HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. 476 of 2000 Reserved on: 25.2.2008 Decided on: 27.2.2008 State of Himachal Pradesh ………Appellant. Versus Ramesh Chand and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No For the appellant: Mr.J.S. Guleria, Law Officer. For the respondents: Mr. N.K. Thakur, Advocate. V.K. Ahuja, J: This is an appeal filed by the appellant/State of H.P. against the judgment of the court of Judicial Magistrate Ist Class, Una, dated 27.2.1998, vide which the respondent was acquitted of the charge framed against him under Section 406 IPC read with Section 41 and 42 of Indian Forest Act. Heard. The submissions made by the ld. Law Officer for the State were that though most of the witnesses had turned hostile but the evidence led proves that _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes - 2 - 55 quintals of fuel wood was entrusted to the respondent, who disposed it of, which had been given to him on sapurdari and as such the findings of the learned Trial Court to the contrary acquitting the respondent are liable to be set aside. On the other hand, the ld. counsel for the respondent had submitted that the alleged case property was taken in possession in another FIR and the respondent could have been tried for misappropriation only when the said criminal court gave a finding that the property was given on sapurdari to the respondent who had misappropriated the same and not before that. The learned counsel for the respondent had also questioned the status of Gian Singh complainant who lodged a report with the police and it was submitted that since the prosecution had miserably failed to prove the charge against the respondent and those findings cannot be termed as perverse, there is no merit in the appeal which deserves to be dismissed accordingly. Brief facts of the case are that on 19.4.1990 one Gian Singh reported to the police in writing that 55 quintals of fuel wood taken in possession by the police in case FIR No.85/90, dated 2.4.1990, under Section 379/427/34 IPC, which was entrusted to Ramesh Chand, the present respondent, on sapurdari, has been disposed of by him by selling the same and as such a case be registered. The police conducted the investigation of the case and mainly relied upon the alleged disclosure statement made by the accused but most of the witnesses did not support the prosecution resulting in the acquittal of the respondent. The facts of the case make out an interesting reading that the case in which the fuel wood was given on sapurdari had not been disposed of by the - 3 - criminal court and was pending, but still the complainant Gian Singh made a report to the police in this regard. There is nothing on record as to how said Gian Singh was competent to lodge such a complaint and a how separate FIR was registered against the respondent. In case the case property had been entrusted to respondent by the police during the investigation of the case FIR No.85/90 and the said case property, to the knowledge of the complainant, had been misappropriated by the respondent, this fact was required to be brought to the notice of the court trying the case, which was competent to pass appropriate orders directing the respondent to produce the case property. In case during the trial of the case the said court came to the conclusion that this property was taken in possession by the police in that case and that it had been entrusted to the respondent which had been misappropriated by him, the said court was competent to pass appropriate orders during the trial of the case or on conclusion of the said trial. There has to be a finding by the criminal court trying the offence that the case property was taken in possession and was given on sapurdari to the respondent. But until and unless those findings are given by the said court, no separate case could have been registered against the respondent. Moreover, there is nothing how Gian Singh was competent and on whose behalf he had filed the complaint with the police on which separate FIR was registered. A perusal of the judgment of the learned Trial Court clearly shows that the independent witnesses examined in this case – PW-2 Gian Singh, PW-3 Ram Kishan, PW-4 Amrik Singh and PW-5 Neelam Pal had turned hostile and there is no material on record to substantiate the prosecution version. The other evidence was also not found sufficient to prove the guilt of the accused and the - 4 - registration of the case and trial of the respondent had led to a difficult situation that in case the said court trying the case in the earlier FIR comes to the conclusion that the case property was taken in possession and was entrusted to the respondent, it will be difficult for the State to try again the respondent since he has already been tried by the Trial Court for misappropriation of the alleged case property given on sapurdari to him. Keeping in view the evidence on record, it cannot be said that the findings given by the learned Trial Court are perverse but in view of the fact that the respondent already stands tried for alleged misappropriation of the case property taken in possession in another case, the State can make a request to the court trying the said case, if it has not been disposed of so far, that in case it is proved that the case property has been misappropriated by the respondent, he could be sued by the State for the recovery of the amount of the case property, but no criminal trial can again take place as against the respondent for the same offence. The recovery memo and sapurdarinama in original were required to be proved which have not been proved in this case and this fact can be proved only in the earlier case and, therefore, above observations have been made and a prayer can be made to the court concerned for passing appropriate orders in the facts of the case. However, in so far as findings in the present case are concerned, these cannot be termed perverse calling for an interference by this court and as such there is no merit in the appeal filed by the appellant/State of H.P., which is dismissed accordingly. (V.K. Ahuja), February 27, 2008 Judge. (TILAK) - 5 -