Dyniel D�souza vs State Of Karnataka

H.P. Sandesh, J

These two revision petitions are filed by accused Nos.1 and 2 challenging the judgment of conviction and sentence dated 04.05.2010 passed by the Court of the Principal Civil Judge and JMFC, Hosakote in C.C.Nos.147/2001 and 209/2006 and its confirmation by the Fast Track Court-III, Bengaluru Rural District dated 30.06.2011 passed in Crl.A.Nos.18/2010 and 19/2010 and praying this Court to acquit both the revision petitioners.

The factual matrix of the case of the prosecution before the Trial Court is that accused No.1 was working as a Sub-Treasury Officer from 30.09.1996 and accused No.2 was working as a Second Divisional Assistant from 26.08.1991. Both of them were having double lock system and respective keys were with them since they were having charge of the strong room. The valuables and stamp papers were kept in the strong room, which was provided with double lock system in the Treasury. Both the revision petitioners were kept under suspension on the charge of fraudulent payment of pension. After their suspension, the charge was handed over to the respective officials and on verification, it was found that there was shortage of non-judicial, judicial and revenue stamp papers to the tune of Rs.3,65,400/-. The officers who took the charge immediately informed the same to the higher authority. The Deputy Director also conducted the physical verification of the stamp papers kept in the strong room in the presence of the petitioners. The accused No.2 was absent from the office since 17.04.1998 and physical verification was done on 23.04.1998 and 24.04.1998 and there was a shortage of Rs.3,35,800/- non-judicial stamp papers, Rs.1,600/- judicial stamp papers and Rs.28,000/- revenue stamp papers. In all there was a shortage of Rs.3,65,400/- stamp papers. Hence, case was registered and matter was investigated and filed the charge-sheet against the petitioners herein. The accused No.1 was secured and he was on bail and when accused No.2 did not appear before the Court, split-up case was registered against him and separate case was numbered and before commencement of the trial he was also secured and hence though two cases were separately registered, common evidence was recorded since both the revision petitioners claimed trial and not pleaded guilty.

The prosecution mainly relied upon the evidence of P.W.1 to P.W.7 and also got marked the documents at Exs.P.1 to 21. The Trial Court on appreciation of both oral and documentary evidence placed on record, convicted both the revision petitioners for the offence punishable under Section 408 of IPC and ordered to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.3,000/-.

Being aggrieved by the judgment of conviction and sentence passed in C.C.Nos.147/2001 and 209/2006, two appeals are filed by these two revision petitioners separately which are numbered as Crl.A.Nos.18/2010 and 19/2010. The Appellate Court on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeals. Hence, the present two revision petitions are filed independently by both the revision petitioners.

Accused No.1, who is the revision petitioner in Crl.R.P.No.779/2011 has contended in the revision petition that both the Trial Court as well as the Appellate Court have committed an error in not appreciating both oral and documentary evidence available on record. It is contended that the Trial Court has committed a grave error in framing the charge against the petitioner, which is erroneous and the same is not complied with Section 212 of Cr.P.C. and the charge does not contain the particular period from what period to what period the misappropriation had taken place. It is also contended that lower Courts have merely erred in holding the petitioner guilty when there are no specific/separate overt-act that have been attributed to the petitioner; especially in the absence of a charge for either conspiracy under Section 120B of IPC or for sharing common intention under Section 34 of IPC.

Both the Courts have seriously erred in holding that the petitioner was placed in charge of strong room, as the prosecution has not come forward to place any documentary evidence to establish that the petitioner was entrusted with the valuable stamp papers, revenue stamp papers and other valuables. In order to establish the charge of Section 408 of IPC, there must be an entrustment and the same has not been proved. Both the Courts lost sight of the fact that the prosecution has deliberately suppressed the production register No.72, the movement register of the strong room which would have been a strong material to show that the person who had access to the strong room from 16.04.1998 to 23.04.1998. Both the Courts failed to take note of the fact that the petitioner was kept under suspension for some other reason from 16.04.1998 and the strong room was operated from 17.04.1998 onwards in the absence of the petitioner. The handing over of the strong room key by the petitioner and accused No.2 has not been spoken to by any of the prosecution witnesses. The strong room was opened on 17.04.1998 and SSLC examination question papers, which were kept in the strong room was taken by the concerned authorities in the absence of the petitioner. Both the Courts have relied upon the evidence of P.W.1 to P.W.3 and considered the seizing of the documents Exs.P.1 to 3 and committed an error. The exhibits discloses the proper maintenance of the stamp papers and this aspect has not been considered by the Trial Court as well as the Appellate Court.

The learned counsel for the petitioner in support of his arguments relied upon the judgment of Apex Court in the case of MOHD. HASHIM V. STATE OF UTTAR PRADESH AND OTHERS reported in (2017) 2 SCC 198 and pressed into service Probation of Offenders Act, 1958 (‘P.O.Act’ for short). The Apex Court discussed with regard to exercising of the powers and the Court must keep in view the nature of offence and conditions incorporated in Section 4 of P.O.Act as well as precedents of Supreme Court and the same has not been invoked.

The learned counsel also relied upon the judgment of the Apex Court in the case of DHURUKUMAR AND ANOTHER V. STATE OF MAHARASHTRA reported in (2017) 9 SCC 411, wherein the Apex Court held with regard to extending benefit under Section 360 of Cr.P.C. when convicts being the first time offender and when it warranted to invoke Section 360 of Cr.P.C.

The learned counsel also relied upon the judgment of the Apex Court in the case of MOHD. MONIR ALAM V. STATE OF BIHAR reported in (2010) 12 SCC 26, wherein discussed with regard to Section 4 of P.O. Act wherein the Apex Court also taken note of that during the pendency of the instant matter, the appellant secured a Doctorate and was presently employed as a Senior Assistant Professor in a University and hence invoked Section 4 of the P.O. Act.

The learned counsel relied upon the judgment of the Punjab and Haryana High Court dated 02.08.1982 passed in the case of PAWAN KUMAR V. RULDU RAM AND ANOTHER and brought to the notice of this Court paragraph No.10 of the judgment wherein the Court has discussed with regard to the sanction is required for all the offences and set aside the order on the ground that no sanction in respect of all the offences.

The learned counsel also relied upon the judgment of the Apex Court in the case of NANJAPPA V. STATE OF KARNATAKA reported in (2015) 14 SCC 186 regarding sanction from competent authority, wherein it is observed that if the Trial Court finds that sanction from competent authority was not obtained, proper procedure for Trial Court is to discharge the accused rather than deciding case on merits. In case of invalid sanction, the Trial Court cannot pass an order of acquittal.

The learned counsel for the petitioner i.e., accused No.2 in Crl.R.P.No.880/2011 would vehemently contend that both the Courts failed to take note of the fact that Section 212 of Cr.P.C. contemplates that the charge must contain the particulars. The learned counsel reiterated the grounds urged in the connected revision petition regarding non-production of register No.72 and both the Courts have lost sight of the fact that the petitioner was kept under suspension and in their absence, physical inspection was conducted.

Per contra, the learned High Court Government Pleader appearing for the respondent-State submits that specific charge is framed against accused Nos.1 and 2 that both of them were in charge of the strong room and both of them were having one set of keys of the strong room and also charge is very clear that accused No.1 was working as Sub-Treasury Officer from 30.09.1996 and accused No.2 was working as Second Divisional Assistant from 26.08.1991 and during the said period they were in charge of the strong room and there was shortage of stamp papers to the tune of Rs.3,65,400/- and there is a material before the Court with regard to the entrustment is concerned. P.W.1 to P.W.3 speaks with regard to entrustment and particularly documents Exs.P.1 to 3 establishes that there is an entry in the registers and also specific charges are framed against them that both of them have misappropriated the stamp papers and hence invoked the offence under Section 408 of IPC against the petitioners herein.

The learned counsel for the State would submit that the very fact that they were working from 1996 and 1991, respectively is not in dispute and double key was handed over and the same was in their custody is also not disputed. The witnesses, who have been examined before the Court have categorically deposed that they were in charge of the locker and the fact that they are working in the department is also not in dispute. Regarding sanction is concerned, the learned counsel would contend that with abundant caution, sanction was taken, but no need of taking any sanction and the misappropriation of valuable stamp papers not in discharge of public duty and contend that sanction is given, but not given for 408 offence and the validity of the said sanction has not been questioned and challenged and the same is not raised before the Trial Court. It is contended that no defence was taken before the Trial Court regarding charge as well as no valid sanction and in 313 statement also there was no any defence with regard to the sanction and now they cannot raise it for the first time in the revision petition.

In reply to the arguments of the learned High Court Government Pleader, the learned counsel for the petitioners submits that without the sanction for the offence punishable under Section 408 of IPC, the very conviction is erroneous and further contend that Section 408 of IPC does not attract. The learned counsel submits that accused No.1 is aged about 82 years and during the course of departmental enquiry, an amount of Rs.2,45,000/- was paid by accused No.2 and accused No.2 was dismissed from service. Accused No.1 was also not exonerated in the departmental enquiry and held that both of them are guilty. The learned counsel for the petitioners would submit that accused No.1 is aged about 82 years and he is having heart ailment and BP and also he under went heart surgery and pressed into service the invoking of Section 4 of P.O. Act, if Court comes to the conclusion that the findings of both the Courts are not erroneous and perverse.

Having heard the respective learned counsel and also on perusal of the grounds urged in the revision petitions, the points that arise for the consideration of this Court are:

(i) Whether the Trial Court has committed an error in convicting and sentencing both accused Nos.1 and 2 and confirming of the same by the Appellate Court?

(ii) Whether the petitioners are entitled for extending the benefit under Section 4 of P.O. Act as contended by the revision petitioners?

(iii) What Order?

POINT NO.(I):

On perusal of the material before the Trial Court, the Trial Court based on the material placed by the Investigating Officer framed the charge against accused Nos.1 and 2 for the offence punishable under Section 408 of IPC, wherein specific allegation was made that accused No.1 was working as Sub-Treasury Officer from 30.09.1996 and accused No.2 was working as ‘D’ group employee from 16.07.1984 and thereafter he was promoted and working as SDA from 26.08.1991 and both of them were in charge of the strong room and there was a shortage of the stamp papers, revenue stamp papers and judicial stamp papers in total to the tune of Rs.3,65,400/- and this misappropriation was taken place during the tenure of these two petitioners. The prosecution in order to substantiate the said accusation and to prove the case, examined P.W.1 to P.W.7 and relied upon the documents at Exs.P.1 to 21.

P.W.1 is the Deputy Director of Treasuries and in his evidence he categorically deposes that he was working as Deputy Director of Treasuries from 18.01.1996 to 12.07.2000 and he know accused Nos.1 and 2 and both of them were kept under suspension and he has received the report that from 16.04.1998 to 21.04.1998 when the verification was conducted, found shortage of stamp papers, revenue stamp papers and judicial papers and documents are also marked i.e., Exs.P.1 to 4. It is also his evidence that accused No.2 was working as cashier-cum-SDA and accused No.2 was also doing the work of pension bill passing and strong room duty. He was cross-examined. He admits that he cannot tell the exact timings of his visit. He admits in the cross-examination that if custodian is not present, strong room will not be opened and also it is elicited that accused No.2 was absconding from 17.04.1998 and he cannot tell what mode they opened the strong room. He admits that departmental enquiry was conducted and direction was given to accused No.2 to pay Rs.4 lakhs and witness says that he was not aware of the same. This witness was further cross-examined. He says that in terms of KTC, double lock key should be with both the accused and movement register has not been produced.

P.W.2 was working as the Accountant head from 1997 to 2002. P.W.2 deposes that accused No.2 did not give the charge and he was entrusted the work to verify the cash book, jewellery box, revenue stamps, general stamps and Court fee stamps and found shortage of Rs.4 lakhs stamp papers and at that time accused Nos.1 and 2 were in charge of the strong room. This witness was also cross-examined. In the cross-examination he admits that while entering and coming out they have to sign the ledger and the same was with accused No.1 and suggestion was made that there was no shortage of Rs.4 lakhs stamp papers and other valuables and the same was denied.

P.W.3 is the District Officer, who conducted the mahazar in terms of Ex.P.9. P.W.4 is the FDA and he was present at the time of conducting the mahazar. P.W.5 is the head of Account and he speaks with regard to the misappropriation of stamp papers to the tune of Rs.4 lakhs. P.W.6 is the retired FDA who speaks about accused Nos.1 and 2 who were working as Sub-Treasury Officer and cashier. P.W.7 is the Police Inspector, who registered the case and investigated the matter and he speaks about deputing the police personnel for apprehending the accused persons and drawing mahazar in terms of Ex.P.9.

Having considered the grounds urged in the revision petition and also the material available on record, P.W.1 and P.W.2 particularly speaks with regard to the shortage of stamp papers and valuables and also speaks with regard to the entrustment of the same to accused Nos.1 to 2. The prosecution mainly relies upon the documents Exs.P.1 to 3, the registers maintained in the office. In the cross-examination of these witnesses, nothing is elicited about the registers, which are marked as Exs.P.1 to 3, which reflects the details of the stamp papers i.e. Ex.P.1 non-judicial stamp paper register, Ex.P.2 revenue stamp paper register and Ex.P.3 judicial stamp paper. P.W.1 categorically deposes before the Court with regard to the physical verification made and the Trial Court also taken note of the mahazar, which has been drawn in terms of Ex.P.9 regarding shortage of stamp papers and the complaint dated 24.04.1998 and 27.04.1998 are marked as Exs.P.4 and 5. On perusal of the document Ex.P.1 at page No.71 on 19.1.1998, the Deputy Director has inspected the Sub-Treasury office and physically verified the non-judicial stamp papers and on verification he found no irregularities and he made note that the stock tallies with the entries in the register i.e., prior to the misappropriation. But at the time of physical verification by him on 24.04.1998, there were a lot of irregularities with respect to non-judicial stamp papers. In Ex.P.1 at page No.79, he has made a note that 136 non-judicial stamp papers worth of Rs.3,35,000/- were not in the stock and there was a shortage. P.W.1 also made note in Ex.P.2 regarding shortage of revenue stamp papers of Rs.1,600/- and in Ex.P.3 original judicial stamp paper register that there was a shortage of judicial stamp papers of Rs.28,000/-.

It is important to note that on going through the Articles 38 and 39 of the Karnataka Treasury Code, it is clear that bulk of the treasure including the stamp papers must remain under double locks in the Treasury strong room and the keys of one set shall invariably be with the Treasury Officer and the other set shall be with the Stamp Head Clerk and these two persons are the only custodians of the valuables including stamp papers kept in the strong room. The fact that accused No.2 was working as cashier-cum-SDA is not in dispute and accused No.1 was working as Sub-Treasury Officer is also not in dispute. P.W.3 to P.W.6 have clearly deposed that accused No.2 was also in charge of the strong room and this aspect has not been disputed through out the cross-examination of the witnesses. When such being the material available before the Court, i.e., both oral and documentary evidence, in the cross-examination, nothing is elicited to disbelieve the case of the prosecution. Though it is vehemently contended that there was no any entrustment, the question of shortage of stamp papers during the tenure of the accused persons does not arise cannot be accepted, for the reason that these two persons were in charge of the strong room is not disputed and unless both are present, shortage of stamp papers does not arise since both of them are having double locking key system.

The learned counsel for accused No.1 would contend that accused No.1 only informed the loss to P.W.1, but the fact is that accused Nos.1 and 2 were kept under suspension for fraudulent payment of pension amount and subsequently the same has come to light with regard to misappropriation of the stamp papers. These are the evidence which has been considered by the Trial Court as well as the Appellate Court. The Appellate Court also on re-appreciation of the evidence of the prosecution witnesses, particularly in paragraph No.17 has observed that no suggestion is specifically put to this witness that departmental enquiry against accused No.1 is ended in his favour or he is discharged of the charges levelled against him. The fact that departmental enquiry was conducted and charges have been proved also has not been disputed by the petitioners herein and also it is discussed that the charges have been proved and an amount of Rs.31,512/- is ordered to be recovered from accused No.1 and Rs.4,15,721/- from accused No.2. The Government notification makes it very clear that the concurrent opinion is expressed to the said report of enquiry officer and both of them have found guilty and ordered to pay the penalty. The Appellate Court also taken note of the evidence of P.W.1 in paragraph Nos.16 regarding physical verification and shortage of stamp papers.

The Appellate Court also taken note of the evidence of remaining witnesses P.W.3 to P.W.7 regarding conducting of mahazar in terms of Ex.P.9 and also taken note of Exs.P.12 to 21 and details of particulars of missing of stamp papers, revenue stamps and also judicial stamp papers and particularly taken note of Exs.P.1 to 3, wherein the entrustment was made and entries also found and comes to the conclusion that the Trial Court has not committed any error. Having taken note of the reasoning given by the Trial Court and the Appellate Court and the contentions urged by the revision petitioners before this Court, this Court can exercise the revisional jurisdiction only if perversity is found while appreciating the evidence on record and both the Trial Court and the Appellate Court have not committed any perversity in appreciation of both oral and documentary evidence. Having considered the reasoning given by the Trial Court and the Appellate Court and also the material consideration, I do not find any grounds to exercise the revisional jurisdiction and the same is not warranted to disturb the findings of both the Courts.

The other contention of the learned counsel for the revision petitioners is that there was no any sanction to prosecute the petitioners herein and no doubt the Trial Court taken note of the document Ex.P.11 sanction letter and on perusal of the document Ex.P.11, sanction was given by the Government for the offence punishable under Section 341, 409, 419, 420 and 460 of IPC in the operative portion and in the preamble of the order, reference was made regarding registration of the case for the offence punishable under Section 408 of IPC. The fact that the sanction was given in terms of Ex.P.11 is not in dispute, but for different offences. The learned counsel also relied upon the judgment of the Punjab and Haryana High Court in the case of Pawan Kumar (supra) regarding not giving sanction to all the offences. But in the case on hand, the allegation is that the petitioners are indulged in misappropriation of the stamp papers and no need of sanction for prosecuting the petitioners when they are indulged in misappropriation of stamp papers, which were there in their custody and misappropriation is not the part of dispensation of the public duty and sanction is required if an act is done purporting to be done in discharge of public duty and no sanction is required for indulging in the offence of misappropriation of the stamp papers. I have already pointed out that the same is not within purporting to be done in discharge of public duty and hence the said contention also cannot be accepted. Hence, I answer point No.(i) as negative.

POINT NO.(II):

The other contention of the learned counsel for the petitioners relying upon the judgment of the Apex Court is regarding invoking of P.O. Act and having taken anxious consideration of the principles laid down in the judgment of the Apex Court in the case of Mohd. Hashim (supra), the Apex Court held that the Court must keep in view the nature of the offence and the conditions incorporated in Section 4 of the P.O. Act and the said case arose out in respect of the offence punishable under Section 4 of the Dowry Prohibition Act and Sections 498A and 343 of IPC. But in the case on hand, the allegation is with regard to the misappropriation of stamp papers and committing an offence against the State and these petitioners are the custodians of the valuable documents of stamp papers, which is generating income to the State and the question of invoking Section 4 of P.O. Act does not arise. Hence, the said contention cannot be accepted.

The Apex Court judgment in the case of Dhurukumar (supra) is with regard to invoking of Section 360 of Cr.P.C. or P.O. Act and with regard to Section 7 of the Essential Commodities Act, 1955. I have already pointed out that the Court has to take note of the nature of the offences and the conditions incorporated in Section 4 of the P.O. Act and hence the said judgment also does not come to the aid of the petitioners. No doubt, the Apex Court in the judgment has taken note of the appointment of the Assistant Professor in the University during the pendency of the instant matter and hence invoked Section 4 of the P.O. Act. But in the case on hand, both the petitioners are gainfully employed in the Government Department and misused their employment and misappropriated the stamp papers, which were entrusted to them and hence the said judgment also not comes to the aid of the petitioners. Hence, I do not find any force in the contention of the learned counsel for the petitioner in Crl.R.P.No.779/2011 to invoke Section 4 of the P.O. Act.

The other contention that the petitioner i.e., accused No.1 is aged about 82 years and he is having heart ailments and hence lenience has to be taken, cannot be accepted and he was working as a Sub-Treasury Officer and merely because misappropriation is of the year 1998 cannot be a ground to consider the humanitarian ground on the ground of his age and it was an offence against the State exchequer and he indulged in misappropriation of stamp papers in total to the tune of Rs.3,65,400/- in the year 1998. Hence, lenience cannot be shown and both the Courts have taken note of the gravity of the offence and seriousness of the charges leveled against them and ordered rigorous imprisonment for a period of one year and imposed fine of Rs.3,000/- each and with regard to sentence part is concerned, it does not require any interference. Hence, revision petitions are devoid of merits and hence I answer point No.(ii) as negative.

POINT NO.(III):

In view of the discussions made above, I pass the following:

ORDER

Both the revision petitions are dismissed.