IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.25 of 2007 Decided on: March 25.5.2011 Padam Dev .. Petitioner Versus State of HP .. Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Anup Chitkara, Advocate. For the Respondent : Mr. Ramesh Thakur and Mr. J.S. Guleria, Assistant Advocate Generals. Surjit Singh, Judge (oral) Appellant has assailed the judgment, dated 28.12.2006, of learned Special Judge, Chamba, whereby he has been convicted of offences, under Section 409 IPC and Section 13(2) of the Prevention of Corruption Act, 1988, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of `15000/-, for each of the two offences. 2. Charge, as framed by the learned Special Judge against the appellant, shows that he was entrusted with books, forms and stationery etc. worth `3,21,309.85, during the period from 1.4.1990 to 31.3.1991, but he Whet her report ers of t he l ocal papers may be al l owed t o see t he j udgment ? É2É misappropriated that stock and, thus, committed the aforesaid two offences. 3. Prosecution examined a number of witnesses and proved various registers and other documents, to substantiate its allegation that the appellant had been entrusted with books, forms, stationery etc., in his capacity as Incharge, Sales Depot of HP Board of School Education. Prosecution also adduced evidence, indicating how some of the entrusted books, stationery, forms etc. had been issued/sold and what was the stock in hand, when inspection by a Senior Officer of the Board, namely PW-9 Ravi Bhushan Gupta, was conducted. Evidence adduced by the prosecution is to the effect that some stock had been received by the appellant at the time of taking over of the charge in the year 1988 and some during the period, in question, i.e. from 1.4.1990 to 31.3.1991. Evidence suggests, that total value of the stock was much more than `3,21,309.85, which is alleged to be the value of the stock misappropriated by the appellant. 4. Learned trial Court, while examining the appellant, under Section 313 Cr. P.C., did not put any question to him as to when and in what manner books, forms and stationery etc. were entrusted to him, what was its value and what was the stock in hand at the time when PW-9 Ravi Bhushan Gupta, carried out the inspection. It formulated the questions, put to the appellants, under Section 313 Cr. P.C., on the basis of inspection note of PW-9 É3É Ravi Bhushan Gupta and not the actual evidence of entrustment of stock to the appellant. 5. As a matter of fact, evidence of entrustment, in the form of invoices/receipts of the stock, mentioned in those invoices and received by the appellant and the entries made by him in the stock register, based on such invoices/receipts, was required to be put to the accused. There is no mention of such evidence in the statement, under Section 313 Cr. P.C. Learned trial Court adopted a short-cut method and it simply put a few questions to the appellant that as per inspection note of PW-9 Shiv Bhushan Gupta, he had been entrusted with books worth `3,21,309.85, out of which there was embezzlement of stock worth `3,32,878.95. That means, the value of property embezzled is more than the value of entrusted property. 6. Since the material evidence was not put to the accused, in his statement, under Section 313 Cr. PC., but he was questioned, on the basis of inspection note of PW-9 Shiv Bhushan Gupta, which cannot be used as evidence of entrustment, this Court cannot look into the material evidence, which is in the form of certain receipts by the appellant, entries in various registers alleged to be in the hand of the appellant and other primary evidence. Inspection note used as basis of examination of accused is not substantive evidence. It is based on the entries in the stock register and various other documents. It is these É4É documents/entries which are the evidence and, therefore, these documents/entries duly proved by the prosecution, were required to be put to the accused to enable him to explain his position. Inspection note is nothing but in the nature of a report based on the probe conducted by PW-9 Shiv Bhushan Gupta. 7. As a result of above discussion, appeal is accepted, impugned judgment of the trial Court is set aside and the case is remanded to the trial Court, with a direction to decide the same afresh, after reexamining the appellant, under Section 313 Cr. P.C., in such a manner that each and every piece of material evidence, particularly the primary evidence, is put to the appellant, so as to enable him to explain his position. Parties are directed to appear before Special Judge, Chamba, on 20.6.2011. May 25, 2011(ss) (Surjit Singh), J.