Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.491 of 2001. Judgment reserved on: 22.07.2008. Dated of Decision: July 28 , 2008. --------------------------------------------------------------------------------------------------- State of H.P. …… Appellant. Versus Sarwan Kumar. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? No. For the Appellant : Mr. J.S. Guleria, Law Officer. For the Respondent : Mr. Shashi Shirshoo, Advocate. Surinder Singh,J : The respondent was tried and acquitted for the offence under Section 408 of the Indian Penal Code, which has been assailed by the State in this appeal, on the grounds that the learned trial court has passed the judgment of acquittal on conjecture and surmises and evidence of the prosecution was brushed aside in a slip-shod manner and further that the learned trial court has set an unrealistic standard to evaluate the direct and cogent evidence. The factual matrix giving rise to the instant appeal are that the respondent was a Secretary-cum-Manager of the “Paror- Cooperative Agricultural Service Society Limited” at Paror between July 1987 to July,1988. During the audit, he was found to have embezzled the amount to the tune of Rs. 2,01,179.55 paise of the said Society. It is also alleged that the respondent was having - 2 - dominion of the property being the Secretary and Manger of the Society thus he had committed the breach of trust. On the basis of the complaint Ex.PW11/A, filed by the Assistant Registrar of the Cooperative Societies, a case under the aforesaid section was registered in the Police Station Palampur. During the investigation, police took into possession the Society registers Exts. R1 and R2 vide memo Ex.PW3/A, stock register, receipt book, advancement register, receipt No.0742 dated 27.11.1987 Ex.R1 amounting to Rs.9,981/- and also other records vide memo Ex.PW11/B. The specimen handwriting of the respondent were taken before PW4 Shri C.L. Kochhar, Judicial Magistrate, Palampur. Report of the Handwriting expert Ex.PX was obtained. The statements of Gian Chand PW2 was also recorded. According to him, he had paid an amount of Rs.500/- to the respondent against the loan taken by him and the entry was made in his pass book, but this amount was not deposited by the respondent in the Society Account. The stock register, cash book, member stock register, deposit register, loan register, proceedings book, member share register, sundry register, advance ledger, pass books Ex.PW6/A-5 to Ex.PW6/A-10 were taken into possession. After recording the statements of the witnesses and completing the challan, it was presented in the court for trial against the respondent. Respondent was charge-sheeted for the offence aforesaid. He pleaded not guilty and claimed trial. Prosecution examined its witnesses to prove the case against the respondent. Respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances put to him, however he led no defence. At the end of the trial, the - 3 - respondent was acquitted on the grounds that the respondent was alleged to have admitted his fault in the meeting (Islass) of the said Society before 48 members present there, but none was examined by the prosecution to support its version. PW5 Om Parkash, Audit Inspector stated that the cash was handled by the Cashier, but Cashier told him that he never handled the cash of the Society. His version was not corroborated by any of the witness and the Cashier of the Society was not examined. The prosecution did not examine Dev Raj and Tek Chand who alleged to have deposited Rs.1917/- and Rs.442.13 paise pointed out by the Audit Inspector, which is allegedly embezzled by the respondent. Similarly, Kishori Lal witness was also a material witness who was not examined. PW8 Hinchal Singh gave different story than that of the prosecution. According to him, affairs of the Society were not being managed properly by the Managing Committee. The registers were prepared by the Audit Inspector while doing the audit of the cash book and other registers of the Society. Surindera Kumari Secretary was also not examined to lend strength to the prosecution case. Since the ingredients of the offence charged were not proved, therefore, the respondent was given the benefit of doubt and acquitted. Shri J.S. Guleria, learned Law Officer has vehemently argued that it is proved that the respondent was holding the charge of secretary-cum-Manager of the Society and the money other articles were entrusted to him, which were misappropriated by him. The offence charged is proved and the acquittal can be converted into the conviction. - 4 - Contra, the learned counsel for the respondent has supported the impugned judgment of acquittal and urged that there is not an iota of evidence to prove the charge against the respondent. I have heard the learned counsel for the parties and have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the evidence on record. To prove the offence against the accused, the prosecution is under obligation to prove the existence of the following ingredients of the offence charged:- “1. The accused must be clerk or servant; 2. He must have been entrusted with property or a dominion of the property; 3. He must have committed breach of trust in respect of such property. In the instant case, respondent is proved to be the salesman- cum-Secretary of the Society at the relevant time, as stated by PW6 Om Parkash, the Inspector of the Cooperative Society and this fact has not been denied by the respondent in his statement under Section 313 Code of Criminal Procedure. Now further to prove the entrustment of the property and dominion of the property of the society, the prosecution examined PW2 Gian Chand. According to him, he had taken a loan of Rs.1100/- from the Society and paid an instalment of Rs.500/- to the respondent and its entry was made by him in his pass book, but he did not know whether this amount was deposited by him in the Society account or not. In his cross-examination, he has stated that his pass book was taken into possession by the police, but no receipt was given to him. There is no evidence on record to show - 5 - that this amount was not deposited by the respondent in the Society and the entry in the hands of the respondent has also not been proved in any of the pass books taken into possession by the police. Shri Om Parkash (PW5) has stated that the infirmities and irregularities which were found in the audit have been depicted in the audit report and the discrepancy was found to the tune of Rs.80096.63 paise and in addition to it, 3000 bricks were purchased by the Society for Rs.2,000/- which were not found on the spot. On physical verification of the Society, the goods worth Rs.55,438/- were also found short but he did not say as to who had entrusted the said items to the respondent. He further stated that during the audit, a meeting of 48 members was called. The respondent admitted the liability to pay the aforesaid amount within six months, but he did not make the payment, thus a case was registered against him. He also placed on record the proceedings of the meeting Ex.PW5/P-3 and according to him the total embezzled amount was found to be Rs.1,44,133/- due towards the respondent till 30.11.1987. In cross- examination, he has stated that though there was a Cashier of the Society to handle the cash, but he made the respondent liable for the aforesaid amount, because he was conducting the business of the Society. He further admitted that the proceeding register has been written in his own hands and it also bears some over-cutting at some of the places, which was not initialed. His statement is based on conjectures and surmises. He did not know as to who had authorized the respondent to conduct the business of the Society and who had entrusted the alleged property to him. PW6 Ramesh Kumar was another Inspector. According to him, he had conducted the audit of this Society w.e.f. 1.12.1987 o - 6 - 30.6.1988 and the respondent did not attend the audit inspection despite repeated requests. Surindera Kumari was also the Secretary of the Society w.e.f. 1.11.1988. Earlier to him, the audit was conducted by PW5 Om Parkash and Ganeshwar Dutt. The audit report was prepared on the basis of the stock register and cash book. According to him, the respondent had misappropriated an amount of Rs.1,14,275.70 paise. In cross-examination, he has admitted that on 27.11.1986, Kishori Lal was appointed as Salesman and it was the responsibility of the Managing Committee of the Society to take the work and also to seek details of the account from their employees. PW8 Hinchal Singh has stated that in the year 1987, he had purchased the oil, ghee, sugar, rice etc. from the Paror Society and paid Rs.9,981/- to Sarwan Kumar, Secretary. Receipt was handed over to the police, which was taken into possession vide memo ex.PW8/A and then in the same breath in the cross-examination, he stated that on the day, when he had purchased the aforesaid articles from the respondent, he did not make the full payment to him and the balance amount was paid by him after a week. He also did not take the receipt and then stated that it remained with the respondent, whereas, PW9 Suresh Kumar has stated that the receipt aforesaid was taken into possession vide memo Ex.PW8/A, from PW8, but I did not find the receipt on the record. The rest of the witnesses are regarding taking the documents and registers in to possession by the police. Further specimen signatures of the respondent were also sent for the comparison to the Forensic Science Labortory to compare it with the questioned documents by the Forensic Science Expert. He - 7 - could not be connect them with the writing of the respondent. He could not give the definite opinion on the material sent to him. In the instant case, I did not find any definite evidence of entrustment against the respondent. The writing on the record of the Society has not been proved into his hand. The Cashier of the Society was not examined in this case, who was supposed to maintain the cash book and account. PW5 Om Parkash, Inspector has made the respondent liable on suspicion. The material witnesses who are alleged to have entrusted amount/money to the respondent have not been examined. Thus the question of misappropriation against the respondent does not arise, which is also an essential ingredient of the offence. As far as the dominion of the property of the Society with the respondent is concerned, there is no document showing that it was the respondent who had the dominion of the Society. According to PW6 Ramesh Kumar Inspector, management of the Society was not working properly. If that was the position, then its responsibility cannot be foisted upon the respondent. None of the members of the Society have been examined in whose presence the respondent is alleged to have confessed the guilt. Thus, in the totality of the circumstances, both the ingredients i.e. entrustment or dominion over the property and misappropriation of the entrusted property have not been proved by the prosecution by leading a cogent and convincing evidence against the respondent. In absence of the sufficient and cogent evidence the criminal liability cannot be fastened. Therefore, the respondent was rightly given the benefit of doubt - 8 - by the learned trial court. Thus, the acquittal on the above grounds is upheld, consequently, the impugned judgment of acquittal requires no interference, hence the appeal is dismissed, however, the acquittal of the respondent shall not affect the recovery proceeding of the Society qua the period in question if it is initiated against the respondent. The respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings of the case. Send down the records. July 28, 2008. (Surinder Singh) (Pds) Judge.