Sri. Shes hamj S v. THE STATE OF KARNATAKA

(By Shri Anand K. Navalgiinath. Advocate,) Peiitioner Respondent 1 his Criminal Petition is Ii led under Section 482 o I’ the Code the advocate for the petitioner praying that 0!’ Criminal Procedure b\ this Hon ble Court may be pleased to alloxv the petition by settin aside the order passed by the learned Court of’ 31 Add! Civil .Tudge (.Jr.Dn.) and JMFC. I lubli. Addi. I Sessions Judte. Dharxvad. at in Criminal Re ision Petition petitioner accused No.25 2006 C.C.No.29$ 2001 may kindl\ be discharged. in C.C.No.29$ 2()0 I I lubli. consequenil ibis petition coming on for final hearing ihis da\ . the (ourl made the fblloxving: ORDER 1 leard the learned counsel the petitioner (io\ ernment Pleader.

2. 1 he petitioner as an emplo cc of the Municipal Corporation. l)har ad. and its earlier form as Municipal Borough. Dhar ad and he had orked in different capacities fr O\ er 38 ears. I Ic \\ as holding the post. as .1 unior I ngineer ( irade— I in the \ ear 1 97 I and as Assistant Executi e I neineer in the year I 9() and as Execut i’ e 1 neineer in the ‘ ear 9o) he retired Irom ser\ ice in the ear 1 999 and handed o er charge to one lix an as on I . . 1 999. I Ic as thereafter appointed for one ear on contract basis b the Corporation. I Io\\ e\ er in the ‘. ear 200(1 a complaint ‘ as lodged \vherehv the petitioner s name does not flgure alleging that one Noolvi. (ontractor. had committed Iiaud in the issuance of hills during the period 30.4,1999 to 15.2,2000. 1 he petitioner incidentalk retired Iroin ser\ ice prior to 30.4. 1000 and \‘ as unIx re—empIo ed on contract basis and as posted to the I lealth I)epartment. 1 here lore, on the face of it he did not ha\ e ai i\ authorit\ to for ard the hills in question in respect of’ the ‘ urk said to have been executed h the said (oniractor. But. based on the complaint of the l\eeuti\ e I ngineer. a detailed in\ cstiaation has been conducted and a charge sheet iN filed beflre the Jurisdictional \1aistrate alleging o1lenee’ punishable under Sections 400. 468. 37 I . 20 I ith Section 34 of the Indian Penal Code. 1 860. against eight accused of ‘a horn accused No. I to 4 ‘a crc engineers ‘a orking ‘a ith the Corporation and 5 to 7 ‘a crc officers in the Accounts Department and accused No.8 ‘a as the Contractor and in order to substantiate the charge, several ‘a itnesses ha’. e heen cited and it’ the statements o I the said \ itnesses are examined, is the case at the petitioner that his rn’ ol ement in the incident cannot he traced. I lox ever. in the charge sheet it is sought to be alleged that the petitioner and others ‘a cue responsible in enabling the Contractor to eneash on the fraudulent hi I Is. It i in this background that the petitioner is before this Court.

3. Ihe learned counsel fi the petitioner would submit that there ‘a crc Lw o sets of’ hi I Is in question. 1 he present proceedings initiated are in respect of’ one set of hi ll. ‘a hereas in respect of \ ci another set ot hills. ‘a hereh\ there as alleged trger\. both the sets of’ hills had been sent to a handwriting expert to ascertain ‘a hether the signatures ‘a crc that of’ the petitioner. In respect of both the sets 4 I his of hills the opinion ol the hand” ruin expert %as to the eftet that the signature said to be of the petitio.a “crc not in his hand. %fls on comparison of his original signature ith that of the signature hid ‘ere alleged to he forged. I usotlir ai the other set of hills hich are not the subject niarer of the present proceedings. the prosecution has not tiled an> ehan!e sheet against the petitioner htit has named him as one of the pruecution sitnesses. n hereas in the present proceedings he is said to be arm> ed as accused. though theic is no allegation to he found either in the eomplaiiii or in the statement of material % ilnesses in upport of the case of the It prosecution. is this clew LIretII1I ante nhieh is sotagli’ to fle highlighted h> the learned counsel hr the petitiotler to et’nt:nd that the in’ ol ement of the present petitioner in the proeeedingi wc’tld ‘tt best be in tile form of ‘itness li’r th prosecution and h cannot he ainn ed as accused and it is on this 1 ,ted a’cpec’ ‘d the t.uttei llr.t the present petition is sought to he urzt I.

4. The learned (im emnien Pleader would submit that Us held h the C out ts below wh:thet lie signaturt i’ that of petitioner or not shall lie the subject .iiatter of the trial. I he mere opinion of the handriting cpert Ii> tscli is n’t final and that there are other incriminating material against the petitioner w hieh requires to he assessed at the trial and therefore he w mild submit that there is no in hrmit in the trial oui’t ha’ ing rejected the contention of the petitioner and having proceeded to frame the charges. 5 l’he learned counsel fbr the petitioner on the other hand would submit that such a contention as to the report of the handwriting expert the petitioner unnecessarils ha ing to aw ait the trial to establish his case is not tenable in a circumstance w here the petitioner seeks to rek upon the ‘ er’ (locumeni x hich has been cited in support of the prosecut ion and it is not a case here the petitioner is disputing the opinion of’ the handwriting expert in order to sustain his case and therefare he would submit that the in explicable circumstance of’ the prosecution ha ing not filed charge sheet insofar as the other set of bills is concerned as w eli unexplained and hence he w ou Id seek appropriate direction to the trial Court to delete the name of the petitioner from the arra of the accused and at best to name him as one of the prosecution w itnesses.

6. (ii’ en reasoning ot the Court below that the petitioner should uniiecessarilv circumstances. 4 6 await the out come of the trial notw ithstanding the hand’%Titing experCs opinion which is clearly in his favoLir and the fact that the petitioner had retired from service even before the alleged bills were executed wold demonstrate that the petitioner was not involved in the transaction and the tbrther report of the handwriting expert to the effect that the signatures purportedly being that of the petitioner were indeed forged and not in the hand of the petitioner would he a circumstance which would support the contention raised on behalf of the petitioner. Hence the petitioner being named as accused when the prosecution did not feel that no case was made out against him in respect of another set of hills challenged under similar circumstances is inexplicable.

7. Therefore the petition is allowed. The trial Court is directed to delete the name of the petitioner from the array of the accused and to name him at best as a witness for the prosecution as has been done in the other proceedings in respect of identical bills which have been generated in identical circumstances. The petition stands allowed accordingly. Mrk/ Sd! JUDGE