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2003 DIGILAW 444 (KAR)

STATE BY KORATAGERE POLICE v. T. HUCHAIAH

2003-06-09

M.F.SALDANHA, M.S.RAJENDRA PRASAD

body2003
M. F. SALDANHA, J. ( 1 ) WE have heard the learned High Court Government Pleader on merits. We readily accept all that he has submitted, namely, that the misappropriation of funds of a Co-operative Society is not only an anti-social offence, that it is absolutely rampant that the result of this criminal activity is that the subordinate Courts are heavily burdened with these cases which are long drawn out and time consuming as they involve the examination of records, accounts and the like. The learned Counsel further submitted that in almost everyone of these transactions the accused are acquitted and the direct result of these acquittal orders is that, whereas, the objective of the law needs to be deterrent and the justice dispensation machinery must result in punishment of the guilty persons in order to send out a clear signal that the consequences of such criminal activity will be grave, that in actual effect, because the accused always gets acquitted the confidence has now grown among this class of employees that even if they misappropriate the money they will still get away with the offence. His submission is that it is eminently necessary that the Courts must severely punish the accused in each of these cases in order to put a full stop to these obnoxious and anti-social offences. His submission is that the accused in the present case was in charge of drawing the bills, collecting the amounts and disbursing the salaries, that he has not done so and has misappropriated an aggregate of Rs. 6301/- and that consequently, the order of acquittal ought to be reversed. ( 2 ) THIS Court has taken a serious view of this category of offences and there are no two opinions about the submission canvassed by the learned High Court Government Pleader, that it is essential that the guilty be punished as, apart from anything else, the small societies really cannot afford to lose their funds. Misappropriation of Co-operative society funds has now become so common and so rampant that the impression is current that converting the funds to one's own use is a fundamental right. The problem in our way is that in every single one of these cases the prosecution is so badly conducted that a virtual escape route is left open for the accused to happily secure an acquittal. The problem in our way is that in every single one of these cases the prosecution is so badly conducted that a virtual escape route is left open for the accused to happily secure an acquittal. To quote an example, even in the present instance the prosecution has led detailed evidence to indicate that the accused was an employee of the health unit, that his duty was to prepare bills, that he was required to collect the cash against those bills and that it was also his duty to disburse the amounts in question. What unfortunately has happened is that generalised evidence with regard to preparation of the bills and the other duties of the accused has been brought on record but it has not been pointed out particularly as far as the present accused are concerned as to who has signed the bill. The evidence of the Treasury officer is also useless because he has stated that as far as the present incident is concerned that he is unaware of the factual position and the sum total of the blunders committed by the prosecution, viz. , that it has not been established that as far as this incident was concerned that the accused encashed the cheque, that the amount was entrusted to him and that he has wrongfully converted it. All the generalised evidence is of no consequence if the specific requirements of law are not complied with. ( 3 ) WE do agree with the submission canvassed on behalf of the State that such offences should not go unpunished but the solution does not mean that the High Court can reverse acquittal orders without there being legal justification for doing so. The solution is that the prosecutors who conduct these cases in the Trial Court be specifically directed to ensure that the specific evidence establishing the guilt of the accused and the requisite evidence fully making out the ingredients of the charging sections is placed before the Trial Court so that in those of the cases where the offences are established the accused get rightfully convicted. These are all cases on documents and records, and if properly investigated and presented will all end in 100% convictions. That will put an immediate full stop to all these leakages. These are all cases on documents and records, and if properly investigated and presented will all end in 100% convictions. That will put an immediate full stop to all these leakages. ( 4 ) WE strongly disapprove of what is happening in these cases and we accordingly direct the Registrar General to forward a copy of this judgment to the Director of Prosecutions for purposes of ensuring that immediate corrective action is taken. We need to add that if unfortunately there are wide gaping lacunae left in the prosecution case in the course of the trial that even the very best Counsel can do virtually nothing in the face of such a record when an appeal is filed. ( 5 ) HAVING said this with regard to the role of the Prosecutors in the trial Court, what we need to point out very strongly is that again, if the investigation is not of the requisite caliber and does not bring out the requisite evidence in consonance with the sections in question that the prosecutor before the Trial Court would again find himself totally helpless. It is therefore equally necessary that at the starting point of time when the police are in the picture and not the Prosecutors, that proper application of mind be devoted to the facts of the case, that the requisite evidence, documentary and oral be properly collected and marshalled at the time when the charge-sheet is presented to the Court in order to ensure that the investigating authority has made out a foolproof case against the accused. It will be equally necessary for the Director General (Police) to take cognizance of the failure of justice that is resulting due to absolutely inefficient and unprofessional investigation and to ensure that necessary corrective action is taken. Both the authorities shall report compliance to the High Court within a period of six weeks from today. ( 6 ) IN view of the aforesaid position, since the evidence on record is insufficient for purposes of recording a conviction, we have no option except to dismiss the appeal on merits. Both the authorities shall report compliance to the High Court within a period of six weeks from today. ( 6 ) IN view of the aforesaid position, since the evidence on record is insufficient for purposes of recording a conviction, we have no option except to dismiss the appeal on merits. ( 7 ) IT is very necessary for us to bring to the notice of the State government some very very telling and significant facts and statistics because the reduction of arrears, despite the Herculean efforts put in by the judiciary is being frustrated by the Governments and public bodies which form the largest bodies of litigants before the Courts. When a criminal appeal is filed against an order of acquittal particularly in relation to murder, dacoity and such other serious offences, the judgment of the Trial Court alone is voluminous and the Division Bench of the High Court with the assistance of the'learned Public Prosecutor is required to very carefully review that judgment for purposes of deciding whether to entertain the appeal or not. This is a laborious and time consuming process and in order to conserve the time of the Court, the law Department of the State Government is required to do a thorough scrutiny of the records and only confine the appeals to valid and deserving cases. When appeals are indiscriminately filed by the State Government in almost every case, at the initial stage, the two Judges who form the Division Bench have to spend a fair amount of time hearing the appeals for admission and what we need to bring to the notice of the state Government is the fact that the statistics compiled by the High court for the last 3 years will indicate that it is only 26% of the State appeals that are admitted by the High Court which in other words means that in as many as 74% of the cases the appeals were worthless and deserve to be dismissed at the admission stage itself. The question arises as to why these appeals are filed and should this wrong practice not be stopped and 74% of judicial time be saved. ( 8 ) WE then come to the second aspect of the issue which is even more serious. The question arises as to why these appeals are filed and should this wrong practice not be stopped and 74% of judicial time be saved. ( 8 ) WE then come to the second aspect of the issue which is even more serious. At the admission stage, the High Court Judges do not have the benefit of the record of the case and it is only on the basis of the judgment copy and the Public Prosecutor's record that the Court can decide whether to entertain the appeal or not. In a very large number of instances the contention raised is that the acquittal order is wrong because there does exist material on record which the Trial Court has either overlooked or misread and in everyone of these cases accepting the contention advanced on behalf of the State that the case requires a reconsideration, the appeal is admitted. This means that the original accused are required to be rearrested and released on bail or sometimes even retained in custody. The High Court has to call for the record from the lower Court which is required to be transcribed and bound into paper books which run into several volumes. These procedures are time consuming. The Judges on the Division Bench have to again go through the entire procedure of reviewing the whole of the record and to thereafter decide-'whether the acquittal order should be set aside or not. It appears that nobody in the Law Department has taken the trouble to apply their minds to the fact that out of the criminal appeals admitted by the High Court against orders of acquittal which have been filed by the State in the course of last 3 years, the High Court has allowed the appeals in only 18% of the cases which means that 82% of these appeals were unjustified. At the same time, the charges being serious the law requires a thorough review to be done by the High Court when the government contends that the acquittal was unjustified and as it turns out in the majority of cases the appeal was not justified at all. ( 9 ) WHAT we wish to also bring to the serious notice of the State government is another fact, viz. ( 9 ) WHAT we wish to also bring to the serious notice of the State government is another fact, viz. , that the Division Bench (Criminal) deals with heavy appeals and they account for as much as 18% of the overall judicial time of the High Court. While it is the grievance of the appellants in appeals filed against conviction orders that the Division benches are overloaded and that criminal appeals against convictions in which the accused are undergoing sentence take years for hearing because of the fact that the list moves slowly, it is very very relevant to take note of the fact that in the aforesaid circumstances, the filing of the unjustified appeals against acquittals which account for more than 50% of the judicial time of the Division Bench (Criminal) is required to be drastically curtailed. Where the appeals against acquittals are confined to only the valid and justifiable cases, the amount of judicial time saved would enable the High Court to dispose off the conviction appeals at least 50% faster. ( 10 ) IN the light of the aforesaid, we recommend that the Law Minister, government of Karnataka, the Law Secretary to Government and the learned Advocate General should consider a total overhaul of the scrutiny procedure adopted by the Department to ensure that this is done by more competent, qualified and responsible officers so that the pruning process could be properly applied, the useless cases be culled and above all the High Court be saved from the large volume of dead wood that is now being indiscriminately dumped on the High Court by the Law Department. ( 11 ) THE Registrar General, as indicated earlier, to forward copies of this judgment to the Law Minister, Government of Karnataka, Director of Prosecutions and to the Director General (Police ). --- *** --- .