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Karnataka High Court · body

2007 DIGILAW 287 (KAR)

STATE OF KARNATAKA BY GANDASI POLICE v. RANGAPPA

2007-04-17

V.G.SABHAHIT

body2007
SABHAHIT, J, J. ( 1 ) THIS Appeal by the State is directed against the Judgment of acquittal passed by the JMFC. , Arasikere in CC. No. 1158/97 dated 4-5-2002 wherein the respondent has been acquitted of the offence punishable under Section 408 IPC. , ( 2 ) THE essential facts of the Case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows: it is the Case of the prosecution that on the basis of the complaint filed by PW. 4 who was working as Manager, HDCC Bank, gandasi Hand Post as per Ex. P3, PW. 12 who was working as PSI registered Crime No. 78/97 and prepared FIR as per Ex. P3. It is averred in the complaint that the accused was working in the said bank since 4? years as Assistant and he was entrusted with the duty of attending the work entrusted by the Manager, On 10-7-97 at about 10. 30 am since the amount was required for payment to be made towards the salary of the teachers for the month of June, 1997 accused was handed over a cheque for Rs. 3,00,000/- with a direction to encash the same from Hassan District Central Co-operative Bank ltd. , Hassan, Arasikere Branch and bring the amount to the Bank. The accused did not return with the amount even after the banking hours was over. The banking hours of the Bank was between 8. 30 am to 12. 30 pm. At about 12 noon he telephoned to the Arasikere branch and was informed by the Manager that the accused has encashed the cheque at about 11. 30 am and taken cash of Rs. 3,00,000/- (Rupees three lakhs only) Accused did not return even till 2 pm on 10. 7. 97. PW. 12 along with his staff searched for the accused. Accused was apprehended and on the basis of the voluntary statement given by him as per Ex. P. 12 accused lead to the house in honnakumamahalli on 11. 7. 97 at about 6. 45 am and took out suitcase which was enpty and the same was seized under mahazar Ex. P8 in the presence of the panchas as per MO9. Thereafter at about 9 am accused lead them and the panchas to the Housing Board Colony and took them to the house of Krishnegowda bearing No. LIG-12. 7. 97 at about 6. 45 am and took out suitcase which was enpty and the same was seized under mahazar Ex. P8 in the presence of the panchas as per MO9. Thereafter at about 9 am accused lead them and the panchas to the Housing Board Colony and took them to the house of Krishnegowda bearing No. LIG-12. The wife of the accused Lakshmidevamma was in the said house and accused asked Krishnegowda to give back the zip bag and one plastic bag and Krishnegowda took out the said bag and it was found that the said bag contained cash of Rs. 2,88,590/- and the same was seized under mahazar Ex. P1 and the said zip bag and plastic bag were seized as MOs 7 and 8 and the cash was seized under said mahazar as per MOs 1 to 6. Thereafter he recorded the statement of the witnesses and also the cash register, counter foil of the cheque and other docuemnts and after completing investigation filed charge sheet against the accused on 10-7-97. The accused pleaded not guilty and claimed to be tried. ( 3 ) THE prosecution examined PWs. 1 to 13 and got marked exs. P1 to P12 and MOs 1 to 9. The statement of the accused under section 313 Crpc. , was recorded. The defence of the accused is one of denial. Accused did not lead any defence evidence. The appeal was committed. The Trial Court by judgment dated 20-2-99 held that prosecution has proved guilt of the accused for the offence punishable under Section 408 IPC. , and sentenced him to undergo r1 for three years. Being aggrieved by the said judgment of conviction and sentence, accused preferred Criminal Appeal No. 10/99 and the court of Addl. Sessions Judge, Hassan, by judgment dated 29-2-2000 set aside the judgment of conviction and sentence and remitted the matter to the Trial Court with a direction to record the statement of the accused under Section 313d Crpc. , afresh. Thereafter statement of the accused under Section 313 Crpc. , was recorded and the Trial Court by judgment dated 4-5-2002 held that the prosecution has not proved that guilt of the accused as alleged and acquitted the accused of the offence punishable under Section 408 ipc. , Being aggrieved by the said Judgment of acquittal, the State has preferred this appeal. , was recorded and the Trial Court by judgment dated 4-5-2002 held that the prosecution has not proved that guilt of the accused as alleged and acquitted the accused of the offence punishable under Section 408 ipc. , Being aggrieved by the said Judgment of acquittal, the State has preferred this appeal. ( 4 ) I have heard the Learned SPP, and the Learned Counsel appearing for the respondent. ( 5 ) HAVING regard to the contentions urged, the pionts that arise for determination in this appeal are: 1) "whether the finding of the Trial Court that the prosecution has not proved guilt of the accused of having committed the offence punishable under Section 408 ipc. , is justified for calls for interference in this appeal? 2) What order? and I answer the above points as follows: point No. 1 : The Judgment to acquittafl passed by the Trial court is liable to be set aside and prosecution has proved beyond reasonable doubt that the accused has committed the offence punishable under Section 408 IPC. , point No. 2 : The accused is liable to be sentenced for the offence punishable under Section 408 IPC. , as per the final order for the following: reasons ( 6 ) I have been taken through the evidence of PWs. 1 to 13 and the contents of the documents got marked by the prosecution. It is clear from the perusal of the material on record that the fact that accused was working as Assistant in the Bank of which the complainant was the Manager is not in dispute and the prosecution in order to bring home the guilt of the accused for the offence punishable under section 408 IPC. , has to prove that the accused was entrusted with the cheque for Rs. 3,00,000/- on 10-7-97 with a direction to encash the same and bring the amount to the Bank as the same is required for paying the salary to the teachers. The accused having encashed the said cheque for Rs. 3,00,000/- did not bring the amount to the Bank and misappropriated the same and thereby committed the offence punishable under Section 408 IPC. , ( 7 ) PW. 1 is a witness to the mahazar-Ex. P1 regarding seizure of currency notes. PW. The accused having encashed the said cheque for Rs. 3,00,000/- did not bring the amount to the Bank and misappropriated the same and thereby committed the offence punishable under Section 408 IPC. , ( 7 ) PW. 1 is a witness to the mahazar-Ex. P1 regarding seizure of currency notes. PW. 2 is a witness to the mahazar but he has not supported the Case of the prosecution and he is treated as hostile and permitted to be cross examined by Learned public prosecutor. PW. 3 was working a cash clerk in the Arasikere HDCC Bank. The complainant is examined as PW. 4, PW. 5 is the wife of accused she has not supported the case of the prosecution and was treated as hostile and permitted to the cross examined by the Learned Public prosecutor and nothing has been elicited in the cross examination to disbelieve the evidence of the prosecution. PW. 6 is the Manager of hdcc Bank at Arasikere. PW. 7 is the cash cleark of HDCC Bank, gandasi, PW. 8 was working as Junior Assistant in Arasikere HDCC bank. PW. 9 was working as Attender in the Arasikere Branch of dcc bank. PW. 10 is the witness to the mahazar Ex. P9. PW. 11 is the witness to the mahazar Ex. P8. PW. 12 is the PSI who registered the complaint and investigated the case and filed chargesheet against the accused. PW. 4 is the complainant who has stated in his evidence that on 10-7-97 at about 9 am he handed over a cheque for Rs. 3,00,000/- to the hands of the accused who was working as Assistant in the Gandasi Hand Post HDCC Bank in which he was working as manager with a direction that he should encash the cheque by going to Arasikere and bring the cash of Rs. 3,00,000/- as the salary has to be paid to the teachers. The banking hours is between 8. 30 am to 12. 30 pm. The cheque was signed by him and cash cleark PW. 7. Since accused did not come to the Bank with cash he telephoned to the HDCC Bank at Arasikere and he was informed that the accused had encashed the cheque and had taken Rs. 3,00,000/- and had said that he would come to office. However, accused did not return till 3 pm. 7. Since accused did not come to the Bank with cash he telephoned to the HDCC Bank at Arasikere and he was informed that the accused had encashed the cheque and had taken Rs. 3,00,000/- and had said that he would come to office. However, accused did not return till 3 pm. The have given token to teachers and they secured amount from hassan Central Co-operative Bank and made the payment. Thereafter he again telephoned to Arasikere Branch and since accused did not return till 6 pm he lodged complaint before the Police as per ex, P3. He has indentifed signature of the accused while handing over the cheque and the counterfoil and cheque issued register as per ex. P4 and P4 (1) and Ex. P4 (1) (a) is the signature of the accused. He has also produced Ex. P5 entry made regarding handing over the cheque no. 081864 to the accused and necessary relevant entry is at Ex. P5 (a ). He has also produced Ex. P56 attendance register to show that accused was on duty on the said day wherein accused has signed as per ex. P6 (a ). He has produced Ex. P7 wherein he has passed orders to issue cheque for Rs. 3,00,000/- in the hands of the accused and has got marked Ex. P7 (1) (a) the relevant order which bears signature of the accused. Thereafter on 11-7-97 at about 6. 30/7am Police had come with the accused to Honnakumaranahalli land of Thotlegowda and accused said that he will produce the suitcase which he has concealed and took out the suitcase from a bush and produced the same as per Ex. P8 and the same was seized under mahazar Ex. P8 and the suitcase was marked as MO 1. There is a label in the said suitcase which bears the signature and on the same day at about 12/12. 30 in the afternoon Police prepared sketch regarding location of the counter in the Bank as per Ex. P9 and thereafter he went to the police Station and saw the amount which has been seized on the basis of the statement of the accused and he handed over the original documents to the Investigation Officer. It is elicited in his cross examination that his statement was recorded after the suitcase was seized on 11-7-97. P9 and thereafter he went to the police Station and saw the amount which has been seized on the basis of the statement of the accused and he handed over the original documents to the Investigation Officer. It is elicited in his cross examination that his statement was recorded after the suitcase was seized on 11-7-97. He has denied the suggestion that the signature on the counterfoil of the cheque was not the signature of the accused. It is not true to suggest that one Rangegowda was working as at tender. He has further sated that prior tot he witness coming to the Bank as manager Rangegowda was working as attender and after he came as manager accused was working as Assistant. He has denied the suggestion that Ex. P6 (a) is not the signature of the accused. There is no specific order that certain person should go and bring the amount from the Bank and staff of the Bank is deputed having regard to the emergency to bring the amount from the Bank. The accused has not come to the Bank with the Police when the spot mahazar was prepared. Both the Manager and the cash Clerk were required to sign the cheque. No movement register is maintained in the Bank. He has denied the suggestion that no seizure of the suitcase was made in his presence. ( 8 ) PW. 7 who was working a Cash Clerk in Gandasi HDCC bank has stated in his evidence that accused was entrusted with the duty of brining the amount from the Bank upto 5 lakhs as per the directions of the Manager and on 10-7-97 cheque for Rs. 3. lakhs signed by himself and the Manager was given to the accused as per ex. P2. The said cheque was sent through the accused to bring the amount. Accused did not return till 12. 30 pm and thereater Manager telephoned to the HDCC Bank and was informed that accused had encashed the cheque Ex. P2 and taken the amount. He has identified the signature of the accused on counterfoil and his signature on Ex. P7. He has also identified the suitcase and the bags which are given to the accused for bringing the amount as per MOs 7 and 8. P2 and taken the amount. He has identified the signature of the accused on counterfoil and his signature on Ex. P7. He has also identified the suitcase and the bags which are given to the accused for bringing the amount as per MOs 7 and 8. It is elicited in his cross examination that accused is working as Attender in their bank, there is no movement register in the Bank. He has denied the suggestion that signature on the counterfoil are not of the accused and that he is deposing falsely. ( 9 ) ON appreciation of evidence of PWs. 3 and 4, it is clear that nothing has been elicitedf in the cross examinatin of these witnesses to disbelieve the evidence about the entrustment of cheque for Rs. 3 lakhs to the accused with a direction to bring the amount of Rs. 3 lakhs as the same was required for disbursement of the salary for the teachers and the accused did not return and thereafter complaint was filed by PW. 4 and wherefore the evidence of PWs. 4 and 7 clearly proves beyond reasonable doubt that there was encashment of cheque ex. P2 by the accused with a direction to bring the amount of cheque rs. 3 lakhs from HDCC Bank, Arasikere Branch. PW. 3 who has working as Cash Cleark in the Arasikere DCC Branch has stated in his evidence that on 10-7-97 accused came to their branch and presented a cheque for Rs. 3 lakhs and he handed over cash of Rs. 3 lakhs to the accused. The cheque was presented in the counter and the same was sent to the Manager and thereafter was sent to him. He has identified the cheque Ex. P2 as the cheque was encashed and it is even learnt from Gandasi DCC Bank that the accused has taken the amount from the Bank. He has identified Mos. 1 to 5 and has stated that the currency note bundles were of their branch. It is elicited in the cross examination of this witness that H. S. Basavaraj was the cash clerk of Gandasi branch and Manager was the drawing Officer. It is not true to suggest that H. S. Basavaraj has signed the cheque for the bank while presenting the same. There is signature of H. S. Basavaraj on the backside of the cheque. It is not true to suggest that H. S. Basavaraj has signed the cheque for the bank while presenting the same. There is signature of H. S. Basavaraj on the backside of the cheque. It is not true to suggest that he has not handed over Rs. 3 lakhs to the accused on that day. On 10-7-97 at 3. 30/4 pm when he received telephone call from the Gandasi branch he learnt that accused has not taken amount to the Bank. PW. 6 was working as Manager of Arasikere Branch DCC Bank and he has deposed in his evidence that on 10-7-97 at about 11 am a cheque for rs. 3 lakhs was presented by the accused at the counter, Kotturappa was working in the counter, he put the seal of the Bank and sent the same to him, he made entry and initialed the cheque and accused took cash of Rs. 3 lakhs and took the same in the suitcase and went out of the Bank and thereafter he received telephone at 12 noon from the manager of Gandasi branch and he informed that accused presented cheque and took Rs. 3 lakhs and Ex. P2 is the cheque which was presented by the accused and encashed on the said day. It is elicited in his cross examination that Ex. P2 is signed by the Manager- shivananjegowda and Cashier-Basavaraju. It is not true to suggest that it was H. S. Basavarju who presented the cheque and encashed the cheque, it is not true to suggest that cheque was not encashed by the accused and that he is deposing falsely. It is clear from the above said evidence of PWs. 3 and 6 that the cheque Ex. P2 which was entrusted to the accused by PW. 4 was presented in the Arasikere branch of DCC Bank at about 11. 30 am on 10-7-97 and the same was encashed and accused received Rs. 3 lakhs from PW. 3 and took the amount of the cheque. It is clear from the evidence of PWs. 3 and 6 that nothing has been elicited in their cross examination to disbelieve the evidence that it was the accused who presented the cheque Ex. P2 for encashment and received Rs. 3 lakhs and went out of the Bank. Thought the suggestion is made that it was H. S. Basavaraju, accountant-PW. It is clear from the evidence of PWs. 3 and 6 that nothing has been elicited in their cross examination to disbelieve the evidence that it was the accused who presented the cheque Ex. P2 for encashment and received Rs. 3 lakhs and went out of the Bank. Thought the suggestion is made that it was H. S. Basavaraju, accountant-PW. 7 of the Gandasi Branch who presented the cheque it has been denied by the witness. The said evidence is not at all probabahsed by the material on record and the evidence of PWs. 3 and 6 clearly proves beyond reasonable doubt that the accused has encashed Rs. 3 lakhs and received Rs. 3 lakhs from the Arasikere branch of DCC Bank. It is well settled that when once that encashment of the amount by the Bank is proved by the prosecution beyond reasonable doubt, the onus would shift to the accused to explain as to the circumstances under which the said amount was not given at the branch at Gandas. Hon'ble Supreme Court has laid down that once the prosecution proves the encashment for the purpose of Section 409 IPC. , once the entrust or domain over the property is established, it is for the accused to explain as to how the property was dealt with jiwan DASS vs STATE OF HARYANA and in the present case the defence of the accused is one of denial. When the incriminatory material is put to the accused and statement was recorded under Section 313 crpc. , he has stated that he was nothing to do with the amount that was recovered, further what is suggested to the witnesses PWs. 3 and 6 is that the signature on the counterfoil of the accused is not his signature and the suggestion made to PWs. 3 and 6 is that it was not the accused who encashed the cheque Ex. P2, it was H. S. Basavaraj who was working as cash cleark in the Bank. The said suggestion is denied by respective witnesses and apart from making the said suggestion accused has not adduced any material in the evidence of the above said witnesses to disbelieve their evidence or to show that their evidence is not truthful or reliable. Further, the evidence of PWs. 4, 1 and the Investigatin Officer-PW. The said suggestion is denied by respective witnesses and apart from making the said suggestion accused has not adduced any material in the evidence of the above said witnesses to disbelieve their evidence or to show that their evidence is not truthful or reliable. Further, the evidence of PWs. 4, 1 and the Investigatin Officer-PW. 17 would clearly show that on the basis of the statement given by the accused the bag which was handed over to the accused for bringing the cash amount of the cheque mo9 has been recovered under the pancha Ex. P3 and cash has been recovered under mahazar MOs1 to 6 amounting to Rs. 2,88,590/- was recovered under mahazar Ex. P1. The Trial Court has proceeded on the basis that the recovery of the amount has not been proved in accordance with law and has failed to appreciate the evidence of pws. 3, 4, 6 and 7 in the right perspective as referred to above and has also failed to bear in mind that once the prosecution has proved entrustment of the cheque and encashment of the same by the accused, the onus shift upon the accused to explain as to the circumstances under which the said amount was not given. On the other hand, the trial Court has proceeded on the basis that the recovery of the amount has not been proved in accordance with law under Section 27 of the indian Evidence Act and wherefore the accused is entitled to be acquitted. It is clear on re-appreciation of the evidence adduced by the prosecution as referred to above that the Trial Court has not property appreciated the evidence adduced by the proseuction and the reasoning given by the Trial Court for acquitting the accused is perverse and arbitrary and the said conclusion could not have been arrived at having regard to the above said evidence adduced by the prosecution and having regard to the fact that the evidence of PWs. 3, 4, 6 and 7 clearly proves entrustment of cheque-Ex. P2 and encashment of the same and the accused received Rs. 3 lakhs from Arasikere branch from the amount of the cheque is proved by the prosecution beyond reasonable doubt and it was for the accused to explain as to how the amount was utilised. 3, 4, 6 and 7 clearly proves entrustment of cheque-Ex. P2 and encashment of the same and the accused received Rs. 3 lakhs from Arasikere branch from the amount of the cheque is proved by the prosecution beyond reasonable doubt and it was for the accused to explain as to how the amount was utilised. Further, the material on record also shows that on the basis of the voluntary statement given by the accused recovery of Rs. 2,88,590/- has been made. The Learned Counsel appearing for the appellant submitted that the Sessions Court has remitted the matter to the Trial Court with a direction to frame appropriate question under Section 313 Crpc. , and there is no question to the effect as to how the amount was utilised by the accused and the questions have not been framed in accordance with law. There is no merit in this contention. On going through the statement under Section 313 Crpc after remitting, it is clear that all incriminating material spoken to in the evidence of the prosecution has been put to the accused and if at al accused wanted to explain as to how the amount was utilised, it was for him to explain the same while answering the question under section 313 Crpc. , and when he was asked to as to whether he has anything to say, all that he has stated is one of denial so far as the encashement of the cheque is concerned, the suggestion made to the witnesses PWs. 3 and 6 is to the effect that the cheque was presented by H. S. Basarajaj, the cash drawn before the Arasikere Branch which has been denied by the witnesses. 3 and 6 is to the effect that the cheque was presented by H. S. Basarajaj, the cash drawn before the Arasikere Branch which has been denied by the witnesses. The Learned Counsel appearing for the appellant further submitted that it could be inferred from the circumstances of the case that the accused wanted to bring the amount to the Bank, before the amount is brought to the Bank the amount was seized during the early hours of 11-7-97 and there was no opportunity for the accused to hand over the amount to the branch as it is clear that the said submission is not supported by the material on record as no such suggestion is made to any of the witnesses nor explained by the accused in answer to the question as prayed under section 313 Crpc and it is not the case of the accused that he wanted to bring the amount from the Bank before he could do the same, the amount is seized by the Police. On the other hand, he has denied the encashment of cheque by him and recovery of the amount also and wherefore the said contention also cannot be sustained and accordingly. I hold that the judgment of acquittal passed by the Trial court is liable to be set aside as the prosecution has proved beyond reasonable doubt that accused has committed the offence punishable under Section 408 IPC. , and having regard to the above said material on record adduced by the proseuction, the only conclusion that could be arrived at is that the prosecution has been able to prove guilt of the accused of having committed the offence punishable under Section 408 IPC. , and judgement of acquittal passed by the Trial Court is liable to be set aside and accordingly, the accused is found guilty of the offence punishable under Section 408 IPC. , and point No. 1 is answered accordinlgy. ( 10 ) POINT No. 2 : In view of my finding on point No. 1 as accused has to be sentenced for the offence punishable under Section 408 IPC the offence under Section 408 IPC. , is punishable with imprisonment of either description which may extend to 7 years and shall also be liable to fine. The Learned Counsil appearing for the appellant submitted that lenient view may be taken as Rs. , is punishable with imprisonment of either description which may extend to 7 years and shall also be liable to fine. The Learned Counsil appearing for the appellant submitted that lenient view may be taken as Rs. 2,88,590/- has been recovered and the incident took place in 1997 and accused has already suffered. ( 11 ) ON the other hand, Learned SPP submitted that maximum sentence may be imposed having regard to the offence committed by the accused and conduct of the accused. ( 12 ) I have considered the contention of the Learned Counsel appearing for the appellant and the Learned SPP. , having regard to the fact that the offence has been committed in the year 1997 and the conduct of the accused and other material on record, 1 hold that interest of justice would be met by sentencing the accused to undergo RI for two years and to pay fine of Rs. 15,000/- (Rupees fifteen thousand only) since Rs. 2,88,590/- has already been recovered by the prosecution and Rs. 11,410/- was utilised by the accused before seizure out of the amount of Rs. 3 lakhs drawn by him from Arasikere branch under cheque Ex. P2 and in default of payment of fine to undergo further imprisonment for one year. Accordingly, I answer point No. 2 and pass the following order: the appeal is allowed. The judgment of ac acquittal passed by the Court of JMFC, Arasikere dated 4-5-2002 in CC. No. 1159/97 is set aside and accused is found guilty of having committed the offence punishable under Section 408 IPC. , and is sentenced to undergo RI for two years and to pay fine of Rs. 15,000/- and in default of payment of fine to undergo further RI for one year. Out of the fine amount recovered Rs. 11,410/- shall be paid as compensation to the Manager of Gandasi Branch of Hassan District Central co-operative Bank towards loss caused to the Bank. The accused is entitled to set off for the period of detention already undergone by him against the sentence now imposed under Section 428 Crpc. , The trial Court is directed to secure the presence of the accused and remand him for sewing out the sentence.