THE STATE OF KARNATAKA, v. SHIVANAND S/O NINGAPPA HUCHCHAPPANAVAR,

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amount of Rs.5,000/- from the depositor Mohammadhanifsab son of Mahaboobsab Nadaf for depositing it in his account No.1068 opened in the complainant's bank but striking out one zero he deposited only Rs.500/-. So also from the depositor Shankrappa son of Basalingayya Gourimath received Rs.2,600/- on 11.04.2007 and striking out figure '2' deposited in his account No.1215 only Rs.600/-. Further on 26.04.2007 from the depositor Chandrayya son of Gurusiddayya Kembi received Rs.2,700/- and striking out figure '2' deposited in his account No.751 only Rs.700/-. On verifying the records found that accused with dishonest intention has misappropriated amount of Rs.8,500/-. Thus the accused has committed for the commission of offence punishable under Sections 408 of IPC.

4. After investigation, the Investigating Officer has submitted the charge sheet against the accused for the commission of offence punishable under Section 408 of

IPC.

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5. On hearing the charges trial Court has framed the charges for the commission of offence punishable under Section 408 of IPC and the same is read over and explained to the accused. Having understood the same, the accused pleaded not guilty claims to be tried. After framing the charges under Section 408 of IPC, learned Assistant Public Prosecutor has filed an application under Section 216 of Cr.P.C to alter the charge framed for the offence punishable under Section 408 of IPC to Section 409 of IPC stating that, the accused was appointed as an agent of Kalpataru deposit. The Trial Court allowed the said application on 14.02.2012 and the charge was altered from the commission of offence under Section 408 of IPC to Section 409 of IPC. Accordingly, modified charge was framed for the commission of offence punishable under Section 409 of IPC and the same was read over and explained to the accused. Having understood the same, the accused pleaded not guilty and claims to be tried.

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6. To prove the case of the prosecution, the prosecution examined 8 witnesses as PWs.1 to 8 and got marked 20 documents as Exs.P.1 to P.20. Ex.D.1 got marked on behalf of accused. On closure of prosecution side evidence the accused statement under Section 313 of Cr.P.C., was recorded. Accused has totally denied all the incriminating evidence appearing against him, but he has not chosen to lead any defence evidence on his behalf.

7. After hearing the arguments on both the sides, the Trial Court has convicted the accused for the offence punishable under Section 409 of IPC and sentenced to undergo simple imprisonment for a term of three years and to pay fine of Rs.10,000/- for the offence punishable under Section 409 of IPC. In default to pay fine, he shall further undergo simple imprisonment for a term of eight months.

8. Being aggrieved by the judgment of conviction and order on sentence passed by the Trial Court accused has preferred an appeal before the Principal District and Sessions Judge, Haveri in Crl.A.No.10/2013. The same came to be

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allowed in part by its judgment and order dated 07.02.2015. The operative portion of judgment and order passed in Crl.A.No.10/2013, reads as follows:

"Appeal allowed in part. In modification of the judgment of he Court below, accused is convicted for the offence under Sec.408 IPC instead of Section 409 of IPC. Accused is convicted for the offence under Sec.408 IPC and is kept on probation for a period of 2 years by executing a bond in a sum of Rs.50,000/- with one surety for likesum to the satisfaction of the court below, as to his good behavior and not to commit any offence, which shall be in force for a period of two yeas on or before 28.2.2015.

In addition to the fine that has been imposed by the trial Court, further accused is ordered to pay additional fine of Rs.7,500/-, in all Rs.17,500/- for the offence under Sec.408 IPC.

It is found from the record that accused had already paid a sum of Rsl.10,000/- as fine as is ordered by the court below on 7.1.2013 and therefore he is ordered to pay balance fine of Rs.7,500/- on or before 28.2.2015 in the court below. In default of payment of additional fine amount of Rs.7,500/-, he is ordered to undergo simple imprisonment for 6 months. After fine amount recovered, trial court is directed to pay Rs.2,500/- as compensation under Sec.357 of Cr.P.C. to the Karnataka Vikasa Grameena Bank, Tevermellihalli branch, after due identification and balance sum of Rs.5,000/- is to be appropriate towards the State.

Bail bonds stand discharged.

Ordered accordingly."

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9. Being aggrieved by the same, the State has preferred this criminal revision petition seeking to set aside the judgment and order passed by the Principal District and Sessions Judge, Haveri in Crl.A.10/2013 by restoring the judgment of conviction and order of sentence passed by the Trial Court.

10. Sri V.M.Banakar, learned Additional State Public Prosecutor has submitted his arguments that the accused is convicted by the trial court for the commission of offence punishable under Section 409 of IPC and ordered sentence of simple imprisonment for a term of 3 years and fine of Rs.10,000/- with a default sentence of 8 months simple imprisonment.

11. Being aggrieved by the judgment of conviction and order of sentence passed by the trial court, accused has preferred the appeal before Principal District and Sessions Judge, Haveri, in Crl.A.No.10/2013.

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12. The Trial Court has allowed the appeal in part and modified the judgment and order of conviction by convicting the accused for the commission of offence punishable under Section 408 of IPC instead of Section 409 of IPC and released the accused on Probation of Offenders Act, 1958 and also imposed a fine of Rs.17,500/- instead of Rs.10,000/-. The Trial Court has directed to pay Rs.2,500/- out of the fine amount as compensation under Section 357 of Cr.P.C. to the Karnataka Vikas Grameena Bank, Tevermellihalli Branch, which is not sustainable in the eye of law.

13. The accused has not disputed that he was not the pigmi collector of the Bank Karnataka Vikas Grameena Bank and he has come under the definition of 'public servant'. Hence, prosecution has established the case against the accused for the commission of offence punishable under Section 409 of IPC but the appellate court has modified the same under Section 408 of IPC which is not sustainable under law. It is further submitted

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that the appellate court has ignored the document Ex.P-1 appointment letter issued by the Bank.

14. The offence punishable under Section 409 of IPC is punishable with imprisonment for life or with imprisonment of either description for a term which may extent to 10 years, and shall also be liable to fine. Therefore the provisions of 360 of Cr.P.C or Probation of Offenders Act, 1958 are not applicable to the provisions of Section 409 of IPC. Therefore, the impugned judgment passed by the appellate court is not sustainable under law. On all these grounds, he sought for allow the appeal.

15. Per contra, learned counsel for the respondent has submitted his arguments that accused was not duly appointed by the Karnataka Vikas Grameena Bank as a pigmi agent no materials have been placed before the trial court to prove that the accused was the pigmi agent duly appointed as pigmi collector and accordingly appellate court has properly appreciated the evidence on record and held that the accused has committed the office punishable

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under Section 408 of IPC. The accused has not preferred any appeal against the judgment and order of sentence passed by the appellate court.

16. During the course of the cross-examination PW.3 and PW.5 have categorically admitted that they have received back the amount which is paid to the accused, same has been deposited by the Bank. Hence, accused has not committed the offence punishable under Section 409 of IPC. The appellate court has properly appreciated the evidence on record and extended the benefit of Probation of Offenders Act and enhanced the fine amount from Rs.10,000/- to Rs.17,500/- that there are no grounds to interfere with the finding given by the appellate court. On all these grounds he sought for dismissal of the appeal.

17. I have perused the materials placed on record by the prosecution and the impugned judgment and heard submissions of both the sides. Having regard to the facts and circumstances of the case, the following points that would arise for consideration by this Court.

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1. Whether the impugned judgment and order dated 07.02.2018 passed in Crl.A.No.10/2013 by the Appellant Court suffers from legal infirmities requiring interference by this Court?

2. What order?

18. I answer the above points as under:

Point No.1 : In the negative. Point No.2 : As per final order.

19. The Trial Court has convicted the accused for the commission of offence punishable under Section 409 of IPC. It is not in dispute that the Investigating Officer has filed the charge sheet against the accused for the offence punishable under Section 408 of IPC. Only after an application was filed under section 216 of Cr.P.C by the Assistant Public Prosecutor, the Trial Court has altered the offence punishable under Sections 408 of IPC to Section 409 of IPC.

20. On careful scrutiny of the evidence placed by the prosecution, the Appellate Court has modified the

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judgment of conviction and order of sentence passed by the Trial Court and passed the above said order.

21. Now it is necessary to mention here as to the reasons assigned by the Appellate Court for altering the offence under Section 408 to Section 409 of IPC, which read as follows:

36) But since accused was only a pigmy agent, he cannot be termed as a banker. At best he is only termed as a clerk or servant.

37) Therefore even though trial court has convicted the accused under Sec.409 IPC, this court is of the opinion that he cannot be equated that of a banker. It is seen from records that originally the court below had framed charge under Sec.408 of IPC. Subsequently by altering the charge under Section 409 IPC, accused is convicted for the offence under S.409 IPC.

38) Having regard to the admitted position that accused was not a permanent employee and is only a pigmy agent, the offence that has been committed by the accused could be traced under Sec.408 IPC and not under Sec.409 IPC.

39) It is well settled principle of law that even through the court has framed the charge for a higher offence, it is always open for the court or appellate court to reduce it for a lesser offence.

40) In view of the foregoing discussion, in the absence of any positive evidence on record that the accused was a banker and having regard to

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the fact that he was only a pigmy agent, his status could be reduced to that of a clerk and accused can only be convicted for the offence under Sec.408 IPC and to that extent, the impugned judgment needs to be interfered.

41) Therefore point Nos.1 and 2 are answered partly in the affirmative.

22. By assigning the above said reasons, the Appellate Court has modified the judgment of conviction and order of sentence passed by the Trial Court for the offence punishable under Sections 408 of IPC, which is punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The Appellate Court has elaborately discussed as to the provisions of Section 360 of Cr.P.C. and passed the impugned judgment.

23. The Appellate Court has properly appreciated the evidence on record in accordance with law and passed the impugned judgment. Hence, I do not find any legal infirmities in the impugned judgment passed by the

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Appellate Court. Accordingly, Point No.1 is answered in the negative.

24. Point No.2 : For the afore said reasons, this Court proceed to pass the following:

ORDER

i. The criminal revision petition filed by the State is hereby dismissed.

ii. The judgment and order dated 07.02.2015 passed in Crl.A.No.10/2013 by the Principal District and Sessions Judge, Haveri is hereby confirmed.

iii. Registry is directed to transmit the records along with copy of this order.

Sd/-

JUDGE

EM

List No.: 1 Sl No.: 10