STATE Vs. BASANAGOUDA CHANNAVEERAGOUDA PATIL

JUDGEMENT

(1.) WE have heard the learned Addl SPP on merits for the purpose of satisfying ourselves before issuing notice on IA-I. as to whether the appeal filed by the State is of sufficient caliber as is likely to result in success, as otherwise, no useful purpose could be served by issue of notice to the respondent-accused. Like many other similar cases, the shortage of cash or rather misappropriation of money in this Co-operative Society surfaced at the time of audit and after the audit report legal action was taken against the accused on the ground that he was a clerk in-charge of these transaction. What we need to highlight here is that the instances related to the period from 18-7-1977 to 15-12-1977 and the charge-sheet in this case was filed in the year 1982, i. e. , 5 years after the incident in question. What is even more depressing is that the prosecuting authority has filed a Criminal case No. 4638/1982, which was disposed of on 1-8-2002, after exactly 20 years. Thereafter, since the case has ended in an acquittal the state has filed the present appeal, whereby the State has pleaded for interference with the order of acquittal or in other words, to open up a second round of litigation in respect of the incident that is 26 years old as on now. We are not aware whether at all the accused is alive but even assuming that is so, this Court owes a strong responsibility to itself before entertaining the appeal, to examine the records and to decide as to whether there is enough material on record to sustain a conviction. This is the exact exercise we have to carry out after hearing the learned counsel on merits.

(2.) IN this case the learned Addl. SPP points out to us that admittedly the accused was an employee of the Society and that he was handling the day to day transactions and it is his submission that ipso facto the liability has to be deemed to exist. The trail court has observed that even though five witnesses were examined with regard to the facts of the case and even though the prosecution has established that a sum of rs. 14,340. 17ps has been mis-appropriated, that the prosecution has failed to discharge its preliminary obligation with regard to two of the basic ingredients of law, firstly, what is pointed out is that there is no evidence documentary or oral to indicate any specific entrustment of the funds in question and secondly, the most important ingredient of the offence of misappropriation, namely wrongful conversion on the part of the accused has not been established. The learned addl. SPP has done his very best to convince us that these legal ingredients will have to inferred even if they have not been established. In a criminal case, where we cannot exonerate the prosecution from this basic and preliminary duty of establishing all aspects and ingredients of the charges and is this has gone by default there is nothing that can be done to this record to alter the position.

(3.) ONE of the most important pieces of evidence in a case of this type emanates from the documentary evidence or in other words the evidence of handwriting experts, which is vital and conclusive. Unfortunately, the handwriting expert's opinion is against the prosecution and this is absolutely fatal to the case.