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NON-REPORTABLE  IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1166    OF 2014 [Arising out of Special Leave Petition (Crl.) No.84 of 2013]

With

CRIMINAL APPEAL NO.  1181   OF 2014 (Arising out of Special Leave Petition (Crl.) No.85 of 2013)

Dayanand Ramkrishna Shet           …      Appellant(s)  

versus

State of Karnataka                 …  Respondent(s)

J U D G M E N T

C. NAGAPPAN, J.          

1. Leave granted in both the special  leave petitions.  

CRMP  No.3134  of  2013  and  CRMP  No.13115  of  2013  

seeking extension of time for deposit are allowed.

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2. The  appeals  are  preferred  against  the  judgment  

dated 13.9.2011 passed by the High Court of Karnataka  

Circuit Bench at Dharwad in Criminal Appeal no.838 of  

2005.

3. The appellants in both the appeals are accused nos.  

1 and 2 respectively in C.C. no.135 of 2001 on the file of  

Principal J.M.F.C., Honnavar and they were tried for the  

offences punishable under Sections 409 and 467 of IPC  

and  the  Trial  Court  acquitted  them  of  the  charges.  

Challenging  the  same  the  State  preferred  appeal  in  

Criminal Appeal no.838 of 2005 on the file of the High  

Court of Karnataka and the High Court after hearing both  

sides allowed the appeal and set aside the judgment of  

acquittal  and  found  both  the  accused  guilty  of  the  

charges framed and sentenced them each to undergo  

one  year  simple  imprisonment  and  to  pay  a  fine  of  

Rs.10,000/-, in default to undergo simple imprisonment

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for  three  months  for  the  offence  punishable  under  

Section  467  read  with  Section  34  IPC  and  further  

sentenced  them  each  to  undergo  one  year  simple  

imprisonment and to pay a fine of Rs.10,000/-, in default  

to undergo three months simple imprisonment  for  the  

offence punishable under Section 409 read with Section  

34 IPC and directed the sentences to run concurrently.  

Challenging  the  conviction  and  sentence  both  the  

accused have individually preferred these appeals.

4. Briefly the facts of the case are as follows :  Accused  

no.1-Dayanand Ramkrishna Shet was the Manager and  

accused  no.2-Marthappa  Radhakrishna  Shet  was  the  

Assistant Manager in Suvarnakarar Co-operative Society  

Ltd. and they were empowered to sanction the loans to  

the customers of the bank on the security by pledging  

gold and gold ornaments.  During the audit conducted  

for  the  period  from  1.4.1997  to  31.3.1998,  PW26-

Balakrishna Subraya Naik found that an amount to the

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tune of Rs.5,76,000/- has been misappropriated by the  

accused  nos.1  and  2  by  forging  the  documents  and  

falsifying the accounts.  On the complaint at the instance  

of the Deputy Registrar of Co-operative Society a case  

under Crime no.285 of 1999 came to be registered on  

1.12.1999  against  both  the  accused  for  the  offences  

punishable mainly under Sections 467 and 409 read with  

Section 34 IPC for the misappropriation of the amount of  

Rs.43,500/-  during  the  period  from  30.3.1995  to  

3.11.1995 and after investigation the final report came  

to  be  filed.   The  Trial  Court  framed  charges  under  

Sections 467 and 409 read with Section 34 IPC and the  

prosecution examined PW1 to PW35 and marked Exs. P1  

to P72 besides MOs 1 to 22.  Ex.D1 was marked as side  

of  the  defence.   The  Trial  Court  acquitted  both  the  

accused  only  on  the  ground  that  the  sanction  to  

prosecute  as  required  under  the  provisions  of  the  

Karnataka  Co-operative  Society  Act  was  not  obtained.  

The State preferred the appeal and the High Court set

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aside the judgment of acquittal by allowing the appeal  

and  convicted  and  sentenced  both  the  accused  as  

directed above.

5. Challenging the conviction and sentence both the  

accused preferred independent appeals and this  Court  

by  common  order  dated  2.1.2013  directed  both  the  

appellants to deposit a sum of Rs.2,88,000/- each being  

the  sum  embezzled  by  them,  before  the  Trial  Court  

within four weeks and subject to that condition issued  

notice  to  the  respondent  to  the  question  of  sentence  

only and further directed the Trial Court to release the  

said amount to the complainant bank.

6. The  learned  counsel  for  the  appellants  submitted  

that  the appellants  have deposited the entire  sum as  

directed and have also paid the fine and the appellants  

are  now  aged  64  and  52  years  respectively  and  not  

keeping good health.  We also heard the learned counsel  

appearing for respondent-State.  

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7. The  charges  in  the  present  case  pertained  to  

embezzlement   of  the  amount  of  Rs.43,500/-  for  the  

period from 30.3.1995 to 3.11.1995.  We also find that  

the total  amount of  Rs.5,76,000/-  allegedly embezzled  

by the appellants have already been deposited before  

the  Trial  Court  pursuant  to  our  order  dated  2.1.2013.  

The appellants are aged persons as on date and are said  

to be not  keeping good health.   In  the totality  of  the  

circumstances, therefore, we are inclined to modify the  

sentence awarded to the appellants suitably.

8. Accordingly,  we reduce the sentences awarded to  

the appellants in both the appeals to the period already  

undergone by them.  The deposit of Rs.5,76,000/- made  

by the appellants in the present case will not prejudice  

them in so far as other cases pending against them and  

the said deposit shall be deemed to be compensation in  

terms  of  Section  357  Cr.PC  towards  embezzlement  

allegedly  committed  by  the  appellants  and  the  same

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shall be released to the complainant-bank, if not already  

released. With the above modification in sentence,  

these appeals are partly allowed and disposed of.

…………………………….J. (T.S. Thakur)

……………………………J. (C. Nagappan)

New Delhi; May   9, 2014