Bangalore District Court
P.William Dayananda vs The State Of Koramangala Police on 13 September, 2017
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH-65) AT BENGALURU.
Dated this 13th day of September 2017
-: P R E S E N T :-
Sri. MADHUSUDHAN B.,
B.Com, LL.B (Spl.),
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.1156/2014
BETWEEN:-
APPELLANT/ P.William Dayananda,
S/o. V.Pal,
(ACCUSED - IN
Aged about 33 years,
LOWER COURT) :
R/at. Koramangala 6th Block,
No.48, Gangadharanagara,
Sarakki Gate, J.P.Nagar,
Bengaluru.
(By Sri. Chandrashekar H.S., Adv.)
Vs.
RESPONDENT/ The State of Koramangala Police
Station, Bengaluru.
(COMPLAINANT - IN
LOWER COURT) : (Rep.By. Senior Public Prosecutor)
JUDG MENT
Appellant, who is accused before trial court, being aggrieved
by judgment of conviction and order of sentence dated 22.9.2014
passed in C.C.No.8173/2002 on the file of IV-A.C.M.M.,
2 Crl.A.No.1156/2014
Bengaluru, preferred this appeal U/s. 374(3) of Cr.P.C., in which
he has challenged the legality and correctness of the impugned
judgment of conviction and order of sentence.
2. Parties to this appeal shall be referred to as per their
ranking before trial court for the purpose of convenience and for
better appreciation of their contentions.
3. Brief facts of this case may be stated as under;
During the year 2000, accused was serving as Postal
Assistant in Koramangala post office, Bengaluru city. It is alleged
that, during course of his employment, in between May-2000 and
July-2000, he has misappropriated postal funds. As per the report
of The Assistant Superintendent of Post Offices, Bengaluru South
Sub-Division-II, this accused was kept under suspension. It is
alleged that, in altogether accused misappropriated funds to the
extent of Rs.76,672/- in between May 2000 and July 2000. On
the basis of report submitted by Shankar/Pw.1, who is the then
Assistant Superintendent of Post Offices, Bengaluru South Sub-
Division, Bengaluru, Koramangala police have registered a case
against accused in Cr.No.90/2001 for the offence punishable U/s.
409 of I.P.C.
3 Crl.A.No.1156/2014
4. After investigation, charge sheet is laid for trial of
offence punishable U/s.409 of I.P.C. Learned Magistrate took
cognizance of the offence and passed orders for registration of
one criminal case in C.C.No.8173/2002 on the file of IV-ACMM.,
Bengaluru. After hearing, on 15.7.2005 Learned Magistrate
framed charge against accused , which he denied. Hence, claims
to be tried.
5. In order to prove the guilt of the accused,
prosecution cited as many as 8 witnesses, among them examined
5 witnesses as Pw.1 to Pw.5 and got exhibited as many as 172
documents marked at Ex.P.1 to P.172.
6. On completion of the evidence of the prosecution,
Learned Magistrate examined accused as required U/s. 313 of
Cr.P.C., by giving an opportunity to the accused for explaining
incriminating circumstances appearing in the evidence of the
prosecution. Defence of accused is total denial of prosecution
case.
4 Crl.A.No.1156/2014
7. Accused did not led his defence evidence. Learned
Magistrate after hearing arguments on both side and upon
appreciation of material on record, passed impugned judgment by
which accused convicted of the offence punishable U/s.409 of
I.P.C. Thus, imposed sentence to under go S.I. for 2 years and
shall pay fine of Rs.5,000/-, in default, to serve S.I. for three
months.
8. Thus, accused being aggrieved by the judgment of
conviction and order of sentence preferred this criminal appeal
on following main grounds;
Main Grounds of Appeal
Impugned judgment suffers from non-application of
judicious mind, besides being perverse and arbitrary. There is
entire lacuna in prosecution case, but this aspect has not been
considered by Learned Magistrate which has resulted in
miscarriage of justice. As per the allegation of charge sheet,
accused misappropriated funds to the extent of Rs.76,672/-,
during course of his service as Postal Assistant, in between May
2000 and July 2000. But this fact has not been proved by
prosecution beyond reasonable doubt. Thus, Learned Magistrate
5 Crl.A.No.1156/2014
without proper appreciation of evidence on record, wrongly come
to the conclusion that, accused committed offence as alleged in
the charge sheet. There is delay in lodging report, which has not
been explained by prosecution. But Learned Magistrate without
recording his reasonings on such delay, wrongly convicted
accused. Prosecution has filed some computer print outs, which
are accepted as documentary evidence, without proper
certification as required U/s.65(B) of Evidence Act. Thus, Learned
Magistrate has accepted evidence, which is inadmissible in
evidence. Learned Magistrate without applying principles as laid
down in cited decisions, which are relied upon by
appellant/accused, has wrongly convicted. Thus, with these
among other grounds, appellant/accused prayed for setting side
impugned judgment of conviction and order of sentence, hence
prayed for acquittal of the offence punishable U/s.409 of I.P.C.
9. Notices of this appeal memo were ordered to be
issued to Learned Public Prosecutor, who appeared on behalf of
respondent.
10. L.C.R., were called for reference in this appeal.
6 Crl.A.No.1156/2014
11. During pendency of this appeal, appellant filed
application U/s.391(1) of Cr.P.C., R/w.Section 91 of Cr.P.C.,
praying this court to permit him to led his defence evidence by
calling original receipt books, which are in possession of Post
Master, Koramangala 6th Block, Bangaluru. That application was
opposed by Learned Public Prosecutor. After hearing, this court
passed orders permitting accused to lead his defence evidence by
calling original receipt books.
12. As per order passed by this court, original documents
were called for from Post Office, Koramanagal. Accordingly,
Postal Authorities produced original counter foils receipt No.ACG-
67, 68, 69 and 71 of Book No.3296 dated 6.11.2000, 7.11.2000
and 13.11.2000. Post Master, Koramangala, Bengaluru, who
produced such documents, has been examined in this appeal as
AW.1 on behalf of accused. During course of her evidence, three
documents were marked as Ex.A.1 to Ex.A.3.
13. Heard arguments on both side. Perused evidence
recorded by court below as well as evidence recorded by this
7 Crl.A.No.1156/2014
appellate court. Perused the charge framed by trial court and
impugned judgment as well.
14. On the material placed before this court, following
are the points for my consideration:
1. Whether prosecution proved beyond
reasonable doubt that, accused
committed offence punishable U/s.409 of
I.P.C., as alleged in the charge sheet?
2. Whether Learned Magistrate is justified
in convicting accused of the offence
punishable U/s.409 of I.P.C. and
sentencing him for the said offence?
3. Whether interference of this court is
necessitated?
4. What Order?
15. My findings on the aforesaid points are held as under:-
Point No.1: In Negative
Point No.2: In Negative
Point No.3: In Affirmative
Point No.4: As per final order below,
for the following:-
8 Crl.A.No.1156/2014
REASONS
16. POINTS NO. 1 to 3:- I have taken these three
points together to avoid repeated discussions.
17. In view of grounds urged in appeal memo as well as
raised during course of arguments, I feel it necessary to re-
appreciate entire evidence on record.
18. During course of arguments, learned advocate
appearing for accused vehemently argued contending that,
Learned Magistrate committed grave error in accepting evidence
which is inadmissible in evidence. He further submitted that,
without proper certification as required U/s.65(B) of Evidence Act,
Learned Magistrate has blindly accepted the contents of computer
print outs, even if defence raised objections for marking such
documents in evidence. Such print outs are inadmissible in
evidence, but Learned Magistrate placing reliance on such
documents, wrongly convicted accused. In this connection, he has
relied upon decisions reported in 2015 Crl.L.J. 1690 and
2015(3) KCCR 2406.
9 Crl.A.No.1156/2014
19. He also argued contending that, in this case, before
commencement of investigation, accused has deposited an
amount of Rs.32,412/- on 6.11.2000, an amount of Rs.2,70,000/-
on 7.11.2000 and an amount of Rs.56,935/- on 13.11.2000 as is
evident from contents of Ex.A.1 to Ex.A.3. Thus, he submitted
that, in view of principles laid down in decision reported in AIR
1991 SC 1394, accused cannot be held guilty, hence charge
leveled against accused is not sustainable.
20. He also argued contending that, there is much
discrepancies in evidence projected by prosecution. In this regard,
he has drawn my attention to evidence of Pw.1 to Pw.5 on the
aspect of actual amount alleged to have been misappropriated.
He further argued contending that, there is inordinate delay in
lodging F.I.R., which has not been properly explained by
prosecution. But this aspect has been ignored by Learned
Magistrate, which has resulted in miscarriage of justice. Thus,
with these among other submissions, learned advocate appearing
for appellant/accused prayed for allowing this appeal by setting
aside impugned judgment and order of sentence. Accordingly, he
prayed for acquittal of accused.
10 Crl.A.No.1156/2014
21. On the other hand, Learned Public Prosecutor also
vehemently argued contending that, ingredients of the offence
U/s. 409 of I.P.C., are proved by prosecution. He also argued
contending that, entrustment of work and duty to the accused
during that period as contended by prosecution is admitted by
accused, in which case, Learned Magistrate is justified in
convicting the accused, since evidence projected by prosecution
clearly discloses that, accused misappropriated revenue or funds
of postal department. Hence, he supported the impugned
judgment. Thus, insisted for dismissal of this appeal by
confirming impugned judgment.
22. Keeping these rival contentions as well as principles
laid down in the above dictums in my mind, I have gone through
the evidence on record.
23. As already observed, in altogether prosecution
examined 5 witnesses, among them Pw.1 was serving as The
Assistant Superintendent of Post Offices, Bengaluru South Sub-
Division, on whose report case against accused is registered by
police. Pw.2 was serving as Post Master of Post Office situated
11 Crl.A.No.1156/2014
at 6th Block, Koramangala, Bengaluru. Pw.3 was serving as Clerk
in Post office, Koramangala Branch. Pw.4 is The Assistant
Superintendent of Post Offices, East Division, Musium Road,
Bengaluru, who conducted inspection of post office and submitted
his preliminary as well as final report indicating fact of
misappropriation of postal funds by accused. Pw.5 was P.S.I.,
Koramangala police station, Bengaluru, who conducted
investigation and submitted charge sheet.
24. Thus, on going through the oral evidence projected
by prosecution, all 5 witnesses are material witnesses for
prosecution.
25. As could be seen from the records, one Chidambar
Rao G.S.,/Pw.4 - The Assistant Superintendent of Post Offices,
Bengaluru South Sub-Division-II, Bengaluru city was confirmed
with power of conducting departmental inspection of post offices,
which comes under his jurisdiction. Koramangala Post Office
situated at 6th Block, Koramanagala, Bengaluru city comes under
the jurisdiction of Pw.4. On 3.11.2000, he conducted inspection.
During course of his inspection, he noticed about short accounting
12 Crl.A.No.1156/2014
of revenue collected in Multi Purpose Computer Machine. It is this
accused, who was serving as Post Assistant in the said Post
Office and was entrusted with handling of Multi Purpose
Computer Machine for the period from 1.5.2000 to 31.7.2000.
Thus, during departmental inspection conducted by Chidambar
Rao/Pw.4, it is revealed that, there is short accounting of postal
revenues to the extent of Rs.76,672/- during the month of May-
2000, June-2000, July-2000. Thus, he has reported the matter
by submitting preliminary inspection report to The Senior
Superintendent Post Offices, Bengaluru South Division, who on
the basis of such report, passed orders for suspension of
accused. Thereafter, Chidambar Rao/Pw.4 submitted his final
report, on the basis of which, departmental enquiry was
conducted, in which it is held that, accused misappropriated funds
of postal revenue. It is specific case of the prosecution that,
accused entrusted with work of booking of registered parcel.
V.P.P., registered post, Speed Posts and money orders, thus, he
was provided with computer machine called as Multi Purpose
Computer Machine. It is alleged that, accused used to collect
amount from public for registration, register posts. Booking of
13 Crl.A.No.1156/2014
parcels, V.P.P., Speed Posts, money orders etc., and on every
day, after closing of transaction, he was expected to hand over
amount to Post Master/Pw.2, who has to remit the amount to
the Treasury with records i.e., computer print outs and registers
etc. Though inspection was conducted by Chidambhara Rao on
3.11.2000, and though it was revealed that, accused has
misappropriated the funds of postal department, but no criminal
case is registered, till 9.2.2001. On 6.2.2011, Senior
Superintendent of Post Offices, Bengaluru South, authorized and
directed to Shakar P. Balagali/Pw.1 who was the then Assistant
Superintendent of Post Offices, Bengaluru South Sub-Division-II,
Bengaluru to lodge police complaint against accused. Hence,
said Shankar P. Balagali lodged detail report, on the basis of
which, Koramangala police have registered a case against
accused alleging commission of offences punishable U/s.409 and
420 of I.P.C. in Cr.No.90/2001.
26. On perusal of entire material on record, it appears
that, Pw.1, Pw.2 and Pw.4 are most material witnesses for
prosecution. Pw.1 was serving as The Assistant Superintendent of
Post Offices, Bengaluru South Sub-Division-II, who lodged F.I.R.
14 Crl.A.No.1156/2014
27. Pw.2 was Post Master of Koramangala post office,
under whom accused served as Postal Assistant. Pw.4 is the
then Assistant Superintendent of Post Offices, Bengaluru South,
sub-Division, who as per case of prosecution conducted
departmental inspection and submitted his report on the basis of
which, accused was kept under suspension.
28. Pw.3 is another official of post office, Koramangala,
Bengaluru. But he has not supported case of prosecution.
29. It is admitted fact that, Pw.2 was serving as Post
Master during the month of May, June, July-2000 and during said
period accused served as Postal Assistant. Therefore, now I will
deal with oral evidence of Pw.2. As a matter of fact, his evidence
is most material and relevant in order to prove the guilt of
accused. But on perusal of his evidence, I am surprised to note
that, he has not stated the manner in which, accused
misappropriated the funds, as alleged in the charge sheet. He
simply stated that, about Rs.20,000/- was found difference
amount. He also states that, later on he came to know about the
misappropriation of funds by accused. He is not only the next
superior officer of accused, but also the entire Unit Head of Post
15 Crl.A.No.1156/2014
Office, Koramanagala, Bengaluru. If entire cross-examination of
Pw.2 is considered, it is very much clear that, except the
statement that an amount of Rs.20,000/- was misappropriated by
accused, nothing has been stated by him about actual amount of
misappropriation as alleged in the charge sheet. The manner in
which accused misappropriated as indicated in the charge sheet
has not been stated by Pw.2. On the other hand, he has admitted
that, he used to subscribe his signatures only after verification of
registers. Further, he states that, he has not noticed deference of
collected amount and amount actually deposited to the treasury
on each day between 1.5.2000 and 31.7.2000. As a matter of
fact, each day accused has to submit the records with total
amount/ revenue collected, on that day, to Pw.2, who only after
thorough check and verification of total amount collected as
per print outs of different types of collections and the actual
amount tendered by accused and only thereafter, he used to
subscribe his signature in Hand to Hand Register, then he has to
remit the amount to the Treasury. But if cross-examination of
Pw.2 is read, it is very much clear that, he has admitted that,
it is he, who is the superior officer of accused and it is he, who
16 Crl.A.No.1156/2014
use to sign in Hand to Hand Register by accepting amount,
tendered by accused. I feel it necessary to reproduce the entire
cross-examination of Pw.2, which reads thus;
" £Á£ÀÄ DgÉÆæAiÀÄ ªÉÄïÁ¢üPÁj C£ÀÄߪÀÅzÀÄ ¤d.
¥Àæw¢£À DgÉÆæAiÀÄÄ ¸ÀAzÁAiÀĪÁzÀ ºÀtzÀ ¯ÉPÀ̪À£ÀÄß
ªÉÄïÁ¢üPÁjUÀ½UÀÉ M¦à¹ ºÉÆÃUÀ¨ÉÃPÁUÀÄvÀÛzÉ C£ÀÄߪÀÅzÀÄ
¤d. ¸ÀzÀj ¸ÀªÀÄAiÀÄzÀ°è DvÀ£À ªÉÄïÁ¢üPÁj £Á£ÉÃ
EzÉÝ C£ÀÄߪÀÅzÀÄ ¤d. DgÉÆæAiÀÄÄ ¸ÀA§AzÀs¥ÀlÖ
J¯Áè jf¸ÀÖgïUÀ¼À£ÀÄß £À£Àß ªÀÄÄAzÉ
ºÁdgÀÄ¥Àr¸ÀÄwÛzÀÝ£ÀÄ C£ÀÄߪÀÅzÀÄ ¤d. CªÀÅUÀ¼À£ÀÄß
£Á£ÀÄ ¥Àæw¢£À vÀ¥Á¸ÀuÉ ªÀÄÁr ¸À» ºÁPÀÄwÛzÉÝ
C£ÀÄߪÀÅzÀÄ ¤d. £À£Àß UÀªÀÄ£ÀPÉÌ AiÀiÁªÀÅzÉà ªÀåvÁå¸À
§A¢®è C£ÀÄߪÀÅzÀÄ ¤d. ZÁ.¸Á.1 EªÀgÀÄ w½¹zÀ
£ÀAvÀgÀ £ÀªÀÄUÉ ªÀåvÁå¸À«gÀĪÀÅzÀÄ UÉÆvÁÛ¬ÄvÀÄ. MlÄÖ
JµÀÄÖ ºÀt ªÀåvÁå¸ÀªÁVzÉ CAvÀ £À£ÀUÉ
UÉÆwÛgÀĪÀÅ¢®è ºÁUÀÆ CzÀÄ AiÀiÁªÀ jÃw
ªÀåvÁå¸ÀªÁVzÉ C£ÀÄߪÀÅzÀÄ PÀÆqÀ £À£ÀUÉ UÉÆwÛ®è. £Á£ÀÄ
¥ÉÇðøÀgÀ ªÀÄÄAzÉ AiÀiÁªÀÅzÉà ºÉýPÉ PÉÆnÖgÀĪÀÅ¢®è.
DgÉÆæAiÀÄÄ gÀÆ.20,000 ºÀt zÀÄgÀÄ¥ÀAiÉÆÃUÀ
ªÀiÁrPÉÆArzÉÝÃ£É CAvÀ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É CAvÀ
CAzÀgÉ ¸ÀjAiÀÄ®è. "
If this version of Pw.2 is considered, the only inference
that could be drawn is that, if at all there is misappropriation of
postal revenue funds, then Pw.2 would not have kept quite
without reporting the fact of misappropriation of funds by
17 Crl.A.No.1156/2014
accused, to his higher officers. Once accused handed over total
revenue collected on a particular day, his entrustment on that
days' collection will be completed. Then, it is the duty of the
Pw.2 to remit the amount to the Treasury by signing in Hand to
Hand Register. Evidence projected by prosecution clearly discloses
that, departmental enquiry not only conducted against accused
but also against this Pw.2. Further, it is borne out from the
records that, in the departmental enquiry, it is held that, Pw.2 is
guilty of negligence, accordingly, he was also punished.
30. Accused was handling the duty of booking registered
post, registered parcel, speed post, VPP, money orders, postal
LIC., and unclassified receipts. Thus, he was provided with
computer system, which is called as Multi Purpose Computer
Machine (MPCM). Entire transaction of each day will be entered in
the system with collected revenue of that particular day's
transaction. At the closure of counter, day's transaction detail will
be generated, accordingly, daily shift report from the computer
will be taken out. In such print outs, entire day transaction are
recorded with amount collected. Thus, it is duty of the accused to
calculate total amount of collected revenue from booking of
18 Crl.A.No.1156/2014
registered post, speed post, registered parcel, VPP., etc., and
tendered total amount to Pw.2, who only after verification of total
amount as indicated in print outs, then receive amount from the
accused. Thereafter, Pw.2 will remit the amount to the Treasury.
Total amount tendered by accused to Pw.2 will manually entered
in the Hand to Hand Receipt Book, for which Pw.2 will subscribe
his signature in such Hand to Hand Receipt Book indicating that,
he has received daily collected amount from accused. After
following such procedure, responsibility of accused, so for on that
day's transaction is concerned will over or completed. In case of
short receipt of amount or revenue as indicated in print outs,
then Pw.2 as Post Master is required to note about shortage of
short receipt in the Hand to Hand Receipt Book, which will be
made known to the accused. This is the procedure for remittance
of revenue collected by accused. Therefore, at this stage, I feel it
necessary to refer Ex.P.104, Ex.P.105 and Ex.P.106 which are
Hand to Hand Receipt Books for the period from 1.5.2000 to
31.7.2000. On perusal of each day entry as recorded in Hand to
Hand Receipt Books, it is very much clear that, not even a single
day, Pw.2 noted fact of deposit of short collected revenue by
19 Crl.A.No.1156/2014
accused. For verification and checking of total collected amount,
Pw.2 will calculate the total amount as indicated in daily shift
report. Though prosecution produced Ex.P.104, Ex.P.105 and
Ex.P.106, there is no any indication that, accused has tendered
short amount than what revenue he collected from booking of
registered post, VPP, registered parcel and money orders and etc.
At this juncture, once again I have gone through evidence of
Pw.2, who never stated that, accused during the period from
1.5.2000 to 31.7.2000 tendered less amount or deposited short
amount than what he collected during that period. As a matter of
fact, Pw.2 is most material witness, since he was serving as Post
Master and he is the immediate superior officer of accused. If
entire evidence of Pw.2 is considered, nothing has been elicited
from his mouth about alleged misappropriation of Rs.76,672/-.
Pw.2 never identified that, Ex.P.10, Ex.P.12, Ex.P.14, Ex.P.16,
Ex.P.18, Ex.P.20, Ex.P.22, Ex.P.24, Ex.P.26, Ex.P.28, Ex.P.30,
Ex.P.32, Ex.P.34, Ex.P.36, Ex.P.38, Ex.P.40, Ex.P.42, Ex.P.44,
Ex.P.46, Ex.P.48, Ex.P.50, Ex.P.52 and Ex.P.54 as well as
Ex.P.56(a) to Ex.P.78(a) as well as Ex.P.103(a) to
Ex.P.111(a) are the print outs taken out from the hard disk of
20 Crl.A.No.1156/2014
Multi Purpose Computer Machine, which was handled by
accused. Even Pw.2 in his evidence, never spoken about
contents of Ex.P.107 and Ex.P.108, which are most relevant
documents. Pw.2 is the best person to depose about the
truthfulness of contents of Ex.P.107 and Ex.P.108. Thus, mere
marking of registers marked at Ex.P.107 and Ex.P.108 are not
conclusive proof of misappropriation of postal funds by this
accused.
31. As per the case of prosecution, accused use to collect
the revenue from the customers, but was remitting less amount.
If this were the fact, Pw.2 is the competent person to say the
quantum of amount, which accused misappropriated.
Version of Pw.1 discloses that, accused by deceiving his
immediate Superior officer use to remit the lesser amount, which
was entered in his Hand to Hand Receipt Book. But this fact
neither stated by Pw.2, nor indicated in daily print outs i.e., daily
shift report taken out from computer. If version of Pw.2 is
considered, it is clear that, he never stated that, he has been
deceived by accused by short remittance. Therefore, though
21 Crl.A.No.1156/2014
evidence of Pw.2 is very much necessary to connect the accused
for the misappropriation of funds, but on going through the
contents of each day entries as indicated in Hand to Hand
Receipt Books, misappropriation of revenue by accused does not
find place.
32. I have also gone through the evidence of Pw.1, who
was the then Assistant Superintendent of Post Office, Sub-
Division-II, Bengaluru, who lodged report on the directions of
Senior Superintendent of Post Office, Bengaluru South-Division, as
is evident from contents of Ex.P.4. Even on going through the
cross-examination of Pw.1, it is very much clear that, Multi
Purpose Computer Machine can be opened only with specific
pass word. Though Pw.1 lodged report with police as indicated in
Ex.P.8 with enclosures, it is very much clear that hard disk was
not handed over or submitted to the Investigating Officer. On
perusal of Ex.P.8 as many as 6 documents were furnished to the
Investigating Officer.
22 Crl.A.No.1156/2014
33. As per the case of prosecution, Ex.P.5, Ex.P.109 and
Ex.P.110 are prepared by K.V. Doreswamy, who was then Senior
Superintendent of Post Offices, Bengaluru, who directed Pw.1 to
lodge a report with police, as is evident from contents of Ex.P.4.
Said K.V.Doreswamy cited as Cw.8, but it is unfortunate that,
prosecution could not examine him, since he was reported to be
dead. In Ex.P.5, Ex.P.109 and Ex.P.110, short amount is
indicated. As per case of prosecution accused misappropriated
amount of Rs.76,672/- during three successive months as
indicated below;
1. During the month of May-2000: Rs.29,680/-
as is evident from contents of
Ex.P.5
2. During the month of June-2000: Rs.23,463/-
as is evident from contents
of Ex.P.109
3. During the month of July-2000: Rs.23,529/-
As is evident from contents of
Ex.P.110
------------------------
Total : Rs.76,672/-
34. Once again, I have gone through the contents of
complaint marked at Ex.P.8. In the complaint, the manner in
23 Crl.A.No.1156/2014
which accused misappropriated amount is indicated. It is alleged
that, accused misappropriated revenue/amount by way of
short/less accounting the revenue collected at counter. Ex.P.5,
Ex.P.109 and Ex.P.110 are prepared by Cw.8/K.V. Doreswamy on
the basis of computer print outs marked as exhibits. Even Ex.P.5,
Ex.P.109 and Ex.P.110 are not originals. Therefore, to prove the
contents of Ex.P.5, Ex.P.105, Ex.P.109 and Ex.P.110, evidence of
K.V.Doreswamy is most relevant, but it is unfortunate that he died
and because of that prosecution has not led his evidence. But
merely because evidence of said Senior Superintendent of Post
offices is not available, this circumstance itself is no ground to
disbelieve the case as put forth by prosecution. On this count,
court cannot rushed to hold that, prosecution failed to prove the
guilt of accused beyond reasonable doubt. Thus, I have to assess
other evidence available on record and to record my findings.
Once again, I have gone through the evidence of Pw.1, who
lodged the complaint, but he neither conducted departmental
inspection of Koramangala Post Office nor submitted report of
misappropriation of funds by accused to The Senior
Superintendent of Post Offices, Bengaluru South Division,
24 Crl.A.No.1156/2014
Bengaluru. But Pw.1 in his evidence has disclosed the manner in
which accused misappropriated the funds of post offices. He says
that, accused used to collect the revenue from all sections, but
use to remit the lesser amount to the Treasury. He also states
that, in the Hand to Hand Receipt Book, he use to show lesser
amount. But to appreciate this portion of evidence or to believe
his version, documentary evidence is very vital. Prosecution is
mainly relying on the print outs. During course of cross-
examination, Pw.1 has gone to the extent of saying that, accused
misappropriated funds/revenue of post offices to the extent of
Rs.3,30,000/-. But department has not complained about the
misappropriation of Rs.3,30,000/-, on the other hand, an amount
of Rs.76,672/- is alleged as misappropriated amount.
Department has not taken action against accused for
misappropriation of funds to the extent of Rs.3,30,000/-. Though
evidence of Pw.1 discloses that, department is having
documentary evidence to substantiate that accused
misappropriated to the tune of Rs.3,30,000/-, but no action
against accused is taken for misappropriation of Rs.3,30,000/-.
Ofcourse, Pw.1 has given some explanation for not initiating
25 Crl.A.No.1156/2014
criminal action against accused for such huge amount of
misappropriation. But in my opinion, such explanation cannot be
accepted, since Post Office is a organization/department of
Central Government. If really accused has misappropriated funds
of post office, it is a serious matter, which cannot be spared by
higher officer like The Senior Superintendent of Post Offices,
Bengaluru South Division, Bengaluru. Further, on going through
the cross-examination of Pw.1, it is clear that, entire case of
prosecution is tainted. Pw.1 deposed that, police have seized
documents in the office of The Senior Superintendent of Post
Offices, Bengaluru South Division, under mahazar. He also states
that, police concerned have not seized documents in post office of
Koramangala. But on going through the entire charge sheet, I do
not find any panchanama, for seizure of documents. On going
through the charge sheet, there is no any indication in the
charge sheet as to who conducted mahazar for seizure of
documents. Therefore, where and who seized documents
pertaining to alleged misappropriation of funds by accused,
remained unexplained.
26 Crl.A.No.1156/2014
35. Yet another circumstances, which again falsifies the
version of Pw.1 is with regard to the seizure of hard disk. It is
suggested to Pw.1 that, hard disk has not been seized. But this
suggestion has been denied by Pw.1 in which case hard disk is
seized by Pw.4/Chimbhar Rao. I feel it necessary to reproduce
cross-examination of Pw.1 in respect of hard disk, which contains
data pertaining to Daily Shift Reports, which is primary evidence.
Relevant portion of evidence of Pw.1 on this aspect reads as
under;
" My Predecessor had seized the hard
disk from the system at Koramangala
sub post office and had brought it to
SSP's office and it had been preserved in
the said office. It is false to say that,
hard disk was not seized and the IO did
not receive it from our office. Witness
volunteers that he personally showed the
hard disk to the IO but the IO said that
he was not an expert on the matter and
he would take advice from cyber crime
cell and there after do the needful. After
that twice I remind the police about the
hard disk. My higher officer had also
telephoned the police reminding about
27 Crl.A.No.1156/2014
the same. It is false to say that neither
my higher officer nor myself ever
informed the IO of the hard disk. It is
false to say that, the printout produced
in the case has not been taken from the
hard disk of the system handled by the
accused."
If this portion of evidence of Pw.1 is considered, hard disk
was seized from Pw.4, who inspected the Koramangala Post
Office and submitted his preliminary report as well as final report.
But Pw.4 in his evidence stated as under;
"¸ÀzÀj CAZÉ PÀbÉÃjAiÀÄ F ¥ÀæPÀgt À zÀ
zÀÄgÀÄ¥ÀAiÉÆÃUÀPÉÌ ¸ÀA§AzÀs¥ÀlÖAvÉ JA¦¹JA
AiÀÄAvÀæzÀ ºÁqïðr¸ïÌ£ÀÄß d¦Û
ªÀiÁqÀ¯ÁVzÉ. ºÁUÀÆ CzÀÄ £ÀªÀÄä »jAiÀÄ
CAZÉ C¢üÃPÀëPÀgÀ ªÀ±ÀzÀ°è EzÉ.
ºÁqïðr¸ïÌ£ÀÄß ¥ÀAZÀ£ÁªÉÄ §gÉzÀÄ
¸Éʧgï¯Á ¤AiÀĪÀÄUÀ½UÉ C£ÀĸÁgÀªÁV d¦Û
ªÀiÁqÀ¨ÉÃPÀÄ JA§ «ZÁgÀ £À£ÀUÉ UÉÆvÀÄ.Û
ºÁqïðr¸ïÌ£ÀÄß JA¦¹JA£ÀÄß vÉUÉ¢gÀĪÀÅ¢®è
ªÀÄvÀÄÛ d¦Û ªÀiÁrgÀĪÀÅ¢®è. £À£Àß £ÀAvÀgÀ
§AzÀ JJ¸ï¦gÀªÀgÀÄ ªÀiÁrgÀÄvÁÛg.É AiÀiÁªÀ
¢£ÁAPÀzÀ°è CªÀgÀÄ CzÀ£ÀÄß d¦Û ªÀiÁrzÀgÀÄ
ªÀÄvÀÄÛ D §UÉÎ K£ÀÄ PÀæªÀĪÀ£ÀÄß
C£ÀĸÀj¹zÀgÀÄ JA§ÄzÀÄ £À£ÀUÉ UÉÆwÛ®è.
28 Crl.A.No.1156/2014
ºÁqïðr¸ïÌ£ÀÄß CªÀgÀÄ vÉUÉzÀÄPÉƼÀÄîªÀÅzÀPÉÌ
ªÉÆzÀ®Ä £À£Àß ªÀgÀ¢AiÀÄ£ÀÄß £Á£ÀÄ ¸À°è¹zÉÃÝ £É
JAzÀgÉ ºËzÀÄ. £Á£ÀÄ ¸À°è¹gÀĪÀ CAwªÀÄ
ªÀgÀ¢ ¸ÀºÀ £ÁåAiÀiÁ®AiÀÄzÀ PÀqÀw£À°è
EgÀĪÀÅ¢®è. £À£Àß ªÀgÀ¢AiÀÄ£ÀÄß DzÀsj¹AiÉÄÃ
J¯Áè PÀæªÀÄ dgÀÄV¹zÁÝgÉ JAzÀgÉ ºËzÀÄ."
36. Therefore, this version of Pw.4 is quite contrary to
the version of Pw.1 so for as seizure of hard disk, which contains
each day shift report for the period from 1.5.2000 to 31.5.2000. If
I refer the contents of Ex.P.8, which is complaint lodged by Pw.1,
it is clear that, central processing Unit of computer which was
used by accused has been seized and kept in the custody of
Senior Superintendent of Police Office Sub-Division, Bengaluru,
who has been cited as Cw.8. In the complaint, it is also
contended that, such hard disk will made available to the
Investigating Officer for investigation purpose. But the hard disk
has not been produced before trial court and even no efforts are
made by prosecution for demonstration of getting print outs from
the hard disk, which is very vital aspect to know the genuineness
of contents of Ex.P.5, Ex.P.109 and Ex.P.110. As a matter fact,
Investigating Officer ought to have collected hard disk during
29 Crl.A.No.1156/2014
investigation. But if I perused the version of Pw.5, who is
Investigating Officer, it appears that, he has not at all conducted
proper investigation. What all stated by Pw.5 is that, he has
recorded statements of witnesses and simply filed charge sheet
without verifying the contents of Ex.P.8. In his cross-examination
Pw.5 stated as under;
" zÀÆj£À DzsÁgÀzÀ ªÉÄÃ¯É CzÀ£ÀÄß £Á£ÀÄ
ºÉüÀÄwÛgÀĪÀÅzÀÄ ©lÖgÉ D §UÉÎ £Á£ÀÄ vÀ¤SÉ
ªÀiÁrgÀĪÀÅ¢®è."
37. Even Pw.5 has gone to the extent of saying that he
is not knowing about the computer and how data will be stored
in hard disk of the said computer. Therefore, no reliance can be
placed on contents of Ex.P.10, Ex.P.12, Ex.P.14, Ex.P.16, Ex.P.18,
Ex.P.20, Ex.P.22, Ex.P.24, Ex.P.26, Ex.P.28, Ex.P.30, Ex.P.32,
Ex.P.34, Ex.P.36, Ex.P.38, Ex.P.40, Ex.P.42, Ex.P.44, Ex.P.46,
Ex.P.48, Ex.P.50, Ex.P.52, Ex.P.54, Ex.P.56(a) to Ex.P.57(a),
Ex.P.78(a), Ex.P.103(a) and Ex.P.111(a). Because it is specifically
denied by accused that, print outs produced in this case are not
taken from the hard disk of the system handled by the accused.
30 Crl.A.No.1156/2014
In cross-examination of Pw.1, it is specifically suggested to Pw.1,
which reads thus;
" It is false to say that, the printout
produced in the case has not been taken
from the hard disk of the system handled
by the accused."
Therefore, it is a clear case that, material and prime
evidence has been withheld by prosecution. If material evidence
withheld by prosecution without assigning proper reasons, then
necessarily I must draw an inference that if hard disk is
produced before the court, real truth would have been come out,
in which case, same would have gone against the
complainant/prosecution. Therefore, non-production of hard disk
is fatal to the case of prosecution, since entire case of
prosecution is encircled with prints outs and hard disk. In addition
to this, while marking so called print outs in evidence marked at
Ex.P.10, Ex.P.12, Ex.P.14, Ex.P.16, Ex.P.18, Ex.P.20, Ex.P.22,
Ex.P.24, Ex.P.26, Ex.P.28, Ex.P.30, Ex.P.32, Ex.P.34, Ex.P.36,
Ex.P.38, Ex.P.40, Ex.P.42, Ex.P.44, Ex.P.46, Ex.P.48, Ex.P.50,
Ex.P.52, defence raised objections for marking those documents
in evidence. Therefore, such documents are marked as exhibits
31 Crl.A.No.1156/2014
subject to objections raised by defence. But Learned Magistrate
has not at all passed orders on such objections. As a matter of
fact, to know the genuineness of contents of print outs,
certification as required U/s.65(B) of Evidence Act is very much
necessary, when accused denied the genuineness and correctness
of contents of such print outs. Under these circumstances, there
is no conclusive proof that, print outs marked at Ex.P.10, Ex.P.12,
Ex.P.14, Ex.P.16, Ex.P.18, Ex.P.20, Ex.P.22, Ex.P.24, Ex.P.26,
Ex.P.28, Ex.P.30, Ex.P.32, Ex.P.34, Ex.P.36, Ex.P.38, Ex.P.40,
Ex.P.42, Ex.P.44, Ex.P.46, Ex.P.48, Ex.P.50, Ex.P.52 and Ex.P.54,
Ex.P.56(a) to Ex.P.78(a) as well as Ex.P.103(a) to Ex.P.111(a) are
the print outs taken out from the Hard Disk of MPCM, which was
handled by the accused. When no certification as required
U/s.65(B) of Evidence Act is filed and when accused denying the
correctness of contents of those documents, such documents
cannot be used against accused, since all such print outs are
inadmissible in evidence for non-compliance of provisions of
U/s.65(B) of Evidence Act. When it is held that, print outs are in-
admissible, then calculation of alleged misappropriation of funds
32 Crl.A.No.1156/2014
as indicated in Ex.P.5, Ex.P.109 and Ex.P.110 are not conclusive
proof of misappropriation of funds by the accused.
38. Even a step ahead, if I perused the entire evidence
on record, there is no conclusive proof that, print outs are taken
out from the person, who in law was the custodian of such print
outs. Because Pw.4 in his evidence stated that, he has seized
documents in the presence of post master and while seizing those
documents, he has conducted panchanama. I feel it necessary to
re-produce cross-examination of Pw.4, which reads thus;
"£Á£ÀÄ qÉÊ° °¸ïÖUÀ¼À£ÀÄß ¹Ã¸ï ªÀiÁrzÉÝãÉ.
£Á£ÀÄ ¹Ã¸ï ªÀiÁrzÀ £ÀAvÀgÀ ¥ÀÅ£ÀB
ªÉÆzÀ®¨ÁjUÉ £Á£ÀÄ £ÁåAiÀiÁ®AiÀÄzÀ°è
£ÉÆÃrgÀÄvÉÛÃ£É JAzÀgÉ ºËzÀÄ. £Á£ÀÄ
CªÀÅUÀ¼À£ÀÄß ¥ÉÇøïÖ ªÀiÁ¸ÀÖgï ªÀÄÄAzÉ ¹Ã¸ï
ªÀiÁrzÉ. D jÃw ¹Ã¸ï ªÀiÁqÀĪÁUÀ
¥ÀAZÀ£ÁªÉÄà §gÉAiÀĨÉÃPÀÄ JAzÀÄ UÉÆvÀÄ,Û
£Á£ÀÄ D jÃw ¥ÀAZÀ£ÁªÉÄ §gÉ¢zÉÝãÉ. D
¥ÀAZÀ£ÁªÉÄ zÁR¯Áw £ÁåAiÀiÁ®AiÀÄzÀ
ªÀÄÄAzÉ EgÀĪÀÅ¢®è JAzÀgÉ ºËzÀÄ. "
39. If this portion of evidence of Pw.4 is considered, as
true, then why prosecution has not produced original
panchanama conducted by Pw.4, while seizure of print outs from
33 Crl.A.No.1156/2014
Koramangala Post Office. Because it is denied by accused that,
these print outs which are relied upon by the prosecution are not
print outs seized by Pw.4. At this stage itself, I feel it necessary
to re-produce cross-examination of Pw.4, which reads thus;
" £Á£ÀÄ CzÀ£É߯Áè »jAiÀÄ CAZÉ
C¢üÃPÀëPÀjUÉ PÉÆnÖgÀÄvÉÛãÉ. CªÀgÀÄ
£ÁåAiÀiÁ®AiÀiPÉÌ PÉÆnÖzÁÝgÉÆà ©nÖzÁÝgÉÆÃ
UÉÆw󨏢 £ÁåAiÀÄÁ®AiÀÄzÀ°è
ºÁdgÀÄ¥Àr¸À¯ÁVgÀĪÀ ¦æAmïOmïUÀ¼ÀÄ £Á£ÀÄ
CªÀiÁ£Àvï ªÀiÁrgÀĪÀ ¦æAmï OmïUÀ¼ÀÄ C®è
JAzÀgÉ ¸ÀjAiÀÄ®è."
40. In view of above evidence, it is very much clear that,
entire case of prosecution is based on in-admissible documents.
Print outs marked at Ex.P.10, Ex.P.12, Ex.P.14, Ex.P.16, Ex.P.18,
Ex.P.20, Ex.P.22, Ex.P.24, Ex.P.26, Ex.P.28, Ex.P.30, Ex.P.32,
Ex.P.34, Ex.P.36, Ex.P.38, Ex.P.40, Ex.P.42, Ex.P.44, Ex.P.46,
Ex.P.48, Ex.P.50, Ex.P.52 and Ex.P.54 as well as Ex.P.56(a) to
Ex.P.78(a) as well as Ex.P.103(a) to Ex.P.111(a) are not
admissible in evidence for want of certification as contemplated
U/s.65(B) of Evidence Act. Admittedly, print outs, which are filed
by prosecution cannot be used as secondary evidence for non-
34 Crl.A.No.1156/2014
compliance of sub Section 4 of Section 65(B) of Evidence Act. On
plain reading of provision of Section 65(B) of Evidence Act, it is
very much clear that, certification should be filed, which should
be signed by the person, who is responsible and in official
position, who would be in position of operation of relevant
devices, hard disk etc. In the instant case, defence raised
objections for marking of the documents as Ex.P.10, Ex.P.12,
Ex.P.14, Ex.P.16, Ex.P.18, Ex.P.20, Ex.P.22, Ex.P.24, Ex.P.26,
Ex.P.28, Ex.P.30, Ex.P.32, Ex.P.34, Ex.P.36, Ex.P.38, Ex.P.40,
Ex.P.42, Ex.P.44, Ex.P.46, Ex.P.48, Ex.P.50, Ex.P.52 and Ex.P.54
as well as Ex.P.56(a) to Ex.P.78(a) as well as Ex.P.103(a) to
Ex.P.111(a), since prosecution has not complied with the
mandatory provision of Section 65(B) of Evidence Act. Such
objections is raised by defence before trial court before marking
of these documents in evidence. I feel it necessary to re-produce
relevant portion of deposition of Pw.1, wherein Learned Judge has
recorded the objection raised by defence and observed the same
in the deposition, which reads thus;
" the advocate for accused raises
objection that, the computer generated
report do not bear the seal and
35 Crl.A.No.1156/2014
signature, the documents are marked
subject to objection."
If this is considered, it is clear that, accused specifically
denied the genuineness of contents of print outs. In this
connection, I am relying upon decision reported in 2015 (3)
KCCR 2406 (DB) Head Note (C) in a case of Sri.
Hosamanera Prakash @ Shivaprakash V/s. State of
Karnataka, Nyamathi Town Police Station, Honnali Taluk
and another decision reported in 2015 CRI.L.J.1690 in a case of
Tomaso Bruno and another Vs/. State of U.P. If principles
laid down in these two dictums are applied to the case on hand,
there is no any hesitation in coming to the conclusion that,
Ex.P.10, Ex.P.12, Ex.P.14, Ex.P.16, Ex.P.18, Ex.P.20, Ex.P.22,
Ex.P.24, Ex.P.26, Ex.P.28, Ex.P.30, Ex.P.32, Ex.P.34, Ex.P.36,
Ex.P.38, Ex.P.40, Ex.P.42, Ex.P.44, Ex.P.46, Ex.P.48, Ex.P.50,
Ex.P.52 and Ex.P.54 as well as Ex.P.56(a) to Ex.P.78(a) as well as
Ex.P.103(a) to Ex.P.111(a) cannot be admitted in evidence, for
non-compliance of mandatory requirements of sub-Section 4 of
Section 65(B) of Evidence Act. Therefore, no reliance could be
placed on such documents, which are in admissible in evidence.
36 Crl.A.No.1156/2014
Even during course of trial, prosecution has not demonstrated
that, print outs marked at Ex.P.10, Ex.P.12, Ex.P.14, Ex.P.16,
Ex.P.18, Ex.P.20, Ex.P.22, Ex.P.24, Ex.P.26, Ex.P.28, Ex.P.30,
Ex.P.32, Ex.P.34, Ex.P.36, Ex.P.38, Ex.P.40, Ex.P.42, Ex.P.44,
Ex.P.46, Ex.P.48, Ex.P.50, Ex.P.52 and Ex.P.54 as well as
Ex.P.56(a) to Ex.P.78(a) as well as Ex.P.103(a) to Ex.P.111(a) are
taken out from the hard disk, which is primarily evidence. In that
view of the matter, contentions raised by counsel appearing for
appellant is to be accepted.
41. Thus, on going through the evidence projected by
prosecution, there are much discrepancies between their versions,
which goes to the root of the case. Entrustment of work of
accused in the matter of collection of revenue by registered post,
money order, VPP., Speed Post, etc., will be completed, the
moment when accused remit the amount to Pw.2, who is Head
Post Master of Koramanagala Post Office. In the instant case,
when Pw.2 has not objected for alleged less remittance on a
particular day, then it is for the Pw.2, who has to give explanation
and it is he who is accountable for such amount. But on perusal
of the material on record, Pw.2 never raised any objections till
37 Crl.A.No.1156/2014
departmental inspection is conducted by Pw.4. Even during trial,
Pw.2, who is the star witness for the prosecution never stated
that, accused has misappropriated funds with reference to each
days alleged misappropriation as contended by prosecution.
'
42. As per the case of prosecution alleged
misappropriation is detected when Pw-4 inspected Koramangal
Post Office. It is further case of prosecution that, Pw-4 submitted
preliminary as well as final report, on which postal authorities
initiated criminal action against accused. But, neither during
course of investigation nor during trial prosecution has not made
any efforts to secure or to produce preliminary or final report,
before trial court. Thus, material documentary evidence has not
been produced by prosecution. Material document is with held by
prosecution without proper explanation. Therefore, it is legitimate
to draw an inference that, if preliminary or final report submitted
by Pw-4 are placed on the records this case, contents of such
final report would go against the prosecution.
43. Another aspect, which again gives raise to suspicion
about the truthfulness of prosecution case is with regard to delay
in lodging the F.I.R. It is pertinent to note that, very next day of
38 Crl.A.No.1156/2014
conducting departmental inspection, accused was kept under
suspension and thereafter suspension order was revoked.
Accused and Pw.2 faced departmental enquiry and only after
conclusion of departmental enquiry, F.I.R., is lodged on 9.2.2001,
in which case, there is every possibility of tampering the records
by Pw.2, so as to escape from his criminal liability. If I consider
the date of tracing out of alleged misappropriation of funds and
date of lodging complaint, there is inordinate delay in lodging
F.I.R., which has not been properly explained by prosecution.
Therefore, taking conspectus of circumstances of entire evidence
and even cumulative effect of the material on record would clearly
suggests that, no any legal evidence on the record to hold that,
accused has misappropriated revenue/funds of postal department.
Thus, there is no conclusive proof of commission of
misappropriation of fund to the extent of Rs.76,672/- by the
accused, in which case, charges leveled against accused are not
sustainable.
44. Even a step ahead, even if it is held that, accused has
misappropriated funds as contended by prosecution, but it is admitted
fact that, accused has deposited amount more than alleged
39 Crl.A.No.1156/2014
misappropriated of funds, before commencement of investigation.
Therefore, it is urged by accused that, charge U/s.409 of I.P.C., are not
sustainable. In this connection, he has relied upon decision of Apex
court reported in AIR 1991 SC 1394 in a case of Narendra
Pratap Narain Singh and another Vs/. State of U.P. Which
reads as under-
"Penal Code (45 of 1860), S.409-Criminal
breach of trust-allegation of forging bills and
misappropriating amount and thereby
committing criminal breach of trust-sale on
credit of articles of Govt. Agricultural seed
store by accused entrusted with fertilizers,
seeds etc. of store in official capacity-
Prosecution case of forging bills and receipts
and using them as genuine not held to have
been true by High Court-Amounts alleged to
have been misappropriated proved to be
deposited by accused before investigation-
Held, charge under S.409 could not be
sustained".
40 Crl.A.No.1156/2014
In this case counsel appearing for appellant drawn my attention
to version of Aw.1 and also contents of Ex.A.1 to 3. As already narrated
in this appeal, accused led his defence evidence by examining present
Post Master, Koramangala Branch, Bengaluru and got exhibited 3
documents dated 6.11.2000, 7.11.2000 and 13.11.2000. Contents of
these documents are not in dispute. On perusal of contents of these
documents, it is abundant clear that, on 6.11.2000 accused deposited
an amount of Rs.32,412/-, on 7.11.2000 amount of Rs.2,70,000/- and
on 13.11.2000 an amount of Rs.56,935/-. It is borne out from the
records that, this accused and the Then Post Master/Pw.4 faced
departmental enquiry conducted by Department of Post and Telegraphs
and in the said enquiry, it is held that, this accused and post master by
name Chikkannanavar/Pw.2 held negligent. Thus, in the departmental
enquiry, charges leveled against this accused and Pw.2 proved. Before
conclusion of departmental enquiry, accused deposited an amount as
indicated above. But after completion of departmental enquiry, criminal
case is instituted by filing report to the concerned police. On perusal of
the contents of Ex.P.8, which is report lodged by Pw.1, it is clear that,
such report is lodged on 9.2.2001. Thus, investigation in this case
commenced on the date of lodging F.I.R., marked at Ex.P.8. But before
commencement of investigation, accused deposited amount alleged to
have been misappropriated in which case charge U/s.409 of I.P.C.,
41 Crl.A.No.1156/2014
cannot be sustained. If principle laid down in the above dictum is
applied to the case on hand, it must necessarily be held that, charges
leveled against accused are not sustainable.
45. Coming back to impugned judgment. I have gone
through the impugned judgment, it appears that, Learned Magistrate
has casually dealt with this case. It is very much clear that, Learned
Magistrate has not at all gone through the major discrepancies in the
evidence projected by prosecution. Learned Magistrate has not
recorded his findings on the objections with regard to the admissibility
of documents as recorded in deposition of Pw.1. Thus, it is clear that,
Learned Magistrate has not at all even read the evidence of Pw.1,
Pw.2, and Pw.4. Learned Magistrate has relied upon documentary
evidence, which are inadmissible in evidence. He has not at all
considered the delay in lodging the report, which is very much vital
aspect in criminal trial of this nature. Learned Magistrate has ignored
evidence of Pw.1, Pw.2, and Pw.4 as recorded in their cross-
examination. Simply he has relied upon the fact that, accused has
deposited misappropriation amount, thus only on this ground he has
come to the conclusion, which is wrong conclusion, in view of principle
laid down the decision reported in AIR 1991 Supreme Court 1394.
Entire judgment is based on mere assumptions and based on
42 Crl.A.No.1156/2014
documents, which are in admissible in evidence. It appears that,
Learned Magistrate has not at all gone through the provision of
section 65(B) of Evidence Act, which is mandate while accepting
secondary evidence in proof of electronic records, in the evidence.
Under these circumstances, the only conclusion that could be arrived
is that impugned judgment of conviction and order of sentence passed
against appellant is not sustainable in law. Thus, interference of this
court is necessitated by setting aside impugned judgment and by
acquitting accused. Accordingly, I answer points No.1 and 2 in negative
and point No.3 in affirmative.
46. POINT NO.4 :- In view of my findings on points No.1 to
3, grounds urged in the appeal memo are sustainable. Thus,
appeal is deserves to be allowed by setting aside impugned
judgment and by acquitting accused of the offence punishable
U/s.409 of I.P.C. Being of that opinion, I proceed to pass the
following:
ORDER
Criminal Appeal filed U/s.374(3) is hereby allowed.
Accordingly, impugned judgment of conviction and order of sentence dated 22.9.2014 passed in 43 Crl.A.No.1156/2014 C.C.No.8173/2002 on the file of IV-A.C.M.M., Bengaluru, is hereby set aside.
Consequently, appellant/accused is acquitted of the offence punishable U/s.409 of I.P.C.
Office is hereby directed to send back L.C.R. along with certified copy of Judgment, forthwith.
(Dictated to the Judgment Writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 13th day of September, 2017.) (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
ANNEXURE I. List of witness examined on behalf of appellant:-
Aw.1 Vishalini Post Master, Koramangala Post Office.
II. For Prosecution/Respondent:-
- Nil-44 Crl.A.No.1156/2014
III. List of exhibits marked on behalf of appellant side:-
Ex.A.1 Receipt bearing No.ACT 67 dated 6-11-2000 Ex.A.2 Receipt bearing No.ACT 67 dated 7-11-2000 Ex.A.3 Receipt bearing No.ACT 67 dated 13-11-2000 (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.