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2013 DIGILAW 910 (KAR)

T. VISHWANATH v. STATE OF KARNATAKA

2013-08-12

L.NARAYANA SWAMY

body2013
JUDGMENT L. NARAYANA SWAMY, J.-This appeal is filed by the appellant-accused being aggrieved by the judgment of conviction and order of sentence dated 25.8.2010 passed in Special Case No. 22/2007 on the file of the IV Addl. District Judge & Special Judge, Belgaum. 2. The facts to be stated in brief are as follows: The complainant Kallappa Ramappa Sangolli, a resident of Linganmath, Khanapur Taluk lodged a complaint alleging that he is the owner of Sy. No. 97 measuring 2 acres 35 guntas in Gundolli village. He got a borewell drilled in his land through Patil Bore-wells of Alnavar. In order to fix pump-set and lift the water, he approached Dr. B.R. Ambedkar Development Corporation Ltd., for financial assistance. It is stated, the appellant No. 1 was a District Manger and Appellant No. 2 was Taluka Development Officer of the said Corporation. They assured the complainant to reimburse the amount of drilling cost. On 21.12.2005 when the complainant was working in his land, some of the officials on behalf of Appellant No. 2 approached him and obtained signatures on certain documents and he has also deposited Rs. 50/- on the same day. The appellant No. 3being the proprietor/Manager of M/s. Sindhu Borewells on or about 5/1/2006 in collusion with appellants No. 1 & 2 cheated the complainant and also government, dishonestly induced the complainant to deliver the documents through Patil Borewells of Alnavar and got deposited from the complainant an amount of Rs. 11,422/- towards loan and KPTCL charges and with an intention to defraud the Corporation/Government as well as the complainant created the documents to show that the appellant No. 1 issued work order to appellant No. 3 on 21.12.2005 to drill the bore-well and appellants 1 & 2 certified having drilled the borewell in complainant's land on 6.1.2006 and appellant No. 3 submitted invoice for Rs. 24,726/- dated 30.1.2006 towards drilling charges, casing pipe etc., knowingly that bore-well was already got drilled conspiring themselves to cheat the complainant and misappropriated the government funds, thereby the appellants-accused have committed the offences Punishable under Sections 420, 477A, 120B read with Section 34 IPC and appellants 1 and 2 also are punishable under Section 13(1)(c) read with Section 13(2) of Prevention of Corruption Act, 1988. 3. The case of the appellants is one of total denial. They have denied all the charges and claimed to be tried. 4. 3. The case of the appellants is one of total denial. They have denied all the charges and claimed to be tried. 4. To prove the guilt of the appellants, the prosecution has examined in all seven witnesses as PW-1 to PW-7 and got marked 18 documents as Ex.P1 to P18. PW-1 & 2 are panch witnesses to the seizure mahazar. PW-3 is the complainant. PW-4 is the person who has drilled borewell in the land of the complainant. PW-5 & PW-6 are the investigating officers. PW-7 is the Managing Director of the Corporation who has issued sanction order for prosecution. Out of the documents, Ex.P1 is Seizure Panchanama, Ex.P2 document in respect of the Corporation, Ex.P3 spot panchanama, Ex.P4 & P5 photos, Ex.P9 complaint, Ex.P10 FIR and Ex.P18 a sanction order. 5. I have heard the learned counsel for the appellants and learned counsel for the respondent and gone through the entire records. 6. The learned counsel for the appellants submitted that the Court below has committed an error in forming an opinion that when documentary evidence is sufficient to prove the guilt of the appellants and the oral evidence is of less importance. The offences alleged against the appellants are serious in nature and what is more important is the guilt intention with which the appellants must have committed the acts, which is very much lacking in the case in the absence of any evidence in this regard. The prosecution has not only to prove the guilt but the proof must be beyond all reasonable doubt which has not been discharged in the instant case. The complainant himself has not supported the prosecution case, so also PW-1 who is the panch witness to seizure panchanama who has turned hostile and not supported the prosecution, PW-4 who is the person drilled bore-well in the land of the complainant has also not supported the prosecution case. PW-5 & 6 evidence is to the effect that they conducted the investigation and thereafter filed charge sheet. The evidence of PW-7 is relating to sanction order issued by him for prosecution. Therefore, there is absolutely no evidence attributing guilt intention on the part of the appellants before committing the alleged acts which is very essential to bring home the guilt as alleged in the case. The impugned judgment and order of sentence suffers from legal infirmity. The evidence of PW-7 is relating to sanction order issued by him for prosecution. Therefore, there is absolutely no evidence attributing guilt intention on the part of the appellants before committing the alleged acts which is very essential to bring home the guilt as alleged in the case. The impugned judgment and order of sentence suffers from legal infirmity. In the circumstances, he prays for allowing the appeal and to set aside the impugned judgment and order. 7. On the other hand, the learned counsel for the respondent supported the judgment of conviction and order of sentence for the reasons stated in the judgment and prays for dismissal of the appeal. 8. On the basis of the arguments advanced by the learned counsel for the parties, the point that arises for consideration in the present appeal is, whether the judgment of conviction and order of sentence passed by the trial Court is just and proper in the facts and circumstances of the case or it calls for interference by this Court? My answer would be in favour of the appellants, for the following reasons: 9. The offences alleged against the appellants are punishable under Section 420, 477A, 120B read with Section 34 IPC and Section 13(1)(c) read with Section 13(2) of Prevention of Corruption Act. The essential ingredient that is required to be proved in respect of offence punishable under Section 420 IPC is the guilty intention attributable to the accused persons and thereby inducing a person to do certain thing or refrain from doing that thing. To bring home the guilt under Section 477A IPC whoever, being a clerk, officer or servant or employed or acting in the capacity of a clerk, officer or servant willfully and with intent to defraud, destroys, alters, mutilates or falsifies any valuable security. To bring home the charge of conspiracy, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. Section 13(1)(c) of the Prevention of Corruption Act stipulates dishonestly or fraudulently misappropriating or otherwise converting for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do. 10. Keeping these ingredients in mind, now the materials on record are to be examined. 11. Section 13(1)(c) of the Prevention of Corruption Act stipulates dishonestly or fraudulently misappropriating or otherwise converting for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do. 10. Keeping these ingredients in mind, now the materials on record are to be examined. 11. The complainant who is examined as PW-3 has deposed in his evidence that he has dug a borewell in his land. He obtained false certificate from PW-4 for the purpose of obtaining loan from the bank. He had filed application in the year 2004 and bore-well was dug in 2005, but they took one year time to install pump-set and therefore he filed complaint before the Lokayuktha police. The neighbours were enquired who have stated before the police that borewell is dug in his land. He has stated that he does not know what is written in Panchanama Ex.P3. At this stage, this witness was sought to be treated as hostile and Special Public Prosecutor was permitted to cross-examine. He has denied all the suggestions relating to the averments made in the complaint except to the averment relating to persons coming to his land and collecting some documents. 12. PW-1 and 2 are the panch witnesses to the seizure panchanama accompanied the investigating officer to Dr. B.R. Ambedkar Development Corporation Ltd., wherein documents under Ex.P2 were seized under Panchanama Ex.P2 and thereafter they visited the land of complainant wherein complainant produced the documents under Ex.P6 which were seized. PW-1 has turned hostile and he has not supported the case of the prosecution. 13. PW-4 Yeshwant Patil the person who has drilled the bore-well in the land of complainant and also issued yield certificate according to the case of prosecution and he has also turned hostile, not supported the prosecution case. 14. As already stated, PW-5 & 6 are the investigating officers and PW-7 is the Managing Director of the Corporation who has issued the sanction order for prosecuting the appellants. 15. The appellant No. 1 was the District Manager and Appellant No. 2 was the Taluka Development Officer of Dr. Ambedkar Development Corporation Limited and Appellant No. 3 was the Proprietor/Manager of Sindhu Borewells to whom the work was entrusted for drilling the bore-well. 16. 15. The appellant No. 1 was the District Manager and Appellant No. 2 was the Taluka Development Officer of Dr. Ambedkar Development Corporation Limited and Appellant No. 3 was the Proprietor/Manager of Sindhu Borewells to whom the work was entrusted for drilling the bore-well. 16. According to the prosecution complainant had drilled the bore-well in his land through Patil Borewells on 13.3.2005 and also obtained yield certificate. Since the complainant could not fix the pump-set because of financial problems, he approached Dr. B.R. Ambedkar Development Corporation Ltd., for financial assistance and appellants 1 & 2 assured him of reimbursement of drilling charges and further to extend all the facilities. Thereafter they obtained certain signatures of the complainant on relevant documents and manipulated the documents as if the order was placed for surveying the land for fixing the point on 2.12.2005 and survey was done on 17.12.2005 by submitting a report and on 21.12.2005 work order came to be issued in favour of appellant No. 3 and in turn he drilled the bore-well in the land of the complainant on 6.1.2006. In order to appreciate the theory of the prosecution, the evidence of the complainant is very material. When the complainant disowns his own complaint and withdraws from his stand in the complaint, prosecution case weakens and other materials such as panch witnesses to the seizure and the seizure of documents cannot be of sole help to the prosecution so as to bring home the guilt of the appellants. Even otherwise, one of the panch witnesses has not supported the case of the prosecution and he is treated as a hostile witness. 17. It is not brought on record as to who has prepared the work order because the first appellant was a District Manager. Though it is the case of the prosecution that the complainant was directed to go to the appellant No. 2, the appellant has disowned the said statement in his evidence. To attribute the guilty intention on the part of the appellants, no material much less the independent material is forthcoming in the instant case. The dishonest intention to defraud the complainant or the Government funds having misappropriated is also not established by the prosecution. On the other hand, the complainant has deposed that pump-set was fixed to his bore-well and because of delay he lodged the complaint against the appellants. 18. The dishonest intention to defraud the complainant or the Government funds having misappropriated is also not established by the prosecution. On the other hand, the complainant has deposed that pump-set was fixed to his bore-well and because of delay he lodged the complaint against the appellants. 18. There is no doubt, some materials are produced by the prosecution to show some irregularity in the matter of carrying out the Ganga Kalyana Scheme. But what is required to punish a person under the criminal law is the proof beyond all reasonable doubt. Mere some documents is not enough. All the chain of actions has to be proved with sufficient materials so that there shall be an inevitable conclusion that the accused persons have committed such an offence. All the ingredients of the offences alleged are to be proved to bring home the guilt of the accused. In the instant case, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt by not placing sufficient materials. 19. In the absence of evidence of the complainant and the evidence of any independent witnesses so as to attribute guilty intention on the part of the accused persons, it is not possible to punish the appellants for the offences alleged. On the basis of the evidence and materials on record, it creates a doubt in the mind of the Court which of the documents are credible and can be relied upon. 20. The trial Court has failed to consider the lack of proof with regard to ingredients of the offences alleged so as to convict the accused persons. Merely because the documents are placed it is not a conclusive proof to rely upon. The genuineness of the documents has to be established by independent and cogent evidence. The complainant himself has withdrawn his stand from the averments made in the complaint and therefore it is very difficult to believe the theory of the prosecution. The very basis on which the trial Court proceeded that when the case depends on documentary evidence, the oral evidence is of less importance is erroneous. 21. In view of the above discussion, I am of the view that the trial Court is not justified in passing a judgment of conviction and order of sentence and the impugned judgment and order of sentence suffers from infirmity and thus calls for interference by this Court. 22. 21. In view of the above discussion, I am of the view that the trial Court is not justified in passing a judgment of conviction and order of sentence and the impugned judgment and order of sentence suffers from infirmity and thus calls for interference by this Court. 22. In the result, this appeal is allowed. Impugned judgment of conviction and order of sentence dated 25th August 2010 in Special Case No. 22 of 2007 on the file of IV Additional District Judge and Special Judge, Belgaum, at Belgaum passed against the appellants stands set aside. The appellants are acquitted of all the charges leveled against them.