_____________________________________________ Whether reporters of Local Papers may be allowed to see the Judgment?. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.224 of 2001. Date of Decision: March 25, 2011. Tulsi Dass and Others. …… Appellants. Versus Surender Kumar Sharma and another. …. Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? For the Petitioners : Mr. Rakesh Jaswal, Advocate. For Respondents : Mr. Surender Verma, Advocate, vice Mr. Jagdish Vats, Advocate, for respondent No.1. Mr. R.K.Sharma, Sr. Addl. Advocate General with Mr.Rajinder Dogra, Addl. Advocate General for respondent No.2. Surinder Singh, J, (oral): The acquittal of the respondent is under challenged in the present appeal filed by the complainants in Cr.Case No.5/2 of 1999/98 decided on 13.9.2000 by the learned trial Court, for the offences punishable under Section 406 and 420 of the Indian Penal Code. 2. Heard and gone through the evidence on record. - 2 - 3. In short, the facts shorn off unnecessarily details are as under:- (i) Respondent No.1, hereinafter referred to be as ‘the accused’ was posted as Upper Division Clerk (U.D.C.) in the year 1997-98 in the Army School, Nahan. The wards of the appellants were studying in the said School in different classes. (ii) The monthly fee and other charges to be paid to the School used to be directly deposited in the State Bank of India in Cantonment Branch by filling up the triplicate forms of fee book. (iii) The appellants stated to have reposed confidence upon the accused and entrusted the fee of their wards for its deposit in the Bank aforesaid in the respective accounts. (iv) In this process, the complainant/ appellant Tulsi Dass is alleged to have handed over fee of his daughter Ms. Neetu for two months to the accused, appellant No.2 Y.S. Jaswal deposited fee of eleven months of his son Master Partiek Thakur, student of 4th standard and appellant No.3 Pushpa Saini also handed over the fee for her ward Niharika, student of 7th standard for - 3 - nine months during the academic session aforesaid. (v) In the next session, the School authorities pointed out that the fee of the aforesaid wards was not received. This fact was brought to the notice of the appellants. (vi) According to the appellants, they were under bonafide belief that the amount so handed over to the respondent was deposited by him regularly in the respective accounts. On enquiry, it came to their notice that the accused did not deposit the amount and even manipulated to conceal the facts even from the School authorities, thus, the accused committed breach of trust and cheated them. (vii) When the matter came to the notice of the School Authorities. The accused deposited sum of `16,000/- on one occasion and `25,000/- alongwith the list of the students on other, from whom he allegedly received the fee, but the names of the appellants and their wards were not included nor the fee so entrusted was refunded, thus the present complaint was filed - 4 - under Section 406 and 420 of the Indian Penal Code in the learned trial Court. (viii) The preliminary evidence on the complaint of the appellants was recorded. Finding reasonable grounds to proceed against the accused, he was accordingly summoned and pre-charge evidence was led. The cross- examination of the witnesses was conducted and the accused was accordingly charge- sheeted, but no further cross-examination was intended to be conducted by him. Thus, he was examined under Section 313 of the Code of Criminal Procedure. His case was that no such amount was entrusted to him and he was not concerned with any act as alleged and further that the Army authorities used to conduct the quarterly audit. According to him he deposited the amount aforesaid under the pressure of the School authorities. (ix) No evidence in defence was led. At the end of trial, he was acquitted on the grounds that the appellants were interested witnesses. Their statements were shaky. There was no - 5 - cogent evidence that they handed over/ entrusted the fee of their respective wards to the accused for depositing the same in the Bank concerned. Documentary proof placed on record was unauthenticated and also that the accused had no concern with the maintenance of the accounts. 4. Admittedly, no fee or dues were charged by the School authorities from the appellants qua their wards, for the academic session 1997-98, nor there is a cogent evidence on record to show that the wards of the appellants were shown having not deposited the fee for that academic session. 5. PW1 Mohan Swarup was the Lower Division Clerk (L.D.C.) at the relevant time. According to him, the parents were issued the fee slips in triplicate and the accused was required to make the entries therein and verify its payment, thereafter the fee book was being issued to the parents/ guardian. They were required to submit the fee slips to the State Bank of India Extension Branch of Army Extension counter. Its intimation used to be entered in the scroll and fee slips were being received in the School. Whosoever were defaulters duty - 6 - was of the accused to point out, but when asked by the Principal of the Army School, he told there was no defaulter. He also stated that the accused had deposited the amount aforesaid in lump-sum and in the cross-examination he stated that all the foils of the receipt were being kept by him in his custody and collection of fee is used to be reflected in the Cash- book, which is used to be initialed by the Principal daily and at the end of the month, it used to be signed by the Secretary and the Chairman. 6. Exts.P1 to P9 were sought to be proved from PW1 Mohan Swarup. Ex.P1 is a Cheque to the tune of `25,000/- issued by the respondent and Ex.P2 is a writing of the accused to the Secretary of the Management Committee undertaking to pay the amount of `16,034/- and Ex.P3 is the abstract of arrears of fee of the said academic session realized from the different students amounting to `25,000/- which is alleged to have been received and mis-appropriated. Ex.P4 is receipt of the amount of examination fee pertaining to the Jaspreet Kaur deposited with the School Authorities. Ex.P5 is the abstract of the arrears of `16,034/- which is stated to have been deposited by accused vide his letter Ex.P2, - 7 - but pertinently the abstract aforesaid are not authenticated by the School Authorities. They had received the fee amount. Admittedly no recovery was to be made from the appellants, thus in our considered opinion, there is no embezzlement at all or any cheating to the complainant party. The amount, if any has been received by the accused and not deposited with the School authorities as per procedure, the grievance should have been that of the School authorities, but they have not come forward with any complaint against anyone nor any criminal case was lodged by them against the accused. If the accused had mis-conducted in discharge of his official duties, he was amenable to the disciplinary action as per service rules applicable to him. There is absolutely no reliable evidence on record to prove the criminal charges that the complainant party had handed over the amount to the accused for its deposit in the bank as fee of their wards as they were cheated. The documents so placed on record in the statement of PW2 were not proved by the complainant in accordance with law. Even PW2 who was a Cashier maintaining the Cash book did not report with respect to any defalcation to the higher authorities. - 8 - 7. PW1 Mohan Swarup also admitted that if no fee of the ward is received for the six months, his/her name is struck off from the roll of the School, but this did not happen in the present case. Significantly, when the cash book was daily initialed by the Principal and at the end of month, it was required to be signed by the Secretary and the Chairman, the aforesaid defalcation regarding the payment of the fee by the students could have been detected. 8. In the above facts and circumstances, we are of the opinion that the statements of the witnesses aforesaid do not inspire confidence. The learned trial Court rightly took note of letter Ex.P9 whereby the appellant Tulsi Dass represented to the Principal of the School, for not depositing two months fee of his ward, whereas, in the complaint, he is stated to have handed over the six months fee to the accused and the appellant Y.S.Jaswal, in his representation Ex.P10 did not mention the period for which the fee was handed over to the accused. None of the appellants have taken the receipt from the accused with respect to the fee entrusted to him to show the entrustment. - 9 - 9. Therefore, against the aforesaid background, in the given circumstances, the exerting pressure on the accused by the School authorities, for the deposit of the payment of the amount by him cannot be ruled out, but however, the charges framed against the accused are not proved on the evidence of the appellants. Therefore, we see no reason to interfere with the impugned judgment of acquittal of the respondent-accused, as such the appeal is dismissed. 10. The respondent-accused is discharged of his bail bonds entered upon by him at any time during the proceedings of the case. ( R.B.Misra, ) Judge. March 25, 2011. (Surinder Singh) (Pds) Judge.