IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO. 201/2001 (Old No. 2874/1998) State ……… Appellant Versus Rajendra Kumar Bharadwaj ………. Respondent Mr. M.A. Khan, Brief Holder, for the State/appellant. Mr. Navneet Kaushik, Advocate, for the accused/respondent. 15th September, 2011 Hon’ble Servesh Kumar Gupta, J. This appeal has been preferred by the State against the judgment and order dated 27.5.1998 thereby acquitting the accused Rajendra Kumar Bharadwaj from the charge of offence punishable under Section 409 IPC. The said acquittal order was passed by the Chief Judicial Magistrate, Pauri Garhwal in Criminal Case No. 328/1983, State v. Rajendra Bharadwaj. 2. Having heard the learned Counsel for the either sides and on perusal of the record, it appears that Rajendra Kumar Bharadwaj was posted as Assistant Store Keeper in Electric Division of PWD at Srinagar, District Pauri Garhwal during the period November, 1974 to September, 1978. The charges of embezzlement, allegedly committed between the period April, 1976 to September, 1978, were levelled against him. During this period of almost two and half years, he was entrusted with cash of ` 13,870/- for sundry expenditures, but he could not submit the accounts of expenditure of the same. 2 3. Besides various kinds of electric goods to the tune of ` 48,650/- and further of ` 1,45,675/- were found to be missing from the store when the invoice was prepared by a committee, which was formulated to check and verify the stock as the presence of the accused could not be procured for the purpose, who absented himself from his duties ever since 11.9.1978. The committee so formed, opened the store and checked all the electric and other articles, which were supposed to be present in the store, but were found missing. 4. The FIR was lodged by D.V.S. Rawat, Executive Engineer, who has also been examined as PW1. After the investigation, chargesheet was submitted against the accused respondent for the offence of Section 409 IPC. The accused was placed under suspension and was made to face the trial by the court below. 5. After recording the evidence produced by the prosecution, the learned Chief Judicial Magistrate has passed the impugned judgment and order acquitting the accused Rajendra Kumar Bharadwaj. 6. This Court has considered the pros and cons of the case. The most significant aspect of the case is that the alleged embezzlement by the accused are said to be committed between the period April, 1976 to September, 1978, and it has also been stated by the prosecution witnesses that the accused did not attend his duties ever since 11.9.1978. A committee was formed to check the store, which was under the charge of the accused, and to make the invoice of the entire goods available there on 30.12.1978. The committee did its task. It was revealed 3 that the store was running short of the various articles and goods of the electricity. But even then, the FIR was lodged almost after two years. This long delay in lodging the FIR has nowhere been explained by the prosecution. It is quite fatal to the case of the prosecution. 7. The prosecution witnesses PW1 D.V.S. Rawat, PW2 Bharat Singh Rawat and PW3 S.P. Mittal were not posted at Srinagar during the period when the accused was posted there as an Assistant Store Keeper and allegedly committed the said embezzlement. PW1 D.V.S. Rawat, Executive Engineer, joined his duties in Srinagar in 1980 and thereafter he lodged the FIR. It is not clear as to what happened after 11.9.1978, the date from which the accused absented himself from his duties, till Mr. D.V.S. Rawat, Executive Engineer, took charge of his office at Srinagar. It is also very significant to mention that PW4 S.N. Agrawal, Superintending Engineer of the Division, is the only witness who was posted during the period when the accused was posted there and allegedly misappropriated the money and articles. He has deposed before the court that no audit objection was raised regarding the alleged embezzlement. He has deposed in the court that the advance money to the Store Keeper is only entrusted when the money given at earlier occasion is spent. He has further stated that the money, which was entrusted to the accused to fetch the departmental Jeep from Lucknow and for bringing cement bags from Roorkee, was well utilised and the said vehicle and cement bags were received in the department. Without utilising the money entrusted to the accused, the Jeep from Lucknow and cement bags from Roorkee could not be brought to the department. 4 8. It is a settled principle of law that finding of acquittal given by the trial court should not be ordinarily disturbed by the appellate court until and unless there is strong proof available on record or any material irregularity committed by the trial court is brought to the notice of the appellate court. 9. Having heard the learned Counsel for the either sides, on going through the evidence on record and for the reasons recorded above, this Court is of the considered opinion that the charge of offence levelled against the accused respondent is not proved beyond doubt and the trial court has rightly acquitted him of the said offence. Hence, this Court is not inclined to interfere with the finding of acquittal given by the trial court. The appeal is devoid of any merit and is liable to be dismissed. 10. Resultantly, the appeal is dismissed. The impugned judgment and order dated 27.5.1998, passed by the Chief Judicial Magistrate, Pauri Garhwal in Criminal Case No. 328/1983, is hereby affirmed. 11. Lower court record, along with copy of this judgment and order, be sent back. (Servesh Kumar Gupta, J.) 15.9.2011 Prabodh