- 1 - NC: 2025:KHC-D:6785 CRL.RP No. 100259 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100259 OF 2019 (397(CR.PC)/438(BNSS)) BETWEEN: SOMANNA S/O. SIDDALINGAPPA KAKAMBI, AGE: 54 YEARS, OCC: SERVICE AT KOF, OFFICE HUBBALLI, R/O. KADKOL, TQ. SAVANUR. …PETITIONER (BY SRI. A.M. GUNDAWADE, ADVOCATE) AND: STATE OF KARNATAKA BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, AT DHARWAD, THROUGH SUB-URBAN POLICE STATION, HUBBALLI. …RESPONDENT (BY SRI. PRAVENA Y. DEVAREDDIYAVARA, HCGP) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W. 401 OF CR.P.C. 1973, SEEKING TO CALL FOR THE RECORDS OF THE CASE FROM THE COURT BELOW INCLUDING FIRST APPELLATE COURT PERTAINING TO C.C.NO.1107/1999 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC COURT, HUBBALLI AND FROM I-ADDL. DIST. & SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI, IN CRL.A.NO.59/2012, TO ASCERTAIN THE LEGALITY, PROPRIETY AND CORRECTNESS OF JUDGMENT AND ORDER AND TO ALLOW THE PRESENT REVISION PETITION AND SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 09.05.2012 PASSED BY PRL. CIVIL JUDGE & JMFC COURT, HUBBALLI AND JUDGMENT OF CONFIRMATION OF CONVICTION PASSED BY THE I-ADDL. DIST. & SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI, IN CRL.A.NO.59/2012 AND TO ACQUIT THE PETITIONER/ACCUSED FROM OFFENCE UNDER SECTION 409 R/W. SECTION 34 OF IPC. Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:6785 CRL.RP No. 100259 of 2019 THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Heard Sri.A.M.Gundawade, learned counsel for the petitioner and Sri.Praveena Y. Devareddiyavara, learned High Court Government Pleader for respondent-State. 2. Revision petitioner is the accused who suffered an order of conviction for the offence under section 409 R/W 34 of IPC in C.C.No.1107/1999 by judgment dated 09.05.2012 and ordered to undergo simple imprisonment for a period of 2 years and to pay fine of Rs.10,000/-, which was confirmed in Crl.A.No.59/2012. 3. Facts in the nutshell for the disposal of the revision petition are as under: 3.1. Accused being the official working in Karnataka Oil Seeds Union Ltd., situated at Bailappa Nagar, Hubballi misappropriated the amount of the said Union to the tune of Rs.1,46,898/- between the period 31.10.1996 to - 3 - NC: 2025:KHC-D:6785 CRL.RP No. 100259 of 2019 22.02.1997. There is no proper explanation offered by the accused resulting in filing of the criminal complaint. 3.2 Police after registering the case, conducted detailed investigation and filed charge sheet. After due trial, accused was convicted and sentenced as referred to supra. 3.3 Being aggrieved by the order of conviction and sentence, accused filed an appeal before the District Court in Crl.A.No.59/2012. 3.4 Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail in the light of the grounds urged in the appeal memorandum and dismissed the appeal of the accused by considered judgement dated 19.09.2019. 3.5 Being further aggrieved by the same, accused is before this court in this revision petition. - 4 - NC: 2025:KHC-D:6785 CRL.RP No. 100259 of 2019 4. Sri.A.M.Gundawade, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that both the Courts have not properly appreciated the material evidence on record and did not appreciate the defence of the accused in the right perspective and wrongly convicted the accused resulting in miscarriage of justice and sought for allowing the revision petition. 5. Alternatively, Sri.Gundawade, would contend that in the event this Court upholding the order of conviction taking note of the fact that accused is now aged 64 years and he is a pensioner, drawing a sum of Rs.4,500/- as pension, lenient view may be taken by setting aside the imprisonment period by enhancing the fine amount reasonably. 6. Per contra, Sri.Praveena Y. Devareddiyavara, learned High Court Government Pleader supports the impugned judgments. 7. Having heard the arguments of both sides this Court has perused the material on record meticulously. - 5 - NC: 2025:KHC-D:6785 CRL.RP No. 100259 of 2019 8. On such perusal of the material on record, it is crystal clear that the misappropriated amount by the accused between the period 31.10.1996 to 22.12.1997 is to the tune of Rs.1,46,898/-. Accused being the official of Karnataka oil seeds Union Limited, Hubballi is not in dispute. Therefore, there was automatic entrustment of the records to the accused. 9. The amount collected from the customers must have been accounted in the account books of the Karnataka Oil Seeds Union Limited but accused failed to do so. 10. The defense taken by the accused is that he had handed it over to somebody else to remit it to the account. But, that somebody failed to do so and subsequently accused has repaid the entire amount of Rs.1,46,898/- and therefore there is no misappropriation at all. 11. It is pertinent to note that amounts collected by the accused was not remitted to the account of the Karnataka Oil Seeds Union Limited as and when the same - 6 - NC: 2025:KHC-D:6785 CRL.RP No. 100259 of 2019 was received by the accused and therefore there is a misappropriation though temporarily. 12. Even in case of the temporary misappropriation and repayment of the amount so misappropriated would not ipso facto efface the criminality as is held by the Hon’ble Apex Court in the case of Gian Singh Vs. State of Punjab and another1. 13. Accordingly, the arguments put forward on behalf of the revision petitioner by Sri.A.M.Gundawade, cannot be countenanced in law in setting aside the order of conviction. Hence, conviction order is maintained. 14. This would take this Court to the alternate submission canvassed on behalf of the revision petitioner. 15. No doubt, the accused is aged 64 years as on today but the offence has been committed by him when he was quite young. 16. But, taking note of the fact that misappropriated amount is paid in entirety to Karnataka 1 (2012) 10 SCC 303 - 7 - NC: 2025:KHC-D:6785 CRL.RP No. 100259 of 2019 Oil Seeds Union Limited and accused being the pensioner who is suffering from old age ailments is drawing pension only to the tune of Rs.4,500/- per month, if the sentence of imprisonment is modified by directing the accused to undergo simple imprisonment for the day till the rising of the Court by enhancing the fine amount in a sum of Rs.75,000/- payable in two instalments would meet the ends of justice. 17. Accordingly, the following order: ORDER (i) Revision petition is allowed in part. (ii) While maintaining the conviction of the accused for the offence punishable under Section 409 of IPC, the sentence ordered by the trial Magistrate and confirmed by the First Appellate Court is modified as under:- a. Accused-revision petitioner is directed to undergo simple imprisonment for the day till - 8 - NC: 2025:KHC-D:6785 CRL.RP No. 100259 of 2019 rising of the Court and to pay enhanced fine of Rs.75,000/- in two instalments; first instalment in a sum of Rs.50,000/- on or before 31.05.2025 and second instalment in a sum of Rs.25,000/- on or before, 30.06.2025. b. Failure to pay the enhanced fine amount would automatically result in restoration of the sentence ordered by the trial Magistrate and confirmed by the First Appellate Court. (iii) Office is directed to return the trial Court records along with copy of this order forthwith for the purpose of issue of modified conviction warrant. Sd/- (V.SRISHANANDA) JUDGE HMB CT:PA LIST NO.: 2 SL NO.: 41