State vs B.V. Basavarajaiah

Shylendra Kumar J.

This is an appeal filed by the state u/s 378(1) and (3) of Code of Criminal Procedure [CrPC] against the judgment and order dated 16-8-2005 passed by the IV Additional Chief Metropolitan Magistrate, Bangalore in CC No 8034 of 1998, acquitting the respondent-accused of the charge levelled against him for the offence punishable u/s 409 IPC.

Appellant-State contends that the learned magistrate has committed an error in acquitting the accused person, particularly when the accused person had almost admitted his not remitting a sum of Rs. 48,522/- from out of the collections he had made from the borrowers and other persons of the Karnataka Slum Clearance Board of which he was an employee during the period 1-1-1994 to 31-3-1994 and this short remittance had been misappropriated, and therefore the judgment and order is not sustainable etc.

It is alleged that the secretary of the Board had lodged a written complaint dated 20-9-1994 with the Seshadripuram police, sending by registered post, as an effort to lodge a complaint in person by the secretary of the board had not been well received by the police etc.

Police having registered the complaint on 22-9-1994, the sum and substance of which is that accused person while was employed as bill collector on behalf of the board to receive amounts from borrowers in respect of board''s Laggare scheme formulated and implemented by the Board for providing housing to persons who were beneficiaries under the ''equal pay for equal work'' scheme and from out Of the collections so made for the period from January to March 1994, accused had not remitted the same to the account of the board and had, therefore, cheated the government of this amount and has misappropriated the same, which was confirmed as per the explanation offered by the accused person to the show cause dated 25-8-1994 that had been issued by the board in this regard, calling upon his explanation for non-remittance etc, and his reply dated 30-8-1994 having affirmed non-remittance of the amount and therefore the accused person should be arrested and investigated for the offence punishable under Sections 406 and 408 IPC.

The complaint was registered in Crime No 344 of 1994. Thereafter, charge sheet having been submitted to the court and the accused was charged for the offence punishable u/s 409 IPC. Accused having denied the charge, the mater went to trial to enable the prosecution to prove its case.

On behalf of the prosecution, nine witnesses were examined and got marked documentary evidence as ExP1 to 88, significant amongst which are only ExP1 complaint and ExP2 and 87 audit reports. After recording of the evidence on behalf of the prosecution, accused person was examined u/s 313 CrPC and the accused person having stated that he would like to lead evidence on his behalf and having denied the incriminating circumstances against him as found in the evidence of the prosecution. Accused deposed himself as DW1 and examined another witness by name Bairaiah as DW2, who was working as town planning supervisor in the very Board during the relevant period, and got marked ExD1 to 15 in support of the defence.

The learned judge of the trial court, appreciating the evidence and noticing that the prosecution has not made good its case of criminal misappropriation on the part of accused person and particularly holding that there is no clear evidence of dishonest misappropriation and the practice as it appears from the evaluation of the evidence, particularly defence evidence through DW2, was one of utilizing the bill collection amount for immediate use of office expenditure etc., and the delayed remittance of about 45 days was being that the amount had been utilised, at the instance of DW2 and he had also issued a receipt for such amounts and the track record of the accused person being not adverse and there being no such past incidence, was of the opinion that it was unsafe to convict the accused of the offence in such doubtful circumstance and therefore acquitted the accused of the offence charged.

It is against this judgment of acquittal, the State has presented this appeal, mainly on the grounds that the learned magistrate has overlooked the admission made by the accused, particularly the accused having not only conceded that he had not remitted a sum of Rs. 48,522/-immediately after collection, but had paid the amount in twelve instalments, first of which started only 45 days after the period was over and that too after detection etc., and therefore this vital evidence could not have been overlooked by the learned magistrate.

It is also submitted that the shortfall in terms of ExP2 audit report has also established the case of prosecution and when this in combination with the ExP3 government order, indicating that amount should be remitted on the very day of the collection and if not, it will be presumed to have been misappropriated and therefore, submission of Sri P M Nawas, learned Addl SPP, appearing on behalf of the appellant-state is that the judgment of the trial court is not sustainable and should be reversed and the accused convicted of the offence charged.

It is also submitted by the learned Addl SPP that the learned judge of the trial court is not right in placing reliance on the judgment of the Supreme Court in the case of Narendra Pratap Narain Singh and another Vs. State of U.P., , which was not very relevant for the case on hand, but should have applied the ratio in the case of Vishwa Nath Vs. State of Jammu and Kashmir, ], wherein it is held that an amount which had been misappropriated for personal use even if has been refunded later, does not absolve the person of the offence of misappropriation, particularly when the remittance of refund is after detecting the act of defalcation and therefore submits that the learned judge of the trial court is in error in acquitting the accused of the offence.

On the other hand, Sri N.P Kallesh Gowda, learned counsel for the respondent-accused, submits that the prosecution never made good its case of criminal misappropriation by the accused person; that no evidence was led to make good that the amount had been mis-utilized or misappropriated for any other purpose, but on the other hand the accused has proved the office practice of using such amounts for office expenditure and DW2 having affirmed this practice and having deposed in favour of the accused and also deposed that he had issued receipts for such utilization, no intention of criminal misappropriation can be attributed to the accused person, as is contended by the learned Addl SPP and therefore urges for dismissal of the appeal. 12. Learned counsel for the respondent-accused submits that the learned judge of the trial court is right in relying upon the judgment of the Supreme Court in the case of NARENDRA PRATAP NARAIN SINGH [supra] and also in applying the ratio in the case of State of Karnataka vs. N.R. Anthony Raj [2004 CRI LJ 2352], a case of a conductor who had remitted the ticket amount after 11 days through his relative, as he has himself disabled due absence in remitting the amount immediately and explanation being convincing, there is no question of committing misappropriation by such a person. The present case being one of delayed remittance or payment due to the amount having been utilized for office purpose etc., and therefore no need for disturbing the judgment and order of acquittal passed by the trial court.

We have perused the judgment under appeal, looked into the records and have bestowed our attention to the submissions made at the Bar.

The only point arises in this appeal is as to whether the prosecution had made good its case beyond doubt about the accused having committed offence u/s 409 IPC, based on the evidence adduced before the court below and therefore warrants reversal of the acquittal order.

Evidence placed on record by the prosecution through PW1. Rathanakar, who is the complainant and who was working as Assistant Commissioner in the slum clearance board and has spoken to about the complaint ExP1, strongly relies on the documentary evidence ExP2 audit report and ExP3 job chart showing the nature of work entrusted to persons who are authorized to collect money on behalf of the board and who has deposed that the accused person had been authorized to collect money due from beneficiaries of the board''s scheme and has not remitted the same and had misappropriated a sum of Rs. 48,522/- and thereby committed criminal breach of trust etc.

A perusal of ExP1 FIR dated 22-9-1994 while does not reveal any audit report as the basis for the complaint, it is more based on a show cause notice that had been issued to the accused, which was dated 25-8-1984 and his reply dated 30-8-1994, which is claimed to be in the nature of an admission. Very strangely, neither of these documents is marked as exhibits, but on the other hand, has spoken to as a supporting material to make good misappropriation on the part of the accused, is a document of the year 1997 which was not in existence at the time of filing the complaint.

While it is true that ExP3 authorizing employees like the accused person to collect amount on behalf of the board does mention that if the amount is not remitted on the very day of the collection, it is presumed that the amount so short remitted is misappropriated etc, even this presumption does not hold the prosecution case, as neither an admission is made good before the court in a manner recognized or acceptable in law nor ExP2 has any relevance to the complaint, being a document which had come into existence much later, almost three years after the complaint.

While learned Addl SPP strongly relied upon the so-called admission, the effect and impact of an admission in a criminal proceeding is not the same, as is, in a civil proceedings, and nothing can be presumed in favour of the prosecution, more so in the wake of such non-connecting oral evidence of PW1 to the documentary evidence ExP2 and 3, which are conspicuous by their absence in the complaint, the prosecution has not made good on what basis the complaint of criminal misappropriation had been filed and this, in our opinion, is fatal to the prosecution case.

Though the learned judge of the trial court has given other reasons for acquitting the accused person, even otherwise, we find that the prosecution did not make good its case by placing cogent and convincing material before the court to make good criminal misappropriation on the part of the accused person warranting punishment for an offence punishable u/s 409 IPC. Therefore, we do not find any need or necessity to interfere with the judgment and the order of acquittal. Accordingly, this appeal is dismissed.