Karnataka High Court
State Of Karnataka By Kalasipalyam ... vs H M Peere @ Hosahalli on 30 June, 2011
Author: N.Ananda
Bench: N.Ananda
IN THE HIGH comm OF HAm\:A':'AKA AT BANGALCRE
DATED THIS THE 30*?" DAY OF JUNE, 291"? A.
PRESENT l l l
THE HONBLE
AND . _ . E A _ .l
THE HONBLE MR.J'H$TIeE V;-s,,_APEAv-VRA{j"
CRIMINALAPPEAL.l§:o,_1e.5o/2'0'0e..,.
BETWEEN: = 3 1' V l
State ofKarnataka '- _ i __
By Kalasipalyam.PQl1'ce:S1:a'tiQn " I Appellant
(By Sri H.S.Cllanel_1*a1fnev,lli_, :';'-.-3,l.1>.1.>_,«.) 1; . 1'
AND: in la __ H _ V
H.M.Pee1*e"@ Htjsahalli
Mohd.3Peere. -- .
S/0. H.V.Mo_hd..>_
Aged aboui 59 years ' " '
No. 12~A, 19??Cmss-.Roal3%
2"" Main Road, '-Lualkikasandra
Bangaloire. ' _____ ...Respondent
V". 'Smti. lVf3alcl1=flH'1nisa, Advocate}
2 is filed under section 378(1) & {3} Cr.P.C.,
praying 'ii: 'grant leave to file an appeal against the Judgment
'V dated 3.lV';Ql.V2006 passed by the IV Addl.Cl\/IM, Bangalore, in
.. 'C.C.No.83U4/2000, acquitting the respondent/accused for
' _*r,>ffenees punishable under sectiens 409 & 4'F7~A IPC.
"'l'his appeal Coming on for final hearing this clay,
K liulanda, J6' delivered the f0llewing:--
JUDGMENT
The State has filed this appeal against the sf respondent/accused (hereinafter referred to as _faee'as_'e<1'_}' 1"-91*' _ offences punishable under sections 409 and
2. When the appeal came '°up7._tfC(»r 1007,2007, this court made th,e"'fo_ll0w;ii;g_ o:*<:le1-'.::~ "After hearing lear.neci.'C0nnsel"'f0r beth sides, even fhoflghllvifhé"_5?lCQ'i.1llZ't'.3,l"Q16 accused for the offence u/s.4'OA9V may not be ptessible elanvert it into an omely Soil' far the offence u/ prima faeie, We reconsideration.
Hence hi i ' l Call for f'eeo,.rd's._.
3. admitted for limited purpose of eeiisidefiiagnfiiether acquittal of accused by the trial court ilferlihaia Vvefilenneelliznfilanishable under section 4'?'7'--A IPC was V V _ justi'l'ied;~.,V ' liave heard Sri H.S.Chandram0uli, learned State _' P:_ilb'lie" Preseeuter and Smt.Badrunnisa, learned counsel for ' -aecuseel. :i"§V'e ~t.at»'"2«*e"3"'£"2r f: I s ; : = I 2 '
8. The Assistant Superintendennf "of &_ iiostg coming to know cf falsification of g{c;¢¢;.;:its --.th'e. lodged a complaint on 'Heuse 'V Officer, Kalasipaiya Police Statien, Lfiangaioreif "i"he~'case was registered in Crime N0.3"59'i 99.9?»i{§fterrvvir13fe;s.tigation, charge sheet was fi1ed4.'againsi: accr1se'd«..'vi'fQr "offences punishable under 4'75/_ if V
9. 2 were examined and documents' as EX.P.8i were marked. The accused did rm:V'adg1:.1ce._eVidence. T trial Judge on appreciation of evidence and'-"__0n "heari:1gViearned counsei fer parties, acquitted the _ accused for offences punishable under sections 409 8: 4?'7»A ll. On perusal of judgment of the trial court, we find that the learned trial Judge has acquitted the aceused_i7ori.an offence punishable under section 409 IPC, mainlyi_'ltakli.rig: _ consideration oral evidence of Witnesses to~thef~effe.ct«.that accused had subsequently reniitted a eiirnl The learned trial Judge did not eoneider,»'th'eVevidence adduced by prosecution to proVe:._llVan_Voffeneel: section 477~A IPC. The learned adxrerting to the evidence on record, in evidence has held that there torove an offence punishable Therefore, the State has preferred »
12. As laforeistatedl' by order dated 10.07.2007, admit;te'd the inet.aLntlappeal for examination of correctness of thelilriépiiéijizedgtidgrnent as it relates to acquittal of accused for an «oi'€e:'n£fe f§uzii'ishable under section 4'?"/"-A IPC. l3. llxvé' have gone through oral and documentary evidence. K1 /3", ' {A t 1% z 2.
3' W5» ea/'r xx"
accused lodged a complaint in Basavanagudi Police Station C and also reported the rnatter to the Senior Superint_en.dernt Post Offices, Bangalore South Division, Bangal.ore:;fas pier exp. 14. _ This letter was addressed accused' to' Superintendent of Post Officesvfloil, O9:O'8,.l99Q=. lixsvulalready V stated, Superintendent" Verification from PWI came to know that leading to missing of cash. eéonveyflédl «Vlfalse. The accused being the 'ldub--Post Office had falsified--accounts'l'1ii;n_ account of Bangalore Fort The accused had made false entries showing that he had rernittedeea surn oflilis. l;AO5,2O0/« to Basavanagudi Head Post v:AOfflce installments on 07.08.1999.
20. Fronflthe tenor of cross-eXarnination of prosecution Witnes.ses_, we find that accused had taken shelter under the alleged subsequent remittance made by him. We do not find }'/3 ism any documentary evidence in prcef cf subsequent remittance made by the accused.
21. The evidence of prosecution witnesses _.__ei~T handwriting and signatures cf accused fO1_l.F?..dv_"'.i~ii1V VV Ex.P.2 to EX.P.7' has not been hand, it was consistently suggested to pditosectict-iiciiVwitncsses7L that accused had subseqtideritiy reifiit_te'd--7 ax)' sum of Rs.1,05,200/--.
22. From tenor. of to PW7, we find that ' attempts to which he allegedly carriedgjv in' frfom Fort Sub~P0st Office to Basavanaguddi Head 'Post Qffice.
«_ 23._~'3,P$7fl~E.Natai*a§an; who had taken charge from accused has .depVQS~ed«vathat entries in EX.P.1 to Ex.P.7 were made by a'cc.u--sedV bear signatures of accused. PW} has 'V depdsed:"v.that. the accused did not carry cash when he left 'if,Fbi"'L--._St1+fii~POS't Office to Sudhaiiinagar Sub Post Office. At jtuncture, it is necessary to state that PW1 had 5 I3 accompanied the accused from Fart Sub Pest Sudhamariagar Sub Post Office te hand over _ accused. V b
24. PW2uSeenappa has depesed that:'a_ccused~_iAhad accounts by making entries in and aisQ.'_:bj;?'1,pfeparing if chailans as per EX.P.2;'.to he had remitted a sum of Rs. Head Post Office in six vfzfiipart from this, PW2 has than Rs.20,000/~, the remit the same to Head Post dfficeg' more than Rs.20,000/~, the message haste Head Post Office and Head P0sf(t._§;UVfi'ice woixid send a Van to collect the amount. The disputed this fact. We find it was a safe the Sub~P0st Offices to remit the amount to HeadV-.Pesvt""Office.
A fj"2:Q§.;f"'~«'.PW3~Arjungi, has deposed that accused had made i faglse entries in E3x.P.1 to E.X.P.7, PW3 has deposed that if l4 amount shown in E1xiP.l to EX.P.'.7 were not rernit.t_,e'd_V ta Basavanagudi Head Pest Office on 07.08.1999; l ' Though PW3 was subjected to _ ll examination, nothing has beenflelic'i1edl~.t0:'Cl_iSc_a1jd'"hii§ evidence.
26. The evidence of PW4--See'{ha .(jL;helth-enmTreasurer in Basavanagudi Post i;h'eeVidence of PW8.
27. Thus, has produced documentary accused had falsified aecountsminTEielT;l'l;;: The accused has not dieptited entries in Ex.P.l and EX.P.2 to Jlnot disputed his signatures in Ex.P;l and . The unsuccessful attempt made A...,bAyl"th€ tofluewstablish that he had carried cash of Fart Sub»-Post Office t0 Basavanagudi fleadl Povstlflffiee Via Sudharnanagar Post Office and on the lV._way, he Ainissed the bag containing cash of Rs.l,O5,200/-- preve heyend reasonable deubt that he had made l false entries in Ex.P.l and EX.P.2 to E)X.P.i7 with an intention §"~4¢M V y H to defraud the postal departrne_n.t___'l'he'relfore.;;V.l?§*eVl_'_hol<flll' that prosecution has proved beyond..reaes.onab1e' fill-dub:
that accused had cornrnitf:ed__ falslfiVcationr.'Vo;fi,¢:accounts,_l> attracting an offence punish'abie _underl:se'ction 47'7~A IPC. The learned tr§aI~~..Juc_lgleV_ conslidlering the evidence adduced by' the accused by no evidence in proof of offenl{jjeV 4?7=2:x IPC. Therefore, the impugned cairnot besustained.
28.
he counsel for accused would submit "'~._v_th.:£t°*accuseed hasvv--retired from service; now he is aged therefore, benefit available under 'section Probation of Offenders Act may be extended' tolaccused.
ll "he learned State Public Prosecutor would submit .l lihat"Alaccused had committed falsification of accounts; ll .»vthere is no evidence on record to show that accused had 4» ;~...W,, I6 subsequently remitted a sum of Rs. 1.055200/~; accused has not nffered any explanation; therefore, ne":llen..i;'eney is called for in the matter cf sentence.
30. The accused has faced trauma trial end of 2005. The accused is new retired from sei*vice;. new he , is aged about 66 years. Therefollr"'e...:latl. thislstalgeef case, it is not proper to the to In the circumstances, We deem it proper to fine.
31. In the fol,lo'iVing:-
tttt 'V 'l"he The impugned judgment as it relates _td of accused for an offence punishablev und'er..._.S€.ction 477~A IPC is set aside. The 'acc'used_Visfccnvicted for an offence punishable under seeticn The accused is sentenced to pay fine C 0f l5{;3.VlA,.:Q.(V)4,OOO/~l In default to undergo simple '~l_irn1Vji*i.scnment for six months for an offence punishable under section 477--A IPC" Office is directed to send back