Karnataka High Court
The State Of Karnataka vs S.Kannaiah S/O M Sanyasi on 13 January, 2017
Author: A.S. Bopanna
Bench: A.S. Bopanna
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2017
PRESENT
THE HON'BLE MR.JUSTICE A.S. BOPANNA
AND
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL APPAL NO.3622/2010
BETWEEN:
The State of Karnataka
Rep.by CBI
Anti Corruption Branch
Kendriya Sadan, Sultan Bazaar
Koti, Hyderabad ... Appellant
(By Sri Prasanna Kumar, Spl.PP.,)
AND:
S.Kannaiah
S/o.M.Sanyasi, Major
Formerly Stores Clerk of
Non-vegetarian Refreshment Room
Railway Station, Raichur
Raichur District, Permanent Resident of
H.No.79, Brislee Nagar Settlement
Otteri, Chennai-12 ... Respondent
(By Ishwar Raj S.Chowdapur, Adv.,)
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This appeal is filed under Section 378(2)(b)
praying that this Hon'ble Court may be pleased to set
aside the judgment and order of acquittal dated
2.2.2010 passed by the Presiding Officer, Fast Track
Court-I at Raichur in Criminal Appeal No.22/2008
thereby setting aside the judgment and order of
conviction and sentence dated 24.3.2008 passed by the
JMFC-II at Raichur in CC.No.262/1996 for the offence
punishable under Section 409 of CPC.
This appeal having been heard, reserved for
judgment and coming on for pronouncement of
judgment this day, B.A.PATIL J., delivered the
following:-
JUDGMENT
The present appeal is preferred by the State assailing the judgment and order dated 2.2.2010 passed by the Fast Track Court-I, Raichur in Criminal Appeal No.22/2008 by which the judgment dated 24.3.2008 passed by the Principal JMFC-II Court, Raichur, in CC.No.262/1996, convicting the accused for the offence punishable under Section 409 of IPC has been set aside.
2. Case of the prosecution in brief is that the accused was discharging the duties of Room Manager in Non-vegetarian Refreshment Room at Raichur Railway -3- Station during June 1994. He was required to remit the total amount of Rs.94,256/- to the Railway Authorities which has been received by him towards the sale proceeds, but he remitted only an amount of Rs.60,683/- on different dates, thereby there was a short remittance of Rs.33,573/-. It is further case of the prosecution that the said work has been entrusted to the accused but while remitting the amount, he has remitted less amount by escalating the figures and thereby misappropriated the Government money of Rs.33,573/-which has been entrusted to him. On the basis of the complaint, after investigation, a charge sheet came to be filed. On appearance of the accused, copies of the prosecution papers were supplied to him and after hearing both parties, charge came to be framed. The accused denied the charge and claimed to be tried and as such the trial was fixed.
3. In order to prove its case, the prosecution has examined 6 witnesses and got marked 32 documents as -4- per Exs.P1 to P32, whereas on behalf of the accused, no evidence was led, but however, he got marked Exs.D1 to D17. After closure of the prosecution evidence, accused came to be examined under Section 313 of Cr.P.C. After hearing the arguments on both sides and on evaluation of the material on record, the Court below convicted the accused. Being aggrieved by such order, the accused preferred an appeal before the Fast Track Court-I, Raichur, which came to be allowed by setting aside the order of conviction thereby acquitting the accused. As against the said order of acquittal, the State is before this Court in this appeal.
4. The learned Special Public Prosecutor appearing on behalf of the appellant-State has contended that the judgment of the first appellate Court is contrary to law, facts and evidence on record. The Court below has not properly appreciated the evidence of PWs.1 to 3 with reference to Exs.P1 to P23. He has contended that there is sufficient evidence to show that -5- the accused-respondent was entrusted with the work of Room Manager to look after the Refreshment Room and he has made a short remittance of Rs.33,573/- thereby committed criminal breach of trust. He has also contended that the Court below without assigning proper reasons has acquitted the accused. Section 468(2) of Cr.P.C., is not applicable in respect of the offence levelled against the accused which is punishable with imprisonment for life or with imprisonment for a term of ten years and fine. He has further contended that even though it is the case of the accused that the Department has not filed any complaint, as per the Criminal Procedure Code, anybody can set the criminal law into motion. In order to substantiate his contentions, he has relied upon the decisions of the Apex Court, namely, (2006)5 SCC 381 - State of H.P. Vs. Karanvir; (2009)11 SCC 737 - R.Venkatkrishnan Vs.Central Bureau of Investigation; and (2015)13 SCC 87
- Inspector of Police & another Vs. Battenapatla Venkata -6- Ratnam & another. On these grounds, he prayed for allowing the appeal.
5. Per contra, the learned counsel appearing on behalf of the accused-respondent has vehemently argued and contended that the prosecution has utterly failed to prove the main ingredient of entrustment. It has not specifically proved as to what property has been entrusted to the accused and who entrusted the said property to the accused. Even the person who has entrusted the property to the accused has not been examined before the Court. He has contended that Exs.P21 to P23 are disputed by the accused, under such circumstances, no inference can be drawn on the basis of examination of other witnesses. He has also contended that as the said documents were not sent to handwriting expert, the same cannot be relied upon. He has further contended that there is a delay in registration of the case and as such no cognizance should have been taken in respect of the alleged offence. -7- It is his further contention that the office is being audited every year and no discrepancies are pointed out in the financial matter, under such circumstances, the present complaint itself is not maintainable. He has also contended that even though certain amount has not been credited by the accused, there is a practice which has been admitted by the witnesses that the short remittance of the amount is permissible. He has further contended that proper sanction under Section 197 of Cr.P.C. has not been obtained for the purpose of prosecuting the accused-respondent. Section 197 of Cr.P.C. is a protection given to the workers and only on omissions and commissions necessary action cannot be taken. He has contended that the present complaint has not been filed by railway authorities, as such the complaint itself is not maintainable. The appellate Court after considering the material on record has rightly set aside the order of trial Court by acquitting the accused. The appellant-State has not made out any good ground -8- so as to interfere with the impugned judgment. On these grounds, he prayed for dismissal of the appeal.
6. Before adverting to consider the contentions in detail, we feel it just and necessary to bring on record the evidence which has been led by the prosecution before the trial Court.
PW.1 is the Senior Commissioner Manager under whom the accused was working as a Room Manager. He has deposed that accused was working under him and was required to deposit the amount in respect of sale of food packets. PW.1 has given the details of the amount which was required to be deposited by the accused. Even though PW.1 was cross-examined, nothing worth has been elicited to throw light for deciding this case.
PW.2 is the Senior Booking Clerk who has deposed that accused has deposited an amount of Rs.5,690/- and Rs.4,000/- on 16.7.1994 and 17.7.1994 -9- respectively as per Ex.P4. During the course of cross- examination, he has deposed that if there was any short payment of amount, the same could be paid subsequently. But he has denied the suggestion that the accused has not misappropriated any amount.
PW.3 is the Railway Booking Clerk who has deposed about depositing of amount Rs.7,000/- on 15.7.1994 by the accused.
PW.4 is the Additional Superintendent of Police of CBI who registered the case. After completion of investigation, he came to know that the accused has misappropriated an amount of Rs.33,573/-.
PW.5 is the Booking Supervisor who has deposed that during 1994-95 accused was working as Room Manager, he was entrusted the work of distributing vegetarian and non-vegetarian food and he was required to deposit the amount by sale of food. He has also deposed that the accused has deposited less amount of
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Rs.33,000/- during the period from 7.6.1994 to 24.6.1994.
PW.6 is the Inspector of Police who has filed the charge sheet against the accused. He has identified the signature of the Investigating Officer who is no more.
7. Keeping in view the rival contentions of both parties, it is necessary to notice the meaning of 'entrustment'. In that light, we refer to Sections 405 and 406 of IPC, which read thus:-
"405. Criminal breach of trust-
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or
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willfully suffers any other person so to do, commits "criminal breach of trust".
Explanation 1 - A person, being an employer, of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2 - A person, being an employer, who deducts the employees'
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contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
406. Punishment for criminal breach of trust- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
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8. No doubt, one of the essential conditions of the offence of criminal breach of trust is that the property which is the subject matter must have been entrusted to a person and the said property must be either the property of some person other than the accused and the said property must be held by such person on trust for such other person. In every case where offence of criminal breach of trust is alleged what must be established initially is the fact of entrustment of money or property. The word 'entrustment' in Section 405 of IPC is not necessarily a term of law, but it has different implications in different contexts. In general, the word "entrustment" signifies handing over of the possession for some purpose which may not imply the conferring of any proprietary right over such property. In that light, we have to consider the evidence produced before the Court below. As could be seen from the evidence of PW.1, the Senior Commissioner Manager and other witnesses, it discloses the fact that the accused was
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entrusted with the work of Room Manager and he was required to distribute vegetarian and non-vegetarian food and to deposit the amount.
9. During the course of cross-examination of PWs.1 and 2 it was suggested that the accused has credited short remittance of Rs.33,000/- and odd through Receipt Nos.695054 to 695064 from 30.7.1994 to 3.8.1994 to the Government. It was further suggested that there is a practice of short remittance in the Railway Department. Even during the course of cross examination of PW.5 also, it was specifically suggested that the accused has set right the amount which was due to the Government through the aforesaid Receipts. In that light, if the said evidence is perused, it clearly goes to show that the accused was working as a Room Manager in the Refreshment Room and looking after the work of distributing vegetarian and non-vegetarian food and raw materials; he was required to maintain the stock Registers and was also entrusted with the duty of
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remittance of the said amount to the Government through the procedure laid down by the Department. When that being the case, now the accused cannot contend that there was no entrustment to him and the same has not been proved by the prosecution. In that light, non-examination of Sri K.B.Karat and non-proving Exs.P21 to P23 in accordance with law does not make any difference when the accused himself has admitted the said fact during the course of cross-examination through his suggestion. When the accused-respondent has taken up the contention that subsequently he has paid the amount and as there was a scope for payment of the amount and also there was a practice of short remittance in the Department, then the burden shifts upon him to establish those facts on preponderance of probabilities. In that light, nothing was produced by the accused before the Court either by leading his evidence or in his statement under Section 313 Cr.P.C. When once the accused fails to prove his contention
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after the burden has shifted on him, then he has to be convicted for the offence punishable under Section 409 of IPC.
10. No doubt we are conscious that the initial burden is always on the prosecution to prove the entrustment of the property to the accused and it is not necessary to prove the actual manner of misappropriation of such property by the accused. Even though it is contended by the learned counsel for the accused that the entrustment has not been proved, there is sufficient evidence produced by the prosecution to show that he was entrusted with the work. Be that as it may, when the accused himself has admitted that he has made the short remittance subsequently, then under such circumstances, we do not have any hesitation to hold that there was an entrustment and the said entrusted money has been misappropriated by the accused. When there is a remittance of the said amount after a gap of some period, there may not be
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misappropriation in its true sense but ultimately it boils out that there was a temporary misappropriation. Even if it is a temporary misappropriation, the same constitutes nothing less than a criminal breach of trust. In that light, the submission made by the learned counsel for the accused-respondent cannot be acceptable in law.
11. In so far as the contention raised by the learned counsel for the accused that the complaint has not been filed by the railway authorities, the said complaint has been filed by the Deputy Superintendent of Police, CBI, Hyderabad and as such the entire proceedings are not sustainable in law is concerned, it is well established principle of law that the criminal law can be set in motion by anybody. Hence, the prosecution initiated by CBI on behalf of the Railway Authorities is justifiable. Leave apart this, the money involved in the instant case is a public money, if any illegal transaction takes place and the accused is
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reaping the fruits of such money for unlawful gain, then it amount to criminal breach of trust by the accused and therefore he cannot be set free even though there is no audit observation or any complaint by the Department. In that light, submission made in this behalf does not hold water and the same is rejected.
12. In so far as the next contention of the accused that the proper sanction under Section 197 of Cr.P.C. has not been obtained to prosecute the accused is concerned, on perusal of Section 197 of Cr.P.C. it reveals that the protection has been given to public servants from malicious prosecution so as to avoid harassment being caused to the public servants. But the same cannot be treated as a shield to protect corrupt persons who have mis-utilized the public money for their selfish gain. Leave apart this, the said sanction is necessary only if the accused was acting or purporting to act in the discharge of his official duty. But the act done by the accused-respondent for
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wrongful gain is not coming within the purview of the said definition. Under the aforesaid facts and circumstances of the case, the said contention of the accused is also not tenable in law.
13. In the above backdrop, we have carefully gone through the judgment passed by the first appellate Court. The first appellate Court only on the ground of non-examination of the material witnesses and not sending of Exs.P21 to P23 to handwriting expert as a root cause, has set aside the order of the trial Court without proper consideration of the law and facts, whereas the trial Court in its judgment after considering in detail all the aspects, has rightly come to the conclusion that the prosecution has proved the guilt of the accused and convicted him.
14. In view of the above discussion, we are of the considered opinion that judgment of the first appellate
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Court is liable to be set aside. Accordingly, the following order is made:-
Appeal is allowed. The judgment dated 2.2.2010 passed by the Fast Track Court-I, Raichur, in Criminal Appeal No.22/2008 stands set aside. The judgment and order of conviction dated 24.3.2008 passed by the Principal JMFC-II Court, Raichur, in CC.No.262/1996, stands confirmed. The trial Court is directed to secure the accused and issue necessary conviction warrant to undergo the sentence, forthwith.
Sd/-
JUDGE Sd/-
JUDGE *ck/-