IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19%: DAY OF FEBRUARY 9991.9
BEFORE 'COO
THE HON'BLE MRSJUSTICE MANJ_I5Léi I 'v C
CRLAPPEAL NOQI 1:6"4'/';l'9..98_* =
BETWEEN: I
M HUTCHAIAH I
FORMERLY POST MASTER
(LOWER SELECTION GRADE)
PEENYA SMALL'~JINDUSTR1.ESC"~-_
POST OFFICE, "BA\EG.A.§L;OREJf Q
R/A 3312, RAILWAY P.AP;AI~;LE'L'._ROAD
RPC.LAYOUT, VIJA'fiPJAGAf{ 1 «N '
*
FFF ...APPELLANT
(BY 'SR1 S.P. I
AND: '
STA*§f*E.I3Y CI3I-,/SPE/
EB:AT_\_IGALGR.E.. . RESPONDENT
A fj(I3.1f M4'/S ASHOK HARNAHALLI ASSOCIATES, ADVS.)
. ' CI~iI;;,A;PPEAL IS FILED U/S 374(2), Cr.P.C.
AGAINST JUDGMENT DATED 21.9.1998 PASSED
BY .1 Ira ADDL. CITY CIVIL 3: SESSEONS JUDGE 3:
99 SPECIAL JUDGE FOR CBI CASES, BANGALORE, IN C.C.
5]" .73"/€86 CONVICTING THE APPELLANT ACCUSED FOR
OFFENCES PUNISHABLE UNDER SECS.4o9,
PCAND 5(2) OF PREVENTION OF CORRUPTION ACT,
2
1947, AND SENTENCING HIM TO UNDERGO R1. FOR
3 YEARS AND TO PAY FINE OF' RS.3000/-~.
This appeal coming on for hearing this day, the
court delivered the foilowing
JUDGMENT
This appeal is directed against
order of conviction in C.C.73/Z556 dated The
allegations against the appellantbelforc
were, a sum of
towards customs parcels
under receiptnos. from one
Verglfiesexoff=Soiithern’-Electronics, Bangalore, was not
accountepd-by to the daily account of Sub
Post”O.fiice he was working as Sub Post Master of
Industries Post Office, Bangalore.
:”i§he’AV~l.:;”léa1ned trial judge, on appraisal of the
ei}ider§rce”l§rought on record in the form of PWs~l to 11
” I§3:s.P1 to P20, ultimately convicted the accused for
offences punishable under Section 409, IPC and also
for the offence punishable under Section 5(2) of
Prevention of Corruption Act, 1947. Aggrievedh by the
said judgment of conviction, the present 3pp€3.i’~iS”«fi1€d.
3. According to the appellant, the
committed gross error in not appreciating’ evidence in . ii
the right perspective; by dra\ving?’_vVronlg’~.
court has convicted the but
miscarriage of justica «not. toiihave come
to the conclusion the parcel was
delivered to l’pfavrnent of customs
duty; the.iapipell_ant alone could have misappropriated the
said amount.’ evidence of PW3 and PW4,
no; other evidence in this regard came on record and
‘ithe learned judge was not justified in placing
evidence of PW3 and PW4 and drawing
adverse inference. Similarly, admissions of the appellant
.. A’ in statement ought not to have been relied on by the
and it explains bias while discharging duty as a
judge. Similarly, confession letters at Exs.P8 to P11
4
ought not to have been relied on. The trial court, placing
total reliance on these confession letters wherein
remittance of certain amounts came to be the
appellant, was totally wrong, and it
consideration non–app1ication ofniind ;of”the’jVsanc”£iVor:in’g_ it
authority while according sanctioiri’lv to’.
appellant. With these aVe’1=rnents,.__ he for
setting aside the judgrnentolof co-nvictionlll
4. Arguments of le-arned “eoui;.sel for the appellant
and the Special A representing the
resp&)nd_ent heard.
5. ‘According counsel for the appellant,
appe’l1:-int aged ’70 years and the alleged offence
toiiyiiaveybeen committed by him pertains to the year
in the absence of convincing and
clinching’ “evidence, the judgment of conviction deserves
A’ to-foeyyset aside. As against this, learned counsel for the
flrlespondent authority submits the reasoning of the trial
–. ‘ ,;;»<– "
.//
5
court cannot be termed as perverse, and there is no
situation wherein this court can interfere with the
judgment of conviction.
6. The court has gone through the
trial court and the records.
7. The point that wouid aris._e fol’C-onsiderati’oni.jjs”::;_*
Whether the judgment
passed by the triait. court “warrants
interference? ” – . — ~ . 2
8. Evidence of theegwitne3sses”–on_’record would reveal
that stingastantipm ‘oreriie, one Gangadhar {PW1)
was iielations Officer and Peenya Sub
Post was jurisdiction. Every Thursday
A.maV1’§e”‘**a”‘Visit to Peeny Sub P0. and in July
visited the said post office, he found one
was searching for credit bilis. 011
information, PW2~K.Raghunathan was asked to bring the
‘records and on verification of the records summarily,
xithey did not find corresponding entries in the head P.O.
6
summary sheets pertaining to customs duty received on
certain parcels. Parcel receipts at Exs.Pl to ?3 are
marked and EX.P4 is the daily account of
Office. PW2– the Assistant Superintendent
Division, explains how parcels’ are.V’lldelivercdl»V after.
collecting customs duty.
irregularities and verification. of
Post Office along verifying
the records, it revealed parcels
mentioned above were receivedgat’ Peenya l3.O. and on
19.11;; fivvas~~cVollected as customs duty
before ” .PW3–\/’erghese {representative
of S_outhe;rnEleiittronics). This payment is substantiated
gs p’er””‘EX.Pl2. PW4–Boraiah was the postal
l under the appellant at the relevant
of’ who speaks about receipt of the parcel and
pp delivery of the same to PW3 after collecting customs
He admits the entries made by him at EXP13,
_.:§windoW delivery receipt, Ex.P14 parcel abstract referred
7
to in Ex.P13. Ex.Pl5 is the customs duty register and
the relevant entry is at Ex.P15(a).
9. So far as the evidence of PWs~«~3 and 4.,’
the fact that three foreign parcels éwere
Post Office, Peenya and delivered Vconceifnedrc
addressee after collecting
PW5-Vedanayagam, –assistant, _ V’ discloses ‘receipt
of parcels at Foreign Post”\j«–_Oftice, i’E’3an.galore, and
assessment of custorns eachplarcel. Ex.P6 refers
to the entry Subfig Peenya P.O. and
pertaining to the said Post
Officer isléadina’-Baiasubrainaniyan who lodged the
coignplaintl to as per Ex.Pl6 after holding a
X p_relir_ninary.., enquiry and being convinced of the
PWIO is the Senior Superintendent of
/’
Bangaiore, who inspected and investigated the loss
.. ii to Peenya Post Office which revealed that i3’W2
hlgreported fraud committed by the appellant to the extent
of Rs.1,10,000/–. PW11-Narayar1a is the investigating
3/
8
officer who completed the investigation and filed charge
sheet; he refers to FIR issued by the eariier 1.0.-
K.P.Kausha1.
10. The evidence on record would reVea.l§_:’thatV:’noiie”of
the officials working either at yPeenya.’o’r”‘ or
Foreign Parcel Office had
the appellant. During thcV_nonnal’courset..oi;~».insp,eetion*of
PW1, non–remittanc_e of customs
duty came to enquiry in the
department duty pertaining
to the three parcels. Though the
appellant’ chaileri.-§es’:”the’confession letters at Exs.P8 to
there is on record to show that it was taken
. ‘under icoeurcion from him. He ought to have raised such
earliest point of time before the court,
but till “trial commenced, accused did not take such
it defence. Therefore, such contention is oniy for the
u”.p’u”rpose of defence. The evidence of PW3 establishes
remittance of customs duty on Rs.19,473/– which was
‘N4
9
taken note of by PW4 who has made corresponding entry
in the record. The records maintained at the concerned
office would make it crystal clear that PW4 wvon:idt’never
receive any amount towards customs duty:— if irio1*e
than Rs.100/–; the addressee__wou4ld the.
Post Master and in his presence
collected before deliveringithe parcel.’ is not
denied by the accused. Th-e”ev_:idence on ‘1’ecord makes it
crystal clear that after receiving fayrnount, accused did
not credit tI1Eg$Ei_T.I1€:;t0 the co[ncemea~ account in his Post
Ofiice”ar1d_V.there:EjreAistnotieflected in the daily account
at sent to Rajajinagar P.O. Even in
his 313tstat’ement;–,_h’e=”admits that only Rs.-£1/– has been
t.o«c1istoin’sVduty on 19.11.1982.
V 1 evidence on record would reveal that
of fraud, two amounts, Rs.10,000/– at
AA one and another Rs.5,000/~ came to be credited by
‘ appellant»-accused towards the short amount of C.D.
piparcels. All these facts would only indicate that the
I0
accused who was well aware of misappropriation of
amounts by him kept quiet till it was revealed during the
regular inspection. There is no material in ti1ef_fo’r+rn of
cross–examination to suspect the bona
genuineness of any of the»~witnesses’;”c-‘I,’ Vln.:}_tl’;.€sVea.
circumstances, the appellant ahlez
the reasoning of the lea:*nedrtrial judge .vva_s
it deserves an order of””ac:qu’itta1. “Therefore, the
reasoning of the clo-ulrt’ Ii.el’d._ as justified in
12. _ Thev.”vVa.p’ove4..iV conclusion and reasoning would
ir1dicate..there”is no good reason to reverse the judgment
ofreoriviction finding of guilt as proved in respect of
.’ the above, charges.
to the quantum of sentence, it is seen
that far as the offence under Section Prevention of
it ,, ” Corruption Act is concerned, commission of the offence is
prior to the coming into force of the Act of 1988.
li
Section 5(1) and (2) of the Act of 1947 are replaced by
Section 13 of the new Act of 1988. Under the old”Act, if a
public servant dishonestly or fratidulently
misappropriates or otherwise converts
any property entrusted to hlI11~~UI14(pi6I””‘ asldaf
public servant, or ailows “to
punished with imp1isonnicri’t~.._for a ‘shall not
be less than one yearkbut_it”1na3r’e:-ztendélupto-‘seven years
and shall aiso be liableto to the said
section pro_vide_s*_- the court withlfdiscretion of reducing the
said .ivsente;n-ce in1pr.isoninent of less than one year
provided there reasons’ to do so.
14. So”-.far as-the 3 present enactment of 1988, there is
n,o’:’«dis,cre,tion to~th.e’court to give lesser punishment than
‘ y*ea3*.,”’flie–refore, the minimum sentence is one year
mvaidirium is seven years. In the present case,
commission of the offence is definitely prior to the Act of
Therefore, the question is, Whether there are
’12
‘special reasons’ to exercise judiciai discretion of the
court.
15. As long back as in the year 1973, Theirvrpixirdships
of the apex court said:
‘In considering special preasons;”‘j*u.:d~icia:1
discretion of the couijt
demand of the _cause.. substa:nti’a1 it
justice.’ A A A A
At paragraph 10, Tiieir the Very
purpose of sentence. the incident in
question ‘in””th’e year 1982 and charge
sheet’Aca;’ne’ 11.984 or so. Trial ended in 1998.
Now_we1″are ,iri–_ Apparently as the offence in
has ‘Ho’ccu’rred prior to the new Act of 1988,
A be under 1947 Act. Proviso to Section
of ‘Act of 1947 gives the court discretion to the
gcourtgto reduce the sentence of less than one year for
8’ “‘s.p.écial reasons’.
__,_? p
13
16. In this case, the appellant–aCcused is 70 years old,
guilty of misappropriation of funds as Sub Post lviaster at
Peenya Post Office to the extent of
Though he paid Rs.15,000/- in the year 1e9é34,’y
pay the rest of the amount for..various_” ‘t1’1at.
as it may, in the last days;””.of::..’_A’his
prevailed on this seventy;ye:ar_old.riian the
loss caused on va.c’coun’t”‘ this ‘rnis’con}duct, and
misappropriation of back to Post
Office account, T has realized that
he h.as”‘c11.o;’+;jight§:.; to “make ii’se”‘of public money. He has
retired from sen}ice’and,,4the offence in question has taken
place 2Elyea1*s page)’-._sHaying considered ali these facts and
takinzgyiiito consideration that his wife is suffering from
evillnelss, the court is of the opinion discretion has
to be Sh own in the award of sentence.
17. ” “Reliance is placed on the following decisions:
i] AIR 1974 SC 2336
(VED PRM{ASH HANDOOJA .V. DELHI
ADMENISTRATION),
.14
ii) I996 Crl.L.J. 4079 (Delhi High Court]
{SUKHWANT SINGH, AC .V. UNION OF INDIA)
and
iii) 2003(3) SCC 64}
(RAM NARAYAN popu .v. CENTRAL .513§Ji??_EAU
014* INVESTIGATION) j » . ” ,
17. Accordingly, I pass the following it ‘A
a) Appe1lant~accused __shali= AnndergoCirriprisigznnleiit
till the rising of the courtukandd _shail1’~.aj:so: play a fine of
Rs.1,000/–, in defaLi_lt%«- to -inndergc»iiriprisonrnent for one
Week,” “for :’1’j.;he V”‘(;effer1–ce’- punishable under Section 409,
I.P.C1.”*_ ” ‘_ V .
b)”‘S__’o as’.’.ti1e:.'”_.’offence under Section 5(2) of the
1?reyen’tjon Vof”-iCVo_};:uption Act, 1947, is concerned. he
‘ imprisonment till the rising of the court
a fine of Rs.1,000/~ and in default, to
undergo imprisonment for one week.
“cl Both the sentences shall run concurrently.
15
d) The appel1ar1t–accused is directed to appear
before the concerned trial court on 12.3.2010 to vsVe;m_:?e.._the
sentence and also to pay the fine imposed.
Accordingly the appeal is
order of conviction. but potmodify-ifig. the
sentence.
Vgh… H