the sentence to that of payment of fine only instead of six months imprisonment.
10. I have perused the judgment of the Hon'ble Apex Court reported in case of Bore Gowda v/s. State of Karnataka, wherein their lordships observed in paragraph No.2 and 3 as under:-
"2. These are cases where the appellant was convicted under Section 408 of the Indian Penal Code and his sentence has been reduced to rigorous imprisonment for one month. He was Secretary of a cooperative society. During audit report some irregularities had been detected on the basis of which he was prosecuted. The irregularities happened in the year 1981-82. The 3 instances for which the present cases have been registered and charge-sheet pertain to small amounts like 14 Rs.1812 and below. Learned counsel for the appellant submitted that as soon as the irregularities had been pointed out the appellant had replenished the entire amount together with interest which means the Society had not been put to loss.
3. In view of the aforesaid circumstances and also the fact that it happened in the year 1981-82 we are of the view that the benevolent provisions of the Probation of Offenders Act can be extended to this appellant. We, therefore, order that the appellant instead of undergoing the sentence be released on his executing a bond before the trail court for keeping peace and be of good behavior for a period of 3 years. The bond shall be supported by two solvent sureties for a sum of Rs.3000. The sentence will hence stand suspended sine die."15
11. Looking to the said judgment of the Hon'ble Apex Court, the irregularities alleged as against accused person in the said case were of the year 1981 and 1982. It is also observed by the lordships, that the case charge sheet pertained to small amount like Rs.1,812/- and below. Therefore, in view of those factual aspects, it was observed that the provisions of Prohibition of Offenders Act, can be extended to the appellant in the said case. Looking to the facts and circumstances of the case on hand, the alleged irregularities in the present case are of the year 1975-1977, much older than the irregularities in the reported decision and looking to the amount involved in both the cases is also the small amount i.e. Rs.5,013/- in C.C.No.5/1994 and Rs.1,935/- in C.C.No.13/1994. It is also contended by the, revision petitioner-accused that he is aged about 75 years as on today. In this connection, learned counsel appearing for the revision petitioner, relied upon the medical record 16 issued by the doctor on 27.10.2000. On the basis of this document, learned counsel made the submission, that in the year of 2000 he was 57 years old and as on today his age is about 75 years.
12. Apart from that, looking to the judgment of the First Appellate Court in Criminal Appeal No.18/2004, which was decided along with Criminal Appeal No.33/2004 at paragraph No.16, it is mentioned that in the cross-examination of P.W.1, it was suggested that accused No.1 had deposited a sum of Rs.18,000/- due to fear, though he had not misappropriated the amount and it is observed by the First Appellate Court, that from the said suggestion it appears that because there is misappropriation of the amount of the society, accused No.1 has made the alleged deposit. But any how fact remains that the revision petitioner-accused deposited the amount Rs.18,000/- with the society. Therefore, even if the amount involved in both the 17 matters are taken together it comes to Rs.6,948/-, whereas the deposit is Rs.18,000/-.
13. In view of the decision of the Hon'ble Apex Court, looking to the alleged offences and irregularities which are of the year 1975-1977 and age of the revision petitioner-accused. I am of the opinion that the benefit of the said decision of the Hon'ble Apex Court, can be given to the revision petitioner-accused in both the cases.
14. Accordingly, the Criminal Revision Petition Nos.2459/2010 and 2462/2010 are preferred by the state and challenging judgment of the First Appellate Court for modifying the sentence aspect and retaining only the fine amount in place of imprisonment of six months are hereby rejected. The Criminal Revision Petition Nos.2195/2011 and 2196/2011 are preferred by the petitioner-accused in both the petitions are allowed.
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15. The revision petitioner-accused is hereby directed to pay the fine amount as ordered by the First Appellate Court. If the amount is in deposit same to be taken into consideration for the purpose of payment of the fine amount.
Sd/-
JUDGE KMS/RHR/-