Karnataka High Court
Pawan Kumar Singh vs State Of Karnataka on 8 March, 2022
Author: K. Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL PETITION No.1830 OF 2021
BETWEEN:
PAWAN KUMAR SINGH
S/O SHIW SHANKAR SINGH
AGED ABOUT 37 YEARS
R/AT ADMIN ASS(B) AND CASHIER
DFRL OFFICE, MM ROAD
NEAR MYSORE MILK ROAD
MYSURU CITY
KARNATAKA-570 011
...PETITIONER
(BY SRI KUMAR K.G., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY NAZARBAD POLICE STATION
MYSORE 570008
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING-560 001)
2. SANTANU BANERJEE
S/O SWAPAN KUMAR NANERJEE
AGE MAJOR
OFFICE AT SAO GRADE-1
DFRL, NEAR MILK DAIRY
M M ROAD, MYSURU CITY
KARNATAKA 570011
2
...RESPONDENTS
(BY SRI VINAYAKA V.S., HCGP FOR R1;
SRI MADHUKAR DESHPANDE, ADV. FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.226/2020 ON THE FILE OF THE
HONBLE III ADDITIONAL SENIOR CIVIL JUDGE AND CJM
COURT, RB ROAD, MYSORE CITY, WHICH IS ARISING OUT
OF CRIME NO.194/2019 OF NAZARBAD POLICE STATION,
MYSORE FOR AN OFFENCES UNDER SECTIONS 409 AND
420 OF IPC AS AN ABUSE OF PROCESS OF LAW..
THIS CRIMINAL PETITION COMING ON FOR HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner/accused under Section 482 of Cr.P.C. for quashing the order taking cognizance by IV Additional Senior Civil Judge, JMFC, Mysuru in respect of Crime No.194/2019 registered by Nazarbad Police for the offences punishable under Sections 409 and 420 of the Indian Penal Code, 1973 (for short 'IPC').
2. Heard the arguments of learned counsel for the petitioner, learned Special Counsel for respondent 3 No.2 and learned High Court Government Pleader for respondent-State as well as perused the records.
3. The case of prosecution is that one Santanu Banerjee, who is respondent No.2 herein, has filed a complaint before the Police on 13.12.2019 alleging that the petitioner was said to be working as an Admin Assistant B and Cashier in the Defence Food Research Laboratory (hereinafter referred to as 'DFRL' for short) which comes under the Defence Research and Development Organisation, Ministry of Defence, Government of India functioning in Mysore. The petitioner-Pawan Kumar Singh is said to have misappropriated the amount to the tune of Rs.50 lakhs by transferring the amount to his accounts, which was required to be paid to the students towards stipend. In this regard, two committees were formed by respondent No.2, an enquiry has been initiated against 4 him and found out that fraud had been committed by the petitioner. Hence, this complaint for taking action.
4. After registering the case, the Police investigated the matter and filed a charge sheet. Learned Magistrate also took cognizance of the alleged offences on 04.09.2020 and issued summons to the petitioner, which is under challenge.
5. Learned counsel for the petitioner mainly argued the matter contending that the petitioner, being a public servant and a Central Government employee, has discharged his public duty. The alleged offences were committed during the discharge of his public duty. Therefore, there is a protection under Section 197 of Cr.P.C. For taking cognizance, the sanction of the competitive Authority is required under Section 197 of Cr.P.C., wherein in this case, no such sanction was obtained. Therefore, taking cognizance of the offence 5 against the petitioner/accused is illegal and liable to be set aside. Hence, he prays for allowing the petition.
6. Per contra, Sri Madhukar Deshpande, learned Special Counsel appearing for respondent No.2 contended that the petitioner being an Admin Assistant and Cashier, had created the documents and obtained permission of the higher Officer instead of transferring the amount to the account of the beneficiaries/students towards stipend, he had transferred the same to his accounts by stating that the amounts were given to the beneficiaries. The creation and forging of such documents cannot be considered as official duty. The alleged offences have not been committed by the petitioner during the course of discharge of his official duty and as such, he has misappropriated the amount which is punishable under Section 409 of IPC, whereas, the Hon'ble Supreme Court has held that no sanction is 6 required for prosecuting the case of misappropriation. Hence, he prays for dismissal of the petition.
7. Learned High Court Government Pleader appearing for the respondent-State also supported the contention of learned counsel for respondent No.2 and contended that the documents which are produced before this Court, especially, the statement of the bank accounts of the petitioner clearly reveals that the petitioner has misappropriated the huge amount by transferring nearly a sum of Rs.50 Lakhs to his accounts, which is an amount payable towards stipend to the students. It is a clear case of misappropriation of the amount. Therefore, the question of sanction is not necessary to prosecute the case against him. Hence, he prays for dismissal of the petition.
8. Learned counsel for the petitioner has relied upon the decision of the Hon'ble Supreme Court in the 7 case of Indra Devi Vs. State of Rajasthan and another in Crl.A.No.594/2021 dated 23.07.2021.
9. Learned counsel for respondent No.2 has relied upon the decisions of the Hon'ble Supreme Court in the cases of Punjab State Warehousing Corporation Vs. Bhushan Chander and Another reported in (2016) 13 SCC 44 and Prakash Singh Badal and Another Vs. State of Punjab and Others reported in (2007) 1 SCC 1 as well as the judgment passed by this Court in the case of Dr.M.Basappa Reddy Vs. State of Karnataka in WP.No.12915/2021.
10. Having heard the learned counsel for the petitioner-accused and the learned High Court Government Pleader for the respondent-State as well as learned Special Counsel for respondent No.2 and perusing the records, of course, it is not in dispute that 8 the petitioner was said to have been working as an Admin Assistant (B) and Cashier in DFRL at Mysore and he was holding the accounts and disbursing amount to the beneficiaries, i.e. stipend to the students. It is alleged by the complainant in the complaint that during the course of discharge of his duties, he has misappropriated the amount by showing the names of the beneficiaries and he has created the documents in his name and transferred the same to his accounts. In this regard, learned counsel for the petitioner relied upon the latest judgment of the Hon'ble Supreme Court in of Indra Devi's case (supra), wherein the Hon'ble Supreme Court has held that under the provisions of Section 197 of Cr.P.C., the protection is available to the public servant to initiate the criminal proceedings. On the other hand, the learned Special Counsel appearing for respondent No.2 relied upon the judgment of the Hon'ble Supreme Court in Punjab State's case (supra) at paragraph-20 and 21 has held as under: 9
"20. A survey of the precedents makes it absolutely clear that there has to be reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official. If the act(s), omission or commission of which is totally alien to the discharge of the official duty, question of invoking Section 197 CrPC does not arise. We have already reproduced few passages from the impugned order from which it is discernible that to arrive at the said conclusion the learned Single Judge has placed reliance on the authority in B. Saha. The conclusion is based on the assumption that the allegation is that while being a public servant, the alleged criminal breach of trust was committed while he was in public service. Perhaps the learned Judge has kept in his mind some kind of concept relating to dereliction of duty. The issue was basically entrustment and missing of the entrusted items. There is no dispute that the prosecution had to prove the case. But the public servant cannot put forth a plea that he was doing the whole act as a public servant. Therefore, it is extremely difficult to appreciate the reasoning of the High Court. As is noticeable he has observed that under normal circumstances the offences under Sections 467, 468 and 471 IPC may be of such nature that obtaining of sanction under Section 197 CrPC is not necessary but when the said offences are interlinked with an offence under Section 409 IPC sanction under Section 197 for launching the 10 prosecution for the offence under Section 409 is a condition precedent. The approach and the analysis are absolutely fallacious. We are afraid, though the High Court has referred to all the relevant decisions in the field, yet, it has erroneously applied the principle in an absolute fallacious manner. No official can put forth a claim that breach of trust is connected with his official duty. Be it noted the three-Judge Bench in B. Saha has distinguished in Shreekantiah Ramayya Munipalli keeping in view the facts of the case. It had also treated the ratio in Amrik Singh to be confined to its own peculiar facts. The test to be applied, is as has been stated by Chandrasekhara Aiyar, J. in the Constitution Bench in Matajog Dubey which we have reproduced hereinbefore. The three-Judge Bench in B. Saha applied the test laid down in Gill's case wherein Lord Simonds has reiterated that the test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office.
21. Tested on the touchstone of the said principles, it cannot be said that in the obtaining factual matrix, sanction under Section 197 CrPC was necessary. We are compelled to observe that the High Court should have been more vigilant in understanding the ratio of the decisions of this Court".11
11. This Court in Writ Petition No.12915/2021 i.e. in Bassappa Reddy's case by relying upon the judgments of Hon'ble Supreme Court in the case of State of Kerala and Padmanabhan Nair reported in (1999) 5 SCC 690 and R.Balakrishna Pillai Vs. State of Kerala and Another reported in 1996 1 SCC 478, has held that the protection is available to the public servant only in the act of discharge of his duties during the course of his official function and not otherwise. However, creating and forging of documents will not attract the official function and sanction is not required under Section 197 of Cr.P.C.
12. The Hon'ble Supreme Court in Punjab State's case (supra) has categorically held at paragraph-20 wherein it is a matter of repetition, it is required to be repeated once again, thus reads as under:
12
"20................ No official can put forth a plea that breach of trust is connected with his official duty."
13. In view of the decisions of the Hon'ble Supreme Court in the above said cases and on perusal of the case of the prosecution herein and the statement of the bank accounts of the petitioner produced before this Court, it clearly shows that the amounts were misappropriated by the petitioner by creating his own accounts, whereas the documents produced by the prosecution reveal that on 13.12.2019, the complainant given a certificate stating that the petitioner-Pawan Kumar Singh was working in his office as Admin Assistant B and he had joined the organisation as Admin Assistant A and was discharging his duty as Cashier with effect from April, 2013 to 3rd July. The said document reveals that the amounts were misappropriated by him during the course of the discharge of his duties. However, the allegation is that instead of paying the amount to the beneficiaries, he 13 got credited to his own accounts, which is nothing but a misappropriation. The amount was required to be payable towards stipend to the beneficiaries/students, but misappropriation cannot said to be the part and parcel of discharging the official duty. If such being the case, the protection under Section 197 of Cr.P.C. is not available to the petitioner and no sanction is required to prosecute against him.
14. The judgment of the Hon'ble Supreme Court in Indra Devi's case (supra) wherein the trial Court discharged one of the accused for want of sanction and for the other two persons, it was rejected. The same was not challenged by the State before the Appellate Court. The Hon'ble Supreme Court has held in the said case that the duty of the accused was only to put the initials and others were working under him. The application was prepared and placed before the executive officer, who was directed to inspect and 14 accordingly, the work was done. Therefore, it was considered as an official duty, whereas in this case, the petitioner's official duty is to transfer the money from the DFRL to the student accounts towards stipend, which he has misappropriated to the tune of 50 lakhs. The account extract clearly reveals that continuously, he has misappropriated the amount and transferred the same to his own accounts. There were three accounts belongs to him i.e. two accounts in SBI Bank and one account in ICICI Bank, which reveals that continuously, he has misappropriated the amount in various names, if such being the case, the offences punishable under Sections 465, 468 and 471 of IPC also attract against the petitioner. Of course, the police have filed a charge sheet only for the offence punishable under Section 409 of IPC but not for creating of documents. The bank account extract reveals that under different names, the amount has been credited to his account and therefore, it has not only been misappropriated but also creation 15 of documents and as such, he transferred the amount to his accounts. If such being the case, it cannot be said that he has committed the offences during the course of discharge of his duty which requires protection under Section 197 of Cr.P.C for any sanction. Hence, the petition is devoid of merits and is liable to be dismissed.
Accordingly, the petition is dismissed. The trial Court is directed to proceed with the trial after verifying the materials available on record. However, any observation made by this Court in this order shall not influence the trial court.
Sd/-
JUDGE KTY