The duty of a public servant to act as a guardian of public property and the requirement to remit entrusted revenue without delay.

1. This appeal is directed against the Judgment of conviction dated 12.04.2010 passed by the learned Principal Session Judge, Chitradurga in Special Case (P.C.A.) No.1/2007 convicting the accused under S.409 IPC r/w Ss.13 (1)(c) and 13(2) of Prevention of Corruption Act, 1988 (for short ‘the Act’) and sentencing him to undergo simple imprisonment for a period of 3 years and 2 months and pay fine amount of Rs. 50,000/-, in default, to undergo simple imprisonment for a further period of 9 months, by giving setoff to the period of detention already undergone.

2. The case of the prosecution in brief is that, during the financial year 2004-05, i.e., for the period from 6.1.2004 to 5.7.2004, the accused was working as a Secretary, Nannivala Grama Panchayat (for short ‘Panchayat’), in Chellakere Taluk and thus, a public servant, within the meaning of S.2(c) of the Act. As per Rule 38 of Karnataka Panchayat Raj (Grama Panchayat Accounts &Y Budget) Rules, 1995, accused was entrusted the work of maintenance of accounts of the Panchayat and in between 1.4.2004 to 30.6.2004, accused collected the revenue from the public to the tune of Rs. 49,352/-, but, except remitting a paltry sum of Rs. 500/-to the account of Grama Panchayat on 30.4.2004, he did not remit the remaining huge revenue collection of Rs. 48,852/-to the Grama Panchayat account and used the said amount for himself and thus committed misappropriation of the said amount, which fact came to light during the course of audit of the books of accounts of the said Panchayat, conducted by PWs.5 to 7 for the financial year 2004-05 and when PW-7 gave the report to his higher up PW-6.

3. pw.11/M.N. Karibasavangowda, Police Inspector, Lok Ayuktha Police, Chitradurga, having received credible information, on 28.7.2006, that the accused being a public servant has misappropriated a sum of Rs. 48,852/-from the Panchayat revenue collection, registered a case in Crime No.12/2006 for the offences punishable under S.409 IPC and S.13(1)(c) r/w 13(2) of the Act and lodged FIR/Ex.P14, PW-11, undertook and conducted the investigation, which was taken over by PW.12/G. Gurudutt, who filed the charge sheet.

4. The accused appeared and the charge under S.409 IPC and S.13(1) (c) r/w S.13(2) of the Act was framed and was put to him. He pleaded not guilty and claimed to be tried. To prove the charge, the prosecution examined PWs.1 to 12 and marked Exs.P1 to P17. Accused was examined under S.313 Cr.P.C. and it is a case of denial. No defence evidence was adduced. Upon conclusion of the trial and after hearing the arguments, learned Sessions Judge convicted the appellant and imposed the sentence, as above. The said Judgment of conviction and order of sentence has been questioned in this appeal. For convenience, the parties would be referred to with reference to their ranks in the Trial Court.

5. Sri Nithin R., learned advocate, firstly, contended that, PW-11, who registered the case and lodged the FIR/Ex.P14, ought not two have investigated the case and the said act has caused prejudice to the accused. He contended that the investigation conducted by PW-11 is opposed to the ratio of the decisions in the cases of (1) Bhagwan Singh Vs. The State of Rajasthan, AIR 1976 SC 985, (2) Megha Singh Vs. State of Haryana, AIR 1985 SC 2339 and (3) State by Upparpet Police Station Vs. Sampangi and others, 2004 (2) KCCR 920. Secondly, the necessary ingredients of S.409 IPC and S.13(1)(c) of the Act has not been established and there is no credible evidence showing the entrustment of the money to the accused and also the act of misappropriation. He contended that the prosecution has failed to establish the core elements and its case beyond all reasonable doubts and hence, the Trial Court has committed error and illegality in finding the accused guilty. Reliance was placed on the decisions in the cases of Rabindra Kumar Dey Vs. State of Orissa, AIR 1977 SC 170 and Ajodhya Prasad Misra and etc., Vs. State of Orissa,