Bagalkot Town Development Authority vs Abdulajij Dastagirsab Attar on 19 February, 2024

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Karnataka High Court

Bagalkot Town Development Authority vs Abdulajij Dastagirsab Attar on 19 February, 2024

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

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                                                       NC: 2024:KHC-D:3896
                                                      CRL.RP No. 100149 of 2019



                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                           DATED THIS THE 19TH DAY OF FEBRUARY, 2024

                                              BEFORE
                          THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
                        CRIMINAL REVISION PETITION NO. 100149 OF 2019

                   BETWEEN:

                        BAGALKOT TOWN DEVELOPMENT AUTHORITY,
                        BAGALKOT, REPRESENTED BY ITS
                        EXECUTIVE ENGINEER,
                        DIVISION NO.1, BAGALKOT,
                        SRI.MOHAN NAGAPPA GADAG,
                        AGE:56 YEARS,
                        OCC: EXECUTIVE ENGINEER.

                                                                    ...PETITIONER

                   (BY SRI MALA B. BHUTE, ADVOCATE FOR
                       SRI G.K.HIREGOUDAR, ADVOCATE)


                   AND:

                   1.   ABDULAJIJ DASTAGIRSAB ATTAR,
                        AGE: 56 YEARS, OCC: FDA IN BTDA,
ANNAPURNA               BAGALKOTE.
CHINNAPPA
DANDAGAL
                   2.   RAJESAB S/O RAJESAB BAIRAGI,
Digitally signed
                        AGE: 58 YEARS, OCC: FDA IN BTDA,
by ANNAPURNA
CHINNAPPA
                        BAGALKOT.
DANDAGAL
Date: 2024.02.20
10:47:06 +0530     3.   VEERASANGAYYA MAHADEVAYYA HIREMATH,
                        AGE: 59 YEARS, OCC: PEON IN BTDA,
                        BAGALKOT.

                   4.   JYOTINATH VITHALRAO MADHUKAR,
                        AGE: 52 YEARS, OCC: PRIVATE TRADE,
                        BIJAPUR

                   5.   THE STATE OF KARNATAKA
                        P.S.I. TOWN P.S., BAGALKOT,
                        REPRESENTED BY STATE PULBIC PROSECUTOR,
                               -2-


                                     NC: 2024:KHC-D:3896
                                    CRL.RP No. 100149 of 2019



     HIGH COURT BUILDING, DHARWAD

                                                   ...RESPONDENTS

(BY SRI N.L.BATAKURKI, ADVOCATE FOR R2;
    SRI B.G.INDI, ADVOCATE FOR R4;
    SMT. GIRIJA S.HIREMATH, HCGP FORR R5;
    R1 AND R3 ARE DISMISSED AS ABATED)

      THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENTS AND
ORDERS OF ACQUITTAL IN C.C.NO.81/2007 DATED 04.05.2010
PASSED BY THE CJM COURT, BAGALKOT AND CONFIRMING THE
ORDER OF THE TRIAL COURT IN CRL.A.NO.82/2010 DATED
22.03.2019 OFFENCES PUNISHABLE UNDER SECTION 409 AND 201
OF IPC, PASSED BY THE II-ADDL. DISTRICT AND SESSIONS JUDGE,
BAGALKOT.

     THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
                            ORDER

1. The defacto complainant has filed this revision petition

under Section 397 read with Section 401 of Cr.PC with a prayer

to set aside the judgment and order of acquittal dated

04.05.2010 passed by the Court of Chief Judicial Magistrate,

Bagalkot, in C.C.No.81/2007 and the judgment and order dated

22.03.2019 passed by the Court of II Addl. District & Sessions

Judge, Bagalkot, in Cr.A.No.82/2010.

2. Heard the learned Counsel for the parties.

3. It is the case of the prosecution that accused nos.1 to 4

who were the employees of the petitioner herein had collected
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CRL.RP No. 100149 of 2019

an amount of Rs.91,640/- from the public for the period

between April 2002 till March 2003 in respect of water

connection charges, house construction permission charges,

etc., and had failed to credit the said amount to the account of

the petitioner-authority, nor had they accounted for the same.

It is alleged that the accused had misappropriated the said

amount and had destroyed the evidence by destroying the

receipt book and other records relating to collection of the

aforesaid amount by them. The police after investigation in the

case had filed charge sheet against the accused for the offences

punishable under Sections 409 & 201 IPC.

4. The accused who had appeared before the Trial Court,

had pleaded not guilty and claimed to be tried. The prosecution

in order prove its charges against the accused beyond

reasonable doubt had examined 14 witnesses as PWs-1 to 14

and had got marked 25 documents as Exs.P-1 to P-25. The

accused who had denied the incriminating circumstances

appearing against them in the evidence of the prosecution

while recording their statements under Section 313 Cr.PC by

the Trial Court, however, did not choose to lead any defence

evidence. The Trial Court, thereafter, heard the arguments
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addressed on both sides and by its judgment and order dated

04.05.2010 had acquitted the accused for the offences

punishable under Sections 409 & 201 IPC. The defacto

complainant had challenged the said judgment and order of

acquittal passed by the Trial Court before the jurisdictional

Sessions Judge in Cr.A.No.82/2010 filed under Section 372 of

Cr.PC. The said appeal was dismissed by the Court of Sessions

Judge by judgment and order dated 22.03.2019. Being

aggrieved by the same, the defacto complainant is before this

Court.

5. Learned Counsel for the petitioner submits that the Trial

Court as well as the Appellate Court have failed to properly

appreciate the oral and documentary evidence placed by the

prosecution on record. She submits that the accused had

destroyed the evidence by burning the receipt books. The

accused have not produced the receipt books and other

documents for having collected the amount either before the

defacto complainant or before the court, and therefore, adverse

inference was required to be raised against them. Accordingly,

she prays to allow the petition.

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6. Per contra, learned Counsel for the respondents submits

that the courts below have concurrently recorded a finding of

acquittal against the accused and the same cannot be disturbed

by this Court in exercise of its revisional powers unless the

petitioner points out any legal infirmity either in the procedure

or in the conduct of the trial. In support of his argument, he

has placed reliance on the judgment of the Apex Court in the

case of BINDESHWARI PRASAD SINGH & OTHERS VS STATE

OF BIHAR & OTHERS – (2002)6 SCC 650. Accordingly, he prays

to dismiss the revision petition.

7. The Trial Court, after recording the oral and documentary

evidence placed on record by the prosecution, has observed

that the prosecution has failed to place cogent and acceptable

evidence before the court regarding entrustment of financial

transaction by the defacto complainant to the accused who

allegedly had committed criminal breach of trust. The Trial

Court also has recorded a finding that the prosecution had

failed to produce sufficient material to substantiate their

allegation that the accused had destroyed the evidence by

destroying the receipt books. Since the basic ingredients which

are required to prove the alleged offences were prima facie
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absent, the Trial Court had acquitted the accused for the

offences for which they were charged.

8. The Appellate Court, having re-appreciated the oral and

documentary evidence that was placed on record by the

prosecution, has confirmed the judgment and order of acquittal

passed by the Trial Court.

9. Undisputedly, the State has not challenged the order of

acquittal passed by the Trial Court. It was the defacto

complainant who had filed the appeal under Section 372 of

Cr.PC before the jurisdictional Sessions Court challenging the

judgment and order of acquittal passed by the Trial Court. The

said appeal has been now dismissed and the Appellate Court

has confirmed the judgment and order of acquittal passed by

the Trial Court.

10. The Hon’ble Apex Court in Bindeshwari Prasad Singh’s

case supra at paragraph 14 has observed as under:

“14. We are, therefore, satisfied that the High
Court was not justified in interfering with the order of
acquittal in exercise of its revisional jurisdiction at the
instance of the informant. It may be that the High Court
on appreciation of the evidence on record may reach a
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conclusion different from that of the trial court. But that
by itself is no justification for exercise of revisional
jurisdiction under Section 401 of the Code of Criminal
Procedure against a judgment of acquittal. We cannot
say that the judgment of the trial Court in the instant
case was perverse. No defect of procedure has been
pointed out. There was also no improper acceptance or
rejection of evidence nor was there any defect of
procedure or illegality in the conduct of the trial vitiating
the trial itself. At best the High Court thought that the
prosecution witnesses were reliable while the trial court
took the opposite view. This Court has repeatedly
observed that in exercise of revisional jurisdictional
against an order of acquittal at the instance of a private
party, the Court exercises only limited jurisdiction and
should not constitute itself into an appellate court which
has a much wider jurisdiction to go into questions of
facts and law, and to convert an order of acquittal into
one of conviction. It cannot be lost sight of that when a
re-trial is ordered, the dice is heavily loaded against the
accused, and that itself must caution the Court
exercising revisional jurisdiction. We, therefore, find no
justification for the impugned order of the High Court
ordering re-trial of the appellants.”

11. Under the circumstances, I am of the opinion that that

since the petitioner has failed to point out any legal infirmity

either in the procedure or in the conduct of the trial, the

concurrent findings of acquittal recorded by the courts below
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cannot be disturbed by this Court in exercise of its revisional

powers. Accordingly, the revision petition is dismissed.

Sd/-

JUDGE

KK
CT:GSM
List No.: 1 Sl No.: 36

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