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Judgment
This appeal is directed against the judgment of conviction and order of sentence passed by the Court of the Principal District & Sessions Judge and
Special Judge (Lokayukta), at Davanagere in Special (Lok) Case No.2/2008 by convicting the accused for the offences punishable under Section
13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the PC Act’, for brevity) and under
Section 409 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’, for brevity). The appellant - Accused No.1 was sentenced to
undergo simple imprisonment for a period of one year and to pay a fine of Rs.3,000/-, in default to pay fine, he was to undergo simple imprisonment
for further period of 3 months for the offence punishable under Section 13(1)(c) read with Section13(2) of the PC Act. He was further sentenced to
undergo rigorous imprisonment for a period of 1 year and to pay a fine of Rs. 2,000/-, and in default to pay fine, to undergo simple imprisonment for 2
months for the offence punishable under Section 409 of IPC. The appellant - accused no.2 was sentenced to undergo simple imprisonment for a
period of 1 year and pay fine of Rs. 5,000/- and in default to pay fine, to undergo simple imprisonment for a further period of 3 months for the offence
punishable under Section 406 of IPC. The sentences imposed on accused no.1 were to run concurrently.
The brief facts of the case of the prosecution are as under:
Accused No.1 was the Headmaster of Government Higher Primary School, Chiradoni, Chennagiri Taluk and Accused No.2 was the President of the
School Development Managing Committee (hereinafter referred to as ‘the SDMC’, for brevity) of the said school. As such, both the accused
were said to be public servants.
During the year 2005-06, the Chief Executive Officer, Zilla Panchayath, Davanagere is said to have sanctioned a sum of Rs.50,000/- in respect of the
said school, for construction of a kitchen in the said school premises, under the ‘Mid Day Meals’ Scheme. On 3.11.2005, the Chief Executive
Officer (hereinafter referred to as ‘the CEO’, for brevity), Zilla Panchayath, Davanagere had issued a cheque for Rs.50,000/- in the name of
SDMC. The aforesaid cheque was handed over to Accused No.1 who was the Head Master of the said school, on 8.11.2005. Subsequently, the said
cheque was deposited in the Bank Account maintained in the name of the SDMC by deducting Rs.150/- towards commission. The remaining amount
of the said cheque in a sum of Rs.49,850/- was credited to the account of the Committee as maintained. There was some more amount in the said
Account of the Committee maintained, totally amounting to Rs.51,000/-. Subsequently, it is the allegation that both the accused persons withdrew the
amount of Rs.51,000/- from the said Account through seven cheques jointly signed by them. Out of the said amount, they had spent Rs.1,802/-
towards the cost of digging up foundation for construction of the kitchen in the school premises. However, by filling the same with boulder stones they
had closed the foundation which was dug. There was a direction to complete the construction of the kitchen for the Mid Day Meals before
19.04.2006, whereas the accused persons did not comply with the said direction issued by the authorities. They did not spend the amount withdrawn
from the said account sanctioned towards construction of kitchen, but are said to have mis-appropriated the amount of Rs.48,048/-. Subsequent to
coming to know the said fact, the higher officer of Accused No.1 had issued a notice to the said accused. However, the accused did not give any
reply to that notice received. Subsequently, a report came to be published in the daily newspaper ‘Prajavani’ relating to misappropriation of the
funds granted towards construction of kitchen in the school premises, by these accused. On seeing the said news item, CW-27 â€" the Police
Inspector, Karnataka Lokayuktha, Davanagere registered a case against the accused. Subsequent to registration of the crime, the investigation was
taken up and he visited the said school along with panch witnesses. On verification of the spot, he found that kitchen was not constructed by the
accused persons even though they had withdrawn the amount sanctioned for construction of kitchen under the ‘Mid Day Meals Scheme’.
Subsequently, CW-28 and CW-29 had conducted further investigation and laid a charge-sheet against the accused for the offences punishable under
Section 13(1)(c) read with Section 13(2) of the PC Act, besides Section 406 of the IPC. Subsequently, the Trial Court has framed the charge against
the accused for the aforesaid offences where the accused did not plead guilty but claimed to be tried. Accordingly, the plea of the accused has been
recorded. Subsequently, in order to prove the guilt of the accused, prosecution in all examined PW-1 to PW-12 and got marked 64 documents. No
material objects have been got marked. Thereafter, after hearing the arguments advanced by the learned Special Public Prosecutor for the
Lokayuktha and defence counsel for the accused, on an appreciation of the entire evidence on record, the Trial Court has convicted accused No.1 for
the offences punishable under Section 13(1)(c) read with Section 13(2) of the PC Act and Section 409 IPC. Accused No.2 was convicted for the
offence punishable under Section 406 IPC as incorporated in the impugned judgment. It is this judgment which is under challenge in this appeal by
urging various grounds.
Heard the learned counsel Shri B.V. Pinto for appellant No.1, the learned counsel Shri G.M. Chandrashekar for appellant No.2 and Shri Venkatesh
S. Arabatti, the learned Special Public Prosecutor for the respondent â€" State.
On hearing the learned counsel for the parties, the point that would arise for consideration in this appeal is,
“Whether the judgment of conviction and sentence held against Accused Nos.1 and 2 by the Trial Court in Special (Lokayuktha) Case No.2/2008
dated 25.06.2013 is justified in law?â€
The learned counsel for the appellant during the course of his arguments has contended that the Trial Court has erred in considering the evidence
on record which negates all the incidents narrated in the complaint filed by the Police Inspector of Lokayuktha, Davanagere. The complaint is a suo
moto complaint filed by him on visiting the scene of crime with panch witnesses and then recording FIR and thereafter proceeding with the case for
investigation. But the entire evidence on record placed by the prosecution does not fortify the allegation made against Accused No.1, a Government
servant who was working as a headmaster of the Government Higher Primary School, Chiradoni, Chennagiri Taluk. It is the contention of the learned
counsel that though 12 witnesses have examined for the prosecution, all are government officials and not even a single independent witness has been
examined to support the case of the prosecution.
It is the further contention of the learned counsel that particularly, PW-4 - The Assistant Director of Education Department in Taluk Panchayath, PW-
5 - Block Education Officer and PW-10 - Assistant Executive Engineer who are said to be most important witnesses, were duty bound to follow-up
the progress of the construction of the kitchen, but they have not done so. Hence, the Special Judge, relying on their evidence and having come to the
conclusion that the appellants had committed fraud, cannot be accepted. Considering all these non reliable evidence for the prosecution, the Trial Court
has erroneously come to the conclusion that Accused Nos.1 and 2 have committed the alleged offences, by ignoring the principles of criminal
jurisprudence relating to the offences levelled against these accused.
It is the further contention of the learned counsel for the appellants that the learned Special Judge has not considered the evidence in its entirety and
that there were discrepancies in material aspects. In that, the higher officers of the appellants though had sanctioned the amount of Rs.50,000/- for
construction of kitchen, they did not issue any instructions regarding the guidelines as to when and how the construction requires to be completed.
They had not even bothered to visit the spot to look into the progress of the construction. Only after registration of a suo moto complaint by the Police
Inspector, Karnataka Lokayuktha, Davanagere, the higher officers had issued instructions and guidelines to the appellants regarding the mode of
construction and date of completion.
In view of these discrepancies, the entire evidence on record requires to be re-appreciated. Though the offences alleged against the accused has
not been proved by the prosecution by placing cogent and consistent evidence, the Trial Court has proceeded to convict the accused for the offences
alleged under Sections 13(1)(c) read with Section 13(2) of the PC Act as well as Section 409 of IPC against Accused No.1 being the Headmaster of
a Higher Primary School which does not attract as there are no ingredients for the said offence in respect of which charge-sheet has been laid against
the accused. Further, the charges against Accused No.2 being the President of the SDMC, does not attract, as he is not a Government servant. The
Trial Judge has wrongly justified his omission for considering the evidence on record relating to roping the accused in a case which has been
registered as disclosed in the news item. The concerned higher authorities ought to have monitored the work relating to construction of kitchen under
the Mid Day Meals Scheme, despite of which the crime came to be registered based upon the suo moto complaint filed by the Police Inspector,
Lokayuktha, Davanagere.
There was lacuna on the part of the higher authorities and the action of the Police Inspector in having initiated suo moto action against the first
accused â€" a Government Head Master, is in itself vindictive in nature. The first accused had served for a considerable period as a Senior Teacher.
He did not have any blemishes in his record. The same is required to be considered in this appeal including the discrepancies which had crept in the
evidence adduced by the prosecution to prove the guilt of the accused. Further, the amount was sanctioned during November 2005 and the same had
been withdrawn by way of seven cheques in December 2005. In the month of December 2005, Accused No.1 had purchased building materials such
as 50 bags of cement, sand, crushed stones, steel, etc., utilizing the said amount, in respect of which he had also produced receipts obtained from the
concerned shops. But however, since he was the Headmaster managing all the affairs of the school, he was not able to execute the building work in
time. Added to his regular work as a Headmaster, he was to take care of the room construction which was an additional responsibility on him. Hence,
there may have been delay occasioned in starting the construction work which requires summoning all the concerned persons such as Engineer,
mason, plumber, electrician, labourers, etc. Moreover, the accused were not issued any terms and conditions regarding completion of the construction
within a time frame. Even without fixing a time frame and without issuing any instructions, coming to the conclusion that the appellants had
misappropriated the amount sanctioned, has led to a miscarriage of justice.
In criminal law, the case of the prosecution ought to be proved beyond all reasonable doubt, which is the dictum rendered by the Hon’ble Apex
Court and also various courts. The said aspect ought to have been taken into account by the Trial Court while convicting the accused on the basis of
the evidence adduced by the prosecution by examining PW-1 to PW-12.
Learned counsel has taken exception to the observation made by the Special Judge in paragraph 23 of the judgment wherein it is observed that
during the course of cross-examination of the witnesses for the prosecution it was suggested that the kitchen was constructed in the school premises
within seven days after the crime came to be registered. In fact the accused also had produced the photographs of the kitchen which was constructed
under the ‘Akshara Daasoha’ scheme by utilizing the amount of Rs.50,000/- sanctioned by the Chief Executive Officer, Zilla Panchayath. The
Special Judge had observed that though photographs of the kitchen constructed have been produced by the accused, but that would not absolve the
accused as it was crystal clear that they had withdrawn the amount about two to six months prior to registration of the case against the accused and
that amount has not been spent for constructing the kitchen. The learned counsel submits that this observation of the Special Judge is bad in law
having regard to the discrepancies committed by the authorities in not mentioning the time limit for completion of the construction.
It is further observed in the impugned judgment it is a fact that the accused persons had withdrawn the amount by way of seven cheques from the
month of December 2005 till the month of March 2006. But, the said amount has not been utilized for the purpose of construction of the kitchen. As
regards this observation made by the Trial Court, the learned counsel for the appellant has stoutly addressed arguments relating to the duty of
Accused No.1 being the Head Master in the Higher Primary School, Chiradoni. Added to managing the affairs of a Headmaster, he was required to
take classes for the students, monitor the classes of the other teachers and take care the concern of the parents as well. Added to these
responsibilities, he was burdened with the work of taking up the initiative to construct the kitchen in the premises of the said school, in respect of
which work he was sanctioned a sum of Rs.50,000/- by the CEO, Zilla Panchayath, Davanagere. The scheme was introduced by the concerned
authorities for the benefit of the students in order to provide them Mid Day meals.
The withdrawal of the amount from the joint account maintained by the first accused as well as the second accused cannot be said to have been
misappropriated by them, since the same amount has been spent towards purchase of material for construction and towards labour work, in respect of
which receipts have been produced by the accused. That aspect also ought to have been considered by the Trial Court. Hence, the evidence on
record placed by the prosecution has not been appreciated by the Trial Court in a proper perspective.
It is further contended that based upon the FIR which has been recorded by the Police Inspector, Lokayuktha, the case has been proceeded further
against the accused. The Deputy Director of Public Instructions, Davanagere District, Davanagere, has issued a letter dated 27.05.2014 making
reference to the present appeal wherein this court by order dated 27.12.2013 has suspended the sentence and enlarged the appellants on bail. The
DDPI has indicated in the said letter that in case the accused was acquitted, the Disciplinary Authority requires to revise his order and the first
accused could rejoin in service and continue in the service and he would be entitled for all benefits as indicated in this letter. Under all these grounds
which has been urged by the learned counsel for the appellants in tenor of this letter received by the DDPI dated 27.05.2014, he seeks for allowing
the appeal by setting aside the judgment of conviction and sentence held against the accused.
The Police Inspector, Lokayuktha, Davanagere, based on the newspaper report had suo moto filed a complaint by recording an FIR for the
aforestated offences and had laid the charge-sheet on visiting the scene of crime situated in the school premises along with panch witnesses. But, no
superior officer in Davanagere District relating to the Education Department had inspected the school prior to the said Police Inspector, Lokayuktha
filing the complaint. Merely by verifying the premises by the Police Inspector recording the FIR as well as laying the charge-sheet against the accused
do not constitute sufficient grounds to convict the accused. The guilt of the accused needs to be proved by the prosecution beyond all reasonable doubt
relating to the allegation of misappropriation. The kitchen was constructed in the school premises within seven days after the registration of the case
by the Police Inspector by recording an FIR. The same has not been appreciated by the Trial Court in a proper perspective. Merely because evidence
has been adduced by the prosecution, the Trial Court has convicted the accused which is vindictive in nature when the alleged misappropriation said to
have been committed by Accused No.1 with Accused No.2 not having been proved beyond all reasonable doubt. Therefore, on all these grounds
urged, he seeks for intervention of the impugned judgment of conviction and sentence held by the Trial Court by re-appreciating the entire evidence on
record.
Insofar as Accused No.2, the President of the SDMC, Government Higher Primary School, Chiradoni, Chennagiri Taluk, who has been convicted for
offences under Section 406 IPC, had also subscribed his signature on the cheque for withdrawal of the amount. But there is no specific evidence as
placed by the prosecution in order to prove the guilt of the accused relating to misappropriation of funds. Therefore, the offence under Section 409 of
IPC against Accused No.1 and the offences under Section 406 IPC even against Accused No.2 has not been proved by the prosecution by placing
cogent and consistent evidence to probabilise that the accused have misappropriated the amount sanctioned for the purpose of construction of kitchen
in the premises of the Government Higher Primary School. But, the kitchen was constructed in the school within seven days after the case was
registered. That means to say, the amount has not been misappropriated by them. This aspect requires to be considered by re-appreciating the entire
evidence on record. Accordingly, he seeks for allowing the appeal relating to this accused No.2 by setting aside the impugned judgment, seeking
acquittal of the offences levelled against both the accused.
Per contra, learned Special Public Prosecutor for the Lokayuktha has taken me through the entire evidence of the prosecution. In all, he has
examined PW-1 to PW-12.
PW-1 is the FDA, PW-2 is the Police Inspector, PW-3 is the CEO, Zilla Panchayath, Davanagere, PW-5 is the BEO, Chennagiri, PW-6 and 7
Headmaster and Assistant Teacher. All these witnesses for the prosecution have stated in their evidence that the averments made in the complaint
Exhibit P-21 filed by PW-2 being the Police Inspector of Lokayuktha, Davanagere and so also the allegation made in the FIR which has been
recorded by him are true. Apart from that, Exhibit P-7 Entrustment mahazar has been conducted by the Investigating Officer. Exhibit P-26 to P-32, in
all seven cheques have been encashed by the accused. Exhibit P-33 is the covering letter of the DCC Bank regarding cheques. Exhibit P-36 is the
sketch relating to the kitchen which was to be constructed for the purpose of Mid Day Meals Scheme. Exhibits P-37, 38 and 39 are the memos issued
to Accused No.1 by the BEO. Exhibit P-63 is the hand-writing expert opinion report placed by the prosecution. Exhibit P-64 covering letter of the
sanction order relating to prosecute the case against Accused No.1. The Trial Court has appreciated the entire evidence on record oral as well as
documentary in a proper perspective and had convicted the accused. The amount of Rs.50,000/- sanctioned by the CEO, Zilla Panchayath,
Davanagere towards construction of kitchen under the ‘Akshara Daasoha’ scheme to the appellants having been misappropriated, the Police
Inspector, Lokayuktha had filed a suo moto complaint on seeing the newspaper report. The kitchen was constructed by these accused in the school
premises within seven days after the case was registered. That itself reflected the demeanor of the accused, that too being the Head Master of the
Government Higher Primary School, Chiradoni, as well as the President of the SDMC. The Trial Court did not absolve the accused in respect of the
offence relating to misappropriation of funds under Sections 409 and 406 IPC respectively and Section 13(1)(c) read with Section 13(2) of the PC Act
in respect of Accused No.1. As the Trial Court rightly came to the conclusion that the prosecution has proved the guilt of the accused beyond all
reasonable doubt, no perversity has been committed by the Trial Court in convicting the accused and hence, there is no infirmity found in the impugned
judgment. Therefore, the impugned judgment of conviction and sentence held against the accused does not call for any interference by this court. On
all these grounds which has been urged by the learned Special Public Prosecutor for the Lokayuktha, he seeks for dismissal of the appeal as being
devoid of merits by confirming the judgment of conviction and sentence held by the Trial Court against the accused.
Having regard to the strenuous contentions taken by the learned counsel for the appellants â€" accused as well as the learned Special Public
Prosecutor for the Lokayuktha as stated supra, it is relevant to extract the scope of Section 406 of the IPC including Section 409 of IPC as thus:
“406. Punishment for criminal breach of trust. â€" Whoever commits criminal breach of trust shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both.
Criminal breach of trust by public servant, or by banker, merchant or agent. â€" Whoever, being in any manner entrusted with property, or with
any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent,
commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine.â€
In order to establish the charge of criminal breach of trust, the prosecution has to prove the principle ingredients of the offence, being dishonest
misappropriation to constitute the offence under Section 409 IPC. There must be dishonest misappropriation by a public servant in whom confidence is
reposed as to the custody or management of the property in respect of which breach of trust is committed. Therefore, essentially, the prosecution has
to prove that the accused was entrusted with the property or domain over it and the intention of having misappropriated the property or disposed of the
property in violation of the said trust.
In order to prove the offences under Section 406 of IPC against the accused, the prosecution has to prove that the accused was entrusted with
property or he had domain over it and the accused misappropriated that property in violation of the trust reposed in him.
Whereas the prosecution has alleged the offences against Accused No.1 under Section 13(1)(c) read with Section 13(2) of the PC Act and so also
the offences under Section 409 of IPC. In so far as the ingredients relating to the aforesaid offences are common even though the offences are
distinct. Therefore, the prosecution has to prove the ingredients relating to the offences under Section 13(1)(c) of the PC Act as well as Section 409
of IPC insofar as the accused being a Government servant.
In the instant case, accused No.1 is a public servant, that too headmaster of the Government Higher Primary School, Chiradoni, Chennagiri Taluk.
The allegation made against him is as regards embezzlement in a sum of Rs.50,000/- which had been sanctioned by the Chief Executive Officer, Zilla
Panchayath, Davanagere for construction of kitchen in the premises of the said school under the ‘Akshara Dasoha’ Scheme. Embezzlement is
constituted when the property has been received by the accused for or in the name of on the account of the master or employer of the accused and is
complete when the accused fraudulently misappropriates that property. In this case, the amount in a sum of Rs.50,000/- was released to the said
Government Higher Primary School under ‘Akshara Dasoha’ scheme for construction of kitchen. The amount was withdrawn by the first
accused being the Government servant and the second accused being the President, SDMC by way of seven cheques signed by them jointly. But the
allegation against these accused is that they did not construct the kitchen within the specified time and they have misappropriated the said amount.
Therefore, it is relevant to refer to the evidence of PW-1 being the employee of Davanagere Municipal Corporation wherein he has stated that on
10.05.2006, on the direction of his superior officer, he went to Lokayuktha Police Station, Davanagere at about 11 a.m. and he met the police officer
wherein he has briefed that there was a complaint about the headmaster of the said Government Higher Primary School, Chiradoni and the President
of the SDMC regarding mis-appropriation of Rs.50,000/- sanctioned for construction of kitchen under the Mid Day Meals Scheme, wherein accused
No.1 was also brought to the police station and his specimen signature was got in Exhibits P1 to P6, and that PW-1 had signed the sheets on which the
specimen signature of Accused No.1 was taken by the police officer. In regard to that, the police officer has drawn up a mahazar as per Exhibit P7 in
which he subscribed his signature. He has specifically stated in his evidence that inside the premises of the said school, foundation was dug and the
same was found to be closed again with earth and there was no new building construction there. Accused No.2 was also brought to the police station,
wherein his specimen signatures were taken at Exhibits P-8 to P-13. He has also signed those sheets.
He has further stated that on 11.05.2006, again he went to the Lokayuktha Police Station, Davanagere and DDPI, Davanagere had come along with a
register evidencing the issuance of cheque to Accused No.1. Exhibit P-14 is the photocopy of the said register which was brought by him.
In the cross-examination, he has specifically stated that the Police Inspector, Lokayuktha Police Station has not secured any person in that locality
relating to enquire whether foundation was dug and soil was removed and thereby filled up again.
He did not know specifically that the amount of Rs.50,000/- was sanctioned for the purpose of construction of kitchen under the ‘Akshara
Dasoha’ Scheme in Chennagiri Higher Primary School by way of presenting a cheque to the Headmaster of that school. As the Headmaster
having power to withdraw the amount, but he did not know specifically whether any guidelines or otherwise a direction was issued to him for
construction of kitchen in the premises of the school within a stipulated period.
PW-2 being a Police Inspector, Lokayuktha Police Station he was in charge of the post of Police Inspector, Davanagere from 05.04.2006 to
20.09.2006. On 09.05.2006 he received information that Rs. 50,000/-released for construction of kitchen under the Akshara Dasoha Scheme in the
premises of the school, was mis-appropriated. After receipt of information, he visited the office of the Block Education Officer at Channagiri and
verified the documents and found that Rs. 50,000/- was released to the said Channagiri School for construction of kitchen. The said cheque was also
encashed. On visiting the premises of the said school, he found that no new building was constructed. Therefore, he apprehended accused No.1 on
10.05.2006. He apprehended accused no.2 during the course of investigation and brought them to the Lokayuktha P.S., Davanagere and obtained their
signatures by drawing up a mahazar. Therefore, suo-moto he had registered a complaint by recording an FIR. The complaint has been marked as
Ex.P.21 which bears his signature. Ex.P.22 is the FIR recorded by him. Ex.P.7 is the spot mahazar which was drawn by him in the presence of panch
witnesses which bears his signature.
In the cross-examination, PW-2 has specifically stated that the concerned BEO of Davanagere district in Channagiri Taluk has not taken any action
relating to mis-appropriation of the amount, but he has submitted a report as per the guidelines issued for construction of kitchen. He did not make any
enquiry even though aware of which date guidelines has been issued to accused no.1 for construction of kitchen in the premises of the said school. He
did not make any enquiry about how much rupees has been utilized for digging the foundation for construction of the kitchen. He has averred that he
did not remember whether the school was running when he visited the scene of crime situated in the premises of the Government Higher Primary
School, Channagiri. He did not verify any room in the premises of the school for having placed the building materials.
PW.3 said to be the CEO, Zilla Panchayath has stated in his evidence that the cheque has been issued dated 03.11.2005. The same has been credited
into the Bank Account maintained. The same stands in the name of the Head Master and the President of SDMC. On 04.05.2006 there was a news
item in the ‘Prajavani’ Daily Newspaper about mis-appropriation of the amount released for construction of kitchen in Chiradoni School. The
same was informed to DDPI telephonically. In the cross-examination he has specifically stated that he could not remember on which date the first
accused was kept under suspension. He did not know the compliant came to be registered against accused by the Lokayuktha Police. As per the
government order the kitchen has to be constructed within a period of four months. The copy of the government order has not been furnished to the
Lokayuktha Police. But there were conditions relating to release of the amount as granted to that purpose for construction of kitchen. The guidelines
relating to the conditions has been forwarded to the Head Master. Subsequent to granting the amount in a sum of Rs. 50,000/- he did not visit the
Chiradoni School and he did not know whether any officers had visited the said school.
P.W.4, has deposed that he was working as an Assistant Director of Akshara Dasoha Scheme in Channagiri Taluk. Chiradoni Govt. Higher Primary
School was also selected for construction of kitchen and Rs. 50,000/- cheque was given to the said school. The same has been received by accused
no.1 being the Head Master. The construction of the kitchen was to be completed within four months. Accused no.1 had encashed the cheque for Rs.
50,000/- through DCC Bank, Basavapatna. Accused no.2 had withdrawn the amount through the cheque. As per the guidelines, construction was to
be completed within a period of four months. In the cross-examination he has stated that there is no necessity for seeking permission to withdraw the
amount for all the stages by the accused. He did not visit Chiradoni School along with the Lokayuktha Police. He did not visit the said school prior to
enquiry made by the Lokayuktha Police. As per the guidelines issued, the concerned officers visited the said school situated in Chiradoni.
P.W.5 has stated in his evidence that he was working as a Block Education Officer of Chanangiri Taluk and the amount of Rs. 50,000/- was released
to Chiradoni Government Higher Primary school under the Akshara Dasoha Scheme for construction of kitchen. When he visited the said school, the
kitchen was not constructed which he specifically noticed. But foundation pit was dug in the area 10 X 10 feet. When he visited the said school
accused no.2 was not available, he being the President of SDMC.
In the cross-examination he has stated that the Block Education officer shall verify the quality maintained to put up foundation. Every month, the
report was to be submitted to the Taluk Panchayath Office, Channagiri. The DDPI had the power to keep under suspension the Head Master if he
conducted any mis-conduct. To that effect there is a government order.
P.W.9 has stated in his evidence that he was working as a Manager in DCC Bank, Basavapatna. Chiradoni school was maintaining an account in
their Bank. Exhibits P-26 to P-32 are the cheques relating to Chiradoni School. He furnished the account maintained in that bank relating to the said
school.
P.W.11 â€" Deputy Superintendent of Police, Karnataka Lokayuktha has stated in his evidence that since 20.09.2006 to 27.12.2007 he was
discharging the duties as a Police Inspector in Lokayuktha Police Station, Davanagere. On 20.09.2006 he took over the case file for further
investigation from the Police Inspector Gurudatta. He has deposed that he had recorded the statement of witnesses on 30.01.2007, namely
Ramakantha, S. Jannu, C.H. Gurupadappa, K. Basavarajappa, G.R. Tippeshappa, H. Hanumanthappa and B.R. Jagadish. He completed the entire
investigation and forwarded the entire report to ADGP with a request letter seeking to accord prosecution against accused no.1 government servant
who was working as a Head Master in the Chiradoni Government Higher Primary School, Channagiri Taluk.
P.W.12 was the investigating officer who had laid the charge sheet against the accused by securing permission to prosecute against accused no.1 as
per Ex.P.60.
These witnesses have been examined for the prosecution. Most of the witnesses are official witnesses and they have been examined to establish
the guilt of the accused. In this case there is no dispute that accused no.1 was working as a Head Master in the Chiradoni Government Higher
Primary School during the year 2005 and there is no dispute that the Davanagere Zilla Panchayath had sanctioned a sum of Rs. 50,000/- for
construction of kitchen under the Akshara Dasoha scheme for preparing food in the premises of the said school and the same had been entrusted with
the Head Master who has been arrayed as accused no.1 and accused no.2 being the President of SDMC of the said school. The joint account of
accused nos. 1 and 2 was maintained in DCC Bank, Basavapatna. The prosecution has alleged that the amount was given to the accused persons on
3.11.2005. Subsequently on a different date during the period from 20.12.2005 to 23.03.2006, the amount in a sum of Rs. 50,000/- was withdrawn by
way of cheques. But the Trial Court has made an observation that it would be difficult for the prosecution to prove that accused nos.1 and 2 had
actually used the amount withdrawn from the account of SDMC for their personal use.
The evidence on record for the prosecution reveals that the account was operated jointly by accused nos.1 and 2. The same was maintained in DCC
Bank, Basavapatna branch. It is relevant to consider whether the accused had utilized that amount in a sum of Rs.50,000/- withdrawn from the bank
account maintained by the SDMC for their personal use. But the case of the prosecution is that accused persons had not constructed the kitchen till
10.05.2006 though they had withdrawn the amount entrusted for the work.
P.W.5, the Block Education Officer, Chennagiri Taluk in his evidence has stated that on 21.03.2006 he visited the Chiradoni School and verified and
found that except digging foundation pit in the area of 10X10 feet, no other work was undertaken. Naturally, the construction requires to be done by
securing materials such as boulders, sand, cement, steel and other materials for putting construction of the kitchen in the premises of the school and so
also by securing the labourers. This aspect has not been whispered in the evidence of the prosecution for having subjected to examination several
witnesses relating to the case as has been registered by P.W.2 suo moto by visiting the scene of crime which news was revealed in the newspaper.
Therefore, the evidence of P.W.1 to P.W.5 ought to have been appreciated by the Trial Court in a proper perspective relating to the charges framed
against accused nos.1 and 2. Accused No.1 being the head master of the Chiradoni Government Higher Primary School, Channagiri Taluk had
purchased the construction materials but there was delay in construction of the kitchen is false. The same has been observed by the Trial Court in its
impugned judgment.
 The police had alleged that the accused persons had spent around Rs. 1,200/- for digging the foundation and they had misused the remaining
amount. But in paragraph 23 of the impugned judgment, at this stage it is relevant to notice that the kitchen in the premises of the school was
constructed within seven days after the case was registered suo-moto by P.W.2 Police Inspector, Lokayuktha Davanagere. He had visited the scene
of crime after coming to know through the news item in the ‘Prajavani’ Daily News Paper. In fact the accused have produced a photograph of
the kitchen constructed in the premises of the said school subsequent to the registration of the case suo moto. The accused had withdrawn the amount
about 2-3 months prior to the registration of the case against the accused. There is dereliction of duty of accused no.1 being a government servant
working as head master in the Chiradoni Government Higher Primary School, Channagiri Taluk alleging that accused nos.1 and 2 had not spent the
money for the construction of the kitchen. Therefore, the entire evidence on record requires to be re-appreciated along with the documents that have
been got marked as Ex.P.1 to P.64. More importantly, the evidence of P.W.1 to P.W.5 coupled with the evidence of P.W.11 and P.W.12 and so also
the complaint at Ex.P.21 as well as the allegation reflected in the FIR at Ex.P.22 and so also the fulcrum of the mahazar at Ex.P.7 relating to the
charges levelled against the accused as well as the second accused being the President of the SDMC Chiradoni, Channagiri Taluk.
Learned counsel for the appellant had produced a letter issued by the DDPI dated 27.05.2014, regarding the disciplinary action initiated against the
government servant as per Circular No ¸ÀA: .C¸ÀÄE09/¸ÉÃE« 95 ¢£ÃAPÀ:26/06/1996 as per the guidelines. The letter states
that if the accused were to be acquitted, disciplinary authority has to revise his order. This contention has also been taken by the learned counsel for
the appellant. The accused has preferred this appeal challenging the judgment of conviction and sentence held against him in Special (Lokayuktha)
Case no. 2/2008 by urging various grounds as contended supra.
Whereas learned Special Public Prosecutor for the Lokayuktha brought to the notice of this Court Rule 14 of the Karnataka Civil Services (CCA
Rules) 1957 which reads as under:
Special procedure in certain cases.-Notwithstanding anything contained in Rules 11 to 13]
(i) where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) where the officer concerned has absconded, or where the officer concerned does not take part in the inquiry or where for any reasons to be
recorded in writing it is impracticable to communicate with him, or where the Disciplinary Authority, for reasons to be recorded in writing, is, satisfied
that it is not reasonably practicable to follow the procedure prescribed in the said rules; or
(iii) where the Governor is satisfied that in the interest of the security of the State it is not expedient to follow such procedure, The Disciplinary
Authority may pass such orders thereon as it deems fit;
Provided that the Commission shall be consulted before passing such an order in any case for which such consultation is necessary.â€
These rules have been brought to the attention of this Court by the Special Public Prosecutor, Lokayuktha where charges framed against accused
no.1 was proved by the prosecution by placing evidence. Therefore, it does not arise to call for any interference of the impugned judgment of
conviction and sentence held against him.
In support of rule 14 of the said rules he has placed reliance on a judgment of this Court in the case of D. Chandrashekar vs. State of Karnataka W.P.
No. 28473/2005 (S-KAT) dated 24.03.2016 rendered by a Division Bench of this Court. He has mainly relied on para no.10 of the said judgment
where the criminal Court after hearing the delinquent officer who may be accused in the said matter, has delivered the judgment in a manner known to
law.
In para 13 it has observed that even if the punishment was to be imposed on the basis of conviction by the criminal Court, it was required for the
authority to apply its mind on the proportionality of punishment and then to impose punishment. As per the scheme of Article 311 of the Constitution of
India, three punishments are provided: one is dismissal, another is removal and third is reduction in rank. The submission is that the order of the
disciplinary authority does not show application of mind from that angle. Therefore, the mandatory requirement is not followed.
On considering this judgment keeping in view the contention as taken by the learned counsel for the appellant as well as the learned Special Public
Prosecutor for the Lokayuktha for re-appreciation of the entire evidence on record, I find that the Trial Court has misdirected as well as misread the
evidence of P.W.1 to P.W.5 coupled with the evidence of P.W.11 and P.W.12. The totality of the evidence of these material witnesses for the
prosecution shows that there is camouflage and the evidence required to have been appreciated by the Trial Court in a proper manner to hold
conviction against accused nos.1 and 2, which has not been done. The prosecution has not placed cogent, consistent and acceptable evidence to prove
the guilt of the accused beyond all reasonable doubt relating to the allegation of misappropriation of the amount in a sum of Rs.50,000/- by accused
Nos.1 and 2. But the Trial Court has made an observation it is a fact that the accused persons had temporarily misappropriated the amount by
withdrawing the amount from December 2005 onwards and had not spent that amount for construction of the kitchen in the premises of the said
school under the Akshara Dasoha Scheme. In order to prove the guilt of the accused in criminal justice system, prosecution is required to place
consistent evidence. But in the present case though the prosecution had examined several witnesses, such as official witnesses by securing them and
also recording their statements during the course of investigation but there is no acceptable evidence placed by the prosecution.
The Apex Court in the case of R. Venkatkrishnan vs. Central Bureau of Investigation (2009) 11 SCC 737, while referring to Section 405 IPC has held
that, an act of breach of trust simpliciter involves civil wrong of which the person wronged may seek his redress for damages in a civil court but a
breach of trust with mens rea gives rise to a criminal prosecution as well. Breach of trust simpliciter is not an offence as it is not associated with an
intention which is dishonest. The term ‘dishonestly’ defined in Section 24 IPC means doing anything with the intention of causing wrongful gain
to one person or wrongful loss to another. So, the offence is completed when misappropriation of the property has been made dishonestly. Even
temporary misappropriation falls within the ambit of the said offence.
The above decision of the Apex Court, squarely applies to the facts of this case.
In the instant case, it is seen that after PW-2 the Police Inspector, Lokayuktha P.S., Davanagere recorded an FIR, within a period of seven days,
the kitchen was constructed in the school premises by utilizing the amount of Rs.50,000/- sanctioned by the CEO, Davanagere Zilla Panchayath
towards the Akshara Dasoha Scheme. The same has been observed at paragraph no.23 of the impugned judgment which is under challenge in this
appeal.
Therefore, it is seen that there are various discrepancies as contended by the learned counsel for the appellant. Hence, the judgment of conviction and
sentence held by the Trial Court requires to be set aside, as there is perversity committed by the Trial Court in convicting the accused.
Consequently the appeal is allowed. The point framed by this court is hereby answered in the negative. The impugned order dated 25.06.2013
passed by the Principal District & Sessions Judge & Special Judge (Lokayukta), Davanagere in Spl.(Lok) Case No.2/2008 is hereby set aside.
Accused Nos.1 and 2 are acquitted of the charges levelled against them. The bail bonds shall stand cancelled.
An application has been filed by the appellant / Accused No.1 under Section 391 Cr.P.C. seeking permission to produce some documents as additional
evidence. In consequence upon disposal of this appeal, this application also stands disposed of.