Bangalore District Court
M.Shanbulinga Swamy S/O vs State By Wilson Garden P.S on 1 June, 2016
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH-61)
DATED THIS THE 01st DAY OF JUNE 2016
:Present :
Sri B.Jayantha Kumar, B.A.,Law, LL.M.
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No.247/2013
Appellant : M.Shanbulinga Swamy S/o
Late Mahanta Devaru
Aged about 62 years,
R/o No. 21, Rajatadri, 1st Main
Poornapragna layout
Banashankari III Stage
II Main Road, Bengaluru.
(Rep by Sri P.H.Virupakshaiah, Advocate)
Vs.
Respondent:- State by Wilson Garden P.S.
Rep: by Public Prosecutor
City Civil Court, Bengaluru City.
(Rep by Public Prosecutor)
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JUDGMENT
This appeal is filed u/sec.374 of Cr.P.C. challenging the judgment dated 05.04.2013 passed by the IV ACMM, Bengaluru in C.C.No.22798/2008 convicting the appellant/accused for the offence punishable u/s.409 and 426 of IPC and sentencing him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5,000/- and in default to undergo S.I. for 15 days for the offence punishable U/sec. 409 of IPC and further sentenced him to undergo S.I. for a period of one month and to pay a fine of Rs.2,000/-, in default to undergo S.I. for seven days for the offence punishable U/sec.426 of IPC and directed to run the sentences concurrently.
2. The appellant is the accused and respondent herein is the complainant/State of Karnataka by Wilson Garden police station before the lower court. Herein afterwards, the parties are referred to as per their ranks assigned to them before the lower court.
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3. The brief facts leading to this appeal are as follows:-
The Complainant Mr.Jayaramaraje Urs, Regional Commissioner, Bengaluru had lodged a complaint on 17.6.2006 alleging that the accused M.Shambulingaswamy, FDA, was earlier working in the office of Deputy Commissioner, Shimoga and later he was sent on deputation to the Regional Commissioner Office, Bengaluru on 30.05.2007 and departmental enquiry file pertaining to the accused bearing No.Sibbandi(3) CR.27/06-07 was sent from Deputy Commissioner, Shimoga to Regional Commissioner and it was received by Inward Section on 29.5.2008 and the SDA of Inward Section/General Section CW2 Smt.Shabhana Begam had received the file sent from Deputy Commissioner office, Shimoga and it was on her table for making necessary entries and thereafter to submit the same to the concerned officials. At that time, the accused approached CW2 Shabhana Begam and requested her to give the said file and he told that he would
4 Crl.A.247/2013 just go through the file and return it. The accused had taken the said file, but without returning he had gone away with the said file and CW2 Shabhana Begam had reported the said matter to her higher authorities and after conducting a preliminary enquiry, complaint was lodged by the complainant before the Wilson Garden Police Station.
4. On the basis of this complaint, Wilson Garden police registered a case in Cr.No.86/2008 and went to the spot and drew mahazar in the presence of mahazar witnesses and thereafter seized the necessary documents and after completion of investigation formalities, filed charge sheet against the accused for the offences punishable U/Sec. 409 and 426 of IPC. During the course of investigation, the accused was arrested and he was produced before the Magistrate and he was remanded to judicial custody.
5. During the course of trial, the prosecution has examined altogether six witnesses as PW1 to PW6 and got 5 Crl.A.247/2013 marked fourteen documents as Ex.P.1 to Ex.P.14 and after the trial, the lower court convicted the accused on 05.04.2013 for the offences punishable U/Sec.409 and 426 of IPC and passed the sentence as aforesaid.
6. Feeling aggrieved by the above said judgment and sentence, the accused preferred this appeal inter-alia contending that the learned judge has not applied its mind genuinely to the facts and circumstances of the case and perused all evidence and material that is not at all in accordance with law. There is inordinate delay in filing the complaint by the authority, but the learned Magistrate without even understanding the basic principles of law convicted the accused. No material evidence is produced to show that such a record is received and proceeding further on such imagination saying that the appellant has committed an offence is totally illegal. The learned Magistrate has proceeded to make an observation that burden is on the accused to prove Ex.P.4 confession statement made under inducement, promise or 6 Crl.A.247/2013 threat. Such an observation made by the learned Magistrate is against the basic principles of criminal law. The learned Magistrate has failed to understand that Ex.P.4 alleged to be the extra judicial confession is a document to show that he has committed an offence of breach of trust by taking away the file and committed mischief of destroying the same. There is no corroboration in the evidence of all the witnesses and no documents produced before the learned Magistrate to show that really the appellant has committed alleged offence, whole process in addition to being illegal, does not maintainable and hence, prayed for setting aside the judgment passed by the lower court.
7. After filing of this appeal, this court issued notice to the respondent/complainant who appeared through Public Prosecutor. Records of lower court are secured.
8. During the pendency of appeal, the appellant/accused filed two applications U/s.391 of Cr.P.C.
7 Crl.A.247/2013 Along with the application filed U/s.391 of Cr.P.C., dt.31.5.2013, the appellant has produced seven documents and along with the application filed U/s.391 of Cr.P.C., dt.21.11.2015, two documents have been produced. In the said applications, the appellant has contended that during the pendency of the above criminal proceedings before the learned Magistrate, the appellant could not understand the allegation made against him by saying that he has committed breach of trust by taking away the file sent by Deputy Commissioner, Shimoga bearing No.Sibbandi (3) CR 27/06-07 and record bearing CCA.Viva 21/08-09 pending before the Regional Commissioner, Bengaluru are one and the same. These two cases pertaining to allegation of charges by name D.B.Chandrashekarappa, who is retired Tahasildar. Except the number that has been assigned by different offices, the file regarding the charge against the appellant and another is one and the same. Since the record is pending before the Regional Commissioner, Bengaluru being an enquiry proceedings in any 8 Crl.A.247/2013 manner, it cannot be said that allegation of taking away the file bearing No.Sibbandi (3) CR 27/06-07 by the appellant is true and the documents sought to be produced clinches the issue in controversy and hence, prayed for granting permission to produce documents as additional evidence and prayed for allowing the applications.
9. Learned Public Prosecutor has filed objections to the above applications contending that the same is not maintainable in law. The record required by the appellant is not required in this case and that the trial court has rightly come to the conclusion that the accused has committed the offence and hence, the record bearing No.CCA. Viva 21/08-09 is not at all required to this appeal and hence, prayed for dismissal of the applications.
10. Heard the arguments of learned counsel for appellant/accused and learned Public Prosecutor on main appeal and applications filed U/s.391 of Cr.P.C.
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11. In the light of the contentions taken up in the memorandum of appeal, the points that arise for my determination are as follows:-
1) Whether the prosecution proved that the accused has committed criminal breach of trust as a public servant by taking away the file from the possession of CW2 Smt.Shabhana Begam and not returned it and committed mischief by destroying it and thereby committed the offences punishable U/sec. 409 and 426 of IPC?
2) Whether the lower court has committed any error of law and facts in convicting the appellant/accused for the offences punishable U/sec. 409 and 426 of IPC?
3) Whether the appellant/accused has made out sufficient grounds to allow the applications filed U/s.391 of Cr.P.C.?
4) Whether the matter is required to be remanded to lower court for fresh disposal
5) What order?
12. My findings on the above points are as follows:
Point No.1 : In the Negative
Point No.2 : In the Affirmative
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Point No.3 : In the Affirmative
Point No.4 : In the affirmative
Point No.5 : As per final order
REASONS
13. Point No.1: In this case, the complainant
Mr.Jayaramaraje Urs, Regional Commissioner, Bengaluru had lodged a complaint on 17.6.2006 alleging that the accused M.Shambulingaswamy, FDA, was earlier working in the office of Deputy Commissioner, Shimoga and later he was sent on deputation to the Regional Commissioner Office, Bengaluru on 30.05.2007 and departmental enquiry file pertaining to the accused bearing No.Sibbandi (3) CR.27/06-07 was sent from Deputy Commissioner, Shimoga to Regional Commissioner and it was received by Inward Section on 29.5.2008. The SDA of Inward Section/General Section CW2 Smt.Shabhana Begam had received the file sent from Deputy Commissioner office, Shimoga and it was on her table for making necessary entries and thereafter to submit the same to the concerned officials. At 11 Crl.A.247/2013 that time, the accused approached CW2 Shabhana Begam and requested her to give the said file and he told that he would just go through the file and return it. The accused had taken the said file, but without returning he had gone away with the said file and CW2 Shabhana Begam had reported the said matter to her higher authorities and after conducting a preliminary enquiry, the complaint was lodged by the complainant before the Wilson Garden Police Station. On these allegations, the investigation was conducted and finally filed charge sheet against accused and after conducting trial, the lower court has come to the conclusion that the accused has committed the offences punishable U/s.409 and 426 of IPC and the prosecution has proved the guilt of the accused beyond all reasonable doubt and convicted the accused and passed sentence as aforesaid.
14. In order to prove the case of the prosecution, the prosecution has examined in all six witnesses as PW1 to PW6. PW1 Shabhana Begam working as SDA in Regional 12 Crl.A.247/2013 Commissioner Office, has deposed that she was working in General Section and her duties were to receive tappals and make an entry in the concerned registers and to send the letters to concerned sections after taking the signature of Regional Commissioner. She has further deposed that on 29.05.2006 at about 3.30 p.m, while she was entering the files received from the Regional commissioner to the register, the accused came to her table and took away one tappal by saying that he would go through the same and return it. She has deposed that the said tappal is pertaining to the enquiry complaint received from the Deputy Commissioner's Office, Shimoga against the accused and one D.B.Chandrashekara and the said file was pertaining to a forgery of signature of Tahasildar. She has deposed that she waited upto 5.30 p.m. and on the next day morning, she asked the accused to return the said tappal, but he told that he had lost the said tappal file while travelling in the bus, so, she reported the same to CW3 Harini Vanajakumari.
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15. PW2 B.R.Jayaramaraje Urs has deposed that he is working as Regional Commissioner of Bengaluru Division. He has deposed that the accused was working as SDA in his office and on 30.5.2008, CW2 filed a note before him that on 29.05.2008, the accused had taken away a file bearing No.EST(3) 27/06-07 and the said file pertains to enquiry against the present accused and one Retired Tahasildar Chandrashekar and it was sent from Shimoga Deputy Commissioner's office. He has further deposed that CW2 had received the said tappal from Deputy Commissioner Office, Shimoga and she was processing the tappal and making entry in the register and as such she had kept the file on her table and on 29.5.2013 at about 3.30 p.m. to 4.00 p.m, the accused had approached the table of CW2 and taken away the said file. He has deposed that CW2 had asked him and he told her that he would just go through the file and return it back and CW2 waited for one hour and thereafter she went to the accused to bring back the said file, however, the accused had gone away 14 Crl.A.247/2013 and on 30.5.2008, CW2 prepared a note and submitted it to her higher officer. He has further deposed that on the said day, he tried to contact the accused, but he has not come to the office, hence, he sent his subordinates to the house of the accused and accused admitted before them of having taken the said file, however, accused told that he had lost the said file while travelling in the BMTC bus. He has deposed that the Tahsildar who was deputed by him, filed his report along with panchanama. He has further deposed that he had directed his subordinates to put up file and kept the accused under suspension. He has further deposed that he has lodged complaint as per Ex.P.1 and he has also identified the note filed by CW2 as Ex.P.2 and report submitted by Harini Vanajakumar is marked as Ex.P.3 and letter given by the accused is marked as Ex.P.4.
16. Harini Vanajakumari is examined as PW3. She has deposed that she is working as Tahsildar in Regional Commissioner's office and she has also deposed about the 15 Crl.A.247/2013 incident and submission of report and statement given by the accused as per Ex.P.4 and preparation of panchanama.
17. PW4 Balasubramanya K is also working as SDA in Regional Commissioner Office, has also deposed about panchanama Ex.P.6.
18. K.N.Ramanjanappa is examined as PW5. He has deposed that in the year 2008, the police approached him to furnish the documents and copies of mahazar pertaining to this case and he had handed over the said documents to police.
19. PW6 H.Manjunath Sing, PSI, is the I.O. has deposed about his investigation and his duty.
20. Ex.P.1 is the complaint lodged by CW1, Ex.P.2 is the note prepared by CW2, Ex.P.3 is the report of Harini Vanajakumari, Ex.P.4 is the statement given by the accused, Ex.P.5 is the spot mahazar, Ex.P.6 is the letter given by I.O. regarding seizure of documents, Ex.P.7 is the letter given by 16 Crl.A.247/2013 the Additional Commissioner, Regional Commissioner's office for submission of documents, Ex.P.8 is the order passed by the Regional Commissioner, Bengaluru for deputing the accused to the office of Regional Commissioner, Bengaluru, Ex.P.9 is the corrigendum issued by Addl. Commissioner, Bengaluru Division, Ex.P.10 is the duty report given by the accused. Ex.P.11 is the copy of attendance, Ex.P.12 is the report submitted by Tahsildar, Ex.P.13 is the copy of attendance register, Ex.P14 is the report of CW2.
21. Perused the judgment of the lower court. The lower court has mainly relied upon the oral evidence of the prosecution witnesses and the statement given by the complainant at Ex.P.14. Learned counsel for the accused has argued that Ex.P.4 is an extra judicial confession made by the accused and it is not admissible in law and only on the basis of said statement, the accused cannot be convicted. In support of his argument, he has relied upon the decision reported in 1) 2012(6) SCC 403 (Sahadevan and Another V/s State of Tamil 17 Crl.A.247/2013 Nadu); 2) 1995 Supp.(4) SCC 259 (Balwinder Singh V/s State of Punjab); 3) AIR 2003 S.C. 3601 (State of Rajasthan V/s V. Rajaram); 4) 2002(5) SCC 234 (Devender Pal Singh V/s State of NCT of Delhi and another); 5) 2009(8) SCC 383 (State of Andhra Pradesh V/s S.Swarnalatha and Others); 6) 2008 (15) SCC 449 (Mohd. Azad @ Samin V/s State of West Bengal) and
7) AIR 1957 S.C. 637 (Sarwan Singh Rattan Singh V/s State of Punjab in Criminal Appeal No.22 of 1957 & Harbans Singh Bhan Singh V/s State of Punjab in Criminal Appeal No.23 of 1957).
22. In this case, the accused has filed two applications U/s.391 of Cr.P.C. He has produced following seven documents along with application filed U/s.391 of Cr.P.C., dt.3.5.2013;
1) Notice dt.25.4.2013 bearing CCA.Viva 21/08-09 issued by the Regional Commissioner, Bengaluru.
2) Letter dt.25.4.2013 bearing No.CCA.Viva 21/08-09 issued by the Regional Commissioner, Bengaluru.
3) Letter dt.14.12.2011 bearing No.CCA.Viva 21/08-09 18 Crl.A.247/2013
4) Letter bearing record No.Sibbandi 3(CR) 27/06-07 dt.20.07.2010 written by Deputy Commissioner, Shimoga.
5) Letter dt.4.8.2010 bearing No.Sibbandi 3(CR) 27/06-07 written by the Deputy Commissioner, Shimoga.
6) Order bearing No.CCA.Viva 21/08-09 dt.10.9.2009 wherein the department enquiry has been initiated against appellant and another by name D.B.Chandrashekarappa.
7) Application bearing No.3288/2010 on the file of Karnataka Administrative Tribunal, Bengaluru, wherein the enquiry proceedings bearing No.CCA.Viva 21/08-09 is challenged.
23. He has produced following two documents along with application U/s.391 of Cr.P.C., dt.21.11.2015;
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1) Document pertaining to case No.Sibbandi 3(CR) 27/06- 07 before the Deputy Commissioner, Shimoga District, Shimoga from page 1 to 161.
2) Document pertaining to case No.CCA.Viva 21/08-09 before the Regional Commissioner, Bengaluru from page No.1 to 35.
24. Learned counsel for the accused has vehemently argued that those documents were not available with accused at the time of filing the appeal and the Deputy Commissioner, Shimoga furnished copy of the documents and hence, he could not file those documents earlier. The learned counsel for the accused has argued that the judgment of the lower court is to be set aside and matter is to be remanded to the lower court so as to give an opportunity to the accused to adduce defence evidence and to produce documents obtained under Right to Information Act. The accused is convicted on the ground that he has taken away the file which was in the custody of CW2 pertaining to his departmental enquiry. According to the 20 Crl.A.247/2013 accused, he has produced copies of the documents obtained from Deputy Commissioner office, Shimoga pertaining to his Departmental Enquiry, so the question of taking away the file by him does not arise. In the facts and circumstances of the case, I feel this is a fit case to remand the matter to lower court with a direction to afford an opportunity to the accused to lead his defence evidence by producing documents. With these observations, I hold that the lower court has committed an error in convicting the accused only on the basis of Ex.P.4 and an opportunity should have given to the accused to adduce his defence evidence and therefore, I answer Point No.1 in the Negative and point No.2 to 4 in the affirmative.
25. Point No.5:- In view of my findings on point No.1 to 4, I proceed to pass the following:
ORDER The appeal filed u/sec. 374 of Cr.P.C. by the appellant/accused is hereby allowed.
21 Crl.A.247/2013 Applications filed by the appellant/accused U/s.391 of Cr.P.c., are hereby allowed. The documents are received.
The judgment passed by the IV ACMM, Bengaluru in C.C.No.22798/2008 dated 05.04.2013 convicting the appellant/accused for the offences punishable u/s.409 and 426 of IPC is hereby set aside. The matter is remanded to lower court with a direction to dispose off the case afresh in accordance with law by affording an opportunity to the accused to adduce defence evidence and to produce documents.
Office is directed to send the LCR along with copy of the judgment and the applications filed U/s.391 of Cr.P.C. dt.03.05.2013 and dt.21.11.2015 along with annexed documents to the lower court .
(Dictated to the Judgment Writer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 01st day of June, 2016) (B.Jayantha Kumar) LX Addl.City Civil & Sessions Judge, Bengaluru.