1 cri appeal 210.2000 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 210 OF 2000 The State of Maharashtra Through Police Station, Shivaji Nagar Nanded. .. APPELLANT Versus Balaji S/o Marotrao Bhange, Age : 32 Years, Occu. : At Present R/o Vishnu nagar, Nanded, R/o Khambala, Dist. Nanded. .. RESPONDENT Shri V. G. Shelke, A.P.P. for the Appellant/State. Shri S. K. Kulkarni, Advocate for the Respondent - absent. CORAM : S. S. SHINDE, J. DATE : 25TH JANUARY, 2011. JUDGMENT : . This appeal is filed by the State challenging the judgment and order dated 22.02.2000 in R.C.C. No. 696/1997 passed by the IInd Joint Judicial Magistrate F. C., Nanded. 2. Brief facts of the case are as under : 2 cri appeal 210.2000 There is a Zilla Krashi Karamchari Path Sanstha, Modi Building Shivaji Nagar, Nanded. Officers and employees of the Agri. Department Training and visit Yojana are the members of the said Path Sanstha. At the relevant time there were twelve directors of the path sanstha and complainant Gunderao Patil was the Chairman of Path Sanstha. Accused Balaji and Shri S. M. Badure are the Clerk and Ramdas Chodekar is the Peon of Path Sanstha. 3. All the members have deposited the prescribed amount for the Sanstha and accused Balaji used to accept it after issuing the receipt. Accused used to maintain the account in the concerned register and also deposit the recovered amount in the District Central Co-operative Bank, Shivaji Nagar Branch, in the name of Path Sanstha having account No. 7. It is the duty of accused to submit the account to the Director’s monthly meeting. Accused is not entitled to keep the amount in his hand, and he cannot spend the amount without permission of the Director. Shri Ramesh Appalwad is the Secretary of the said Path Sanstha. 4. As per the audit dated 31.03.1995 the account is correct. 3 cri appeal 210.2000 5. On 22.06.1999 Secretary Shri Appalwad discloses the fact in the meeting of Director that accused has not written the Kird and also not deposited the amount in the bank. It was directed to the accused by the Director that he has to write the complete account on 01.07.1997 and report shall be submitted to the meeting of Directors. Then after since 05.07.1997 accused remained absent. The account was verified for the period 03.04.1997 to 11.06.1997 by Secretary Ramesh Appalwad. It is transpired that, the receipt No. 3701, 3704, 3705 to 3714, 3716 to 3720, 3725 to 3730, 3737 to 3742, 3746, 3747, 3749 to 3752, 3756 to 3758, 3761 to 3763, 3767 to 3770, 3775 to 3778, 3780 to 3785, 3789 to 3798 and 3803 to 3805, total 69 receipts are issued by accused for the amount Rs. 1,21,415.40 ps. but the said amount is not deposited in the bank for the account No. 7 of the path sanstha. 6. On 17.07.1997 notice was issued to accused and asked him to deposit the amount under 69 receipts of Rs. 1,21,415.40 ps. On 25.07.1997 accused gave reply to the notice stating that amount is with Chairman and said is not deposited in the bank. The said reply is false one. Hence, accused has misappropriated Rs. 1,21,415.40 ps for the period 04.03.1997 to 11.06.1997. After investigation charge sheet is submitted against the accused. 4 cri appeal 210.2000 7. Accused appeared and pleaded not guilty for the charge U/Sec. 408 of I. P. C. He claims to be tried. His defence is that the amount is with Chairman. He has not accepted the said amount. It was given in the writing by the Chairman that amount is with him. It was asked to the accused by Chairman by giving Rs. 1,21,415.40 ps. to deposit it in the bank. Accused kept the said amount in his bag, Chairman and Secretary had took out the said amount from his house. Complaint is filed by the accused and to give the counter blow to the said complaint false charge sheet is leveled against the accused. 8. The learned Additional Public Prosecutor appearing for the Appellant/State invited my attention to the grounds taken in the appeal memo and in addition to that, submitted that huge amount of Rs. 1,21,415.40 ps. was misappropriated by the respondent/accused and the Trial Court without appreciating the evidence of prosecution witnesses has acquitted the respondent. According to learned A.P.P. the clinching evidence was brought on record to show the involvement of the respondent/accused. However, the Trial Court reached erroneous conclusion and acquitted the respondent. Learned A.P.P. invited my attention to the evidence of prosecution witnesses and submitted that, there is evidence of P.W. 3, P.W. 4 and also other witnesses who 5 cri appeal 210.2000 deposed in their statement before the Court that, they deposited the amount with the respondent/accused. Therefore, relying on the evidence brought on record by the prosecution, the learned A.P.P. would submit that, this appeal deserves to be allowed. 9. Though the respondent is served none appeared for the respondent when the matter was called out for hearing. 10. With the assistance of learned A.P.P. appearing for the appellant/State and after perusing the impugned judgment and order and also entire evidence made available for the perusal, I am of the opinion that, the judgment and order of the Trial Court needs no interference for the following reasons. 11. The burden was on prosecution to prove its case. However, the evidence brought on record by the prosecution does not disclose that, the prosecution has examined 69 persons to whom receipts are issued after depositing the amount. The evidence of P.W. 1 does not show that, the name of persons who have deposited the amount under disputed 69 receipts to the accused, are examined by the prosecution. It was for the prosecution to prove it's case that accused was entrusted with the said work and he has misappropriated the said amount. 6 cri appeal 210.2000 P.W. 1 who was examined on behalf of prosecution in his cross examination admitted that, Treasurer and Secretary are authorised separately to handle the bank account of Pat Sanstha. P.W. 1 has further admitted that, accused has no right to accept the amount and to deposit it in the bank. He has further stated in his cross examination that, there is entry of amount in Vasuli register, Khatawani register and Sabhasad Dene Ghene register. Those entries are not proved by the prosecution, so as to prove that, there is a entrustment of Rs. 1,21,415.40 Ps to the accused and he has accepted the amount vide receipt below Exhibit 15 and 16. P.W. 1 has also admitted in the evidence that, the respondent/accused did file the complaint in police station about theft of one bag by Shri Badure and Chodekar. 12. P.W. 2 in his evidence has admitted that, there is no account of the pass book issued by the bank so as to show that the amount is not deposited in the bank. These witnesses does not speak that, the amount as mentioned above is entrusted to the accused. The evidence of P.W. 2 further shows that, there is no resolution for the delegation of power to the accused for day to day transaction. He has stated in his statement before the Court that, all transactions are carried out under the signature of 7 cri appeal 210.2000 Secretary and the Treasurer, and these are the only two persons authorized to operate the account of Pat Sanstha. P.W. 3 in his evidence has stated that, he is regular depositor of the Sanstha. However, he did not produce the receipt signed by the accused. The evidence of P.W. 4 Ramdas shows that, he use to visit bank with accused and accused has not deposited the amount in the bank for 2/3 months. This witness did not no about the entrustment. Accused has filed the complaint against this witness for theft of the bag from his house. Therefore, evidence of this witness cannot be useful for the prosecution. 13. The prosecution has examined one Mr. Mohmad Munir at Exhibit 33. However, his evidence does not disclose that, amount was deposited by him with the respondent accused. The evidence of P.W. 6 Abdul Wahed shows that, he has deposited Rs. 694/- in the year 1997 and accused has issued the receipt signed by him. But the receipt is not produced on record. P.W. 7 Shivshankar deposed at Exhibit 36. He stated that, accused use to accept the amount and deposit it into the bank. However, it has come on record that, the respondent has filed complaint against this witness for the theft and the same was pending at the relevant time. Therefore, the evidence of this witness is no avail to the prosecution. 8 cri appeal 210.2000 14. The prosecution has also examined one Mr. Jagnnath at Exhibit 42. He was a member of Director of Zilla Krushi Sahkari Karmchari Sanstha since 1994. He was Vice Chairman in 1997 and the accused was clerk of the Pat Sanstha. His evidence shows that, the accused has to write proceedings of the meeting, Kird and look after the financial transactions of the society. It transpired from his evidence that, on 12.04.1997 meeting of director was called. It transpired that, cash book of 1997 was incomplete. Accused was asked to right down and complete the financial transactions, till the next meeting in the month of May. It further transpired that, the amount shown in the receipt book was not deposited in the bank. Rs. 1,21,415.40 ps. was shown less in the pass book. However, this witness in his cross examination has admitted that, there was entry in the proceeding book of meeting dated 12.04.1997 about non compliance of the account by the accused. His evidence further shows that, one Rajesh Salegaonkar has written the Kird. He was nowhere related to the society. This witness has not acquaintance with the day today transaction of the society. As per buy laws of the society Directors are responsible for the recovery of loan. His evidence is silent about entrustment of amount of Rs. 1,21,415.40 with the respondent/accused. 9 cri appeal 210.2000 15. The evidence of P.W. 11 PSI Shivajirao Patil shows that, he has seized the record of society, personal diary of the accused, society pass book under panchanama Exhibit 44. He has recorded statement of witnesses and filed the charge sheet. However, his evidence is also silent how the amount was entrusted to the accused and whether there is misappropriation of the said amount. 16. Therefore, the Trial Court after assessing the entire evidence brought on record arrived to the conclusion that, the prosecution miserably failed to prove that, the amount was entrusted with the respondent accused. The claim of the prosecution that, 69 persons deposited amount with the respondent was not supported by examining those 69 persons. The other witnesses who say that, they have deposited the amount with the accused, however, the receipts signed by the accused were not produced on record by the prosecution. All in all, the evidence of the prosecution is not sufficient so as to convict the accused. Therefore, the Trial Court has taken a possible view in the matter. Therefore, in my opinion, once the acquittal is recorded by the Trial Court and unless, only one view is possible which leads to only conclusion that, the respondent 10 cri appeal 210.2000 accused alone has committed the offence lodged against him, then only order of acquittal can be interfered. It is not possible to reverse the order of acquittal of the Trial Court, merely because another view is possible. In short, only when it is possible to record convincingly that the respondent/accused alone is responsible for the offence lodged against him and no other conclusion is possible, then only it is possible to hold the accused guilty. However, as stated earlier, the evidence brought on record by the prosecution is not only short, but is not supported by the documentary evidence. Therefore, in my opinion, the prosecution has failed to prove its case beyond reasonable doubt. Section 408 of the Indian Penal Code reads thus : "408. Criminal breach of trust by clerk or servant.- Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine." 17. Mere perusal of the provision of Section 408 of Indian Penal Code would show that, unless the clerk or servant employed, is being in any manner entrusted in such capacity 11 cri appeal 210.2000 with property, with any dominion over property, it cannot be said that, he has committed criminal breach of trust in respect of that property. Therefore, in short, the prosecution should prove beyond reasonable doubt that, the accused person and in the present case respondent was entrusted with acceptance of the amount and also to handle the treasury transactions. However, in the instance case the prosecution has miserably failed to establish its case. Hence, there is no merit in the appeal. The appeal stands dismissed. Record and Proceedings be sent back immediately to the concern Court. [S. S. SHINDE, J.] bsb/Jan. 11