- 1 - NC: 2025:KHC:8110 CRL.RP No. 1160 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S RACHAIAH CRIMINAL REVISION PETITION NO. 1160 OF 2016 BETWEEN: SRI K CHIKKATHIMMAIAH S/O LATE RAMAIAH AGED ABOUT 51 YEARS PRESENTLY WORKING AS A ASSISTANT TEACHER IN GOVERNMENT HIGH SCHOOL KIRUGAVALU VILLAGE, MALAVALLI TALUK MANDYA DISTRICT - 571 430. AND NATIVE OF MOTHAHALLI VILLAGE, KOTHATHI HOBLI, MANDYA TALUK MANDYA DISTRICT - 571 401. …PETITIONER (BY SRI. NANJUNDA GOWDA M R, ADVOCATE) AND: STATE OF KARNATAKA BY BASARALU POLICE STATION MANDYA DISTRICT REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS BENGALURU - 560 001. …RESPONDENT (BY SRI. K NAGESHWARAPPA, HCGP) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED AGAINST THE PETR. ON 18.09.2015 BY THE JMFC, MANDYA IN C.C.NO.382/2008 AND ALSO SET ASIDE THE JUDGMENT AND ORDER DATED 05.08.2016 PASSED IN CRL.A.NO.70/2015 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA AND ACQUIT THE PETITIONER FOR THE OFFENCE P/U/S 409 OF IPC. THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 20.02.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING: Digitally signed by NARAYANA UMA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8110 CRL.RP No. 1160 of 2016 CORAM: HON'BLE MR JUSTICE S RACHAIAH CAV ORDER 1. This Criminal Revision Petition is filed by the petitioner, being aggrieved by the judgment of conviction and order on sentence dated 18.09.2015 in C.C.No.382/2008 on the file of the J.M.F.C., at Mandya and its confirmation judgment and order dated 05.08.2016 in Crl.A.No.70/2015 on the file of the Court of the V Additional District and Sessions Judge, Mandya, seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner/accused was convicted for the offence punishable under Section 409 of Indian Penal Code. (for brevity ‘IPC’). 2. The ranks of the parties in the Trial Court will be considered henceforth for convenience. Brief facts of the case: 3. It is the case of the prosecution that the accused was working as a head master at Basaralu Government Model Higher Primary School. It is alleged against the petitioner that he has not paid the salary to the cooks who were - 3 - NC: 2025:KHC:8110 CRL.RP No. 1160 of 2016 working in the said school for the past three months. It is also alleged that though he had withdrawn the said amount, it was not paid to the cooks. Therefore, he stated to have committed criminal breach of trust. 4. Based on the complaint lodged by the cooks, a complaint came to be registered against the accused and after conducting investigation, chare sheet was submitted against the accused. 5. To prove the case of the prosecution, the prosecution examined eleven witnesses as PWs.1 to 11 and got marked ten documents as Exs.P1 to P10. On the other hand, the accused himself examined as DW1 and got marked sixteen documents as Ex.D.1 to D16. 6. Heard Sri. Nanjunda Gowda M.R., learned counsel for the petitioner and Sri. K. Nageshwarappa, learned HCGP for the respondent. 7. It is the submission of the learned counsel for the petitioner/accused that the concurrent findings recorded - 4 - NC: 2025:KHC:8110 CRL.RP No. 1160 of 2016 by the Court below are contrary to the evidence on record and the same is liable to be set aside. 8. It is further submitted that even though, there are no documents to disclose that the complainants were working as cooks under the midday meal scheme, the fact remains that the entire case is based on the complaint lodged by them. It is also submitted that the evidence of the cooks would indicate that they were not aware from how many months their amount was withheld. They further stated that they used to get salary by affixing their signatures in the book which was being maintained in the school. However, the Investigation Officer has failed to secure the said book to show that they were not paid for three months. In the absence of evidence to show that amount was to be paid to the cooks, it cannot be said that the petitioner had misappropriated the amount and he has committed criminal breach of trust. 9. It is further submitted that the accused even though demonstrated that he was on leave as on the date of - 5 - NC: 2025:KHC:8110 CRL.RP No. 1160 of 2016 alleged incident, the Courts below have not considered the defence properly, consequently, the impugned judgments are passed which are required to be set aside. Making such submission, the learned counsel for the petitioner prays to allow the petition. 10. Per contra, the learned High Court Government Pleader vehemently justified the concurrent findings and he further submitted that the findings of the Trial Court and the Appellate Court in recording the conviction are relevant for the reason that the accused was working as a head master and he had to discharge his duties not only as an administrator but also in charge of mid-day meals. As he failed to discharge his duty efficiently relating to mid-day meal scheme and also failed to make payment to the cooks and assistants even though the amount was withdrawn from the bank, it can be inferred that he had committed breach of trust. 11. It is further submitted that the Courts below are consistent in their findings that the accused has committed an offence under Section 409 of IPC, - 6 - NC: 2025:KHC:8110 CRL.RP No. 1160 of 2016 therefore, interference with the said findings may not be proper and therefore, the petition is liable to be set aside. Making such submission, the learned High Court Government Pleader for the respondent prays to dismiss the petition. 12. Having heard the learned counsel for the respective parties and also perused the findings of the Courts below. It is necessary to refer the evidence of prosecution both oral and documentary on record. 13. P.W.1 was working as a Block Education Officer at Mandya, North Division. According to him on 27.05.2007, the accused had withdrawn the amount from the bank which was required to be given to the cooks, however, he did not pay the same. He further deposed that the documents relating to the distribution of the amount to the cooks were also taken by him. In the cross- examination, he has stated that he was inspecting the documents on every month. He also used to verify the documents relating to mid-day meal scheme. As per his verification, he did not notice any irregularities in making - 7 - NC: 2025:KHC:8110 CRL.RP No. 1160 of 2016 the payments to the cooks. However, he admitted that he did not produce the documents which were required to be produced to indicate that amount payable to the cooks was not paid. 14. In the absence of documents to show that amount was to be paid to the cooks for three months, mere withdrawal of the amount from the bank is not sufficient to show that the accused had committed criminal breach of trust. It is needless to say that the education co-coordinator and other staff have taken the charge of the school in the absence of the accused by breaking open the almirah. 15. As per the evidence of D.W.1, it appears that the amount was kept in the almirah along with the documents, however, the documents and the amount were not listed in the charge list. The authority at the time of taking charge by breaking open the almirah should have video recorded the proceedings and produce before the Court to show its authenticity. It is also noticed here that there was rift between education co-ordinator and the accused - 8 - NC: 2025:KHC:8110 CRL.RP No. 1160 of 2016 in respect of some issues and the case filed against the education co-ordinator was pending as on the date of the alleged incident. 16. The basic ingredients to bring home the accusation under Section 405 of the Code are : a) Entrustment, b) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use to the detriment of the person who entrusted it. 17. On careful reading of the above said principles, it can be gathered from the evidence of all the witnesses, the prosecution has failed to prove the ingredients of the criminal breach of trust. However, the Courts below have committed errors in appreciating the evidence and also applying the proper law on the said issue. Therefore, it is necessary to interfere with the said findings in order to secure the ends of justice by exercising the revisional jurisdictional. 18. In the light of the observation made above, I proceed to pass the following: - 9 - NC: 2025:KHC:8110 CRL.RP No. 1160 of 2016 ORDER i) The Criminal Revision Petition is allowed. ii) The judgment of conviction and order on sentence dated 18.09.2015 passed in C.C.No.382/2008 by the Court of the J.M.F.C., Mandya and the judgment and order dated 05.08.2016 passed in Crl.A.No.70/2015 by the Court of the V Additional District and Sessions Judge, Mandya are set aside. iii) The petitioner is acquitted for the offence under Section 409 of IPC. iv) Bail bonds executed, if any, stand cancelled. Sd/- (S RACHAIAH) JUDGE JS List No.: 1 Sl No.: 51