Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.492 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 Salesman/Manager was acquitted for the offence under Section 408 of the Indian Penal Code in case No.78- II/94/93, decided on 30.12.2000 by the learned trial court, which has been assailed by the State in this appeal. The respondent was put on trial, on the allegations that the respondent remained the Secretary-cum-Manager of the “Paror Cooperative Agricultural Service Society Limited” w.e.f. 1.7.1986 to 30.6.1987. During this period, he embezzled the payment of Rs.68,196.70 and Rs.500/- deposited by PW2 Gian Chand. In addition to it, he also committed the breach of trust of the property of the society over which he had a dominion. The alleged embezzlement was detected during the audit inspection. - 2 - On the basis of the complaint filed by the Assistant Registrar of the Cooperative Societies, the FIR was registered against the respondent. The police investigated the case and took into possession the stock register, receipt books and also took the specimen handwriting of the accused before PW4 Shri C.L. Kochhar, the Judicial Magistrate, Palampur. The loan register Ex.PW5/P-11 and loan member’s register alongwith the proceeding’s book and Pass Books Ex.PW6/A-5 to Ex.PW6/A-10 were also taken into possession. After completing the investigation of the case, challan was presented in the court for trial of the respondent. The respondent was charge-sheeted for the offence under Section 408 of the Indian Peal Code, to which he pleaded not guilty and claimed trial. The prosecution led its evidence. The respondent was also examined under Section 313 of the Code of Criminal Procedure. His case was that of denial, however, no defence was led by him. At the end of the trial, he was acquitted by the learned trial court. I have heard the learned counsel for the parties and have gone through the evidence on record. It is pertinent to note that none of pass book holders (Ext.PW6/A-5 to Ex.PW6/A-10) were examined during the trial of this case, the pass book of PW2 Gian Chand was not put to him nor its entry was connected with the respondent. As per the case of the prosecution, the respondent had admitted the guilt before 48 members of the Society, but none of them was produced during the trial of the case to substantiate its version. PW5 Om Parkash, Inspector of the Society who is alleged to have conducted the audit has admitted that in the proceeding book - 3 - Ex.PW5/P3 at page Nos.66-67, there was over-writing/ cutting which are in the different hands. PW5 aforesaid has also stated that the said Society had a President and a Vice President and also the Managing Committee and the cash used to be handed over to the Cashier, who also maintained the cash book but the Cashier was not examined in this case in order to prove the receipt and expenditure entered in the cash book. The witness had also shown the ignorance about the use of the bricks purchased by the Society in the building of the Society. The handwriting Expert did not link with the respondent with the writing in the pass book Ex.PW6/A-8 or for that matter any of the pass-books and registers. Prosecution also did not examine Dev Raj and Tek Chand, who allegedly handed over the amount of Rs.1917/- and 442.13 paise respectively to the respondent. Hinchal Singh Salesman-cum- Secretary of Panaper Cooperative Society is alleged to have purchased some articles worth Rs.9,981/- from the respondent against the bill, which was taken into possession by police, but he himself has stated that he did not make the full payment against the aforesaid bill and further contradicted himself that the receipt remained with the respondent, whereas as per the recovery memo, it was he who handed over the receipt to the police. Thus materially contradicted himself. Surindera Kumari, who was the Secretary of the Agricultural Society and had produced the record during the investigation of this case to PW11 SI Krishan Dev was also not examined. She was working as Secretary of the Society w.e.f. 1.4.1988. It is proved on record that the management of the Society was not working properly, for which they were also held responsible. - 4 - If seen in the totality of the circumstance, that PW5 Om Parkash Inspector has stated that at the relevant time there was a Management Committee of the Society duly headed by the President and Vice-President and the Casher was also appointed. PW6 Ramesh Kumar has stated that the function of the Society was not proper. Thus they were also negligent. The entries in the stock register and other registers and the cash book were not found in the hands of the respondent, no cogent evidence has been led to lend strength to the case of the prosecution further that the stock register, sale registers were prepared by the Audit Inspectors themselves on the basis of the cash book and other registers and material witnesses are not examined. There is no direct or indirect evidence showing the entrustment of the money or the property to the respondent. The criminal dishonestly/ misappropriation of the entrusted property has not been found, the reasonable doubt arises about the complicity of the accused with the alleged crime. As such, the learned trial court had rightly given the benefit of doubt to the respondent. Since the prosecution had failed to prove its case beyond reasonable doubt against the respondent, therefore, the judgment of acquittal passed by the learned trial court cannot be interfered with. As such the appeal is dismissed, however, the civil liability of the respondent, if any, shall not be affected by his acquittal. - 5 - 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.